Leelamma Mathew v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 20TH DAY OF JUNE 2019 / 30TH JYAISHTA, 1941** ## **WP(C).No.16851 of 2019** ## **PETITIONER:** **LEELAMMA MATHEW, AGED 67 YEARS W/O.MATHEW, RESIDING AT PANTHAPLAKKAL HOUSE, KIZHAKAMBALAM P.O., ERNAKULAM- 683562.** **BY ADV. SRI.S.SREEKUMAR (KOLLAM)** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY SECRETARY TO GOVERNMENT,**| ||**DEPARTMENT OF REVENUE, GOVERNMENT OF KERALA,**| ||**THIRUVANANTHAPURAM- 695001.**| |**2**|**THE DISTRICT COLLECTOR,**| ||**CIVIL STATION, ERNAKULAM DISTRICT- 683582.**| |**3**|**THE CONVENER,**| ||**LOCAL LEVEL MONITORING COMMITTEE/AGRICULTURAL**| ||**OFFICER, KRISHIBHAVAN, CHOORNIKKARA GRAMA**| ||**PANCHAYAT, CHOORNIKKARA P.O., ERNAKULAM- 683106.**| |**4**|**THE SECRETARY,**| ||**CHOORNIKKARA GRAMA PANCHAYAT, CHOORNIKKARA P.O.,**| ||**ALWAYE, ERNAKULAM- 683106.**| |**5**|**THE VILLAGE OFFICER,**| ||**CHOORNIKKARA GRAMA PANCHAYAT, ALWAYE,**| ||**CHOORNIKKARA P.O., ERNAKULAM- 683106.**| |***6**|**THE PRINCIPAL SECRETARY AND**| ||**AGRICULTURAL PRODUCTION COMMISSIONER,**| ||**AGRICULTURE DEPARTMENT,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695 001.**| ||**(*ADDL.R6 IS SUO MOTU IMPLEADED AS ADDITIONAL R6,**| ||**AS PER ORDER DATED 20.06.2019)**| **SRI MANU RAJ K.J-GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C)No.16851 of 2019** ## **:-2-:** ## **J U D G M E N T** The petitioner is stated to be the owner of 51 Ares of property covered by Ext.P1 sale deed No.4152/1/2007 and another extent of 10.24 Ares of property covered by Ext.P2 sale deed No.4153/1/2007 dated 09.07.2007 of Sub Registrar Office, Aluva. The said properties are covered by Ext.P3 tax receipt dated 29.03.2016 and Ext.P4 tax receipt dated 20.06.2016 respectively. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari (wrongly stated as writ of mandamus) to quash Ext.P9 order dated 04.03.2019 of the 2nd respondent District Collector. The petitioner has also sought for a direction to the 2nd respondent to consider and pass orders in Ext.P10 application, after affording an opportunity of hearing the petitioner, within a time frame to be fixed by this Court; and ## **W.P.(C)No.16851 of 2019** **:-3-:** also a declaration that the property of the petitioner covered by Ext.P1 and Ext.P2 sale deeds, is dry land. 2. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 3, 5 and also the additional 6th respondent. Considering the nature of relief proposed to be granted, service of notice on the 4th respondent, who is the Secretary of the Grama Panchayat is dispensed with. 3. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P9 order dated 04.03.2019 of the 2nd respondent District Collector, in exercise of the writ jurisdiction of this Court under Article 226 of the Constitution of India. 4. Ext.P9 order is one issued by the 2nd respondent District Collector, in exercise of his ## **W.P.(C)No.16851 of 2019** **:-4-:** powers under Section 13 of the Kerala Conservation of Paddy Land and Wetland Act, 2008, whereby the petitioner has been asked to restore the land in question to its original position. Such an order has been passed on a finding that property in question is a paddy land, which falls within the purview of the aforesaid Act. 5. One of the submission made by the learned counsel for the petitioner is that Ext.P7 letter dated 10.07.2018 issued by the Agricultural Officer, who is the Convener of the Local Level Monitoring Committee, whereby the application made by the petitioner under sub-rule (6) of Rule 4 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008, for deleting the property in question from the data-bank stands rejected, has already been set aside by this Court in Ext.P8 judgment dated 26.04.2019 and the Local Level Monitoring Committee is directed to re-consider the matter. ## **W.P.(C)No.16851 of 2019** **:-5-:** The said Committee is yet to take a fresh decision on that application and in such circumstances, the 2nd respondent District Collector is not justified in issuing Ext.P9 order, by invoking his powers under Section 13 of the Act. 6. The fact that the petitioner had made an application under sub-rule (6) of Rule 4 of the Kerala Conservation of Paddy Land and Wetland Rules, makes it explicitly clear that in the databank, the property in question is classified as 'nilam'. If that be so, unless and until the petitioner gets a favourable order in the application filed under sub-rule (6) of Rule 4 of the said Rules, the nature of the property will continue as 'nilam'. Therefore, it cannot be said that the 2nd respondent shall not exercise his powers under Section 13 of the Act, pending consideration of an application under sub-rule (6) of Rule 4 of the Rules. ## **W.P.(C)No.16851 of 2019** **:-6-:** 7. If the petitioner is feeling aggrieved by Ext.P9 order dated 04.03.2019 of the 2nd respondent, it is for her to file a revision petition under Section 28 of the Act before the additional 6th respondent Principal Secretary and Agricultural Production Commissioner along with an application for interim relief. 