Kerala High Court
Prakasan vs Kuttumukku Devaswom on 3 August, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 3RD DAY OF AUGUST 2023 / 12TH SRAVANA, 1945
WP(C) NO. 25172 OF 2020
PETITIONER:
PRAKASAN, AGED 51 YEARS, S/O.POOSSERY VELAYUDHAN,
ENGINEERING COLLEGE P.O., VILVATTOM VILLAGE, MANNUMKADU
DESOM, TRISSUR TALUK AND TRISSUR DISTRICT.
BY ADV T.N.MANOJ
RESPONDENTS:
1 KUTTUMUKKU DEVASWOM REPRESENTED BY DEVASWOM OFFICER,
SREEKRISHNAPURAM, KUTTUMUKKU, PIN-680008.
2 COCHIN DEVASWOM BOARD,
REPRESENTED BY SECRETARY, THRISSUR-680020
3 THE SUB COLLECTOR (APPELLATE AUTHORITY UNDER THE LAND
CONSERVANCY ACT),O/O.THE SUB COLLECTOR, TRISSUR-680003.
4 THE SPECIAL TAHSILDHAR,
COCHIN DEVASWOM BOARD, LC UNIT, TRISSUR-680020.
5 THE VILLAGE OFFICER,
VILVATTOM VILLAGE OFFICE, VIVATTOM, PIN-680008.
*6 STATE OF KERALA,REPRESENTED BY SECRETARY, DEPARTMENT OF
REVENUE, THIRUVANANTHAPURAM-695001.(THE DESCRIPTION OF THE
6TH RESPONDENT IS SUO MOTU CORRECTED AS 'REVENUE (DEVASWOM)
DEPARTMENT' INSTEAD OF 'DEPARTMENT OF REVENUE' AS PER THE
ORDER DATED 03.08.2023 IN WPC)
R BY SRI.S.RAJMOHAN, SR.GOVT.PLEADER
SRI.K.P.SUDHEER, SC, CDB
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
W.P.(C)No.25172 of 2020
JUDGMENT
Anil K. Narendran, J.
The petitioner has filed this writ petition under Article 226
of the Constitution of India, seeking a writ of certiorari to quash
Ext.P9 order dated 17.08.2020 of the 3rd respondent Sub
Collector. The petitioner has also sought for a declaration that
his land is not Government land or Puramboke so as to recover
the same resorting to the provisions of the Kerala Land
Conservancy Act, 1957 but Devaswom land capable of getting
Pattayam/Purchase Certificate under the Kerala Land Reforms
Act, 1963; a writ, order or direction granting liberty to the
petitioner to approach the Land Tribunal, Thrissur to continue
the proceedings under SMP No.2191 of 2015, pending before it
for obtaining Pattayam/Purchase Certificate; and a writ, order or
direction to stay all further proceedings of eviction and recovery
of 10 cents of land/property comprised in Survey No.211/2 of
Vilvattom Village from the possession of the petitioner, in
obedience to Ext.P1 notice dated 06.06.2019, till SMP No.2191
of 2015 is finalised by the Land Tribunal.
2. Going by the averments in the writ petition, the land
in question having an extent of 10 cents is part of 1.72 Acres of
land situated in Survey No.211/2 of Vilvattom Village, belongs to
W.P.(C)No.25172 of 2020
Sreekrishnapuram Temple. By virtue of Document No.4105/1116
of Sub Registrar Office, Thrissur, the properties having a total
extent of 2.56 Acres were given on licence in favour of Kongoth
Parameswara Menon. Thereafter, the Devaswom Board, vide its
decision dated 19.12.1953, in proceedings No.3923/1953 gave
the property to the said Parmeswara Menon with Verumpattam
rights, upon his request. Thereupon, the said person, who was
holding the property as cultivating tenant as defined in Section
2(8) read with Section 13 of the Kerala Land Reforms Act,
became the absolute owner in possession of the property. The
said property was again assigned in favour of Cherumukkil
Gopalan Nair, who partitioned the said property among his legal
heirs. Thereafter, an extent of 10 cents from the said property
was assigned in favour of the petitioner. However, the petitioner
has been issued with Ext.P1 order dated 06.06.2019 of the 4th
respondent Special Tahsildar resorting to the provisions of the
Kerala Land Conservancy Act and the Rules made thereunder,
for eviction from the unauthorised occupation of the said
property. Challenging the said order, the petitioner preferred an
appeal, i.e., Appeal No.A3/11273/2019, before the 3rd
respondent Sub Collector, which was dismissed by Ext.P9 order
dated 17.08.2020. Hence this writ petition.
