Mani Mathew v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 25TH DAY OF MAY 2020 / 4TH JYAISHTA, 1942** ## **WP(C).No.2815 OF 2015(B)** ## **PETITIONER/S:** **MANI MATHEW, AGED 65 YEARS MUNDUCHIRAKKAL HOUSE, EDAMANA PUTHANPURACKAL, KILIROOR KARA, THIRUVARPU.** **BY ADVS. SMT.K.P.SANTHI SMT.E.U.DHANYA SRI.R.JAYAKRISHNAN (MUTHUKULAM) SRI.RILGIN V.GEORGE** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| ||**REVENUE DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM.-695 001**| |**2**|**THE LAND REVENUE COMMISSIONER**| ||**COMMISSIONERATE OF LAND REVENUE,**| ||**PUBLIC OFFICE BUILDING, TRIVANDRUM-695001**| |**3**|**REVENUE DIVISIONAL OFFICER**| ||**KOTTAYAM-686 001**| ||**R1-2 BY GOVERNMENT PLEADER**| ## **OTHER PRESENT:** ## **SMT K.AMMINIKUTTY-SR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- W.P.(C). No. 2815 of 2015 ## **JUDGMENT** The petitioner, who is stated to be the owner of 78.18 Ares of land comprised in Block No,14, Re.Sy.No.435/14, 437/1, 438/8 of Thiruvarpu Village, Kottayam Taluk, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P6 order dated 07.03.2014 of the 3[rd] respondent Revenue divisional Officer and Ext.P8 order dated 07.01.2015 of the 2[nd] respondent Land Revenue Commissioner; and a writ of mandamus commanding the 2[nd] respondent to grant permission to the petitioner to develop the said land. Going by the averments in the writ petition, the property in Re.Sy.No.438/8 is classified as Purayidam, wherein the property in Re.Sy.No.437/1 and 435/14 are classified as Nilam in revenue records. 2. On 29.01.2015, when this writ petition came up for admission, this Court admitted the matter on file and issued notice to the respondents. 3. Counter affidavit has been filed by the 2[nd] respondent opposing the reliefs sought for in this writ petition. 4. Heard the learned counsel for the petitioner and -3- W.P.(C). No. 2815 of 2015 also the learned Senior Government Pleader appearing for respondents. 5. The learned Senior Government Pleader would point out that against Ext.P8 appellate order dated 07.01.2015 of the 2[nd] respondent Land Revenue Commissioner, the petitioner is having a statutory remedy by way of revision, before the Government, under Clause 14 of the Kerala Land Utilisation Order, 1967. 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 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, -4- W.P.(C). No. 2815 of 2015 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 (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** -5- W.P.(C). No. 2815 of 2015 **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 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 -6- W.P.(C). No. 2815 of 2015 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 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 Three- -7- ## W.P.(C). No. 2815 of 2015 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 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.** -8- W.P.(C). No. 2815 of 2015 **[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. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the petitioner cannot challenge Ext.P8 appellate order of the 2[nd] respondent Land Revenue Commissioner, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, on the grounds raised in this writ petition, when a statutory remedy of revision is available under Clause 14 of the Kerala Land Utilisation Order, 1967. 11. The learned counsel for the petitioner would submit that the petitioner shall file a revision petition before the 1[st] respondent, challenging Ext.P8 appellate order of the 2[nd] respondent, within a period of two weeks. 12. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of -9- W.P.(C). No. 2815 of 2015 by relegating the petitioner to avail the statutory remedy of revision against Ext.P8 appellate order of the 2[nd] respondent, under Clause 14 of the Kerala Land Utilisation Order. The petitioner shall file a revision petition before the 1[st] respondent, within two weeks from the date of receipt of a certified copy of this judgment, which shall be considered by the 1[st] respondent, strictly in accordance with law and appropriate orders shall be passed, with notice to the petitioner and after affording her an opportunity of being heard. The legal and factual contentions raised by the petitioner are left open to be raised before the 1[st] respondent at appropriate stage. Sd/- **ANIL K.NARENDRAN JUDGE** das -10- W.P.(C). No. 2815 of 2015 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 EXHIBIT-P1: TRUE COPY OF THE PETITIONER'S APPLICATION DATED 12.9.2013 SUBMITTED TO 2ND RESPONDENT. EXHIBIT P2 EXHIBIT-P2: TRUE COPY OF THE CERTIFICATE DATED 2.7.2011 ISSUED BY THE VILLAGE OFFICER, THIRUVARPU. EXHIBIT P3 EXHIBIT-P3: TRUE COPY OF THE RELEVANT PAGE OF THE DETAILS PREPARED BY THE DATA BANK.** **EXHIBIT P4 EXHIBIT-P4: TRUE COPY OF THE AFFIDAVITS.** **EXHIBIT P5 EXHIBIT-P5: TRUE COPY OF THE LETTER OF THE SAID SRI.M.K.SHIBU. EXHIBIT P6 EXHIBIT-P6: TRUE COPY OF THE ORDER DATED 7.3.2014 OF THE 2ND RESPONDENT. EXHIBIT P7 EXHIBIT-P7: TRUE COPY OF THE APPEAL DATED 16.6.2014 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P8 EXHIBIT-P8: TRUE COPY OF THE ORDER DATED 7.1.2015 OF THE 2ND RESPONDENT.**