Kerala High Court
Safarullah vs State Of Kerala on 24 October, 2024
Author: Anil K. Narendran
Bench: Anil K. Narendran
1
WP(C)No.31665 of 2024
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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 24TH DAY OF OCTOBER 2024/2ND KARTHIKA, 1946
WP(C) NO. 31665 OF 2024
PETITIONERS:
1 SAFARULLAH
AGED 46 YEARS
S/O. SAFARUDHEEN, KAROTTU HOUSE, PAMBANAR KARA,
PEERMADE VILLAGE, PEERUMEDU TALUK, IDUKKI DISTRICT,
PIN - 685501
2 THASNI
AGED 41 YEARS
W/O. SAFARULLAH, KAROTTU HOUSE, PAMBANAR KARA,
PEERMADE VILLAGE, PEERUMEDU TALUK, IDUKKI DISTRICT,
PIN - 685501
BY ADVS.
BIJU .C. ABRAHAM
THOMAS C.ABRAHAM
BASIL MATHEW
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,
DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE DISTRICT COLLECTOR
COLLECTORATE, KUYILIMALA, IDUKKI DISTRICT,
PIN - 685603
3 THE SPECIAL TAHSILDAR (LA)
2
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TALUK OFFICE, VANCHIKAVALA, CHERUTHONI, IDUKKI
DISTRICT, PIN - 685602
4 THE SPECIAL TAHSILDAR (LR),
TALUK OFFICE, VANCHIKAVALA, CHERUTHONI, IDUKKI
DISTRICT, PIN - 685602
5 THE VILLAGE OFFICER,
PEERUMEDU VILLAGE OFFICE, PEERUMEDU ROAD, PEERUMEDU,
AZHUTHA, IDUKKI DISTRICT, PIN - 685531
ADV.SRI. ASWIN SETHUMADHAVAN, SR. GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Anil K. Narendran, J.
The petitioners, who claim possession over 15 cents of land
in Survey No.534 of Parunthumpra in Peerumedu Village, on the
strength of Ext.P1 agreement dated 26.06.2008, have filed this
writ petition under Article 226 of the Constitution of India
seeking writ of mandamus commanding the 3 rd respondent
Special Tahsildar (Law Assignment), to consider and pass final
orders on the applications for patta made by the petitioners, as
evidenced by Exts.P8 & P12 receipts dated 20.09.2022 and
27.07.2024, with notice and opportunity of hearing.
2. On 06.09.2024, when this writ petition came up for
consideration, the learned Senior Government Pleader sought
time to get instructions.
3. On 12.09.2024, the learned Senior Government
Pleader, on instructions, pointed out that based on Ext.P13 order,
which was followed by Ext.P14 notice in Form-C, the petitioners
have already been evicted from the property in question and a
board has also been erected.
4. On 22.10.2024, the learned Senior Government
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Pleader pointed out the statutory remedy available to the
petitioners, if they are aggrieved by Ext.P13 order, under Section
16 of the Kerala Land Conservancy Act, by filing an appeal before
the concerned Revenue Divisional Officer. The learned counsel
for the petitioner sought adjournment and accordingly, the
matter was adjourned.
5. Heard the learned counsel for the petitioners and the
learned Senior Government Pleader for the respondents.
6. The petitioners have not chosen to place on record, a
copy of the applications for patta. As noticed in the order dated
12.09.2024, based on Ext.P13 order, which was followed by
Ext.P14 notice in Form-C, the petitioners have already been
evicted from the property in question and a board has also been
erected on the property. In case the petitioners are feeling
aggrieved by the proceedings pursuant to Ext.P13 order, it is for
them to challenge the same before the concerned Revenue
Divisional Officer, by invoking the statutory remedy of appeal
provided under Section 16 of the Kerala Land Conservancy Act.
7. In Commissioner of Income Tax v. Chhabil Das
Agarwal [(2014) 1 SCC 603] the Apex Court held that non-
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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 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
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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 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.
9. In Thansingh Nathmal [AIR 1964 SC 1419] a
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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
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
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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.
