In Commissioner Of Income Tax v. Chhabil Das

THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 21ST DAY OF MAY 2019 / 31ST VAISAKHA, 1941 WP(C).No. 13393 of 2019 PETITIONER: GOPALAKRISHNAN,THAMALLACKAL, KUMARAPURAM, HARIPAD, ALAPPUZHA DISTRICT.BY ADVS.SRI.S.SHANAVAS KHANSMT.S.INDUTHAMALLACKAL, KUMARAPURAM, HARIPAD, ALAPPUZHA DISTRICT.BY ADVS.SRI.S.SHANAVAS KHANSMT.S.INDU AGED 52 YEARS, S/O.BHARGAVAN, VISHNU BHAVAN, RESPONDENTS: 1THE LAND REVENUE COMMISSIONER,PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, THIRUVANANTHAPURAM-695 033.PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, THIRUVANANTHAPURAM-695 033. 2THE DISTRICT COLLECTOR,CIVIL STATION, ALAPPUZHA-688 001.CIVIL STATION, ALAPPUZHA-688 001. 3THE REVENUE DIVISIONAL OFFICER,REVENUE DIVISIONAL OFFICE, CHENGANNUR ALAPPUZHA-689 121.REVENUE DIVISIONAL OFFICE, CHENGANNUR ALAPPUZHA-689 121. 6THE AGRICULTURAL OFFICER,AGRICULTURE OFFICE, KARUVATTA NORTH, HARIPAD, ALAPPUZHA DISTRICT 690 544.AGRICULTURE OFFICE, KARUVATTA NORTH, HARIPAD, ALAPPUZHA DISTRICT 690 544. 7ADDL.R7-THE PRINCIPAL SECRETARY AND AGRICULTURAL PRODUCTION COMMISSIONER,AGRICULTURAL DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001(R7 IS SUO MOTU IMPLEADED AS PER ORDER DATED 21.05.2019)AGRICULTURAL PRODUCTION COMMISSIONER,AGRICULTURAL DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001(R7 IS SUO MOTU IMPLEADED AS PER ORDER DATED 21.05.2019) SRI. MANURAJ K.J., GOVT.PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSIONON 21.05.2019, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: WP(C)13393 OF 2019 JUDGMENT The petitioner, who is stated to be the absolute ownerand in possession of 21 ares 35 square meters of propertycomprised in Survey No.4275/2 (Resurvey No.419/9-3) ofKumarapuram village, covered by Ext.P1 sale deed bearingNo.1158/2008 dated 21.05.2008 of Sub Registrar Office,Haripad, has filed this writ petition under Article 226 of theConstitution of India, seeking a writ of certiorari to quashExt.P4 order dated 08.03.2019 issued by the 2[nd] respondentDistrict Collector, whereby the petitioner has been directed torestore the property in question to its original position, whichis an order issued by the said respondent, in exercise of thepowers under Section 13 of the Kerala Conservation of PaddyLand and Wet Land Act, 2008. The petitioner has also soughtfor a declaration that he is not liable to restore 21 ares 35square meters of property covered by Ext.P1 sale deed to itsoriginal position, as directed in Ext.P4. The further reliefsought for is an order directing the 2[nd] respondent DistrictCollector to reconsider the matter afresh, in accordance withthe law. 3 2.On 10.05.2019, when this writ petition came up for admission, the matter was adjourned to 17.05.2019 andthereafter to this date. 3.Heard the learned counsel for the petitioner andalso the learned Government Pleader appearing for therespondents. 4.The sole issue that arises for consideration in thiswrit petition is as to whether any interference is warranted onExt.P4 order dated 08.03.2019 of the 2[nd] respondent DistrictCollector, in exercise of the writ jurisdiction of this Court underArticle 226 of the Constitution of India. 5.As already noticed, Ext.P4 order is one issued by the 2[nd] respondent in exercise of the powers under Section 13of the Kerala Conservation of Paddy Land and Wet Land Act,whereby the petitioner has been asked to restore the landcovered by Ext.P1 sale deed, to its original position. 6. Ext.P4 order passed by the 2[nd] respondent, in exercise of the powers under Section 13 of the KeralaConservation of Paddy Land and Wet Land Act, is revisablebefore the Principal Secretary and Agricultural Production WP(C)13393 OF 2019 Commissioner, by filing a revision petition under Section 28 of the said Act. The said fact is not in dispute. 7.In Commissioner of Income Tax v. Chhabil Das 5.As already noticed, Ext.P4 order is one issued by the 2[nd] respondent in exercise of the powers under Section 13of the Kerala Conservation of Paddy Land and Wet Land Act,whereby the petitioner has been asked to restore the landcovered by Ext.P1 sale deed, to its original position. 