Madras High Court
V. Murali vs The District Collector on 1 April, 2025
Author: M.Sundar
Bench: M.Sundar
W.P.No.11456 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.04.2025
CORAM:
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MRS. JUSTICE K. GOVINDARAJAN THILAKAVADI
W.P.No.11456 of 2025 and W.M.P.No.12938 of 2025
V. Murali Petitioner
vs.
1. The District Collector
Krishnagiri District
2. The District Revenue Officer
Krishnagiri
3. The Sub Collector
Hosur, Krishnagiri District
4. The Tahsildar
Shoolagiri Taluk, Krishnagiri District
5. The Revenue Inspector
Berigai Firka
Shoolagiri Taluk
Krishnagiri District Respondents
Writ Petition filed under Article 226 of the Constitution of India
seeking a writ of certiorari to call for the records of the fourth
respondent under Section 6 of the Tamil Nadu Land Encroachment Act,
Page Nos.1/12
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W.P.No.11456 of 2025
1905 in Na.Ka.No.131/2025/Aa1 dated 28.01.2025 and to quash the
same.
For petitioner Mr. J. Pradeep
ORDER
[made by M. SUNDAR, J.]
Captioned main ‘writ petition’ (hereinafter ‘WP’ for the sake of
brevity) has been filed assailing an order dated 28.01.2025 bearing
reference Na.Ka.No.131/2025/Aa1 made by R4 – Tahsildar (hereinafter
‘impugned order’ for the sake of convenience and clarity).
2. Mr. J. Pradeep, learned counsel on record for the writ
petitioner, submits that post impugned order, the writ petitioner has
sent a representation dated 10.02.2025 to RR 1 to 4 but there is
inaction and that has necessitated the captioned main WP with a
certiorari prayer assailing the impugned order.
3. This Court carefully perused the case file.
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4. It is seen that the impugned order was preceded by a
notice under Section 7 of 'the Tamil Nadu Land Encroachment Act,
1905 (Tamil Nadu Act III of 1905)' (for brevity 'said 1905 Act') issued
by R5 and the writ petitioner has sent a reply dated 04.09.2024 and a
further reply dated 09.10.2024 after which the impugned order has
been made by R4.
5. This Court has repeatedly held that said 1905 Act is a self
contained Code. The reason inter alia is that there is a provision to
have the alleged encroacher show caused under Section 7 of said 1905
Act followed by an order (considering the cause shown). The order
under Section 6 is appealable under Section 10 (District Collector is
the appellate authority) and there is a provision for further revision to
the Government under Section 10-A (Section 10-A(3) to be precise) of
said 1905 Act. Pending appeal / revision, there is a provision for
making interim prayer vide Section 10-B of said 1905 Act. Therefore,
said 1905 Act is a self contained Code in every sense of the
expression.
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6. As regards alternative remedy of statutory appeal under
Section 10 of said 1905 Act, learned counsel for writ petitioner does
not dispute that there is an effective and efficacious alternative
remedy. Learned counsel, adverting to representation dated
10.02.2025, requested for interim stay of the impugned order till the
disposal of the representation dated 10.02.2025. This Court is unable
to entertain this request, much less accede to the request, as on a
demurrer, even if the 10.02.2025 representation is to be construed as
a statutory appeal under Section 10 (about which there is allusion
infra) there is a provision under Section 10-B of said 1905 Act to seek
stay pending appeal before the Appellate Authority. Writ petitioner has
neither filed an appeal nor sought stay under Section 10-B of said
1905 Act pending appeal.
7. Learned counsel for writ petitioner, notwithstanding very
many averments in the writ affidavit and the grounds set out therein,
made a further request that the 10.02.2025 representation may be
treated as statutory appeal. A scanned reproduction of the
10.02.2025 representation is as follows:
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A careful perusal of the aforementioned representation makes it clear
that it is not addressed to R1 (District Collector) alone but it is
addressed to RR 1 to 4. To be noted, under Section 7 of said 1905
Act, R1 alone is the Appellate Authority in a case of this nature.
Therefore, a statutory appeal, in the case on hand, will lie only to R1.
8. Be that as it may, a careful perusal of the representation
dated 10.02.2025 brings to light that it is a representation seeking
issue of patta and therefore, it cannot be construed as an appeal
assailing the impugned order.
