Suresh P.R @ Suresh Kurup vs * 1 State Of Kerala (Corrected)
2021 Latest Caselaw 3674 Ker

                 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:
                 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:
    * 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 3rd respondent Revenue Divisional Officer and Ext.P8 order

dated 10.11.2020 of the 2nd respondent Land Revenue

Commissioner. The petitioner has also sought for a writ of

mandamus commanding the 2nd 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)

22.01.2021, I.A.No.2 of 2021 filed by the petitioner for impleading

Cochin Devaswom Board as additional 6th 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 2nd 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 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 W.P.(C) No.120 OF 2021(L)

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)

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)

1st 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 1st respondent, seeking interim relief.

10. The learned Standing Counsel for the additional 6th

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 1st 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 6th respondent Cochin Devaswom Board, as

expeditiously as possible, at any rate, within a period of two W.P.(C) No.120 OF 2021(L)

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 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 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