KALIYANTHIL BABU v. STATE OF KERALA, MALABAR DEVASWOM BOARD, THE COMMISSIONER, MALABAR DEVASWOM BOARD, THE ASSISTANT COMMISSIONER, PAYYANUR SREE SUBRAMANIYA SWAMI TEMPLE, K.M. VASUDEVAN THIRUMUNBU, SREEDHARANKUTTY THAMBAN

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN`** ## **`&`** ``` THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON ``` ``` TUESDAY, THE 9[TH] DAY OF APRIL 2024 / 20TH CHAITHRA, 1946 ``` ## **`WP(C) NO. 15002 OF 2024`** ## **`PETITIONER:`** ``` KALIYANTHIL BABU ``` ``` AGED 57 YEARS S/O LATE KRISHNAN PODUVAL KARALA TRUSTEE (POONTHURUTHI THARAWARD) PAYYANUR SREE SUBRAMANIYA SWAMIKSHETHRAM, PAYYANUR P.O., PAYYANUR KANNUR -, PIN - 670307 ``` ``` BY ADVS. MAHESH V RAMAKRISHNAN PRAVEEN K.S. ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE (DEVASWOMS) , GOVT. SECRETARIAT P.O., THIRUVANANTHAPURAM, PIN - 695001`** - **`2 MALABAR DEVSWAM BOARD REP. BY ITS SECRETARY, HOUSEFED COMPLEX, ERANHIPALAM P.O., KOZHIKODE -, PIN - 673006`** - **`3 THE COMMISSIONER MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANHIPALAM P.O., KOZHIKODE -, PIN - 673006`** ``` 4 THE ASSISTANT COMMISSIONER MALABAR DEVASWAM BOARD, KASARAGOD DIVISION, P.O.NILESWARAM, KASARAGODE DISTRICT -, PIN - 671314 ``` W.P.(C) No.15002 of 2024 2 - **`5 THE EXECUTIVE OFFICER PAYYANUR SREE SUBRAMANIYA SWAMI TEMPLE, P.O.PAYYANUR, KANNUR -, PIN - 670307`** - **`6 K.M. VASUDEVAN THIRUMUNBU S/O SREEKUMARAN THIRUMUNBU, OLAVARA MADAM, PAYYANUR VILLAGE P.O. PAYYANUR, KANNUR -, PIN - 670307`** - **`7 SREEDHARANKUTTY THAMBAN AGES 79 YEARS, S/O K. SREEDHARAN THIRUMUNBU, PUTHIYADAM THARAWARD, PAYYANUR VILLAGE P.O. PAYYANUR, KANNUR -, PIN - 670307`** ``` OTHER PRESENT: ``` ``` SRI S.RAJMOHAN- SR GOVERNMENT PLEADER ; SMT R.RANJANIE - STANDING COUNSEL- MALABAR DEVASWOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.15002 of 2024 3 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner has filed this writ petition under Article 226 of the Constitution of India, invoking extraordinary jurisdiction of this Court, seeking a writ of certiorari to quash Ext.P15 order dated 26.03.2014 of the Commissioner, Malabar Devaswom Board in MP- 1 of 2021. The petitioner has also sought for other consequential reliefs. 2. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for the 1[st] respondent State and the Standing counsel for the Malabar Devaswom Board for respondents 2 to 4. 3. Ext.P15 order passed by the 3[rd] respondent Commissioner, Malabar Devaswom Board, after Ext.P14 order of remission dated 27.06.2023 of the 1[st] respondent State, is an order which can be challenged before the State in a revision petition filed under Section 99 of the Madras Hindu Religious and Charitable Endowments Act, 1951. 4. On a query made by this Court, the learned counsel for the petitioner would submit that Ext.P15 is an order which can be challenged before the State in a revision petition filed under Section 99 of the Act. W.P.(C) No.15002 of 2024 4 5. The learned counsel for the petitioner would raise a contention as to the competence of the officer in the cadre of Deputy Commissioner (Administration), who is holding additional charge of the Commissioner, in passing such an order. 6. We do not propose to consider that contention in the proceedings, since the petitioner has a statutory remedy under Section 99 of the Act to challenge Ext.P15 order, by filing a revision petition before the 1[st] respondent State. 7. 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. W.P.(C) No.15002 of 2024 5 8. 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 [(2014) 1 SCC 603]** , 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 the 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 W.P.(C) No.15002 of 2024 6 forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 9. In **Thansingh Nathmal [AIR 1964 SC 1419]** a Constitution Bench of the Apex Court held that the jurisdiction of the High Court under Article 226 of the 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 W.P.(C) No.15002 of 2024 7 Article 226 trench upon an 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. 10. In **Titaghur Paper Mill [(1983) 2 SCC 433]** 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 the following passage: "There are three classes of cases in which a liability may be established founded upon statute ... But there is a third W.P.(C) No.15002 of 2024 8 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. ## 11. In **Balkrishna Ram v. Union of India [(2020) 2 SCC** **442]** one of the issues raised before the Apex Court was whether an appeal against an order of a single judge of a High Court deciding a case related to an Armed Forces personnel pending before the High Court is required to be transferred to the Armed Forces Tribunal or should be heard by the High Court. The Apex Court held that sub-section (1) of Section 14 of the Armed Forces Tribunal Act, 2007 clearly provides that the Armed Forces Tribunal will exercise powers of all Courts except the Supreme Court or W.P.