In Commissioner Of Income Tax v. Chhabil

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY ,THE 15TH DAY OF MARCH 2019 / 24TH PHALGUNA, 1940 WP(C).No. 3070 of 2019 PETITIONER : CELIN JOSEPH,AGED 43 YEARS,W/O. JOSEPH, RESIDING AT YMJRA HOUSE NO.90,YMJ ROAD, PALARIVATTOM P.O., ERNAKULAM-682 025 BY ADVS.SRI.G.HARIHARANSRI.PRAVEEN.H.SMITHA PRAVEENSRI.V.R.SANJEEV KUMAR RESPONDENTS: 1THE DISTRICT COLLECTOR,AYYANTHOLE, THRISSUR-680003 2THE TAHSILDARKODUNGALLOOR TALUK, THRISSUR DISTRICT-680 664KODUNGALLOOR TALUK, THRISSUR DISTRICT-680 664 3THE VILLAGE OFFICER,POYYA VILLAGE OFFICE, POYYA, THRISSUR DISTRICT-680 733THRISSUR DISTRICT-680 733 4THE SUB COLLECTOR (RDO),AYYANTHOLE, THRISSUR-680003 5THE AGRICULTURAL OFFICER, KRISHI BHAVAN, POYYA P.O., THRISSUR DISTRICT-680 733POYYA P.O., THRISSUR DISTRICT-680 733 6THE 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(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 7KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE (KSREC),VIKAS BHAVAN, C BLOCK, THIRUVANANTHAPURAM-695033 REPRESENTED BY ITS DIRECTOR(KSREC),VIKAS BHAVAN, C BLOCK, THIRUVANANTHAPURAM-695033 REPRESENTED BY ITS DIRECTOR SRI PAUL ABRAHAM VAKKANAL, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, who is stated to be the owner of property having an extent of 25.62 Ares and 0.5949 Arescomprised in Survey No.131 of Poyya Village, KodungallurTaluk in Thrissur District, covered by sale deedNos.2014/2014 and 2192/1/2014 of Mala Sub RegistrarOffice, has filed this writ petition under Article 226 of theConstitution of India, seeking a writ of certiorari to quashExt.P10 order dated 07.12.2018 issued by the 4[th]respondent, whereby Ext.P4 application dated 11.09.2015made by the petitioner under Clause 6 of the Kerala LandUtilization Order, 1967 for reclassification of the land inquestion, stands rejected. The petitioner has also soughtfor a writ of mandamus commanding the 4[th] respondentto reconsider Ext.P4 request, taking note of the reportissued by the 7[th] respondent following the dictum laiddown by this Court inKunjumoideenkutty v.Marakkara Grama Panchayat [2018 (3) KLT 1033]. 2. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for therespondents. 3. The sole issue that arises for consideration in this writ petition is as to whether any interference iswarranted on Ext.P10 order of the 4[th] respondent(whereby Ext.P4 application dated 11.09.2015 made bythe petitioner for reclassification of the land in question,stands rejected) invoking the writ jurisdiction of thisCourt under Article 226 of the Constitution of India. 4. Admittedly, Ext.P10 is an order passed by the 4[th] respondent in an application made by the petitioner underClause 6 of the Kerala Land Utilization Order, 1967seeking reclassification of the land in question. As perClause 11 of the Kerala Land Utilization Order, Ext.P10order passed by the 4[th] respondent is appealable beforethe Land Revenue Commissioner. 5. 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 4. Admittedly, Ext.P10 is an order passed by the 4[th] respondent in an application made by the petitioner underClause 6 of the Kerala Land Utilization Order, 1967seeking reclassification of the land in question. As perClause 11 of the Kerala Land Utilization Order, Ext.P10order passed by the 4[th] respondent is appealable beforethe Land Revenue Commissioner. 5. 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 efficaciousalternative remedy is available is a rule and self imposedlimitation. It is essentially a rule of policy, convenienceand discretion rather than a rule of law. Undoubtedly, it iswithin the discretion of the High Court to grant reliefunder Article 226 of the Constitution of India, despite theexistence of alternative remedy. However, High Courtmust not interfere if there is an adequate efficaciousalternative remedy available to the petitioner and he hasapproached the High Court without availing the same,unless he has made out an exceptional case warrantingsuch interference or there exists sufficient ground toinvoke the extraordinary jurisdiction under Article 226. 