Sreekumar N.G. and John C.L. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 22ND DAY OF MAY 2019 / 1ST JYAISHTA, 1941** ## **WP(C).No. 11647 of 2019** ## **PETITIONERS:** **1 SREEKUMAR N.G. AGED 46 YEARS SON OF N.K.GANGADHARAN, RESIDING AT NELLIPARAMBIL HOUSE, THAIKKATTUSSERY.P.O., THRISSUR DISTRICT-680306 2 JOHN C.L. AGED 46 YEARS SON OF LONAPPAN, RESIDING AT CHALISSERRY, KUTTOOKARAN HOUSE, EAST FORT.P.O, THRISSUR DISTRICT-680005** **BY ADVS. SRI.TPM.IBRAHIM KHAN (SR.) SMT.P.J.RAZIA BEEVI** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE REVENUE SECRETARY, THIRUVANANTHAURAM-695001.** - **2 THE DISTRICT COLLECTOR, THRISSUR DISTRICT, COLLECTORATE, AYYANTHOLE.P.O, THRISSUR-680003.** - **3 THE REVENUE DIVISIONAL OFFICER, THRISSUR DISTRICT, COLLECTORATE, AYYANTHOLE.P.O, THRISSUR-680003.** ## **W.P.(C)No.11647 of 2019** ## **:-2-:** - **4 THE TAHASILDAR THRISSUR TALUK, TALUK OFFICE, AYYANTHOLE.P.O, THRISSUR-680003.** - **5 THE VILLAGE OFFICER, PERINGAV VILLAGE, PERINGAV.P.O, UDAYA NAGAR, CHEMBUKKAV, THRISSUR DISTRICT-680005** - ***6 THE PRINCIPAL SECRETARY AND AGRICULTURAL PRODUCTION COMMISSIONER AGRICULTURE DEPARTMENT GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM 695 001, IS SUO MOTU IMPLEADED AS ADDITIONAL R6 AS PER ORDER DATED 22-05-2019 IN WP(C) 11647/2019.** ## **SRI MANU RAJ K.J-GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C)No.11647 of 2019** ## **:-3-:** ## **J U D G M E N T** Going by the averments in the writ petition, the petitioners have purchased 3.99 Ares of land comprised in Survey No.559/1 & 2 and Re-survey No.Y 18-19 in Sub Division No.42 of Peringav Village in Thrissur Taluk from one P.D.George, who obtained that property from one Ittoop Menacherry and Joseph Pottokkaran. The said Ittoop obtained permission from the 3[rd] respondent Revenue Divisional Officer, vide Ext.P1 order dated 19.2.1996 for conversion of an extent of one Acre and 50½ Cents of land for the purpose of construction of a residential building. In Ext.P2 sale deed dated 23.11.2000, whereby P.D.George purchased the said property, the property is described as paddy land reclaimed as per Ext.P1 order. The petitioners purchased 10 cents of property vide Ext.P4 sale deed dated 21.07.2014 from P.D.George for constructing a ## **W.P.(C)No.11647 of 2019** ## **:-4-:** residential building. Ext.P3 is stated to be a photograph of the said property showing buildings on neighbouring properties. When the petitioners attempted to fill the low lying area upto the level of the road, the 5[th] respondent Village Officer issued Ext.P5 stop memo dated 03.08.2018, invoking his powers under sub-section (2) of Section 12 of the Kerala Conservation of Paddy Land and Wetland Act, 2008, which was followed by Ext.P6 notice dated 10.12.2018 issued by the 2[nd] respondent District Collector, invoking her powers under Section 13 of the said Act. The petitioners submitted Ext.P7 explanation dated 18.12.2018. Thereafter, the 2[nd] respondent issued Ext.P8 order dated 18.03.2019, whereby the petitioners are directed to restore the land to its original position. Now the petitioners have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P5 ## **W.P.(C)No.11647 of 2019** ## **:-5-:** stop memo dated 3.8.2018 issued by the 5[th] respondent Village Officer and Ext.P8 order dated 18.3.2019 issued by the 2[nd] respondent District Collector, preventing further filling up of the land and removal of sand and earth already put in that land. The petitioners have also sought for a declaration that they are entitled to utilise the land for any purpose in the light of the provisions of the Kerala Land Utilisation Order, 1967 and that, the Kerala Conservation of Paddy Land and Wetland Act, is not applicable, since the land is admittedly a filled up land on the strength of Ext.P1 order issued as early as in the year 1996, which is far before the promulgation of the Act. 2. On 11.4.2019 when this writ petition came up for admission, the learned Government Pleader was directed to get instructions. 3. Heard the learned counsel counsel for the petitioners and also the learned Government Pleader ## **W.P.(C)No.11647 of 2019** ## **:-6-:** appearing for respondents 1 to 5 and for the additional 6[th] respondent. 4. The main challenge made in this writ petition is against Ext.P8 order dated 18.3.2019 of the 2[nd] respondent District Collector, whereby the petitioners have been directed to restore the original position of the land covered by Ext.P4 sale deed. Such an order has been passed by the 2[nd] respondent, in exercise of her powers under Section 13 of the Kerala Conservation of Paddy Land and Wetland Act. Such an order is revisable before the additional 6[th] respondent, in view of the provisions under Section 28 of the said Act. The said fact is not in dispute. 5. The fact that the 5[th] respondent issued Ext.P5 stop memo when the petitioners attempted to put earth in the property covered by Ext.P4 sale deed, in order to level that property upto the level of the road, is admitted in paragraph 4 of ## **W.P.