In Commissioner Of Income Tax v. Chhabil

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 15TH DAY OF MARCH 2021 / 24TH PHALGUNA, 1942 WP(C).No.6510 OF 2021(K) PETITIONER: JOSEPH KURIAN,AGED 44 YEARSS/O. KURIAN (LATE), KUNNATHUMPARA HOUSE, KADANADU P.O, PALA, KOTTAYAM DISTRICT. BY ADVS.SRI.J.JULIAN XAVIERSRI.FIROZ K.ROBINSRI.ROY JOSEPHSMT.ANIES MATHEWSRI.E.HARIDAS RESPONDENTS: 1THE DISTRICT COLLECTORCOLLECTORATE P.O, KOTTAYAM - 686002.2THE TAHSILDARTALUK OFFICE, MINI CIVIL STATION, GROUND FLOOR, 123, PALA RAMAPURAM ROAD, PALA P.O, PIN- 686576.3TAHSILDAR (LR)MINI CIVIL STATION, GROUND FLOOR, 123, PALA RAMAPURAM ROAD, PALA P.O, PIN - 6865764VILLAGE OFFICERVELLILAPILLY VILLAGE, PALA RAMAPURAM ROAD, EZHACHERRY, PALA P.O, PIN - 686576. WP(C).No.6510 OF 2021(K) *ADDL. THE REVENUE DIVISIONAL OFFICER, MINI CIVIL STATION, KOTTAYAM, PIN-686001. (ADDL.R5 SUO MOTU IMPLEADED AS PER ORDER DATED 15-3-2021 IN WP(C). R BY GOVT.PLEADER SMT. A.C. VIDHYA THIS WRIT PETITION (CIVIL) HAVING COME UP FORADMISSION ON 15.03.2021, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: WP(C).No.6510 OF 2021(K) JUDGMENT The petitioner has filed this writ petition under Article226 of the Constitution of India, seeking a writ of certiorari toquash Ext.P7 proceedings dated 08.03.2021 and Ext.P10report dated 01.02.2021 of the 3[rd] respondent Tahsildar (LR).The petitioner has also sought for a writ of mandamuscommanding respondents 3 and 4 to conduct measurement ofthe property owned by the petitioner in Survey No.1074/3(New Survey No.118/3) of Vellilapilly Village strictly followingthe directions in Ext.P6 judgment of this Court dated14.07.2020 in W.P.(C)No.791 of 2020, within a time frame tobe fixed by this Court and till such time, not to dispossess thepetitioner from the property covered by Exts.P1 to P4documents. The further relief sought for is stay of all furtherproceedings pursuant to Ext.P7 to the extent it directs thepetitioner to surrender the property alleged to haveencroached, pending disposal of this writ petition. 2.Heard the learned counsel for the petitioner andalso the learned Government Pleader appearing for the WP(C).No.6510 OF 2021(K) respondents. 3.The learned Government Pleader would point out that Ext.P7 order of the 3[rd] respondent Tahsildar (LR) isappealable before the additional 5[th] respondent RevenueDivisional Officer under Section 16 of the Kerala LandConservancy Act, 1957. 4.In Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603] the Apex Court held thatnon-entertainment of a writ petition under Article 226 of theConstitution of India when an efficacious alternative remedyis available is a rule and self imposed limitation. It isessentially a rule of policy, convenience and discretion ratherthan a rule of law. Undoubtedly, it is within the discretion ofthe High Court to grant relief under Article 226 of theConstitution of India, despite the existence of alternativeremedy. However, High Court must not interfere if there is anadequate efficacious alternative remedy available to thepetitioner and he has approached the High Court withoutavailing the same, unless he has made out an exceptional WP(C).No.6510 OF 2021(K) case warranting such interference or there exists sufficientground to invoke the extraordinary jurisdiction under Article226. WP(C).No.6510 OF 2021(K) case warranting such interference or there exists sufficientground to invoke the extraordinary jurisdiction under Article226. 5.InAuthorised Officer, State Bank ofTravancore v. Mathew K.C.[(2018) 3 SCC 85] the ApexCourt reiterated that the discretionary jurisdiction underArticle 226 of the Constitution of India is not absolute but hasto be exercised judiciously in the given facts of a case and inaccordance with law. The normal rule is that a writ petitionunder Article 226 of the Constitution of India ought not to beentertained if alternative statutory remedies are available,except in cases 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 judicial procedure,or has resorted to invoke the provisions which are repealed,or when an order has been passed in total violation of theprinciples of natural justice. After referring to the law laid WP(C).No.6510 OF 2021(K) down in Thansingh Nathmal v. Superintendent of Taxes and Titaghur Paper Mills CompanyLtd. v. State of Orissa [(1983) 2 SCC 433] the ApexCourt held that High Court will not entertain a petition underArticle 226 of the Constitution if an effective alternativeremedy is available to the aggrieved person or the statuteunder which the action complained of contains a mechanismfor redressal of grievance. Therefore, when a statutory forumis created by law for redressal of grievances, a writ petitionshould not be entertained ignoring the statutory dispensation. 