Suresh P.R. @ Suresh Kurup v State of Kerala (corrected) and others (Cochin Devaswom Board, Land Revenue Commissioner, Revenue Divisional Officer, Special Tahsildar, Tahzildar, Taluk Office, Fort Kochi)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942** ## **W.P.(C) No.120 OF 2021(L)** |**PETITIONER**<br>**:**|**PETITIONER**<br>**:**|**PETITIONER**<br>**:**|**PETITIONER**<br>**:**|| |---|---|---|---|---| |||||**SURESH P.R @ SURESH KURUP,**| |||||**AGED 57 YEARS, S/O.K.R.KURUP,**| |||||**SAJJANAKUDI, ELAMKUNNAPUZHA POST, VYPEEN-682 503.**| |||||**BY ADV. SRI.DENIZEN KOMATH**| |**RESPONDENTS**<br>**:**||||| |*****|**1**|||**STATE OF KERALA (CORRECTED)**| |||||**REPRESENTED BY ITS SECRETARY,**| |||||**MINISTRY OF REVENUE, SECRETARIAT,**| |||||**THIRUVANANTHAPURAM-695 001.**| |||*****||**STATE OF KERALA, REPRESENTED BY ITS SECRETARY,**| |||||**DEPARTMENT OF REVENUE, NORTH BLOCK,**| |||||**GOVERNEMNT SECRETARIAT, THIRUVANANTHAPURAM-695 004.**| |||||**(R1 IS CORRECTED AS PER ORDER DATED 11-1-2021 IN**| |||||**I.A.NO.1/2021 IN W.P.(C) NO.120/2021).**| ||**2**|||**THE LAND REVENUE COMMISSIONER,**| |||||**OFFICE OF THE LAND REVENUE COMMISSIONER,**| |||||**THIRUVANANTHAPURAM-695 033.**| ||**3**|||**REVENUE DIVISIONAL OFFICER,**| |||||**FORT KOCHI-682 001.**| ||**4**|||**THE SPECIAL TAHZILDAR,**| |||||**COCHIN DEVASWOM BOARD, THRISSUR-680 002.**| ||**5**|||**TAHZILDAR,**| |||||**TALUK OFFICE, FORT KOCHI-682 001.**| |****ADDL **|**R6**|||**COCHIN DEVASWOM BOARD**| |||||**REPRESENTED BY ITS SECRETARY,**| |||||**SWARAJ ROUND WEST, THRISSUR-680 001.**| |||******||**ADDL.R6 IS IMPLEADED AS PER ORDER DATED 22.01.2021 IN**| |||||**I.A.NO.2 OF 2021 IN W.P.(C) NO.120 OF 2021.**| |**R1-R5**||||**SMT.VIDHYA A.C., GOVERNMENT PLEADER**| |**ADDL. **|**R6**|||**SRI.K.P.SUDHEER, STANDING COUNSEL**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.120 OF 2021(L) -2- ## **JUDGMENT** The petitioner, who is stated to be the owner in possession and enjoyment of 3.94 Ares of land in Sy.No.291/1 of Elamkunnapuzha Village, covered by sale deed bearing Nos.638/2004 and 2847/2004 of Sub Registrar Office, Njarakkal, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P1 notice dated 27.01.2016 and Ext.P2 notice dated 03.02.2017 issued by the 4[th] respondent Special Tahsildar, Ext.P4 order dated 05.11.2019 of the 3[rd] respondent Revenue Divisional Officer and Ext.P8 order dated 10.11.2020 of the 2[nd] respondent Land Revenue Commissioner. The petitioner has also sought for a writ of mandamus commanding the 2[nd] respondent to conduct _de novo_ hearing on the challenge raised against Ext.P4 order of the 3[rd] respondent, after considering Ext.P7 series of documents; and a declaration that the property forming subject matter of dispute in Exts.P1 and P2 is a 'revenue puramboke' and not 'Devaswom puramboku'. 2. On 18.01.2021, when this writ petition came up for admission, the petitioner was directed to file an application to implead Cochin Devaswom Board as additional respondent. On W.P.(C) No.120 OF 2021(L) -3- 22.01.2021, I.A.No.2 of 2021 filed by the petitioner for impleading Cochin Devaswom Board as additional 6[th] respondent was allowed. 3. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 5 and also the learned Standing Counsel for the additional 6[th] respondent Cochin Devaswom Board. 4. Ext.P8 order of the 2[nd] respondent Land Revenue Commissioner dated 10.11.2020 is under challenge in Ext.P9 revision petition filed by the petitioner before the 1[st] respondent State, which is one filed invoking the provisions under sub-section (5) of Section 16 of the Kerala Land Conservancy Act. As per sub-section (6) of Section 16, pending disposal of any appeal or revision, the appellate authority or revisional authority, as the case may be, may suspend the execution of the decision or order appealed against or sought to be revised. 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 W.P.(C) No.120 OF 2021(L) -4- 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. 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 W.P.(C) No.120 OF 2021(L) -5- 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 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. Since the petitioner has already availed a statutory remedy of revision against Ext.P8 order, no interference of that order is warranted under the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India, on the grounds raised in this writ petition. 8. The learned Government Pleader would submit that the W.P.