(C) No.15002 of 2024 9 High Court exercising jurisdiction under Article 226 and Article 227 of the Constitution of India. Section 34 is very carefully worded. It states that 'every suit', or 'other proceedings' pending before any Court including a High Court immediately before the establishment of the Tribunal shall stand transferred on that day to the Tribunal. The Legislature has clearly not vested the Armed Forces Tribunal with the power and jurisdiction of the High Court to be exercised under Article 226 of the Constitution. There can be no manner of doubt that the High Court can exercise its writ jurisdiction even in respect of orders passed by the Armed Forces Tribunal. Since an appeal lies to the Supreme Court against an order of the Armed Forces Tribunal, the High Court may not exercise their extraordinary writ jurisdiction because there is an efficacious alternative remedy available but that does not mean that the jurisdiction of the High Court is taken away. In a given circumstance, the High Court may and can exercise its extraordinary writ jurisdiction even against the orders of the High Court [sic: Armed Forces Tribunal]. 12. In **Balkrishna Ram [(2020) 2 SCC 442]** the Apex Court held that the principle that the High Court should not exercise its extraordinary writ jurisdiction when an efficacious alternative remedy is available, is a rule of prudence and not a W.P.(C) No.15002 of 2024 10 rule of law. The Writ Courts normally refrain from exercising their extraordinary power if the petitioner has an alternative efficacious remedy. The existence of such remedy however does not mean that the jurisdiction of the High Court is ousted. At the same time, it is a well settled principle that such jurisdiction should not be exercised when there is an alternative remedy available - **Union of India v. T.R. Varma [AIR 1957 SC 882]** . The rule of alternative remedy is a rule of discretion and not a rule of jurisdiction. Merely because the Court may not exercise its discretion, is not a ground to hold that it has no jurisdiction. There may be cases where the High Court would be justified in exercising its writ jurisdiction because of some glaring illegality committed by the Armed Forces Tribunal. One must also remember that the alternative remedy must be efficacious and in case of a NonCommissioned Officer (NCO), or a Junior Commissioned Officer (JCO); to expect such a person to approach the Supreme Court in every case may not be justified. It is extremely difficult and beyond the monetary reach of an ordinary litigant to approach the Supreme Court. Therefore, it will be for the High Court to decide in the peculiar facts and circumstances of each case whether it should exercise its extraordinary writ jurisdiction or not. There cannot be a blanket ban on the exercise of such jurisdiction W.P.(C) No.15002 of 2024 11 because that would effectively mean that the Writ Court is denuded of its jurisdiction to entertain such writ petitions which is not the law laid down in **L. Chandra Kumar v. Union of India [(1997) 3 SCC 262]** . In such circumstances, this writ petition filed on 08.04.2024 is dismissed on the ground of maintainability; however, without prejudice to the right of the petitioner to challenge Ext.P15 order by invoking the statutory remedy under Section 99 of the Act, in which event, the 1[st] respondent State shall consider the revision petition and the application for a stay, without any delay. ## **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/HARISANKAR V. MENON, JUDGE** ln W.P.(C) No.15002 of 2024 12 ## **`APPENDIX OF WP(C) 15002/2024`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 ``` ``` TRUE COPY OF THE ORDER DATED 27-07-1950 IN OP NO. 53/1948 BY THE COURT OF THE DISTRICT JUDGE OF NORTH MALABAR ``` - **`Exhibit P2`** ``` TRUE COPY OF THE NOTIFICATION DATED 19- 03-2016 ISSUED BY THE 5TH RESPONDENT. ``` - **`Exhibit P3`** - **`TRUE COPY OF THE NOMINATION DATED 30-032016 SUBMITTED BY THE VASUDEVAN K.M., THE 6TH RESPONDENT HEREIN`** - **`Exhibit P4`** - **`TRUE COPY OF THE COMPLAINT DATED 28-112019 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.`** - **`Exhibit P5 TRUE COPY OF THE LETTER NO.A34484/2019/MDB DATED 13-11-2020 ISSUED BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT.`** - **`Exhibit P6 TRUE COPY OF THE REPORT DATED 05-12-2020 SUBMITTED BY THE 5TH RESPONDENT TO THE 4TH RESPONDENT.`** - **`Exhibit P7 TRUE COPY OF THE REPORT DATED 03.02.2021 BEFORE THE 3RD RESPONDENT COMMISSIONER SUBMITTED BY 4TH RESPONDENT ASSISTANT COMMISSIONER.`** - **`Exhibit P8 TRUE COPY OF THE PETITION DATED 18-012021 BY THE PETITIONER BEFORE THE 3RD RESPONDENT UNDER SECTION 20 OF THE MADRAS HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS ACT, 1951, AS M.P. NO.1/2021`** - **`Exhibit P9 TRUE COPY OF THE COUNTER STATEMENT DATED 28-04-2021 BY THE PETITIONER TO THE EXT.P8.`** - **`Exhibit P10 TRUE COPY OF THE JUDGEMENT IN W.P.(C) NO.17930/2021 DATED 09-11-2021 BY THIS HON'BLE COURT.`** W.P.(C) No.15002 of 2024 13 ``` Exhibit P11 ``` ``` TRUE COPY OF THE PETITION DATED 12-01- 2022 IN IA NO.1/2022 IN M.P. NO.1/2021. ``` ``` Exhibit P12 TRUE COPY OF THE ORDER DATED 03-04-2023 IN M.P. NO.1/2021 ``` ``` Exhibit P13 TRUE COPY OF THE REVISION PETITION DATED 20-04-2023 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. ``` ``` Exhibit P14 TRUE COPY OF G.O.(P) NO.2368/2023/RD DATED 27-06-2023 ISSUED BY THE FIRST RESPONDENT ``` ``` Exhibit P15 TRUE COPY OF THE ORDER DATED 26-03-2024 IN M.P. NO.1/2021 ISSUED BY THE 3RD RESPONDENT. ```