In Commissioner Of Income Tax v. Chhabil Das

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942 WP(C).No.29121 OF 2020(M) PETITIONER : ROY JACOBAGED 65 YEARSS/O. K. JACOB, KOODARAPILLIL BUNGLOW, CHENKULAM P. O., OOYOOR, KOLLAM - 691 510. BY ADVS.SRI.ALEX.M.SCARIASRI.A.J.RIYASSMT.SARITHA THOMAS RESPONDENTS: R BY SMT K.AMMINIKUTTY-SR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FORADMISSION ON 18.01.2021, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: WP(C).No.29121 OF 2020(M) -2- JUDGMENT The petitioner, who was conducting quarrying operations inGovernment land comprised in Re-survey No.36/4 in Block No.37 ofVelinalloor Village of Kottarakkara Taluk, has filed this writ petitionunder Article 226 of the Constitution of India, seeking a writ ofcertiorari to quash Ext.P9 order dated 27.07.2020 issued by the 1[st]respondent. The petitioner has also sought for a declaration thatthe claim based on Ext.P9 is totally unsustainable. 2.On 04.01.2021, when this writ petition came up foradmission, the learned Government Pleader was directed to getinstructions. 3.On 11.01.2021, when the matter came up forconsideration, the learned Government Pleader submitted that astatutory remedy of appeal is available against Ext.P9 order, in viewof the provisions under clause (a) in sub-section (1) of Section 16of the Kerala Land Conservancy Act, 1957. The learned counsel forthe petitioner raised a question as to whether the 1[st] respondentTahsildar (LR) is competent to issue Ext.P9 order. 4. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for therespondents. 5.Vide Notification No.LRD4-18737/57/Rev. dated01.10.1958 published in Kerala Gazette dated 07.10.1957 Part I, WP(C).No.29121 OF 2020(M) the Government of Kerala in exercise of the powers conferredunder Section 15 of the Kerala Land Conservancy Act, authorisedall Taluk Tahsildars to exercise by virtue of their office all thepowers of the District Collector under the said Act, within theirrespective jurisdiction, except the power of hearing under Section16. Thereafter, vide Notification No.LRD4-18737/57/Rev. dated25.10.1958 published in Kerala Gazette dated 01.11.1958 Part Ithe Government of Kerala in exercise of the powers conferred bySection 16 of the Kerala Land Conservancy Act directed that theappeal from the decision or order of the Taluk Tahsildar empoweredunder Section 15 of the said Act shall lie to the Collector of theDistrict. 6.Section 16 of the Kerala Land Conservancy Act, whichdeals with appeal and revision, was substituted by Act 11 of 1971with effect from 05.01.1971. As per sub-section (1) of Section 16,any person aggrieved by any decision or order under this Act of anyofficer authorised under Section 15 may appeal; (a) where suchofficer is the Revenue Divisional Officer, to the Collector; (b) in allother cases, to the Revenue Divisional Officer, and the Collector orthe Revenue Divisional Officer, as the case may be, may pass suchorder on the appeal as he thinks fit. As per the proviso to clause(a) of sub-section (1) of Section 16, no appeal shall lie in any casewhere the order is passed by the Revenue Divisional Officer on WP(C).No.29121 OF 2020(M) appeal under clause (b). In view of the provisions under Section 16of the Act, Ext.P9 order dated 27.07.2020 of the 1[st] respondentTahsildar (LR) is appealable before the Revenue Divisional Officer,under clause (a) of sub-section (1) of Section 16 of the Act. 7.In Commissioner of Income Tax v. Chhabil Das WP(C).No.29121 OF 2020(M) appeal under clause (b). In view of the provisions under Section 16of the Act, Ext.P9 order dated 27.07.2020 of the 1[st] respondentTahsildar (LR) is appealable before the Revenue Divisional Officer,under clause (a) of sub-section (1) of Section 16 of the Act. 