(C) No.120 OF 2021(L) -6- 1[st] respondent will consider and pass appropriate orders on Ext.P9 revision petition filed by the petitioner, with notice to the petitioner and also to the additional 6[th] respondent Cochin Devaswom Board, within a time limit to be fixed by this Court. 9. The learned counsel for the petitioner would submit that the petitioner shall file an application under sub-section (6) of Section 16 of the Kerala Land Conservancy Act, in Ext.P9 revision petition filed before the 1[st] respondent, seeking interim relief. 10. The learned Standing Counsel for the additional 6[th] respondent Cochin Devaswom Board would submit that consideration of Ext.P9 revision petition and any application for interim relief may be with notice to the Cochin Devaswom Board. 11. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of by directing the 1[st] respondent to consider and pass appropriate orders on Ext.P9 revision petition filed by the petitioner against Ext.P8 order dated 10.11.2020 of the 2[nd] respondent Land Revenue Commissioner, with notice to the petitioner and also to the additional 6[th] respondent Cochin Devaswom Board, as expeditiously as possible, at any rate, within a period of two W.P.(C) No.120 OF 2021(L) -7- months from the date of receipt of a certified copy of this judgment. 12. In case any application for interim relief is filed in Ext.P9 revision petition, under sub-section (6) of Section 16 of the Kerala Land Conservancy Act, within 10 days from the date of receipt of a certified copy of this judgment, the 1[st] respondent shall consider the same and pass appropriate orders thereon, with notice to the petitioner and also to the additional 6[th] respondent Cochin Devaswom Board, as expeditiously as possible, at any rate, within a period of ten days from the date of receipt of that application. The legal and factual contentions raised by the petitioner are left open to be raised before the 1[st] respondent revisional authority at appropriate stage. Sd/- **ANIL K. NARENDRAN JUDGE** bpr -8- W.P.(C) No.120 OF 2021(L) ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOCOPY OF THE NOTICE ISSUED UNDER SECTION 12 OF THE KERALA LAND CONSERVANCY ACT DATED 27.01.2016 EXHIBIT P2 TRUE PHOTOCOPY OF THE IMPUGNED NOTICE ISSUED UNDER SECTION 11 OF THE KERALA LAND CONSERVANCY ACT DATED 03.02.2017 EXHIBIT P3 TRUE PHOTOCOPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC NO.8516/2017 DATED 14.03.2017 EXHIBIT P4 TRUE PHOTOCOPY OF THE IMPUGNED ORDER ISSUED BY THE 3RD RESPONDENT DATED 05.11.2019 VIDE REFERENCE NUMBER F-1749/2017 EXHIBIT P5 TRUE PHOTOCOPY OF THE NOTICE ISSUED BY THE DEVASWOM OFFICER, ELAMKUNNAPUZHA DATED 08.01.2020 EXHIBIT P6 TRUE PHOTOCOPY OF THE JUDGMENT OF THE HON'BLE COURT IN WPC NO.1022/2020 DATED 23.01.2020 EXHIBIT P7 TRUE PHOTOCOPY OF THE BTR REGISTER OF ELAMKUNNAPUZHA VILLAGE OFFICE, WHICH SHOW THAT THE DISPUTED LAND IS REVENUE LAND EXHIBIT P7(A) TRUE PHOTOCOPY OF THE CO-RELATION STATEMENT OF VILLAGE OFFICER , ELAMKUNNAPUZHA, SHOWING THE STATUS OF SAID LAND AS REVENUE 'PURAMBOKU' EXHIBIT P7(B) TRUE PHOTOCOPY OF THE LETTER DATED 18.01.2020ISSUED BY THE 5TH RESPONDENT STATING THAT RE-SURVEY 310/3 IS 'REVENUE PURAMBOKU' EXHIBIT P7(C) TRUE PHOTOCOPY OF THE FAIR VALUE GOVERNMENT ORDER DATED 06.03.2010 EXHIBIT P7(D) TRUE PHOTOCOPY OF THE LAND BANK DETAILS OF RESURVEY 310/3 WHICH SHOW THAT THE LAND IS A GOVERNMENT LAND** -9- ## W.P.(C) No.120 OF 2021(L) **EXHIBIT P7(E) TRUE PHOTOCOPY OF THE REPORT OF VILLAGE OFFICER, ELAMKUNNAPUZHA SPECIFYING THAT LAND DISPUTED IS A' GOVERNMENT LAND' EXHIBIT P7(F) TRUE PHOTOCOPY OF THE SKETCH MAHAZAR SHOWING THAT THE PROPERTY IS A 'GOVENRMENT LAND' EXHIBIT P7(G) TRUE PHOTOCOPY OF THE ENDORSEMENT MADE BY DISTRICT COLLECTOR, ERNAKULAM RECOMMENDING ASSIGNMENT OF 3 CENTS OF PURAMBOKU FROM THE DISPUTED LAND EXHIBIT P7(H) TRUE PHOTOCOPY OF THE ORDER DATED 28.03.2007 OF THE ADDL. DISTRICT MAGISTRATE, ERNAKULAM SHOWING THE STATUS OF DISPUTED LAND AS 'REVENUE PURAMBOKU' EXHIBIT P7(I) TRUE PHOTOCOPY OF THE EXTRACT OF DEVASWOM THANATHU REGISTER AND OF BTR REGISTER WHICH SUBSTANTIATE WRONG ENTRIES INT EH SAID REGISTER EXHIBIT P8 TRUE PHOTOCOPY OF THE IMPUGNED ORDER ISSUED BY THE 2ND RESPONDENT VIDE REFERENCE NO.LR(K) 4-7067/20 DATED 10.11.2020 EXHIBIT P9 TRUE PHOTOCOPY OF THE CHALLENGE MADE BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 30.12.2020 EXHIBIT P10 TRUE PHOTOCOPY OF THE SUIT FILED BY THE PETITIONER BEFORE MUNSIFF COURT, KOCHI AS O.S. NO.33/20** **RESPONDENTS' EXHIBITS: NIL**