6. Ext.P4 order passed by the 2[nd] respondent, in exercise of the powers under Section 13 of the KeralaConservation of Paddy Land and Wet Land Act, is revisablebefore the Principal Secretary and Agricultural Production WP(C)13393 OF 2019 Commissioner, by filing a revision petition under Section 28 of the said Act. The said fact is not in dispute. 7.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 theConstitution of India when an efficacious alternative remedy isavailable is a rule and self imposed limitation. It is essentially arule of policy, convenience and discretion rather than a rule oflaw. Undoubtedly, it is within the discretion of the High Courtto grant relief under Article 226 of the Constitution of India,despite the existence of alternative remedy. However, HighCourt must not interfere if there is an adequate efficaciousalternative remedy available to the petitioner and he hasapproached the High Court without availing the same, unlesshe has made out an exceptional case warranting suchinterference or there exists sufficient ground to invoke theextraordinary jurisdiction under Article 226. 8.InAuthorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85] the ApexCourt reiterated that the discretionary jurisdiction under Article WP(C)13393 OF 2019 226 of the Constitution of India is not absolute but has to beexercised 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 accordance withthe provisions of the enactment in question or in defiance ofthe fundamental principles of judicial procedure, or hasresorted to invoke the provisions which are repealed, or whenan order has been passed in total violation of the principles ofnatural justice. After referring to the law laid down inThansingh Nathmal v. Superintendent of Taxes and Titaghur Paper Mills Company Ltd. v.State of Orissa [(1983) 2 SCC 433] the Apex Court heldthat High Court will not entertain a petition under Article 226of the Constitution if an effective alternative remedy isavailable to the aggrieved person or the statute under whichthe action complained of contains a mechanism for redressal of WP(C)13393 OF 2019 grievance. Therefore, when a statutory forum is created by lawfor redressal of grievances, a writ petition should not beentertained ignoring the statutory dispensation. WP(C)13393 OF 2019 grievance. Therefore, when a statutory forum is created by lawfor redressal of grievances, a writ petition should not beentertained ignoring the statutory dispensation. 9.InThansingh Nathmal's case (supra)aConstitution Bench ofthe Apex Court held that, the jurisdictionof the High Court under Article 226 of the Constitution iscouched in wide terms and the exercise thereof is not subjectto any restrictions except the territorial restrictions which areexpressly provided in the Article. But the exercise of thejurisdiction is discretionary: it is not exercised merely becauseit is lawful to do so. The very amplitude of the jurisdictiondemands that it will ordinarily be exercised subject to certainself imposed limitations. Resort to that jurisdiction is notintended as an alternative remedy for relief which may beobtained in a suit or other mode prescribed by statute.Ordinarily, the court will not entertain a petition for a writunder Article 226, where the petitioner has an alternativeremedy, which without being unduly onerous, provides anequally efficacious remedy. Again the High Court does notgenerally enter upon a determination of questions which WP(C)13393 OF 2019 demand an elaborate examination of evidence to establish theright to enforce for which the writ is claimed. The High Courtdoes not, therefore, act as a court of appeal against thedecision of a court or tribunal, to correct errors of fact, anddoes not by assuming jurisdiction under Article 226 trenchupon an alternative remedy provided by statute for obtainingrelief. Where it is open to the aggrieved petitioner to moveanother tribunal or even itself in another jurisdiction forobtaining redress in the manner provided by a statute, theHigh Court normally will not permit by entertaining a petitionunder Article 226 of the Constitution the machinery createdunder the statute to be bypassed, and will leave the partyapplying to it to seek resort to the machinery so set up. 10.In Titaghur Paper Mills' case (supra) a Three-Judge Bench of the Apex Court held that, the Orissa Sales TaxAct, 1947 provides for a complete machinery to challenge anorder of assessment, and the impugned orders of assessmentcan only be