6. InAuthorised Officer, State Bank ofTravancore v. Mathew K.C.[(2018) 3 SCC 85], theApex Court reiterated that the discretionary jurisdictionunder Article 226 of the Constitution of India is notabsolute 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 theConstitution of India ought not to be entertained ifalternative statutory remedies are available, except incases falling within the well defined exceptions asobserved in Chaabil Das Agarwal's case (supra), i.e.,where the statutory authority has not acted in accordancewith the provisions of the enactment in question or indefiance of the fundamental principles of judicialprocedure, or has resorted to invoke the provisions whichare repealed, or when an order has been passed in totalviolation of the principles of natural justice. After referringto the law laid down in Thansingh Nathmal v.Superintendent of Taxes andTitaghur Paper Mills Company Ltd. v. State of Orissa[(1983) 2 SCC 433]the Apex Court held that HighCourt will not entertain a petition under Article 226 of theConstitution if an effective alternative remedy is availableto the aggrieved person or the statute under which the action complained of contains a mechanism for redressal of grievance. Therefore, when a statutory forum iscreated by law for redressal of grievances, a writ petitionshould not be entertained ignoring the statutorydispensation. 7. In Thansingh Nathmal's case (supra)aConstitution Bench ofthe Apex Court held that, thejurisdiction of the High Court under Article 226 of theConstitution is couched in wide terms and the exercisethereof is not subject to any restrictions except theterritorial restrictions which are expressly provided in theArticle. But the exercise of the jurisdiction isdiscretionary: it is not exercised merely because it islawful to do so. The very amplitude of the jurisdictiondemands that it will ordinarily be exercised subject tocertain self imposed limitations. Resort to that jurisdictionis not intended as an alternative remedy for relief whichmay be obtained in a suit or other mode prescribed bystatute. Ordinarily, the court will not entertain a petition for a writ under Article 226, where the petitioner has an 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 HighCourt does not generally enter upon a determination ofquestions which demand an elaborate examination ofevidence to establish the right to enforce for which thewrit is claimed. The High Court does not, therefore, act asa court of appeal against the decision of a court ortribunal, to correct errors of fact, and does not byassuming jurisdiction under Article 226 trench upon analternative remedy provided by statute for obtainingrelief. Where it is open to the aggrieved petitioner tomove another tribunal or even itself in anotherjurisdiction for obtaining redress in the manner providedby a statute, the High Court normally will not permit byentertaining a petition under Article 226 of theConstitution the machinery created under the statute tobe bypassed, and will leave the party applying to it toseek resort to the machinery so set up. 8. In Titaghur Paper Mills' case (supra)a Three- Judge Bench of the Apex Court held that, the Orissa SalesTax Act, 1947 provides for a complete machinery tochallenge an order of assessment, and the impugnedorders of assessment can only be challenged by the modeprescribed by the Act and not by a petition under Article226 of the Constitution. It is now well recognised thatwhere a right or liability is created by a statute whichgives a special remedy for enforcing it, the remedyprovided by that statute only must be availed of. This rulewas stated with great clarity by Willes, J. inWolverhampton 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 liabilitymay be established founded upon statute ..... But thereis a third class, viz., where a liability not existing atcommon law is created by a statute which at the sametime gives a special and particular remedy for enforcingit ..... the remedy provided by the statute must befollowed, and it is not competent to the party to pursue the course applicable to cases of the second class. Theform given by the statute must be adopted and adheredto." The rule laid down in that passage was approved by the House of Lords inNeville v. London ExpressNewspaper Ltd.