Kerala High Court
Roy Jacob vs The Thasildar (Lr) on 18 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942
WP(C).No.29121 OF 2020(M)
PETITIONER :
ROY JACOB
AGED 65 YEARS
S/O. K. JACOB, KOODARAPILLIL BUNGLOW,
CHENKULAM P. O., OOYOOR, KOLLAM - 691 510.
BY ADVS.
SRI.ALEX.M.SCARIA
SRI.A.J.RIYAS
SMT.SARITHA THOMAS
RESPONDENTS:
1 THE THASILDAR (LR),
KOTTARAKKARA, MINI CIVIL STATION, KOTTARAKKARA
- 689 645.
2 THE DISTRICT COLLECTOR
KOLLAM, CIVIL STATION RD, KAANKATHU MUKKU,
KOLLAM, KERALA - 691 013.
3 THE STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY,
REVENUE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
R BY SMT K.AMMINIKUTTY-SR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 18.01.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
-2-
WP(C).No.29121 OF 2020(M)
JUDGMENT
The petitioner, who was conducting quarrying operations in
Government land comprised in Re-survey No.36/4 in Block No.37 of
Velinalloor Village of Kottarakkara Taluk, has filed this writ petition
under Article 226 of the Constitution of India, seeking a writ of
certiorari to quash Ext.P9 order dated 27.07.2020 issued by the 1 st
respondent. The petitioner has also sought for a declaration that
the claim based on Ext.P9 is totally unsustainable.
2. On 04.01.2021, when this writ petition came up for
admission, the learned Government Pleader was directed to get
instructions.
3. On 11.01.2021, when the matter came up for
consideration, the learned Government Pleader submitted that a
statutory remedy of appeal is available against Ext.P9 order, in view
of the provisions under clause (a) in sub-section (1) of Section 16
of the Kerala Land Conservancy Act, 1957. The learned counsel for
the petitioner raised a question as to whether the 1 st respondent
Tahsildar (LR) is competent to issue Ext.P9 order.
4. Heard the learned counsel for the petitioner and also
the learned Senior Government Pleader appearing for the
respondents.
5. Vide Notification No.LRD4-18737/57/Rev. dated
01.10.1958 published in Kerala Gazette dated 07.10.1957 Part I,
WP(C).No.29121 OF 2020(M)
the Government of Kerala in exercise of the powers conferred
under Section 15 of the Kerala Land Conservancy Act, authorised
all Taluk Tahsildars to exercise by virtue of their office all the
powers of the District Collector under the said Act, within their
respective jurisdiction, except the power of hearing under Section
16. Thereafter, vide Notification No.LRD4-18737/57/Rev. dated
25.10.1958 published in Kerala Gazette dated 01.11.1958 Part I
the Government of Kerala in exercise of the powers conferred by
Section 16 of the Kerala Land Conservancy Act directed that the
appeal from the decision or order of the Taluk Tahsildar empowered
under Section 15 of the said Act shall lie to the Collector of the
District.
6. Section 16 of the Kerala Land Conservancy Act, which
deals with appeal and revision, was substituted by Act 11 of 1971
with effect from 05.01.1971. As per sub-section (1) of Section 16,
any person aggrieved by any decision or order under this Act of any
officer authorised under Section 15 may appeal; (a) where such
officer is the Revenue Divisional Officer, to the Collector; (b) in all
other cases, to the Revenue Divisional Officer, and the Collector or
the Revenue Divisional Officer, as the case may be, may pass such
order on the appeal as he thinks fit. As per the proviso to clause
(a) of sub-section (1) of Section 16, no appeal shall lie in any case
where the order is passed by the Revenue Divisional Officer on
WP(C).No.29121 OF 2020(M)
appeal under clause (b). In view of the provisions under Section 16
of the Act, Ext.P9 order dated 27.07.2020 of the 1 st respondent
Tahsildar (LR) is appealable before the Revenue Divisional Officer,
under clause (a) of sub-section (1) of Section 16 of the Act.
7. 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
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.
8. In Authorised Officer, State Bank of
Travancore v. Mathew K.C. [(2018) 3 SCC 85] the Apex
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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 [(2014) 1 SCC 603],
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 [AIR 1964 SC 1419] and Titaghur
Paper Mills Company Ltd. [(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
WP(C).No.29121 OF 2020(M)
is created by law for redressal of grievances, a writ petition
should not be entertained ignoring the statutory dispensation.
9. In view of the law laid down in the decisions referred to
supra, conclusion is irresistible that since a statutory remedy of
appeal is provided under clause (a) of sub-section (1) of Section 16
of the Kerala Land Conservancy Act, against Ext.P9 order dated
27.07.2020 of the 1st respondent Tahsildar (LR), the petitioner
cannot challenge that order by invoking the writ jurisdiction of this
Court under Article 226 of the Constitution of India, on the grounds
raised in this writ petition.
In such circumstances, this writ petition filed on 22.12.2020
is disposed of by relegating the petitioner to avail the statutory
remedy of appeal by approaching the concerned Revenue
Divisional Officer.
Sd/-
ANIL K.NARENDRAN, JUDGE
AV/20/1
WP(C).No.29121 OF 2020(M)
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS AND ORDER
DATED 17.11.2016 BEARING NO.B1-
5969/2016 WITH LC NO.30/16 OF THE 1ST
RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE NOTICE OF DEMAND IN
FORM NO.11 DATED 17.11.2016 ISSUED TO
THE PETITIONER.
EXHIBIT P3 TRUE COPY OF THE RECEIPT DATED
24.11.2016 BEFORE THE 2ND RESPONDENT,
VILLAGE OFFICER.
EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS DATED
20.04.2017 BEARING NO.B1-5969/2016 IN
LC NO.30/16 THERE WAS A REVISED
ASSESSMENT WITH RESPECT TO THE MATTERS
COVERED BY EXHIBITS P1 TO P3.
EXHIBIT P5 TRUE COPY OF THE PAY AN ADDITIONAL
AMOUNT OF RS. 1,42,140/- RECEIPT DATED
22.07.2017 BEFORE THE 2ND RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE NOTICE ISSUED BY THE
3RD RESPONDENT AS NOTICE BEARING
NO.B1-22095/2016 TO THE PETITIONER.
EXHIBIT P7 TRUE COPY OF THE NOTICE DATED
07.03.2020 BEARING NO.5646/2016 FROM
THE 3RD RESPONDENT TO THE PETITIONER.
EXHIBIT P8 TRUE COPY OF THE EXPLANATION DATED
18.06.2020 SUBMITTED BY PETITIONER TO
1ST RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE PROCEEDINGS DATED
27.07.2020.
EXHIBIT P10 TRUE COPY OF THE G.O.(P) NO.50/15/RD
DATED 02.02.2015.
EXHIBIT P11 TRUE COPY OF THE NOTIFICATION BEARING
NO.G.O.(P) NO.132/16/RD DATED
18.02.2016.
WP(C).No.29121 OF 2020(M)
EXHIBIT P12 TRUE COPY OF THE INTERIM ORDER DATED
01.10.2019 FOR RECOVERY OF AMOUNT
BASED ON EXHIBIT P11 NOTIFICATION IN
WP(C) NO.26189/2019.