W.P.(C)No.25172 of 2020
3. On 17.11.2020, when this writ petition came up for
admission, this Court admitted the matter on file. The learned
Standing Counsel for Cochin Devaswom Board took notice for
respondents 1 and 2. The learned Government Pleader took
notice for respondents 3 to 6. This Court granted an interim
order staying the eviction until further orders.
4. Heard the learned counsel for the petitioner, the
learned Standing Counsel for Cochin Devaswom Board for
respondents 1 and 2 and the learned Senior Government Pleader
for respondents 3 to 6.
5. Ext.P9 order dated 17.08.2020 of the 3rd respondent
Sub Collector, which is under challenge in this writ petition, is
one passed in Ext.P8 appeal, i.e., Appeal No.11273 of 2019,
which was one filed by the petitioner under Section 16(1)(b) of
the Kerala Land Conservancy Act, challenging Ext.P1 order dated
06.06.2019 of the 4th respondent Special Tahsildar.
6. Section 16 of the Kerala Land Conservancy Act deals
with appeal and revision. 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. As
per the proviso to clause (a), no such appeal shall lie in any case
W.P.(C)No.25172 of 2020
where the order is passed by the Revenue Divisional Officer on
appeal under clause (b). As per clause (b) of sub-section (1) of
Section 16; in all other cases appeal shall lie to the Revenue
Divisional Office. 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 sub-section (2) of Section 16, the Collector may
either suo motu or on application revise any decision made or
order passed under this Act by any officer authorised under
Section 15. As per the first proviso to sub-section (2), where
such officer is the Revenue Divisional Officer, the Collector shall
not on application revise any decision made or order passed
otherwise than on appeal. As per the second proviso to sub-
section (2), the Collector shall not revise any decision or order if
an appeal against such decision or order is pending or if the time
for preferring appeal, if any, against such decision or order has
not expired. As per sub-section (3) of Section 16, any person
aggrieved by any decision or order of the Collector under this Act
(otherwise than on appeal or revision) may appeal to the Board
of Revenue and the Board of Revenue may pass such order on
the appeal as it thinks fit. As per sub-section (4) of Section 16,
the Commissioner of Land Revenue may either suo motu or on
application revise any order passed by the Collector on appeal.
W.P.(C)No.25172 of 2020
As per sub-section (5) of Section 16, the Government may
either suo motu or on application revise any order passed by the
Commissioner of Land Revenue on appeal. As per sub-section
(6) of Section 16, no order shall be passed under sub-section (1)
or sub-section (2) or sub-section (3) or sub-section, (4) or sub-
section (5) without giving the party who may be affected thereby
an opportunity of being heard. As per sub-section (7) of Section
16, pending disposals of any appeal or revision under this Act,
the appellate authority or the revising authority, as the case may
be, may suspend the execution of the decision or order appealed
against or sought to be revised.
7. Section 17 of the Kerala Land Conservancy Act deals
with the limitation for appeal and revision. As per sub-section (1)
of Section 17, no appeal or revision shall be preferred under
Section 16 after the expiration of thirty days from the date on
which the decision or order appealed against or sought to be
revised was received by the appellant or applicant as the case
may be. As per sub-section (2) of Section 17, notwithstanding
anything contained in sub-section (1), the appellate authority or
the revising authority may admit an appeal or application for
revision preferred after the period specified in that sub-section, if
such authority is satisfied that the appellant or applicant had
W.P.(C)No.25172 of 2020
sufficient cause for not preferring the appeal or application within
that period. As per sub-section (3) of Section 17, the Collector
shall not suo motu initiate proceedings to revise any decision or
order after the expiry of one year from the date on which such
decision has been made or order has been passed. As per sub-
section (4) of Section 17, the Government or the Board of
Revenue the Commissioner of Land Revenue the Commissioner
of Land Revenue shall not suo motu initiate proceedings to revise
any order after the expiry of one year from the date on which
such order has been passed.
