SAIDALAVI THOTTINGAL v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942** ## **WP(C).No.3368 OF 2021(U)** ## **PETITIONER:** **SAIDALAVI THOTTINGAL AGED 55 YEARS S/O.KUNHALI, THOTTINGAL HOUSE, CHERPULASSERY, PALAKKAD DISTRICT.** **BY ADVS. SRI.M.SASINDRAN SRI.V.VENUGOPAL** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO THE GOVERNMENT, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 THE COMMISSIONER OF LAND REVENUE PUBLIC OFFICE BUILDINGS, MUSEUM, THIRUVANANTHAPURAM - 695 033.** - **3 THE REVENUE DIVISIONAL OFFICER/THE SUB COLLECTOR OTTAPPALAM, PALAKKAD DISTRICT - 679 101.** - **4 THE TAHSILDAR (LAND RECORDS) OTTAPPALAM - 679 101.** - **5 THE VILLAGE OFFICER CHERPULASSERY, PALAKKAD DISTRICT - 679 503.** ## **BY SMT A.C.VIDHYA - GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.3368 OF 2021(U) 2 ## **JUDGMENT** The petitioner, who is stated to be the absolute owner in possession and enjoyment of 4.8 Ares of property in Re.Sy.No.213/1/1 covered by Ext.P1 sale deed bearing No.3667 of Sub Registrar Office, Cherpulassery, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P12 order dated 31.01.2021 issued by the 3[rd] respondent Revenue Divisional Officer, Ext.P6 notice dated 12.03.2019 and Ext.P7 order dated 12.03.2020 issued by the 4[th] respondent. The petitioner has also sought for a writ of mandamus commanding the 2[nd] respondent to consider and pass orders on Ext.P13(a) stay petition and Ext.P13 revision without delay; and a writ of mandamus commanding respondents 4 and 5 not to enforce Ext.P12 order during the pendency of Ext.P13 revision. 2. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents. 3. The learned counsel for the petitioner would point out that challenging Ext.P12 order dated 31.01.2021 issued by the 3[rd] respondent, the petitioner has filed Ext.P13 revision petition before the 2[nd] respondent Commissioner of Land Revenue, invoking the WP(C).No.3368 OF 2021(U) 3 provisions under sub section (4) of Section 16 of the Kerala Land Conservancy Act. The said petition along with Ext.P13 (a) application for stay are now pending consideration before the 2[nd] respondent. 4. The learned Government Pleader would submit that if Ext.P13 revision petition and Ext.P13(a) stay petition filed by the petitioner are in order, the 2[nd] respondent will consider consider the same and pass appropriate orders thereon, with notice to the petitioner and after affording him an opportunity of being heard. 5. 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 WP(C).No.3368 OF 2021(U) 4 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. 6. 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 1964 SC 1419]** and **Titaghur Paper Mills Company Ltd. v. State of Orissa [(1983) 2 SCC** WP(C).No.3368 OF 2021(U) 5 **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. 7. In view of the law laid down in the decisions referred to _supra_ , when there is a statutory remedy of revision provided against Ext.P12 order dated 31.01.2021 issued by the 3[rd] respondent, under sub-section (4) of Section 16 of the Kerala Land Conservancy Act, the petitioner cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India in order to challenge Ext.P12 order on the grounds raised in this writ petition. Since Ext.P13 revision petition filed by the petitioner along with Ext.P13(a) stay petition