challenged by the mode prescribed by the Act andnot by a petition under Article 226 of the Constitution. It isnow well recognised that where a right or liability is created by WP(C)13393 OF 2019 a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. Thisrule was 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 liability maybe established founded upon statute ..... But there is athird class, viz., where a liability not existing at commonlaw is created by a statute which at the same time givesa special and particular remedy for enforcing it ..... theremedy provided by the statute must be followed, and itis not competent to the party to pursue the courseapplicable to cases of the second class. The form givenby 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 Councilin Attorney General of Trinidad and Tobago v. Gordon Grant and Co. [1935 AC 532] and Secretary of State v.Mask and Co. . It has also been held tobe equally applicable to enforcement of rights and has beenfollowed by the Apex Court throughout. 11.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 ischallenged before the appropriate forum, within the prescribedtime limit, the said order will become final. 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 Councilin Attorney General of Trinidad and Tobago v. Gordon Grant and Co. [1935 AC 532] and Secretary of State v.Mask and Co. . It has also been held tobe equally applicable to enforcement of rights and has beenfollowed by the Apex Court throughout. 11.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 ischallenged before the appropriate forum, within the prescribedtime limit, the said order will become final. 12.Viewed in the light of the law laid down in thedecisions referred to supra, conclusion is irresistible that, whenthe petitioner is having a statutory remedy of revision underSection 28 of the Act before the additional 7[th] respondentPrincipal Secretary and Agricultural Production Commissioner,he cannot challenge Ext.P4 order, by invoking the writjurisdiction of this Court under Article 226 of the Constitutionof India, on the grounds raised in this writ petition. 13.The learned counsel for the petitioner would submitthat the petitioner shall submit a revision petition before theadditional 7[th] respondent, within two weeks from the date ofreceipt of a certified copy of this judgment. 14.The learned Government Pleader would submit that,if any such revision petition is received, the additional 7[th]respondent shall consider the same and pass appropriateorders thereon without any delay. 15.Having considered the submission made by thelearned counsel on both sides, this writ petition is disposed ofas follows; (i)In view of the statutory remedy of revisionavailable under Section 28 of the Kerala Conservation ofPaddy Land and Wet Land Act, the petitioner cannotinvoke the writ jurisdiction of this Court under Article226 of the Constitution of India, in order to challengeExt.P4 order dated 08.03.2019 of the 2[nd] respondent. In view of the statutory remedy of revision (ii)The petitioner shall file a revision petition beforethe additional 7[th] respondent, along with an applicationfor stay, within two weeks from the date of receipt of acertified copy of this judgment, challenging Ext.P4 orderdated 08.03.2019 of the 2[nd] respondent. (iii)If any such revision petition along with anapplication for stay is received, within the aforesaidperiod, the additional 7[th] respondent shall consider theapplication for stay, with notice to the petitioner, andpass appropriate orders thereon, as expeditiously aspossible, at any rate, within a period of two weeks from yd the date of receipt of such application. (iv)Thereafter, the additional 7[th] respondent shall consider the revision petition filed by the petitioneragainst Ext.P4 order and finally dispose of the same, within a further period of two months. Sd/- ANIL K. NARENDRAN JUDGE WP(C)13393 OF 2019 PETITIONER'S EXHIBITS: APPENDIX EXHIBIT P1 TRUE COPY OF THE SALE DEED NO. 1158/2008 OF HARIPAD SUB REGISTRY OFFICE. EXHIBIT P2TRUE COPY OF THE TAX RECEIPT DATED 19/7/2018. EXHIBIT P3TRUE COPY OF THE PHOTOGRAPH EVIDENCINGTHE NATURE OF THE PROPERTY. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 8/3/2019 OF THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS:NIL TRUE COPY P.A. TO JUDGE