8. In view of the provisions under sub-section (4) of
Section 16 of the Act, the petitioner has a statutory remedy of
revision before the Commissioner of Land Revenue, against
Ext.P9 order dated 17.08.2020 of the 3rd respondent Sub
Collector.
9. 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
W.P.(C)No.25172 of 2020
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.
10. 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 [(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
W.P.(C)No.25172 of 2020
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 the 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.
11. In Thansingh Nathmal [AIR 1964 SC 1419] 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 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
W.P.(C)No.25172 of 2020
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 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.
12. In Titaghur Paper Mill [(1983) 2 SCC 433] a
Three-Judge Bench of the Apex Court held that the Orissa Sales
Tax Act, 1947 provides for a complete machinery to challenge an
W.P.(C)No.25172 of 2020
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 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
W.P.(C)No.25172 of 2020
applicable to enforcement of rights and has been followed by the
Apex Court throughout.
13. In Balkrishna Ram v. Union of India [(2020) 2
SCC 442] one of the issues raised before the Apex Court was
whether an appeal against an order of a single judge of a High
Court deciding a case related to an Armed Forces personnel
pending before the High Court is required to be transferred to
the Armed Forces Tribunal or should be heard by the High Court.
The Apex Court held that sub-section (1) of Section 14 of the
Armed Forces Tribunal Act, 2007 clearly provides that the Armed
Forces Tribunal will exercise powers of all Courts except the
Supreme Court or High Court exercising jurisdiction under Article
226 and Article 227 of the Constitution of India. Section 34 is
very carefully worded. It states that 'every suit', or 'other
proceedings' pending before any Court including a High Court
immediately before the establishment of the Tribunal shall stand
transferred on that day to the Tribunal. The Legislature has
clearly not vested the Armed Forces Tribunal with the power and
jurisdiction of the High Court to be exercised under Article 226 of
the Constitution. There can be no manner of doubt that the High
Court can exercise its writ jurisdiction even in respect of orders
passed by the Armed Forces Tribunal. Since an appeal lies to the
W.P.(C)No.25172 of 2020
Supreme Court against an order of the Armed Forces Tribunal,
the High Court may not exercise their extraordinary writ
jurisdiction because there is an efficacious alternative remedy
available but that does not mean that the jurisdiction of the High
Court is taken away. In a given circumstance, the High Court
may and can exercise its extraordinary writ jurisdiction even
against the orders of the High Court [sic: Armed Forces
Tribunal].
14. In Balkrishna Ram [(2020) 2 SCC 442] the Apex
Court held that the principle that the High Court should not
exercise its extraordinary writ jurisdiction when an efficacious
alternative remedy is available, is a rule of prudence and not a
rule of law. The Writ Courts normally refrain from exercising their
extraordinary power if the petitioner has an alternative
efficacious remedy. The existence of such remedy however does
not mean that the jurisdiction of the High Court is ousted. At the
same time, it is a well settled principle that such jurisdiction
should not be exercised when there is an alternative remedy
available - Union of India v. T.R. Varma [AIR 1957 SC 882].
The rule of alternative remedy is a rule of discretion and not a
rule of jurisdiction. Merely because the Court may not exercise
its discretion, is not a ground to hold that it has no jurisdiction.
W.P.(C)No.25172 of 2020
There may be cases where the High Court would be justified in
exercising its writ jurisdiction because of some glaring illegality
committed by the Armed Forces Tribunal. One must also
remember that the alternative remedy must be efficacious and in
case of a Non-Commissioned Officer (NCO), or a Junior
Commissioned Officer (JCO); to expect such a person to
approach the Supreme Court in every case may not be justified.
