Ibrahimkutty v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942** ## **W.P.(C) No.29145 OF 2020(P)** ## **PETITIONER:** **IBRAHIMKUTTY, AGED 60 YEARS, S/O.ALIYARUKUNJU, ALMUBARAK MANZIL, VENGARA KARA, THODIYOOR NORTH P.O., KARUNAGAPPALLY TALUK, KOLLAM DISTRICT-690 544, ANAS WIRECUT BRICKS, VALLIKUNNAM.** **BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 THE DISTRICT COLLECTOR, ERNAKULAM-682 030. 3 REVENUE DIVISIONAL OFFICER, FORTKOCHI, ERNAKULAM-682 001. 4 THE TAHSILDAR, ALUVA TALUK, ALUVA, ERNAKULAM DISTRICT-683 101. 5 VILLAGE OFFICER, ANGAMALY VILLAGE, ANGAMALY, ALUVA TALUK, ERNAKULAM DISTRICT-683 101. R1-R5 SMT.K.AMMINIKUTTY, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.29145 OF 2020(P) -2- ## **JUDGMENT** The petitioner, who is the owner in possession of 31.208 cents of land situated in Re.Sy. No.336/8-2 in Block No.12 of Angamaly Village in Aluva Taluk, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the 3[rd] respondent to consider Ext.P4 and carry out fixation of fair value of petitioner's property situated in Re.Sy.No.336/8-2 of Angamaly Village, without any delay. The petitioner has also sought for a writ of mandamus commanding the 3[rd] respondent to consider the nature of diminution in the value of the property and also its utility, while fixing the fair value; a writ of mandamus commanding the 2[nd] respondent District Collector to permit the petitioner to file an appeal against the existing fair value of the land in the event of the 3[rd] respondent not able to carry out fixation of fair value; and a writ of mandamus commanding the 1[st] respondent to issue orders, if necessary, to enable respondents 2 and 3 to carry out fixation of fair value of the property of the petitioner. 2. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for the W.P.(C) No.29145 OF 2020(P) -3- respondents. 3. Section 28A of the Kerala Stamp Act, 1959 deals with fixation of fair value of land. As per sub-section (1) of Section 28A, every Revenue Divisional Officer shall, subject to such rules as may be made by the Government in this behalf, fix the fair value of the lands situate within the area of his jurisdiction, for the purpose of determining the duty chargeable at the time of registration of instruments involving lands. As per sub-section (1A) of Section 28A, subject to such rules as may be prescribed, the fair value of land fixed under sub-section (1) may be revised by the Revenue Divisional Officer every five years or earlier if so directed by the Government, if in the opinion of the Government any substantial change of the fair value of land has taken place. As per sub-section (3) of Section 28A, the fair value of land fixed under sub-section (1) and the revised fair value of land fixed under sub-section (1A) shall be published in such manner as may be provided in the rules made under this Act. As per sub-section (4) of Section 28A, any person aggrieved by the fixation of fair value under sub-section (1) or the revision of fair value under W.P.(C) No.29145 OF 2020(P) -4- sub-section (1A) may, within one year of its publication under sub-section (3), appeal to the Collector. As per the proviso to sub-section (4) of Section 28A, inserted with effect from 01.04.2010, the Collector may admit an appeal preferred after the said period of one year if he is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period. As per sub-section (5) of Section 28A, after the publication of the increased fair value of land under sub-section (1B), any person aggrieved by the fixation of fair value of land in an appeal under sub-section (4) may, within a period of one year from the date of publication of the notification under sub-section (1B), file an application to the Collector to review the order passed in appeal and the Collector shall dispose of the same in such manner and within such period as may be prescribed. Therefore, if the petitioner is feeling aggrieved by the fixation of fair value by the Revenue Divisional Officer, he can avail the statutory remedy before the 2[nd] respondent District Collector, by filing an appeal, under sub-section (4) of Section 28A of the Act, read with Rule 5 of the Kerala Stamp (Fixation of Fair Value of Land) Rules, 1995, W.P.(C) No.29145 OF 2020(P) -5- in Form B, affixing Court Fee Stamp as required by sub-rule (1) of Rules. 4. In **Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603]** the Apex Court held that nonentertainment 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 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. 5. 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 W.P.(C) No.29145 OF 2020(P) -6- 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 (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 W.P.(C) No.29145 OF 2020(P) **==> picture [19 x 7] intentionally omitted <==** statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 6. In such circumstances, this writ petition is disposed of by relegating the petitioner to avail statutory remedy of appeal under sub-section (4) of Section 28A of the Kerala Stamp Act, read with sub-rule (5) of Rule 5 of the Kerala Stamp (Fixation of Fair Value of Land) Rules before the 2[nd] respondent District Collector. 7. If any such appeal is filed within a period of one month from the date of receipt of a certified copy of this judgment, the 2[nd] respondent shall consider the same and pass appropriate orders thereon, with notice to the petitioner, and after affording him an opportunity of being heard, as expeditiously as possible. 8. In **State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court W.P.(C) No.29145 OF 2020(P) -8- reiterated that, generally, no Court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. Therefore, in terms of the direction contained in this judgment, the 2[nd] respondent shall take an appropriate decision in the matter, strictly in accordance with law, taking note of the relevant statutory provisions and also the law on the point. Sd/- **ANIL K. NARENDRAN JUDGE** bpr W.P.(C) No.29145 OF 2020(P) -9- ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.2783/99 OF ANGAMALI SUB REGISTRY. EXHIBIT P2 TRUE COPY OF THE COMMISSIONER REPORT ALONG WITH THE PLAN SUBMITTED IN OS NO.405/2009. EXHIBIT P3 TRUE COPY OF THE FINAL DECREE PROCEEDINGS IN IA NO.2951/2011 IN OS NO.405/2009. EXHIBIT P4 TRUE COPY OF THE FAIR VALUE NOTIFICATION OF LAND IN RESURVEY NO.336 OF ANGAMALI VILLAGE. EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 3RD RESPONDENT. RESPONDENTS' EXHIBITS: NIL**