(C)No.11647 of 2019** ## **:-7-:** the writ petition. The 2[nd] respondent in Ext.P8 order noticed that despite the issuance of Ext.P5 stop memo, the petitioners have reclaimed a portion of the land with 35 loads of earth and that, in the Data Bank and in the BTR, the property is described as 'Nilam'. The petitioners have also moved application on 18.12.2018 and 21.12.2018 (Ref.No.6 in Ext.P8) for excluding the property from the purview of the Kerala Conservation of Paddy Land and Wetland Act. If the findings of the 2[nd] respondent in Ext.P8 order are erroneous, it is for the petitioners to challenge that order by invoking the statutory remedy under the Act. 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 ## **W.P.(C)No.11647 of 2019** ## **:-8-:** 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. 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 ## **W.P.(C)No.11647 of 2019** ## **:-9-:** 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 433]** the Apex Court held that High Court will not entertain a petition under Article 226 of the Constitution of India, if an effective alternative remedy is available to the ## **W.P.(C)No.11647 of 2019** ## **:-10-:** 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 ## **W.P.(C)No.11647 of 2019** ## **:-11-:** 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 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 ## **W.P.(C)No.11647 of 2019** ## **:-12-:** 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-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 ## **W.P.(C)No.11647 of 2019** ## **:-13-:** 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.[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. ## **W.P.(C)No.11647 of 2019** ## **:-14-:** 10. In **Pavithran V. State of Kerala (2009 (4) KHC 4)** , a Full Bench of this Court held that, whenever an adverse order is passed against a person, unless the same is challenged before the appropriate forum, within the prescribed time limit, the said order will become final. 11. When Ext.P8 order of the 2[nd] respondent is revisable before the additional 6[th] respondent under Section 28 of the Kerala Conservation of Paddy Land and Wetland Act, the challenge made against that order, by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, cannot be entertained, on the grounds raised in this writ petition. 12. Learned counsel for the petitioners would submit that the petitioners shall file a revision petition against Ext.P8 order before the additional 6[th] respondent, invoking the provisions under Section 28 of the Kerala Conservation of Paddy Land ## **W.P.(C)No.11647 of 2019** ## **:-15-:** and Wetland Act. In the result this writ petition is disposed of as follows; - (i) The challenge made in this writ petition against Ext.P8 order dated 18.3.2019 of the 2[nd] respondent is not entertained, in view of the statutory remedy available against the said order, under Section 28 of the Kerala Conservation of Paddy Land and Wetland Act. - (ii) The petitioners shall file a revision petition before the additional 6[th] respondent, challenging Ext.P8 order dated 18.3.2019 of the 2[nd] respondent, by invoking Section 28 of the Act, within a period of two weeks from the date of receipt of a certified copy of this judgment. (iii) If any such revision petition is received and the same is in order, the additional 6[th] respondent shall consider the same and pass appropriate orders thereon, with notice to the petitioners and after affording them an ## **W.P.(C)No.11647 of 2019** **:-16-:** opportunity of being heard, within two months from the date of filing of that revision petition. (iv) If any application is made along with that revision petition for an interim relief, the additional 6[th] respondent shall consider that application and pass appropriate orders thereon, with notice to the petitioners and after affording them an opportunity of being heard, within a period of two weeks. Sd/- **ANIL K.NARENDRAN** **JUDGE** ami/ ## **W.P.(C)No.11647 of 2019** **:-17-:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** - **EXHIBIT P1 A TRUE COPY OF THE ORDER NO.K.DIS.2409/96/D1 DATED 19.02.1996 ISSUED BY THE REVENUE DIVISIONAL OFFICER-THIRD RESPONDENT** - **EXHIBIT P2 A TRUE COPY OF THE SALE DEED NO.7230/2000 DATED 23.11.2000 OF S.R.O. THRISSUR** - **EXHIBIT P3 A PHOTOGRAPH OF THE NEIGHBORING LAND SHOWING THE EXISTENCE OF THE RESIDENTIAL HOUSE AND A TARRED ROAD THROUGH THE PROPERTY** - **EXHIBIT P4 A TRUE COPY OF THE REGISTERED SALE DEED NO.3213/1/2014 DATED 21/07.2014 OF S.R.O. THRISSUR** - **EXHIBIT P5 A TRUE COPY OF THE STOP MEMO NO.259/18 DATED 03.08.2018 ISSUED BY THE 5TH RESPONDENT** - **EXHIBIT P6 A TRUE COPY OF THE NOTICE WITH FILE NO.DCTSR/7751/2018-B3 DATED 10.12.2018 ISSUED BY THE DISTRICT COLLECTOR, THRISSUR.** - **EXHIBIT P7 A TRUE COPY OF THE EXPLANATION DATED 18.12.2018 SUBMITTED BY THE PETITIONERS BEFORE THE SECOND RESPONDENT DISTRICT COLLECTOR** - **EXHIBIT P8 A TRUE COPY O THE ORDER OF THE DISTRICT COLLECTOR, THRISSUR-2ND RESPONDENT**