8. The fact that Ext.P9 order of the 2nd respondent is revisable before the additional 6th respondent, in view of the provisions under Section 28 of the Act, is not in dispute. 9. 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 ## **W.P.(C)No.16851 of 2019** ## **:-7-:** 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. 10. 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 ## **W.P.(C)No.16851 of 2019** ## **:-8-:** 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 ## **W.P.(C)No.16851 of 2019** ## **:-9-:** 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. 11. 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 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, ## **W.P.(C)No.16851 of 2019** ## **:-10-:** 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 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 ## **W.P.(C)No.16851 of 2019** ## **:-11-:** created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up. 12. In **Titaghur Paper Mills' case (supra)** a Three-Judge 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 ## **W.P.(C)No.16851 of 2019** ## **:-12-:** 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. 13. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is ## **W.P.(C)No.16851 of 2019** ## **:-13-:** irresistible that, when the petitioner is having a statutory remedy of revision under Section 28 of the Act before the additional 6[th] respondent Principal Secretary and Agricultural Production Commissioner, she cannot challenge Ext.P9 order, by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, on the grounds raised in this writ petition. 14. The learned counsel for the petitioner would submit that the petitioner shall submit a revision petition before the additional 6[th] respondent, within two weeks from the date of receipt of a certified copy of this judgment. 15. The learned Government Pleader would submit that, if any such revision petition is received, the additional 6[th] respondent shall consider the same and pass appropriate orders thereon without any delay. ## **W.P.(C)No.16851 of 2019** ## **:-14-:** Having considered the submissions made by the learned counsel on both sides, this writ petition filed on 19.06.2019 is disposed of as follows; (i) In view of the statutory remedy of revision available under Section 28 of the Kerala Conservation of Paddy Land and Wetland Act, the petitioner cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, in order to challenge Ext.P9 order dated 04.03.2019 of the 2nd respondent District Collector. (ii) The petitioner shall file a revision petition before the additional 6[th] respondent, challenging Ext.P9 order dated 04.03.2019 of the 2nd respondent District Collector, along with an application for stay, within two weeks from the date of receipt of a certified copy of this judgment. (iii) If any such revision petition along ## **W.P.(C)No.16851 of 2019** ## **:-15-:** with an application for stay is received, within the aforesaid period, the additional 6[th] respondent shall consider the application for stay, with notice to the petitioner, and pass appropriate orders thereon, as expeditiously as possible, at any rate, within a period of two weeks from the date of receipt of such application. (iv) Thereafter, the additional 6th respondent shall consider the revision petition and finally dispose of the same, within a further period of three months. All legal and factual contentions raised by the petitioner are left open to be raised before the 2nd respondent at appropriate stage. It is made clear that the observations if any, contained in this judgment touching the merits of the matter are made for the limited purpose of disposal of this writ petition, and therefore, the **W.P.(C)No.16851 of 2019** **:-16-:** additional 6th respondent has to proceed with the matter, untrammelled by any such observations. Sd/- **ANIL K.NARENDRAN JUDGE** ami/ ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE SALE DEED NO.4152/2007 OF THE ALWAYE SRO.** **EXHIBIT P2 THE TRUE COPY OF THE SALE DEED NO.4153/2007 OF THE ALWAYE SRO.** **EXHIBIT P3 THE TRUE COPY OF THE PROPERTY TAX RECEIPT NO.5400921, DATED 29.03.2016 ISSUED BY THE CHOORNIKKARA VILLAGE OFFICER.** **EXHIBIT P4 THE TRUE COPY OF THE PROPERTY TAX RECEIPT NO.4942608, DATED 20.06.2016 ISSUED BY THE CHOORNIKKARA VILLAGE OFFICER.** **EXHIBIT P5 THE TRUE COPY OF THE ORDER IN WP (C)NO.25450/2017 PASSED BY THE HIGH COURT OF KERALA.** **EXHIBIT P6 THE TRUE COPY OF THE ORDER IN WP(C) 37204/2017, DATED 22.01.2019 PASSED BY THE HON'BLE HIGH COURT OF KERALA.** **EXHIBIT P7 THE TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT.** ## **W.P.(C)No.16851 of 2019** ## **:-17-:** **EXHIBIT P8 THE TRUE COPY OF THE ORDER IN WP(C) 12713/2019 PASSED BY THE HON'BLE HIGH COURT OF KERALA.** **EXHIBIT P9 THE TRUE COPY OF THE ORDER DATED 04.03.2019 ISSUED BY THE DISTRICT COLLECTOR, ERNAKULAM.** **EXHIBIT P10 THE TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P11 THE TRUE COPY OF THE REPORT ON LAND USE CHANGE AND IMAGE ISSUED BY THE DIRECTOR KSREC.**