Dr. Sindhu v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **WEDNESDAY,THE 06TH DAY OF MARCH 2019 / 15TH PHALGUNA, 1940** ## **WP(C).No. 290 of 2019** ## **PETITIONER:** **DR.SINDHU, AGED 41 YEARS,W/O.SAJEEV, AYNIKKAL HOUSE, KUNDOOR.P.O, THRISSUR DISTRICT-680734.** **BY ADVS.SRI.ROY CHACKO SRI.K.C.VINCENT** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE REVENUE DIVISIONAL OFFICER, IRINGALAKKUDA-680121. 3 THE VILLAGE OFFICER, THIRUMUKKULAM VILLAGE, KUZHOOR.P.O-680001. 4 THE LOCAL LEVEL MONITORING COMMITTEE, KUZHOOR, REPRESENTED BY THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KUZHOOR, KUZHOOR.P.O-680001.** - **5 THE KUZHOOR GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, KUZHOOR.P.O-680001.** *** ADDL.R6 LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDING, VIKAS BHAVAN POST OFFICE, THIRUVANANTHAPURAM, PIN-659 033.** - **IS SUO MOTU IMPLEADED AS PER ORDER DATED 06.03.2019.** ## **BY ADV. SRI.S.VIDYASAGAR** ## **SRI MANU RAJ K.J,GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 290 of 2019** -2- ## **JUDGMENT** The petitioner, who is the owner of properties having an extent of 10.93 Ares and 21.45 Ares respectively comprised in survey No.572/1 of Thirumukkulam Village in Chalakkudy Taluk in Thrissur District, covered by Ext.P1 tax receipt, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P11 order dated 07.12.2018 issued by the 2[nd] respondent Revenue Divisional Officer; a writ of mandamus commanding the 2[nd] respondent to grant permission to utilise the subject lands as prayed for in Ext.P3 application under clause 6 of the Kerala Land Utilisation Order, 1967; and commanding the 5[th] respondent to accept and finalise the building permit application to be filed by the petitioner, ignoring the entry in the revenue records, but in view of the reports in Exts.P5 to P7, subject to the conditions if any deem fit by this Court. 2. On 07.01.2019, when this writ petition came up for admission, the same was ordered to be listed along with W.P.(C) No.311 of 2019. **WP(C).No. 290 of 2019** -3- 3. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 4 and the additional 6[th] respondent, and the learned Standing Counsel for the 5[th] respondent Grama Panchayath. 4. Ext.P11 order, which is one issued by the 2[nd] respondent dated 07.12.2018 is appealable before the additional 6[th] respondent Land Revenue Commissioner, by invoking Clause 11 of the Kerala Land Utilisation Order. The said fact is not in dispute. 5. The learned counsel for the petitioner would contend that the findings in Ext.P11 order are erroneous and in such circumstances, the petitioner has filed this writ petition on 04.01.2019, instead of availing statutory remedy under Clause 11 of the Kerala Land Utilisation Order. 6. In **Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603]** , the Apex Court held that non-entertainment of a writ petition under Article 226 of the Constitution of India when an efficacious alternative remedy is available is a rule and self imposed limitation. It is essentially a rule of policy, convenience and discretion rather **WP(C).No. 290 of 2019** -4- than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution of India, despite the existence of alternative remedy. However, High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same, unless he has made out an exceptional case warranting such interference or there exists sufficient ground to invoke the extraordinary jurisdiction under Article 226. 7. In **Authorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85]** the Apex Court reiterated that the discretionary jurisdiction under Article 226 of the Constitution of India is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution of India ought not to be entertained if alternative statutory remedies are available, except in cases falling within the well defined exceptions as observed in **Chaabil Das Agarwal's case** **WP(C).No. 290 of 2019** -5- **(supra)** , i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice. After referring to the law laid down in **Thansingh Nathmal v. Superintendent of Taxes [AIR 1964 SC 1419]** and **Titaghur Paper Mills Company Ltd. v. State of Orissa [(1983) 2 SCC 433]** the Apex Court held that High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of contains a mechanism for redressal of grievance. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 8. In **Thansingh Nathmal's case (supra)** a Constitution Bench of the Apex Court held that, the jurisdiction of the High Court under Article 226 of the **WP(C).No. 290 of 2019** -6- Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily, the court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce for which the writ is claimed. The High Court does not, therefore, act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an **WP(C).No. 290 of 2019** -7- alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up. 9. In **Titaghur Paper Mills' case (supra)** a ThreeJudge Bench of the Apex Court held that, the Orissa Sales Tax Act, 1947 provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in **Wolverhampton New Water Works Co. v. Hawkesford [(1859) 6 CBNS 336]** at page 356 in **WP(C).No. 290 of 2019** -8- ## the following passage: "There are three classes of cases in which a liability may be established founded upon statute ..... But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it ..... the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to." The rule laid down in that passage was approved by the House of Lords in **Neville v. London Express Newspaper Ltd.[1919 AC 368]** and has been reaffirmed by the Privy Council in **Attorney General of Trinidad and Tobago v. Gordon Grant and Co. [1935 AC 532] and Secretary of** **State v. Mask and Co. [AIR 1940 PC 105]** . It has also been held to be equally applicable to enforcement of rights and has been followed by the Apex Court throughout. 10. In _**Pavithran V. State of Kerala (2009 (4) KHC 4)**_ , a Full Bench of this Court held that, whenever an adverse order is passed against a person, unless the same is challenged before the appropriate forum, within the **WP(C).No. 290 of 2019** -9- prescribed time limit, the said order will become final. 11. Viewed in the light of the law laid down in the decisions referred to _supra_ , conclusion is irresistible, in view of the statutory remedy available under Clause 11 of the Kerala Land Utilisation Order, the petitioner cannot maintain a challenge against Ext.P11 order, in a writ petition filed under Article 226 of the Constitution of India. 12. The learned counsel for the petitioner would submit that the time limit for filing appeal under Clause 11 of the Kerala Land Utilisation Order against an order of the 2[nd] respondent is thirty days from the date of receipt of such order. Before the expiry of the said time limit, the petitioner has already moved this Court in this writ petition, on 04.01.2019. 13. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of, holding that, in view of the statutory remedy available under Clause 11 of the Kerala Land Utilisation Order, the petitioner cannot maintain a writ petition under Article 226 of the Constitution of India, challenging Ext.P11 order of the **WP(C).No. 290 of 2019** -10- 2[nd] respondent. Therefore, it is for the petitioner to challenge Ext.P11 order of the 2[nd] respondent by filing an appeal before the additional 6[th] respondent, invoking the provisions under Clause 11 of the Kerala Land Utilisation Order. 14. If any such appeal is preferred within two weeks from the date of receipt of a certified copy of this judgment, the additional 6[th] respondent shall consider the same as one filed within the time limit, (since the petitioner has challenged the said order by filing this writ petition on 04.01.2019) and pass appropriate orders thereon, with notice to the petitioner and also the 5[th] respondent and after affording them an opportunity of being heard. Necessary orders in this regard shall be passed, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of such appeal. Sd/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No. 290 of 2019** -11- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF TAX RECEIPT DT 12/05/2017. EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGE OF THE DATE BANK DATED NIL** - **EXHIBIT P3 TRUE COPY OF THE APPLICATION UNDER CLAUSE 6 OF KLU ORDER DATED 17/11/2016.** - **EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 28/11/2016 IN WP(C)37939 OF 2016.** - **EXHIBIT P5 TRUE COPY OF THE REPORT DATED 06/03/2017 SUBMITTED BY THE AGRICULTURAL OFFICER ALONG WITH THE REPORT RECEIVED FROM THE KSRSEC DATED 30/01/2017.** - **EXHIBIT P6 TRUE COPY OF THE REPORT OF THE AGRI.OFFICER DATED 21/05/2017.** - **EXHIBIT P7 TRUE COPY OF THE REPORT OF THE TAHSILDAR DATED 26/09/2017.** - **EXHIBIT P8 TRUE COPY OF THE PROCEEDINGS DATED 15/11/2017 ISSUED BY THE 2ND RESPONDENT, THE REVENUE DIVISIONAL OFFICER.** - **EXHIBIT P9 TRUE COPY OF THE JUDGMENT IN WP(C)NO.39649 OF 2018 DATED 03/08/2018.** - **EXHIBIT P10 TRUE COPY OF THE STATEMENT SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 05/10/2018.** - **EXHIBIT P11 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 07/12/2018.** - **EXHIBIT P12 COPY OF THE PETITION DATED 14.01.2019 SUBMITTED BEFORE THE 2ND RESPONDENT.**