10. 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
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:
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"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
applicable to enforcement of rights and has been followed by the
Apex Court throughout.
11. 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
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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
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
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Tribunal].
12. 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.
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
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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].
13. In view of the law laid down in the decisions referred
to supra, when there is a statutory remedy of appeal provided
under Section 16 of the Kerala Land Conservancy Act, 1957
before the Revenue Divisional Officer, the petitioner cannot
invoke the writ jurisdiction of this Court under Article 226 of the
Constitution of India in order to challenge Ext.13 order.
14. The learned counsel for the petitioners would submit
that during the pendency of this writ petition, the petitioners
have filed an appeal before the concerned Revenue Divisional
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Officer.
In such circumstances, without prejudice to the right of the
petitioners to prosecute the appeal now filed against Ext.P13
order before the concerned Revenue Divisional Officer, this writ
petition is dismissed as not maintainable leaving open the legal
and factual contentions raised by the petitioners.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
Dxy
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APPENDIX OF WP(C) 31665/2024
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE TRANSFER OF POSSESSION
AGREEMENT DATED 26/6/2008
EXHIBIT P2 TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED
20/4/2023 ISSUED BY THE 5TH RESPONDENT TO
THE PETITIONERS
EXHIBIT P3 TRUE COPY OF THE BUILDING AGE CERTIFICATE
DATED 10/6/2024 ISSUED BY THE 6TH RESPONDENT
TO THE PETITIONERS
EXHIBIT P4 TRUE COPY OF THE PROPERTY TAX DEMAND DETAILS
DATED 10/06/2024 ISSUED BY THE 6TH
RESPONDENT TO THE PETITIONERS
EXHIBIT P4(A) TRUE COPY OF THE PAYMENT RECEIPT EVIDENCING
THE PAYMENT OF TAX DEMANDED AS PER EXT.P4
EXHIBIT P4(B) TRUE COPY OF THE RECEIPT OF THE WATER BILL
PAYMENT DATED 03/06/2024
EXHIBIT P5 TRUE COPY OF THE LICENSE BEARING NO.
C4/2250/2024 DATED 3/5/2024 ISSUED BY THE
6TH RESPONDENT TO THE 2ND PETITIONER
EXHIBIT P6 TRUE COPY OF THE AGREEMENT DATED 17/12/2013
EVIDENCING THE PURCHASE OF ANOTHER 15 CENTS
OF LAND
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 21/7/2020 IN
I.A. NO.2/2020 IN O.S. NO.181/2020 ON THE
FILES OF THE MUNSIFF COURT, PEERUMEDU
EXHIBIT P8 TRUE COPY OF THE RECEIPT DATED 20/9/2022
ISSUED BY THE 3RD RESPONDENT EVIDENCING THE
RECEIPT OF THE APPLICATION FOR PATTA BEARING
EXHIBIT P9 TRUE COPY OF THE PROHIBITORY ORDER BEARING
NO. 668/2024 DATED 11/06/2024
EXHIBIT P10 TRUE COPY OF THE SHOW NOTICE BEARING NO. C3-
776/24 DATED 18/6/2024 ISSUED BY THE 4TH
RESPONDENT TO THE 1ST PETITIONER
EXHIBIT P11 TRUE COPY OF THE REPLY DATED 24/06/2024
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SUBMITTED BY THE 1ST PETITIONER BEFORE THE
4TH RESPONDENT
EXHIBIT P12 TRUE COPY OF THE RECEIPT DATED 27/7/2024
EVIDENCING THE RECEIPT OF APPLICATION NO.
155/24 FOR PATTA
EXHIBIT P13 TRUE COPY OF THE ORDER DATED 14/08/2024
ISSUED BY THE 4TH RESPONDENT TO THE
PETITIONERS
EXHIBIT P14 TRUE COPY OF THE C FORM BEARING NO. LC-
2/24/776/24 ISSUED BY THE 4TH RESPONDENT
EXHIBIT P15 TRUE COPY OF THE OBJECTION DATED 12/09/2024
SUBMITTED BY THE 1ST PETITIONER BEFORE THE
3RD RESPONDENT
