T.M.AMANULLA and T.M.KHALEEL RAHIMAN v. COMMISSIONER OF LAND REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM; DISTRICT COLLECTOR, KASARGOD; TAHSILDAR (LA); VILLAGE OFFICER, THEKKIL VILLAGE OFFICE

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 17TH DAY OF DECEMBER 2020 / 26TH AGRAHAYANA, 1942** ## **W.P.(C)No.11863 OF 2020(G)** ## **PETITIONER/S:** |**1**|**T.M.AMANULLA, AGED 70 YEARS**| |---|---| ||**S/O. (LATE) T.MUHAMMED KUNHI,**| ||**THEKKIL VILLAGE AND P.O.,**| ||**KSARGOD DISTRICT-615 41**| |**2**|**T.M.KHALEEL RAHIMAN, AGED 54 YEARS**| ||**S/O. (LATE) T.MUHAMMED KUNHI,**| ||**THEKKIL VILLAGE AND P.O.,**| ||**KSARGOD DISTRICT-615 41**| ||**BY ADVS.**| ||**SRI.SURESH KUMAR KODOTH**| ||**SRI.K.P.ANTONY BINU**| ## **RESPONDENT/S:** |**1**|**COMMISSIONER OF LAND REVENUE**| |---|---| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695 001**| |**2**|**DISTRICT COLLECTOR, KASARGOD,**| ||**VIDYANAGAR P.O., KASARGOD-671 123**| |**3**|**TAHSILDAR (LA)**| ||**TALUK OFFICE ,KASARGOD-67 121**| |**4**|**VILLAGE OFFICER, THEKKIL VILLAGE OFFICE,**| ||**P.O.THEKKIL, KASARGOD-671 541**| ||**R1-4 BY GOVERNMENT PLEADER**| ## **OTHER PRESENT:** **SMT K.AMMINIKUTTY - SR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- W.P.(C). No. 11863 of 2020 ## **JUDGMENT** The petitioners have filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus restraining respondents 2 to 4 from dispossessing them from the land in Re.Sy.No.266/4 of Thekkil Village, other than by way of Ext.P5 order dated 20.08.2015 of the 1[st] respondent Commissioner of Land Revenue. The petitioners have also sought for an order directing the 2[nd] respondent District Collector to consider Ext.P6 representation/objection preferred by the petitioners dated 21.05.2020 and proceed in accordance with Ext.P5 order. 2. On 17.06.2020, when this writ petition came up for admission, this Court admitted the matter on file. The learned Government Pleader took notice for respondents 1 to 4. While ordering the writ petition to be listed on 09.07.2020, for the counter affidavit of the respondents, this Court granted an interim order refraining respondents 2 to 4 from doing any action altering/disturbing the rights reserved with petitioners -3- W.P.(C). No. 11863 of 2020 in Ext.P5 order, till then. The said interim order was in force till 11.12.2020. 3. Along with a memo dated 01.12.2020 filed by the learned Senior Government Pleader, the proceedings dated 23.10.2020 of the 2[nd] respondent District Collector, Kasaragod is placed on record. 4. On 07.12.2020, when this writ petition came up for consideration, this Court noticed that in the writ petition, the petitioners have not disclosed the extent of Government land in Re.Sy.No.266/1 of Thekkil Village, allegedly occupied by their father, late Muhammed Kunhi, who was a Village Officer at the relevant time, and also the extent of their registered holdings. 5. On 08.12.2020, the petitioners have filed I.A. No.1 of 2020 seeking an order to amend the writ petition in order to incorporate a challenge against order dated 23.10.2020 of the District Collector, Kasaragod, which is marked as Ext.P7. 6. Heard the learned counsel for the petitioners and also the learned Senior Government Pleader appearing for the -4- W.P.(C). No. 11863 of 2020 respondents. 