[1919 AC 368]and has beenreaffirmed by the Privy Council in Attorney General ofTrinidad and Tobago v. Gordon Grant and Co. [1935AC 532] and Secretary of State v. Mask and Co. . It has also been held to be equallyapplicable to enforcement of rights and has been followedby the Apex Court throughout. 9. In Pavithran V. State of Kerala (2009 (4) KHC 4), a Full Bench of this Court held that, whenever anadverse order is passed against a person, unless thesame is challenged before the appropriate forum, withinthe prescribed time limit, the said order will become final. 10. Viewed in the light of the law laid down in thedecisions referred to supra, conclusion is irresistible thatno interference is warranted on Ext.P10 order dated 10 07.12.2018 of the 4[th] respondent, invoking the writ jurisdiction of this Court under Article 226 of theConstitution of India, on the grounds raised in this writpetition. In the result, this writ petition filed on 30.01.2019 is dismissed for the aforesaid reason; however withoutprejudice to the right, if any, of the petitioner to availstatutory remedy under Clause 11 of the Kerala LandUtilisation Order, against Ext.P10 order, by filing anappeal before the Land Revenue Commissioner. Sd/- ANIL K.NARENDRAN, JUDGE AV/16/3 APPENDIX PETITIONER'S/S EXHIBITS: 10. Viewed in the light of the law laid down in thedecisions referred to supra, conclusion is irresistible thatno interference is warranted on Ext.P10 order dated 10 07.12.2018 of the 4[th] respondent, invoking the writ jurisdiction of this Court under Article 226 of theConstitution of India, on the grounds raised in this writpetition. In the result, this writ petition filed on 30.01.2019 is dismissed for the aforesaid reason; however withoutprejudice to the right, if any, of the petitioner to availstatutory remedy under Clause 11 of the Kerala LandUtilisation Order, against Ext.P10 order, by filing anappeal before the Land Revenue Commissioner. Sd/- ANIL K.NARENDRAN, JUDGE AV/16/3 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE 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 BANKISSUED BY THE POYYA GRAMA PANCHAYAT CONFIRMING THAT THE PROPERTY MENTIONED ABOVE IS INCLUDED IN THE DATA BANK EXHIBIT P2TRUE COPY OF THE REQUEST DATED 12.04.2015 OF RECORDING CONVERSION OF THE LAND MADE BY THE PETITIONER BEFORE THE 4TH RESPONDENTRECORDING CONVERSION OF THE LAND MADE BY THE PETITIONER BEFORE THE 4TH RESPONDENT EXHIBIT P3TRUE COPY OF THE JUDGMENT MADE IN W.P(C) NO.15684/2015 DATED 27.05.2015NO.15684/2015 DATED 27.05.2015 EXHIBIT P4TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 6TH RESPONDENT ON 11/09/2015PETITIONER BEFORE THE 6TH RESPONDENT ON 11/09/2015 EXHIBIT P5TRUE COPY OF THE JUDGMENT MADE BY THIS HON'BLE COURT IN W.P(C) NO.29237/2015 DATED 29.09.2015HON'BLE COURT IN W.P(C) NO.29237/2015 DATED 29.09.2015 EXHIBIT P6TRUE COPY OF THE INTERIM ORDER DATED 15.03.2017 MADE IN W.P(C) NO.8718/2017 MADE BY THIS HON'BLE COURT15.03.2017 MADE IN W.P(C) NO.8718/2017 MADE BY THIS HON'BLE COURT EXHIBIT P7TRUE COPY OF THE JUDGMENT MADE IN W.P(C) NO.13138/2017 DATED 23.06.2017NO.13138/2017 DATED 23.06.2017 EXHIBIT P8TRUE 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, THIRUVANANTHAPURAMCATHOLIC SYRIAN BANK LTD, KALOOR BRANCH ON 20.07.2017 DRAWN IN FAVOUR OF THE DIRECTOR KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE, THIRUVANANTHAPURAM EXHIBIT P9TRUE COPY OF THE REPORT DATED 11.06.2018 ALONG WITH THE SKETCH, POSSESSION CERTIFICATERELATING TO THE LAND IN QUESTIONALONG WITH THE SKETCH, POSSESSION CERTIFICATERELATING TO THE LAND IN QUESTION EXHIBIT P10 TRUE COPY OF THE ORDER DATED 07.12.2018 AND RECEIVED BY THE PETITIONER 22.01.2019RECEIVED BY THE PETITIONER 22.01.2019 EXHIBIT P11 TRUE PHOTOCOPY OF THE PHOTOGRAPH OF THE PROPERTIES OF THE PETITIONERPROPERTIES OF THE PETITIONER