Joseph Kurian vs The District Collector
2021 Latest Caselaw 8464 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

         THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

MONDAY, THE 15TH DAY OF MARCH 2021 / 24TH PHALGUNA, 1942

                   WP(C).No.6510 OF 2021(K)


PETITIONER:

              JOSEPH KURIAN,AGED 44 YEARS
              S/O. KURIAN (LATE), KUNNATHUMPARA HOUSE,
              KADANADU P.O, PALA, KOTTAYAM DISTRICT.

              BY ADVS.
              SRI.J.JULIAN XAVIER
              SRI.FIROZ K.ROBIN
              SRI.ROY JOSEPH
              SMT.ANIES MATHEW
              SRI.E.HARIDAS

RESPONDENTS:

     1        THE DISTRICT COLLECTOR
              COLLECTORATE P.O, KOTTAYAM - 686002.

     2        THE TAHSILDAR
              TALUK OFFICE, MINI CIVIL STATION, GROUND
              FLOOR, 123, PALA RAMAPURAM ROAD, PALA P.O, PIN
              - 686576.

     3        TAHSILDAR (LR)
              MINI CIVIL STATION, GROUND FLOOR, 123, PALA
              RAMAPURAM ROAD, PALA P.O, PIN - 686576

     4        VILLAGE OFFICER
              VELLILAPILLY VILLAGE, PALA RAMAPURAM ROAD,
              EZHACHERRY, PALA P.O, PIN - 686576.
                               -2-
WP(C).No.6510 OF 2021(K)

*ADDL. R5     THE REVENUE DIVISIONAL OFFICER,
              MINI CIVIL STATION, KOTTAYAM, PIN-686001.

              (ADDL.R5 SUO MOTU IMPLEADED AS PER ORDER
              DATED 15-3-2021 IN WP(C).



              R BY GOVT.PLEADER SMT. A.C. VIDHYA


     THIS WRIT PETITION (CIVIL) HAVING COME UP            FOR
ADMISSION ON 15.03.2021, THE COURT ON THE SAME            DAY
DELIVERED THE FOLLOWING:
                                 -3-
WP(C).No.6510 OF 2021(K)

                           JUDGMENT

The petitioner has filed this writ petition under Article

226 of the Constitution of India, seeking a writ of certiorari to

quash Ext.P7 proceedings dated 08.03.2021 and Ext.P10

report dated 01.02.2021 of the 3 rd respondent Tahsildar (LR).

The petitioner has also sought for a writ of mandamus

commanding respondents 3 and 4 to conduct measurement of

the property owned by the petitioner in Survey No.1074/3

(New Survey No.118/3) of Vellilapilly Village strictly following

the directions in Ext.P6 judgment of this Court dated

14.07.2020 in W.P.(C)No.791 of 2020, within a time frame to

be fixed by this Court and till such time, not to dispossess the

petitioner from the property covered by Exts.P1 to P4

documents. The further relief sought for is stay of all further

proceedings pursuant to Ext.P7 to the extent it directs the

petitioner to surrender the property alleged to have

encroached, pending disposal of this writ petition.

2. Heard the learned counsel for the petitioner and

also the learned Government Pleader appearing for the

WP(C).No.6510 OF 2021(K)

respondents.

3. The learned Government Pleader would point out

that Ext.P7 order of the 3rd respondent Tahsildar (LR) is

appealable before the additional 5th respondent Revenue

Divisional Officer under Section 16 of the Kerala Land

Conservancy Act, 1957.

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

WP(C).No.6510 OF 2021(K)

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 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

WP(C).No.6510 OF 2021(K)

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.

6. In view of the law laid down in the decisions

referred to supra, no interference is warranted on Ext.P7

order of the 3rd respondent, invoking the writ jurisdiction of

this Court under Article 226 of the Constitution of India, when

a statutory remedy of appeal is available before the additional

5th respondent Revenue Divisional Officer, under Section 16 of

the Kerala Land Conservancy Act, 1957.

7. In such circumstances, this writ petition is

disposed of with the following directions;

WP(C).No.6510 OF 2021(K)

a) The petitioner shall file an appeal against Ext.P7 order dated 08.03.2021 of the 3rd respondent Tahsildar (LR) before the additional 5th respondent Revenue Divisional Officer, under Section 16 of the Kerala Land Conservancy Act, 1957, along with an application for stay, after remitting the requisite fee.

b) On receipt of such appeal and stay petition, the additional 5th respondent shall consider the application for stay, with notice to the petitioner and pass appropriate orders, within one week and thereafter, the said respondent shall consider the appeal and pass appropriate orders thereon, with notice to the petitioner and other affected parties, if any, as expeditiously as possible, at any rate, within a further period of two months.

8. The legal and factual contentions raised by the

petitioner are left open to be raised before the additional 5 th

respondent at appropriate stage.

9. 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.

WP(C).No.6510 OF 2021(K)

In Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259] the

Apex Court 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.

10. Therefore, in terms of the direction contained in

this judgment, the additional 5th respondent Revenue

Divisional Officer 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 AV/15/3

WP(C).No.6510 OF 2021(K)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PATTA NO. 2338/77 ISSUED BY THE LAND TRIBUNAL PALA.

EXHIBIT P2 TRUE COPY OF THE SKETCH OF THE LAND THAT WAS PREPARED ON 7.7.1958.

EXHIBIT P3 TRUE COPY OF THE LAND TAX RECEIPT DATED 7.1.1993 ISSUED BY THE VILLAGE OFFICER, VALLILAPPILY VILLAGE,

EXHIBIT P4 TRUE COPY OF THE WILL DEED DATED 4.10.2016 EXECUTED BY SRI.KURIAN, S/O. PAULOSE, KUNNATHUMPARA HOUSE.

EXHIBIT P5 PHOTOS SHOWING THE BOUNDARIES OF THE PETITIONER'S PROPERTY.

EXHIBIT P6 TRUE COPY OF JUDGMENT DATED 14.07.2020 IN WP(C) NO. 791/2020.

EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS DATED 8.3.2021 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P8 COPY OF THE NOTICE DATED 8.3.2021 IN FORM -C ISSUED UNDER RULE 11.

EXHIBIT P9 TRUE COPY OF THE OBJECTION/PETITION DATED 12.2.2021 DIRECTLY SUBMITTED BEFORE THE 3RD RESPONDENT.

EXHIBIT P10 TRUE COPY OF THE REPORT DATED 1.2.2021 ALONG WITH SKETCH PREPARED BY THE 3RD RESPONDENT.

EXHIBIT P11 COPY OF THE REPORT DATED 12.12.2018 SUBMITTED TO THE 2ND RESPONDENT BY THE 4TH RESPONDENT VILLAGE OFFICER.