Dismissed

Celin Joseph v. the District Collector

Kerala HC15 Mar 2019WP(C)/3070/2019

Case brief

AI extract

What is this about?

The Court dismissed a writ petition seeking certiorari and mandamus to quash an order rejecting a land reclassification application. Holding that an efficacious alternative remedy (statutory appeal to the Land Revenue Commissioner) existed, the Court exercised its discretion not to interfere under Article 226.

What did the court decide?

The writ petition is dismissed without prejudice to the petitioner's right to file an appeal before the Land Revenue Commissioner.

Celin Joseph Vs the District Collector — Constitutional and Fundamental Rights | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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FRIDAY ,THE 15TH DAY OF MARCH 2019 / 24TH PHALGUNA, 1940

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WP(C).No. 3070 of 2019

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PETITIONER :

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CELIN JOSEPH,AGED 43 YEARS,W/O. JOSEPH, RESIDING AT YMJRA HOUSE NO.90,YMJ ROAD, PALARIVATTOM P.O., ERNAKULAM-682 025

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BY ADVS. SRI.G.HARIHARAN SRI.PRAVEEN.H. SMITHA PRAVEEN SRI.V.R.SANJEEV KUMAR

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RESPONDENTS:

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1 THE DISTRICT COLLECTOR,AYYANTHOLE, THRISSUR-680003

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2 THE TAHSILDAR

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KODUNGALLOOR TALUK, THRISSUR DISTRICT-680 664

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3 THE VILLAGE OFFICER,POYYA VILLAGE OFFICE, POYYA, THRISSUR DISTRICT-680 733

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4 THE SUB COLLECTOR (RDO),AYYANTHOLE, THRISSUR-680003

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5 THE AGRICULTURAL OFFICER, KRISHI BHAVAN, POYYA P.O., THRISSUR DISTRICT-680 733

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6 THE LOCAL LEVEL MONITORING COMMITTEE, (CONSTITUTED UNDER THE KERALA CONSERVATION OF PADDY LAND AND WET LAND ACT,2008) REPRESENTED BY ITS CONVENOR (THE AGRICULTURAL OFFICER) KRISHI BHAVAN, POYYA P.O., THRISSUR DISTRICT-680 733

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7 KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE (KSREC),VIKAS BHAVAN, C BLOCK, THIRUVANANTHAPURAM-695 033 REPRESENTED BY ITS DIRECTOR

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SRI PAUL ABRAHAM VAKKANAL, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 3070 of 2019

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JUDGMENT

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The petitioner, who is stated to be the owner of

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property having an extent of 25.62 Ares and 0.5949 Ares comprised in Survey No.131 of Poyya Village, Kodungallur Taluk in Thrissur District, covered by sale deed Nos.2014/2014 and 2192/1/2014 of Mala Sub Registrar Office, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P10 order dated 07.12.2018 issued by the 4^th respondent, whereby Ext.P4 application dated 11.09.2015 made by the petitioner under Clause 6 of the Kerala Land Utilization Order, 1967 for reclassification of the land in question, stands rejected. The petitioner has also sought for a writ of mandamus commanding the 4^th respondent to reconsider Ext.P4 request, taking note of the report issued by the 7^th respondent following the dictum laid down by this Court in Kunjumoideenkutty v. Marakkara Grama Panchayat [2018 (3) KLT 1033] .

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WP(C).No. 3070 of 2019

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Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents.

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The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P10 order of the 4^th respondent (whereby Ext.P4 application dated 11.09.2015 made by the petitioner for reclassification of the land in question, stands rejected) invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India.

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Admittedly, Ext.P10 is an order passed by the 4^th respondent in an application made by the petitioner under Clause 6 of the Kerala Land Utilization Order, 1967 seeking reclassification of the land in question. As per Clause 11 of the Kerala Land Utilization Order, Ext.P10 order passed by the 4^th respondent is appealable before the Land Revenue Commissioner.

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In Commissioner of Income Tax v. Chhabil

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Das Agarwal [(2014) 1 SCC 603] , the Apex Court held

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WP(C).No. 3070 of 2019

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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.

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In Authorised Officer, State Bank of

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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

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WP(C).No. 3070 of 2019

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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

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WP(C).No. 3070 of 2019

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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.

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In Thansingh Nathmal's case (supra) 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

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WP(C).No. 3070 of 2019

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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.

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In Titaghur Paper Mills' case (supra) a Three-

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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

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WP(C).No. 3070 of 2019

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the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to."

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The rule laid down in that passage was approved by the

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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.

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In Pavithran V. State of Kerala (2009 (4) KHC 4) , a Full Bench of this Court held that, whenever an adverse order is passed against a person, unless the same is challenged before the appropriate forum, within the prescribed time limit, the said order will become final.

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Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that no interference is warranted on Ext.P10 order dated

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WP(C).No. 3070 of 2019

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07.12.2018 of the 4^th respondent, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, on the grounds raised in this writ petition.

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In the result, this writ petition filed on 30.01.2019 is dismissed for the aforesaid reason; however without prejudice to the right, if any, of the petitioner to avail statutory remedy under Clause 11 of the Kerala Land Utilisation Order, against Ext.P10 order, by filing an appeal before the Land Revenue Commissioner.

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Sd/-

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ANIL K.NARENDRAN, JUDGE

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AV/16/3

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WP(C).No. 3070 of 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE REPLY DATED 17/10/2013 ISSUED BY THE POYYA GRAMA PANCHAYAT CONFIRMING THAT THE PROPERTY MENTIONED ABOVE IS INCLUDED IN THE DATA BANK

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EXHIBIT P2 TRUE COPY OF THE REQUEST DATED 12.04.2015 OF RECORDING CONVERSION OF THE LAND MADE BY THE PETITIONER BEFORE THE 4TH RESPONDENT

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EXHIBIT P3 TRUE COPY OF THE JUDGMENT MADE IN W.P(C) NO.15684/2015 DATED 27.05.2015

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EXHIBIT P4 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 6TH RESPONDENT ON 11/09/2015

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EXHIBIT P5 TRUE COPY OF THE JUDGMENT MADE BY THIS HON'BLE COURT IN W.P(C) NO.29237/2015 DATED 29.09.2015

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EXHIBIT P6 TRUE COPY OF THE INTERIM ORDER DATED 15.03.2017 MADE IN W.P(C) NO.8718/2017 MADE BY THIS HON'BLE COURT

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EXHIBIT P7 TRUE COPY OF THE JUDGMENT MADE IN W.P(C) NO.13138/2017 DATED 23.06.2017

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EXHIBIT P8 TRUE COPY OF THE COUNTER FOIL ISSUED BY M/S. CATHOLIC SYRIAN BANK LTD, KALOOR BRANCH ON 20.07.2017 DRAWN IN FAVOUR OF THE DIRECTOR KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE, THIRUVANANTHAPURAM

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EXHIBIT P9 TRUE COPY OF THE REPORT DATED 11.06.2018 ALONG WITH THE SKETCH, POSSESSION CERTIFICATE RELATING TO THE LAND IN QUESTION

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EXHIBIT P10 TRUE COPY OF THE ORDER DATED 07.12.2018 AND RECEIVED BY THE PETITIONER 22.01.2019

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EXHIBIT P11 TRUE PHOTOCOPY OF THE PHOTOGRAPH OF THE PROPERTIES OF THE PETITIONER

Celin Joseph v. the District Collector

Case brief

What is this about?

What did the court decide?

Celin Joseph v. the District Collector

Case brief

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