It is extremely difficult and beyond the monetary reach of an
ordinary litigant to approach the Supreme Court. Therefore, it
will be for the High Court to decide in the peculiar facts and
circumstances of each case whether it should exercise its
extraordinary writ jurisdiction or not. There cannot be a blanket
ban on the exercise of such jurisdiction because that would
effectively mean that the Writ Court is denuded of its jurisdiction
to entertain such writ petitions which is not the law laid down in
L. Chandra Kumar v. Union of India [(1997) 3 SCC 262].
15. Viewed in the light of the law laid down in the
decisions referred to supra, the conclusion is irresistible that in
view of the statutory remedy provided under sub-section (4) of
Section 16 of the Kerala Land Conservancy Act, before the
Commissioner of Land Revenue, the petitioner cannot invoke the
writ jurisdiction of this Court under Article 226 of the
W.P.(C)No.25172 of 2020
Constitution of India, for challenging Ext.P9 order dated
17.08.2020 of the 3rd respondent Sub Collector, on the grounds
raised in this writ petition.
16. In such circumstances, this writ petition, which was
one filed on 16.11.2020, fails on the ground of maintainability
and the same is accordingly dismissed; however without
prejudice to the right of the petitioner to challenge Ext.P9 order
dated 17.08.2020 of the 3rd respondent Sub Collector before the
Commissioner of Land Revenue, by invoking the statutory
remedy provided under sub-section (4) of Section 16 of the Act.
The legal and factual contentions raised by the petitioner are left
open.
17. The submission of the learned counsel for the
petitioner that the petitioner shall file a revision before the
Commissioner of Land Revenue, under sub-section (4) of Section
16 of the Act, challenging Ext.P9 order dated 17.08.2020 of the
3rd respondent Sub Collector, within a period of three weeks from
the date of receipt of a certified copy of this judgment, is
recorded. In the application to be filed for condonation of delay,
invoking the provisions of sub-section (2) of Section 17 of the
Act, the petitioner shall point out the period of pendency of this
writ petition before this Court.
W.P.(C)No.25172 of 2020
The interim order granted by this Court in this writ petition,
on 17.11.2020, shall continue to be in force, till a decision is
taken by the Commissioner of Land Revenue, as directed above,
within the time limit stipulated above.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
AV/5/8
W.P.(C)No.25172 of 2020
APPENDIX OF WP(C) 25172/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE NOTICE DATED 06.06.2019 OF
THE SPECIAL TAHSILDHAR COCHIN DEVASWOM
BOARD.
EXHIBIT P2 TRUE COPY OF THE LIST OF DOCUMENTS PRODUCED
BY THE PETITIONER, BEFORE THE SPECIAL
TAHSILDHAR TO SUPPORT HIS CLAIM OF TITLE AND
OWNERSHIP.
EXHIBIT P3 TRUE COPY OF THE TITLE DEED DATED 10.09.2004
OF TRISSUR SRO OF THE PETITIONER.
EXHIBIT P4 TRUE COPY OF THE VERUMBATTAM DEED
NO.160/1954 DATED 11.01.1954 IN FAVOUR OF
PARAMESWARA MENON.
EXHIBIT P5 TRUE COPY OF THE ASSIGNMENT DEEDS
NO.1790/1974 OF TRISSUR SRO DATED
05.06.1974, IN FAVOUR OF GOPALAN NAIR.
EXHIBIT P6 TRUE COPY OF TAX RECEIPT DATED 13.10.2004 IN
THE NAME OF THE PETITIONER, FROM THE VILLAGE
OFFICE VILVATTOM VILLAGE OFFICE.
EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS DATED
11.11.2014 OF THE DEPUTY COLLECTOR LAND
REFORMS TRISSUR, ISSUING PURCHASE
CERTIFICATE IN FAVOUR OF GEORGE C.V.
EXHIBIT P8 TRUE COPY OF THE MEMORANDUM OF APPEAL
NO.11273/2019 OF THE PETITIONER BEFORE THE
RDO TRISSUR.
EXHIBIT P9 TRUE COPY OF ORDER DATED 17.08.2020 OF THE
SUB COLLECTOR AT TRISSUR DISMISSING THE
APPEAL.
