Roy Jacob v. The Thasildar (LR), Kottarakkara; The District Collector, Kollam; The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942** ## **WP(C).No.29121 OF 2020(M)** ## **PETITIONER :** **ROY JACOB AGED 65 YEARS S/O. K. JACOB, KOODARAPILLIL BUNGLOW, CHENKULAM P. O., OOYOOR, KOLLAM - 691 510. BY ADVS. SRI.ALEX.M.SCARIA SRI.A.J.RIYAS SMT.SARITHA THOMAS** ## **RESPONDENTS:** |**1**|**THE THASILDAR (LR),**| |---|---| ||**KOTTARAKKARA, MINI CIVIL STATION, KOTTARAKKARA**| ||**- 689 645.**| |**2**|**THE DISTRICT COLLECTOR**| ||**KOLLAM, CIVIL STATION RD, KAANKATHU MUKKU,**| ||**KOLLAM, KERALA - 691 013.**| |**3**|**THE STATE OF KERALA**| ||**REPRESENTED BY THE PRINCIPAL SECRETARY,**| ||**REVENUE DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695 001.**| **R BY SMT K.AMMINIKUTTY-SR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- WP(C).No.29121 OF 2020(M) ## **JUDGMENT** The petitioner, who was conducting quarrying operations in Government land comprised in Re-survey No.36/4 in Block No.37 of Velinalloor Village of Kottarakkara Taluk, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P9 order dated 27.07.2020 issued by the 1[st] respondent. The petitioner has also sought for a declaration that the claim based on Ext.P9 is totally unsustainable. 2. On 04.01.2021, when this writ petition came up for admission, the learned Government Pleader was directed to get instructions. 3. On 11.01.2021, when the matter came up for consideration, the learned Government Pleader submitted that a statutory remedy of appeal is available against Ext.P9 order, in view of the provisions under clause (a) in sub-section (1) of Section 16 of the Kerala Land Conservancy Act, 1957. The learned counsel for the petitioner raised a question as to whether the 1[st] respondent Tahsildar (LR) is competent to issue Ext.P9 order. 4. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for the respondents. 5. Vide Notification No.LRD4-18737/57/Rev. dated 01.10.1958 published in Kerala Gazette dated 07.10.1957 Part I, -3- ## WP(C).No.29121 OF 2020(M) the Government of Kerala in exercise of the powers conferred under Section 15 of the Kerala Land Conservancy Act, authorised all Taluk Tahsildars to exercise by virtue of their office all the powers of the District Collector under the said Act, within their respective jurisdiction, except the power of hearing under Section 16. Thereafter, vide Notification No.LRD4-18737/57/Rev. dated 25.10.1958 published in Kerala Gazette dated 01.11.1958 Part I the Government of Kerala in exercise of the powers conferred by Section 16 of the Kerala Land Conservancy Act directed that the appeal from the decision or order of the Taluk Tahsildar empowered under Section 15 of the said Act shall lie to the Collector of the District. 6. Section 16 of the Kerala Land Conservancy Act, which deals with appeal and revision, was substituted by Act 11 of 1971 with effect from 05.01.1971. As per sub-section (1) of Section 16, any person aggrieved by any decision or order under this Act of any officer authorised under Section 15 may appeal; (a) where such officer is the Revenue Divisional Officer, to the Collector; (b) in all other cases, to the Revenue Divisional Officer, and the Collector or the Revenue Divisional Officer, as the case may be, may pass such order on the appeal as he thinks fit. As per the proviso to clause (a) of sub-section (1) of Section 16, no appeal shall lie in any case where the order is passed by the Revenue Divisional Officer on -4- WP(C).No.29121 OF 2020(M) appeal under clause (b). In view of the provisions under Section 16 of the Act, Ext.P9 order dated 27.07.2020 of the 1[st] respondent Tahsildar (LR) is appealable before the Revenue Divisional Officer, under clause (a) of sub-section (1) of Section 16 of the Act. 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. 8. In **Authorised Officer, State Bank of Travancore v. Mathew K.C. [(2018) 3 SCC 85]** the Apex -5- ## WP(C).No.29121 OF 2020(M) 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 [AIR 1964 SC 1419]** and **Titaghur Paper Mills Company Ltd. [(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 -6- WP(C).No.29121 OF 2020(M) is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 9. In view of the law laid down in the decisions referred to supra, conclusion is irresistible that since a statutory remedy of appeal is provided under clause (a) of sub-section (1) of Section 16 of the Kerala Land Conservancy Act, against Ext.P9 order dated 27.07.2020 of the 1[st] respondent Tahsildar (LR), the petitioner cannot challenge that 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. In such circumstances, this writ petition filed on 22.12.2020 is disposed of by relegating the petitioner to avail the statutory remedy of appeal by approaching the concerned Revenue Divisional Officer. ## **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/20/1 -7- WP(C).No.29121 OF 2020(M) ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS AND ORDER DATED 17.11.2016 BEARING NO.B15969/2016 WITH LC NO.30/16 OF THE 1ST RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE NOTICE OF DEMAND IN FORM NO.11 DATED 17.11.2016 ISSUED TO THE PETITIONER.** **EXHIBIT P3 TRUE COPY OF THE RECEIPT DATED 24.11.2016 BEFORE THE 2ND RESPONDENT, VILLAGE OFFICER. EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS DATED 20.04.2017 BEARING NO.B1-5969/2016 IN LC NO.30/16 THERE WAS A REVISED ASSESSMENT WITH RESPECT TO THE MATTERS COVERED BY EXHIBITS P1 TO P3. EXHIBIT P5 TRUE COPY OF THE PAY AN ADDITIONAL AMOUNT OF RS. 1,42,140/- RECEIPT DATED 22.07.2017 BEFORE THE 2ND RESPONDENT. EXHIBIT P6 TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT AS NOTICE BEARING NO.B1-22095/2016 TO THE PETITIONER. EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 07.03.2020 BEARING NO.5646/2016 FROM THE 3RD RESPONDENT TO THE PETITIONER. EXHIBIT P8 TRUE COPY OF THE EXPLANATION DATED 18.06.2020 SUBMITTED BY PETITIONER TO 1ST RESPONDENT. EXHIBIT P9 TRUE COPY OF THE PROCEEDINGS DATED 27.07.2020. EXHIBIT P10 TRUE COPY OF THE G.O.(P) NO.50/15/RD DATED 02.02.2015. EXHIBIT P11 TRUE COPY OF THE NOTIFICATION BEARING NO.G.O.(P) NO.132/16/RD DATED 18.02.2016.** -8- WP(C).No.29121 OF 2020(M) **EXHIBIT P12** **TRUE COPY OF THE INTERIM ORDER DATED 01.10.2019 FOR RECOVERY OF AMOUNT BASED ON EXHIBIT P11 NOTIFICATION IN WP(C) NO.26189/2019.**