7. The learned Senior Government Pleader would point out the judgment of this Court in S.A.No.364 of 1996 arising out of the judgment and decree of the Sub Court, Kasargod. The petitioners' father, who was the owner in possession of plaint A schedule property filed the suit, claiming that he had perfected title to plaint B schedule property (the property in question) by adverse possession and limitation. The trial court dismissed the suit. The lower appellate court granted decree in favour of the plaintiff, reversing the judgment and decree of the trial court. The State filed Second Appeal before this Court. By judgment dated 26.07.2010 this Court allowed the Second Appeal by setting aside the judgment and decree of the first appellate court and restored the judgment and decree of the trial court. In the judgment dated 26.07.2010 this Court noticed that the plaintiff (petitioners' father) was a Village Officer at the relevant time. It comes with little grace from him to say while he was in office he simply trespassed and appropriated more -5- W.P.(C). No. 11863 of 2020 than 18 acres of land and made it as his own. 8. The learned counsel for the petitioners would submit that the petitioners have filed I.A.No.1 of 2020, seeking an order to amend the writ petition, in order to incorporate a challenge against Ext.P7 proceedings of the 2[nd] respondent District Collector dated 23.10.2020. 9. The learned Senior Government Pleader would point out that against Ext.P7 proceedings of the 2[nd] respondent District Collector dated 23.10.2020 the petitioners are having a statutory remedy of revision, under Rule 21(8) of the Kerala Land Assignment Rules, 1964. 10. 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 -6- W.P.(C). No. 11863 of 2020 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. 11. 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 -7- W.P.(C). No. 11863 of 2020 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 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. 12. 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 -8- W.P.(C). No. 11863 of 2020 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 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 -9- ## W.P.(C). No. 11863 of 2020 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. 13. In **Titaghur Paper Mills' case (supra)** a ThreeJudge 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 -10- W.P.(C). No. 11863 of 2020 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. 14. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that, in view of the statutory remedy available under Rule 21(8) of the the Kerala Land Assignment Rules the petitioners cannot invoke the writ jurisdiction of this Court under Article 226 of -11- W.P.(C). No. 11863 of 2020 the Constitution of India in order to challenge Ext.P7 proceedings of the 2[nd] respondent District Collector dated 23.10.2020, on the additional ground sought to be raised in I.A.No.1 of 2020 (the application for amendment), in view of the statutory remedy available under Rule 21(8) of the Kerala Land Assignment Rules. 15. In such circumstances, this writ petition is disposed of, leaving open the legal and factual contentions raised by the petitioners, by relegating the petitioners to avail the statutory remedy of revision provided under Rule 21(8) of the Kerala Land Assignment Rules, before the Commissioner of Land Revenue, in order to challenge Ext.P7 proceedings dated 23.10.2020 of the 2[nd] respondent District Collector. No order as to costs. **Sd/ANIL K. NARENDRAN JUDGE** das -12- W.P.(C). No. 11863 of 2020 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF PETITIONER DATED 27.05.2013 SUBMITTED BEFORE THE COLLECTOR** **EXHIBIT P2 TRUE COPY OF JUDGMENT DATED 2.05.2013 IN WPC NO.15919/2013** **EXHIBIT P3 TRUE COPY OF PROCEEDING DATED 06.02.2014 OF THE 2ND RESPONDENT** **EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 2.12.2014 IN WPC NO.22746/2014** **EXHIBIT P5 TRUE COPY OF ORDER DATED 20.08.2015 ISSUED BY 1ST RESPONDENT** **EXHIBIT P6 TRUE COPY OF THE REPRESENTATION/OBJECTION DATED 21.05.2020 BEFORE THE FIRST RESPONDENT** **EXHIBIT P7 TRUE COPY OF ORDER DATED 23/10/2020 ISSUED BY 2ND RESPONDENT** **EXHIBIT P8 TRUE COPY OF COMMISSIONERS REPORT DATED 14/2/1990 IN OS NO.161/1985**