are pending consideration before the 2[nd] respondent, this writ petition is disposed of with the following directions: i) If Ext.P13 revision petition and Ext.P13(a) stay petition WP(C).No.3368 OF 2021(U) 6 filed by the petitioner are in order, the 2[nd] respondent shall consider the same and pass appropriate orders thereon, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment. ii) The 2[nd] respondent shall consider Ext.P13(a) stay petition filed by the petitioner and take an appropriate decision, within a period of one week from the date of receipt of a certified copy of this judgment. The legal and factual contentions raised by the petitioner in this writ petition are left open to be raised before the appropriate forum. **Sd/-** ## **ANIL K.NARENDRAN** JV **JUDGE** WP(C).No.3368 OF 2021(U) 7 ## **APPENDIX** **PETITIONER'S/S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE VERUMPATTA SALE DEED DATED 12/9/1994. EXHIBIT P2 A TRUE COPY OF THE SALE DEED NO.2920/1978 OF CHERPULASSERY SRO 25/12/1978. EXHIBIT P3 A TRUE COPY OF THE BASIC TAX RECEIPT DATED 01/10/2019 ISSUED BY THE VILLAGE OFFICER, CHERPULASSERY. EXHIBIT P3(A) A TRUE COPY OF THE BASIC TAX RECEIPT DATED 14/01/2019 ISSUED BY THE VILLAGE OFFICER, CHERPULASSERY. EXHIBIT P3(B) A TRUE COPY OF THE BASIC TAX RECEIPT DATED 27/04/2017 ISSUED BY THE VILLAGE OFFICER, CHERPULASSRY. EXHIBIT P4 A TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, CHERPULASSERY. EXHIBIT P5 A TRUE COPY OF THE RECEIPT ISSUED BY THE CHERPULASSERY MUNICIPALITY ON REMITTANCE OF PROPERTY TAX IN RESPECT OF THE SHOP ROOM NO.12/247 8/3/2017.** - **EXHIBIT P5(A) A TRUE COPY OF THE RECEIPT ISSUED BY THE CHERPULASSERY MUNICIPALITY ON REMITTANCE OF PROPERTY TAX IN RESPECT OF THE SHOP ROOM NO.12/248 8/3/2017.** - **EXHIBIT P5(B) A TRUE COPY OF THE RECEIPT ISSUED BY THE CHERPULASSERY MUNICIPALITY ON REMITTANCE OF PROPERTY TAX IN RESPECT OF THE SHOP ROOM NO.12/249.** - **EXHIBIT P5(C) A TRUE COPY OF THE RECEIPT ISSUED BY THE CHERPULASSERY MUNICIPALITY ON REMITTANCE OF PROPERTY TAX IN RESPECT OF THE SHOP ROOM NO.12/250.** WP(C).No.3368 OF 2021(U) 8 **EXHIBIT P5(D) A TRUE COPY OF THE RECEIPT ISSUED BY THE CHERPULASSERY MUNICIPALITY ON REMITTANCE OF PROPERTY TAX IN RESPECT OF THE SHOP ROOM NO.12/251.** **EXHIBIT P6 A TRUE COPY OF THE NOTICE DATED 12/03/2019 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P7 A TRUE COPY OF THE ORDER NO.122020/1276/9/400 DATED 12/03/2020 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P8 A TRUE COPY OF THE JUDGMENT IN WP(C) NO.18386 OF 2020 DATED 8/9/2020.** - **EXHIBIT P9 A TRUE COPY OF THE APPEAL MEMORANDUM FILED BY THE PETITIONER'S WIFE BEFORE THE 3RD RESPONDENT DATED 9/7/2020.** - **EXHIBIT P10 A TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P11 A TRUE COPY PETITION DATED 7/1/2021 FILED BY THE PETITIONER'S WIFE BEFORE THE 3RD RESPONDENT FOR CONDUCTING MEASUREMENT OF THE PROPERTY.** - **EXHIBIT P12 A TRUE COPY OF THE ORDER NO.F-2512/2020 DATED 31/1/2021.** - **EXHIBIT P13 A TRUE COPY OF THE REVISION PETITION FILED BY THE PETITIONER ON 4/2/2021 BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P13(A) A TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER ON 4/2/2021 BEFORE THE 2ND RESPONDENT.** **EXHIBIT P14 A TRUE COPY OF THE POSTAL RECEIPT DATED 5/2/2021 SHOWING OF SENDING OF EXHIBIT P13 AND EXHIBIT P13(A).**