Ibrahimkutty vs State Of Kerala
2021 Latest Caselaw 1991 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

    TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942

                      W.P.(C) No.29145 OF 2020(P)


PETITIONER:

               IBRAHIMKUTTY,
               AGED 60 YEARS, S/O.ALIYARUKUNJU,
               ALMUBARAK MANZIL,
               VENGARA KARA, THODIYOOR NORTH P.O.,
               KARUNAGAPPALLY TALUK, KOLLAM DISTRICT-690 544,
               ANAS WIRECUT BRICKS, VALLIKUNNAM.

               BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY SECRETARY TO GOVERNMENT,
               REVENUE DEPARTMENT, SECRETARIAT,
               THIRUVANANTHAPURAM-695 001.

      2        THE DISTRICT COLLECTOR,
               ERNAKULAM-682 030.

      3        REVENUE DIVISIONAL OFFICER,
               FORTKOCHI, ERNAKULAM-682 001.

      4        THE TAHSILDAR, ALUVA TALUK,
               ALUVA, ERNAKULAM DISTRICT-683 101.

      5        VILLAGE OFFICER, ANGAMALY VILLAGE,
               ANGAMALY, ALUVA TALUK,
               ERNAKULAM DISTRICT-683 101.

      R1-R5    SMT.K.AMMINIKUTTY, SENIOR GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
19.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.29145 OF 2020(P)

                                     -2-


                                 JUDGMENT

The petitioner, who is the owner in possession of 31.208

cents of land situated in Re.Sy. No.336/8-2 in Block No.12 of

Angamaly Village in Aluva Taluk, has filed this writ petition under

Article 226 of the Constitution of India seeking a writ of

mandamus commanding the 3rd respondent to consider Ext.P4 and

carry out fixation of fair value of petitioner's property situated in

Re.Sy.No.336/8-2 of Angamaly Village, without any delay. The

petitioner has also sought for a writ of mandamus commanding

the 3rd respondent to consider the nature of diminution in the

value of the property and also its utility, while fixing the fair value;

a writ of mandamus commanding the 2 nd respondent District

Collector to permit the petitioner to file an appeal against the

existing fair value of the land in the event of the 3 rd respondent

not able to carry out fixation of fair value; and a writ of

mandamus commanding the 1st respondent to issue orders, if

necessary, to enable respondents 2 and 3 to carry out fixation of

fair value of the property of the petitioner.

2. Heard the learned counsel for the petitioner and also

the learned Senior Government Pleader appearing for the W.P.(C) No.29145 OF 2020(P)

respondents.

3. Section 28A of the Kerala Stamp Act, 1959 deals with

fixation of fair value of land. As per sub-section (1) of Section

28A, every Revenue Divisional Officer shall, subject to such rules

as may be made by the Government in this behalf, fix the fair

value of the lands situate within the area of his jurisdiction, for

the purpose of determining the duty chargeable at the time of

registration of instruments involving lands. As per sub-section

(1A) of Section 28A, subject to such rules as may be prescribed,

the fair value of land fixed under sub-section (1) may be revised

by the Revenue Divisional Officer every five years or earlier if so

directed by the Government, if in the opinion of the Government

any substantial change of the fair value of land has taken place.

As per sub-section (3) of Section 28A, the fair value of land fixed

under sub-section (1) and the revised fair value of land fixed

under sub-section (1A) shall be published in such manner as may

be provided in the rules made under this Act. As per sub-section

(4) of Section 28A, any person aggrieved by the fixation of fair

value under sub-section (1) or the revision of fair value under W.P.(C) No.29145 OF 2020(P)

sub-section (1A) may, within one year of its publication under

sub-section (3), appeal to the Collector. As per the proviso to

sub-section (4) of Section 28A, inserted with effect from

01.04.2010, the Collector may admit an appeal preferred after the

said period of one year if he is satisfied that the appellant had

sufficient cause for not preferring the appeal within the said

period. As per sub-section (5) of Section 28A, after the publication

of the increased fair value of land under sub-section (1B), any

person aggrieved by the fixation of fair value of land in an appeal

under sub-section (4) may, within a period of one year from the

date of publication of the notification under sub-section (1B), file

an application to the Collector to review the order passed in

appeal and the Collector shall dispose of the same in such manner

and within such period as may be prescribed. Therefore, if the

petitioner is feeling aggrieved by the fixation of fair value by the

Revenue Divisional Officer, he can avail the statutory remedy

before the 2nd respondent District Collector, by filing an appeal,

under sub-section (4) of Section 28A of the Act, read with Rule 5

of the Kerala Stamp (Fixation of Fair Value of Land) Rules, 1995, W.P.(C) No.29145 OF 2020(P)

in Form B, affixing Court Fee Stamp as required by sub-rule (1) of

Rules.

4. 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.

5. 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 W.P.(C) No.29145 OF 2020(P)

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

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 W.P.(C) No.29145 OF 2020(P)

statutory forum is created by law for redressal of grievances, a

writ petition should not be entertained ignoring the statutory

dispensation.

6. In such circumstances, this writ petition is disposed of

by relegating the petitioner to avail statutory remedy of appeal

under sub-section (4) of Section 28A of the Kerala Stamp Act,

read with sub-rule (5) of Rule 5 of the Kerala Stamp (Fixation of

Fair Value of Land) Rules before the 2nd respondent District

Collector.

7. If any such appeal is filed within a period of one month

from the date of receipt of a certified copy of this judgment, the

2nd respondent shall consider the same and pass appropriate

orders thereon, with notice to the petitioner, and after affording

him an opportunity of being heard, as expeditiously as possible.

8. In State of U.P. v. Harish Chandra [(1996) 9 SCC

309] the Apex Court held that no mandamus can be issued to

direct the Government to refrain from enforcing the provisions of

law or to do something which is contrary to law. In Bhaskara

Rao A.B. v. CBI [(2011) 10 SCC 259] the Apex Court W.P.(C) No.29145 OF 2020(P)

reiterated that, generally, no Court has competence to issue a

direction contrary to law nor can the Court direct an authority to

act in contravention of the statutory provisions. The courts are

meant to enforce the rule of law and not to pass the orders or

directions which are contrary to what has been injected by law.

Therefore, in terms of the direction contained in this

judgment, the 2nd respondent shall take an appropriate decision in

the matter, strictly in accordance with law, taking note of the

relevant statutory provisions and also the law on the point.

Sd/-

ANIL K. NARENDRAN JUDGE bpr W.P.(C) No.29145 OF 2020(P)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.2783/99 OF ANGAMALI SUB REGISTRY.

EXHIBIT P2 TRUE COPY OF THE COMMISSIONER REPORT ALONG WITH THE PLAN SUBMITTED IN OS NO.405/2009.

EXHIBIT P3                TRUE COPY OF THE FINAL DECREE
                          PROCEEDINGS IN IA NO.2951/2011 IN OS
                          NO.405/2009.

EXHIBIT P4                TRUE COPY OF THE FAIR VALUE NOTIFICATION
                          OF LAND IN RESURVEY NO.336 OF ANGAMALI
                          VILLAGE.

EXHIBIT P5                TRUE COPY OF THE REPRESENTATION
                          SUBMITTED BEFORE THE 3RD RESPONDENT.

RESPONDENTS' EXHIBITS: NIL