Joseph Kurian v. The District Collector, The Tahsildar, The Tahsildar (LR) and The Village Officer, Addl. R5 Suo Motu Impleaded as per order in WP(C). No. 6510 of 2021 (K)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 15TH DAY OF MARCH 2021 / 24TH PHALGUNA, 1942** ## **WP(C).No.6510 OF 2021(K)** ## **PETITIONER:** **JOSEPH KURIAN,AGED 44 YEARS S/O. KURIAN (LATE), KUNNATHUMPARA HOUSE, KADANADU P.O, PALA, KOTTAYAM DISTRICT.** **BY ADVS. SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN SRI.ROY JOSEPH SMT.ANIES MATHEW SRI.E.HARIDAS** ## **RESPONDENTS:** |**1**|**THE DISTRICT COLLECTOR**| |---|---| ||**COLLECTORATE P.O, KOTTAYAM - 686002.**| |**2**|**THE TAHSILDAR**| ||**TALUK OFFICE, MINI CIVIL STATION, GROUND**| ||**FLOOR, 123, PALA RAMAPURAM ROAD, PALA P.O, PIN**| ||**- 686576.**| |**3**|**TAHSILDAR (LR)**| ||**MINI CIVIL STATION, GROUND FLOOR, 123, PALA**| ||**RAMAPURAM ROAD, PALA P.O, PIN - 686576**| |**4**|**VILLAGE OFFICER**| ||**VELLILAPILLY VILLAGE, PALA RAMAPURAM ROAD,**| ||**EZHACHERRY, PALA P.O, PIN - 686576.**| -2- WP(C).No.6510 OF 2021(K) ***ADDL.[R5] THE REVENUE DIVISIONAL OFFICER, MINI CIVIL STATION, KOTTAYAM, PIN-686001.** **(ADDL.R5 SUO MOTU IMPLEADED AS PER ORDER DATED 15-3-2021 IN WP(C).** **R BY GOVT.PLEADER SMT. A.C. VIDHYA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- WP(C).No.6510 OF 2021(K) ## **JUDGMENT** The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P7 proceedings dated 08.03.2021 and Ext.P10 report dated 01.02.2021 of the 3[rd] respondent Tahsildar (LR). The petitioner has also sought for a writ of mandamus commanding respondents 3 and 4 to conduct measurement of the property owned by the petitioner in Survey No.1074/3 (New Survey No.118/3) of Vellilapilly Village strictly following the directions in Ext.P6 judgment of this Court dated 14.07.2020 in W.P.(C)No.791 of 2020, within a time frame to be fixed by this Court and till such time, not to dispossess the petitioner from the property covered by Exts.P1 to P4 documents. The further relief sought for is stay of all further proceedings pursuant to Ext.P7 to the extent it directs the petitioner to surrender the property alleged to have encroached, pending disposal of this writ petition. 2. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the -4- WP(C).No.6510 OF 2021(K) respondents. 3. The learned Government Pleader would point out that Ext.P7 order of the 3[rd] respondent Tahsildar (LR) is appealable before the additional 5[th] respondent Revenue Divisional Officer under Section 16 of the Kerala Land Conservancy Act, 1957. 4. 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 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 -5- WP(C).No.6510 OF 2021(K) 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 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 -6- WP(C).No.6510 OF 2021(K) 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. 6. In view of the law laid down in the decisions referred to supra, no interference is warranted on Ext.P7 order of the 3[rd] respondent, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, when a statutory remedy of appeal is available before the additional 5[th] respondent Revenue Divisional Officer, under Section 16 of the Kerala Land Conservancy Act, 1957. 7. In such circumstances, this writ petition is disposed of with the following directions; -7- WP(C).No.6510 OF 2021(K) - a) The petitioner shall file an appeal against Ext.P7 order dated 08.03.2021 of the 3[rd] respondent Tahsildar (LR) before the additional 5[th] respondent Revenue Divisional Officer, under Section 16 of the Kerala Land Conservancy Act, 1957, along with an application for stay, after remitting the requisite fee. - b) On receipt of such appeal and stay petition, the additional 5[th] respondent shall consider the application for stay, with notice to the petitioner and pass appropriate orders, within one week and thereafter, the said respondent shall consider the appeal and pass appropriate orders thereon, with notice to the petitioner and other affected parties, if any, as expeditiously as possible, at any rate, within a further period of two months. 8. The legal and factual contentions raised by the petitioner are left open to be raised before the additional 5[th] respondent at appropriate stage. 9. 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. -8- WP(C).No.6510 OF 2021(K) In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court 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. 10. Therefore, in terms of the direction contained in this judgment, the additional 5[th] respondent Revenue Divisional Officer 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** AV/15/3 -9- WP(C).No.6510 OF 2021(K) ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PATTA NO. 2338/77 ISSUED BY THE LAND TRIBUNAL PALA.** **EXHIBIT P2 TRUE COPY OF THE SKETCH OF THE LAND THAT WAS PREPARED ON 7.7.1958.** **EXHIBIT P3 TRUE COPY OF THE LAND TAX RECEIPT DATED 7.1.1993 ISSUED BY THE VILLAGE OFFICER, VALLILAPPILY VILLAGE,** **EXHIBIT P4 TRUE COPY OF THE WILL DEED DATED 4.10.2016 EXECUTED BY SRI.KURIAN, S/O. PAULOSE, KUNNATHUMPARA HOUSE.** - **EXHIBIT P5 PHOTOS SHOWING THE BOUNDARIES OF THE PETITIONER'S PROPERTY.** - **EXHIBIT P6 TRUE COPY OF JUDGMENT DATED 14.07.2020 IN WP(C) NO. 791/2020.** - **EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS DATED 8.3.2021 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P8 COPY OF THE NOTICE DATED 8.3.2021 IN FORM -C ISSUED UNDER RULE 11.** **EXHIBIT P9 TRUE COPY OF THE OBJECTION/PETITION DATED 12.2.2021 DIRECTLY SUBMITTED BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P10 TRUE COPY OF THE REPORT DATED 1.2.2021 ALONG WITH SKETCH PREPARED BY THE 3RD RESPONDENT.** **EXHIBIT P11 COPY OF THE REPORT DATED 12.12.2018 SUBMITTED TO THE 2ND RESPONDENT BY THE 4TH RESPONDENT VILLAGE OFFICER.**