9. Reverting to alternative remedy, alternative remedy rule,
no doubt, is not an absolute rule and it is a rule of discretion. It is a
self-imposed restraint qua writ Court which exercises jurisdiction under
Article 226 of the Constitution of India. Hon'ble Supreme Court in
Dunlop India case [Assistant Collector of Central Excise,
Chandan Nagar, West Bengal Vs. Dunlop India Ltd. and others]
reported in (1985) 1 SCC 260 held that alternative remedy rule
should be applied strictly in cases pertaining to tax laws. Relevant
paragraph in Dunlop case is paragraph 3 and the same reads as
follows :
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“3. ....... Article 226 is not meant to short-circuit or
circumvent statutory procedures. It is only where statutory remedies
are entirely ill-suited to meet the demands of extraordinary
situations, as for instance where the very vires of the statute is in
question or where private or public wrongs are so inextricably mixed
up and the prevention of public injury and the vindication of public
justice require it that recourse may be had to Article 226 of the
Constitution. But then the Court must have good and sufficient
reason to bypass the alternative remedy provided by statute. Surely
matters involving the revenue where statutory remedies are available
are not such matters. We can also take judicial notice of the fact
that the vast majority of the petitions under Article 226 of the
Constitution are filed solely for the purpose of obtaining interim
orders and thereafter prolong the proceedings by one device or the
other. The practice certainly needs to be strongly discouraged. “
(Underlining made by this Court to supply emphasis and highlight)
10. Thereafter, Satyawati Tondon principle was laid down by
Hon'ble Supreme Court in United Bank of India Vs. Satyawati
Tondon and others reported in (2010) 8 SCC 110) wherein it has
been held that when it comes to cases pertaining to taxes, cess, etc.,
i.e., fiscal laws in general, rule of alternative remedy has to be applied
with utmost rigour. Satyawati Tondon principle was reiterated by
Hon'ble Supreme Court in K.C.Mathew case [Authorized Officer,
State Bank of Travancore Vs. Mathew K.C. reported in (2018) 3
SCC 85]. Relevant paragraph in K.C.Mathew case is paragraph 10
and the same reads as follows:
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'10. In Satyawati Tondon the High Court had restrained further
proceedings under Section 13(4) of the Act. Upon a detailed
consideration of the statutory scheme under the SARFAESI Act, the
availability of remedy to the aggrieved under Section 17 before the
Tribunal and the appellate remedy under Section 18 before the
Appellate Tribunal, the object and purpose of the legislation, it was
observed that a writ petition ought not to be entertained in view of the
alternate statutory remedy available holding: (SCC pp.123 & 128, Paras
43 & 55)
“43. Unfortunately, the High Court overlooked the
settled law that the High Court will ordinarily not entertain a
petition under Article 226 of the Constitution if an effective
remedy is available to the aggrieved person and that this Rule
applies with greater rigour in matters involving recovery of
taxes, cess, fees, other types of public money and the dues of
banks and other financial institutions. In our view, while
dealing with the petitions involving challenge to the action
taken for recovery of the public dues, etc., the High Court
must keep in mind that the legislations enacted by Parliament
and State Legislatures for recovery of such dues are a code
unto themselves inasmuch as they not only contain
comprehensive procedure for recovery of the dues but also
envisage constitution of quasi-judicial bodies for redressal of
the grievance of any aggrieved person. Therefore, in all such
cases, the High Court must insist that before availing remedy
under Article 226 of the Constitution, a person must exhaust
the remedies available under the relevant statute.
55. It is a matter of serious concern that despite
repeated pronouncement of this Court, the High Courts
continue to ignore the availability of statutory remedies under
the DRT Act and the SARFAESI Act and exercise jurisdiction
under Article 226 for passing orders which have serious adverse
impact on the right of banks and other financial institutions to
recover their dues. We hope and trust that in future the High
Courts will exercise their discretion in such matters with
greater caution, care and circumspection.'
(underlining made by this Court to supply emphasis and highlight)
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This Court is of the considered view that the principle laid down by the
Supreme Court in Dunlop India case, Satyawati Tondon case and
K.C. Mathew case should be applied to Revenue matters too.
11. There is one other reason and that is, the appeal turns
heavily on facts and perusal of records, which cannot be done in a writ
petition which is decided on affidavits and counter affidavits.
12. Be that as it may, there is no disputation that there is an
effective and efficacious alternative remedy for the writ petitioner. Writ
petitioner has not come up with any reason, much less a compelling
reason, as to why writ petitioner does not want to pursue alternative
remedy where records can be looked into and facts can be gone into.
13. Exceptions to Alternative Remedy rule have been
adumbrated in the oft-quoted celebrated Whirlpool judgment i.e.,
Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai
and others reported in (1998) 8 SCC 1. These exceptions have come
to stay in legal parlance as Whirlpool exceptions. The Whirlpool
exceptions, broadly stated, are four in number and they are:
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(i) Enforcement of fundamental rights;
(ii) Violation of Natural Justice Principles (NJP);
(iii) Order being 'wholly' without jurisdiction; and
(iv) when the vires of a statute are assailed.
but captioned WP, admittedly, does not fall under any of the
aforementioned categories.
14. Learned counsel for writ petitioner was given an
opportunity to withdraw the captioned main WP and pursue alternative
remedy but the learned counsel did not choose to do that. Therefore,
this Court has no option other than holding that the captioned main
WP does not pass muster in the Admission Board, i.e., Motion List, for
the reasons alluded to supra.
15. Ergo, the sequitur is, captioned main WP is dismissed.
Consequently, captioned writ miscellaneous petition thereat also
perishes with the captioned main WP and the same is also dismissed.
In this case, considering the nature of the matter and considering how
writ petitioner is circumstanced, we refrain from imposing costs.
(M.S., J.) (K.G.T., J.)
01.04.2025
cad
Index : Yes/No
NC : Yes/No
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M.SUNDAR, J.
and
K. GOVINDARAJAN THILAKAVADI, J.
cad
To:
1. The District Collector
Krishnagiri District
2. The District Revenue Officer
Krishnagiri
3. The Sub Collector
Hosur
Krishnagiri District
4. The Tahsildar
Shoolagiri Taluk
Krishnagiri District
5. The Revenue Inspector
Berigai Firka
Shoolagiri Taluk
Krishnagiri District
01.04.2025
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