6.In view of the law laid down in the decisionsreferred to supra, no interference is warranted on Ext.P7order of the 3[rd] respondent, invoking the writ jurisdiction ofthis Court under Article 226 of the Constitution of India, whena statutory remedy of appeal is available before the additional5[th] respondent Revenue Divisional Officer, under Section 16 ofthe Kerala Land Conservancy Act, 1957. 7.In such circumstances, this writ petition isdisposed of with the following directions; WP(C).No.6510 OF 2021(K) a) The petitioner shall file an appeal against Ext.P7order dated 08.03.2021 of the 3[rd] respondentTahsildar (LR) before the additional 5[th] respondentRevenue Divisional Officer, under Section 16 of theKerala Land Conservancy Act, 1957, along with anapplication for stay, after remitting the requisitefee.order dated 08.03.2021 of the 3[rd] respondentTahsildar (LR) before the additional 5[th] respondentRevenue Divisional Officer, under Section 16 of theKerala Land Conservancy Act, 1957, along with anapplication for stay, after remitting the requisitefee. b) On receipt of such appeal and stay petition, theadditional 5[th]respondent shall consider theapplication for stay, with notice to the petitionerand pass appropriate orders, within one week andthereafter, the said respondent shall consider theappeal and pass appropriate orders thereon, withnotice to the petitioner and other affected parties, ifany, as expeditiously as possible, at any rate,within a further period of two months.8.The legal and factual contentions raised by theadditional 5[th]respondent shall consider theapplication for stay, with notice to the petitionerand pass appropriate orders, within one week andthereafter, the said respondent shall consider theappeal and pass appropriate orders thereon, withnotice to the petitioner and other affected parties, ifany, as expeditiously as possible, at any rate,within a further period of two months.8.The legal and factual contentions raised by thepetitioner are left open to be raised before the additional 5[th] respondent at appropriate stage. 9.In State of U.P. v. Harish Chandra [(1996) 9 respondent at appropriate stage. 9.In State of U.P. v. Harish Chandra [(1996) 9 SCC 309] the Apex Court held that no mandamus can beissued to direct the Government to refrain from enforcing theprovisions of law or to do something which is contrary to law. WP(C).No.6510 OF 2021(K) In Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259] theApex Court reiterated that, generally, no Court hascompetence to issue a direction contrary to law nor can theCourt direct an authority to act in contravention of thestatutory provisions. The courts are meant to enforce the ruleof law and not to pass the orders or directions which arecontrary to what has been injected by law. 10.Therefore, in terms of the direction contained inthis judgment, the additional 5[th]respondent RevenueDivisional Officer shall take an appropriate decision in thematter, strictly in accordance with law, taking note of therelevant statutory provisions and also the law on the point. AV/15/3 Sd/- ANIL K.NARENDRAN, JUDGE WP(C).No.6510 OF 2021(K) -9- APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF THE PATTA NO. 2338/77 ISSUED BY THE LAND TRIBUNAL PALA.ISSUED BY THE LAND TRIBUNAL PALA. EXHIBIT P2TRUE COPY OF THE SKETCH OF THE LAND THAT WAS PREPARED ON 7.7.1958.THAT WAS PREPARED ON 7.7.1958. EXHIBIT P3TRUE COPY OF THE LAND TAX RECEIPT DATED 7.1.1993 ISSUED BY THE VILLAGE OFFICER, VALLILAPPILY VILLAGE,DATED 7.1.1993 ISSUED BY THE VILLAGE OFFICER, VALLILAPPILY VILLAGE, EXHIBIT P4TRUE COPY OF THE WILL DEED DATED 4.10.2016 EXECUTED BY SRI.KURIAN, S/O.PAULOSE, KUNNATHUMPARA HOUSE.4.10.2016 EXECUTED BY SRI.KURIAN, S/O.PAULOSE, KUNNATHUMPARA HOUSE. EXHIBIT P5PHOTOS SHOWING THE BOUNDARIES OF THE PETITIONER'S PROPERTY.PETITIONER'S PROPERTY. EXHIBIT P6 TRUE COPY OF JUDGMENT DATED 14.07.2020IN WP(C) NO. 791/2020.IN WP(C) NO. 791/2020. EXHIBIT P7TRUE COPY OF THE PROCEEDINGS DATED 8.3.2021 ISSUED BY THE 3RD RESPONDENT.8.3.2021 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P8COPY OF THE NOTICE DATED 8.3.2021 IN FORM -C ISSUED UNDER RULE 11.FORM -C ISSUED UNDER RULE 11. EXHIBIT P9TRUE COPY OF THE OBJECTION/PETITION DATED 12.2.2021 DIRECTLY SUBMITTED BEFORE THE 3RD RESPONDENT.DATED 12.2.2021 DIRECTLY SUBMITTED BEFORE THE 3RD RESPONDENT. EXHIBIT P10TRUE COPY OF THE REPORT DATED 1.2.2021ALONG WITH SKETCH PREPARED BY THE 3RD RESPONDENT.ALONG WITH SKETCH PREPARED BY THE 3RD RESPONDENT. EXHIBIT P11COPY OF THE REPORT DATED 12.12.2018 SUBMITTED TO THE 2ND RESPONDENT BY THE4TH RESPONDENT VILLAGE OFFICER.SUBMITTED TO THE 2ND RESPONDENT BY THE4TH RESPONDENT VILLAGE OFFICER.