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 essentiallya rule of policy, convenience and discretion rather than a ruleof law. Undoubtedly, it is within the discretion of the HighCourt to grant relief under Article 226 of the Constitution ofIndia, despite the existence of alternative remedy. However,High Court must not interfere if there is an adequateefficacious alternative remedy available to the petitioner andhe has approached the High Court without availing the same,unless he 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 ofTravancore v. Mathew K.C. [(2018) 3 SCC 85]the Apex WP(C).No.29121 OF 2020(M) Court 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 exceptionsasobserved in Chaabil Das Agarwal [(2014) 1 SCC 603],i.e., where the statutory authority has not acted in accordancewith the provisions of the enactment in question or in defianceof the 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 and TitaghurPaper Mills Company Ltd. [(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 personor the statuteunder which the action complained of contains a mechanismfor redressal of grievance. Therefore, when a statutory forum WP(C).No.29121 OF 2020(M) is created by law for redressal of grievances, a writ petitionshould not be entertained ignoring the statutory dispensation. 9.In view of the law laid down in the decisions referred tosupra, conclusion is irresistible that since a statutory remedy ofappeal is provided under clause (a) of sub-section (1) of Section 16of the Kerala Land Conservancy Act, against Ext.P9 order dated27.07.2020 of the 1[st] respondent Tahsildar (LR), the petitionercannot challenge that order by invoking the writ jurisdiction of thisCourt under Article 226 of the Constitution of India, on the groundsraised in this writ petition. In such circumstances, this writ petition filed on 22.12.2020is disposed of by relegating the petitioner to avail the statutoryremedy of appeal by approaching the concerned RevenueDivisional Officer. AV/20/1 Sd/- ANIL K.NARENDRAN, JUDGE WP(C).No.29121 OF 2020(M) APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF THE PROCEEDINGS AND ORDERDATED 17.11.2016 BEARING NO.B1-5969/2016 WITH LC NO.30/16 OF THE 1ST RESPONDENT.DATED 17.11.2016 BEARING NO.B1-5969/2016 WITH LC NO.30/16 OF THE 1ST RESPONDENT. EXHIBIT P2TRUE COPY OF THE NOTICE OF DEMAND IN FORM NO.11 DATED 17.11.2016 ISSUED TO THE PETITIONER.FORM NO.11 DATED 17.11.2016 ISSUED TO THE PETITIONER. In such circumstances, this writ petition filed on 22.12.2020is disposed of by relegating the petitioner to avail the statutoryremedy of appeal by approaching the concerned RevenueDivisional Officer. AV/20/1 Sd/- ANIL K.NARENDRAN, JUDGE WP(C).No.29121 OF 2020(M) APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF THE PROCEEDINGS AND ORDERDATED 17.11.2016 BEARING NO.B1-5969/2016 WITH LC NO.30/16 OF THE 1ST RESPONDENT.DATED 17.11.2016 BEARING NO.B1-5969/2016 WITH LC NO.30/16 OF THE 1ST RESPONDENT. EXHIBIT P2TRUE COPY OF THE NOTICE OF DEMAND IN FORM NO.11 DATED 17.11.2016 ISSUED TO THE PETITIONER.FORM NO.11 DATED 17.11.2016 ISSUED TO THE PETITIONER. EXHIBIT P3TRUE COPY OF THE RECEIPT DATED 24.11.2016 BEFORE THE 2ND RESPONDENT, VILLAGE OFFICER.24.11.2016 BEFORE THE 2ND RESPONDENT, VILLAGE OFFICER. EXHIBIT P4TRUE COPY OF THE PROCEEDINGS DATED 20.04.2017 BEARING NO.B1-5969/2016 IN LC NO.30/16 THERE WAS A REVISED ASSESSMENT WITH RESPECT TO THE MATTERSCOVERED BY EXHIBITS P1 TO P3.20.04.2017 BEARING NO.B1-5969/2016 IN LC NO.30/16 THERE WAS A REVISED ASSESSMENT WITH RESPECT TO THE MATTERSCOVERED BY EXHIBITS P1 TO P3. EXHIBIT P5TRUE COPY OF THE PAY AN ADDITIONAL AMOUNT OF RS. 1,42,140/- RECEIPT DATED22.07.2017 BEFORE THE 2ND RESPONDENT.AMOUNT OF RS. 1,42,140/- RECEIPT DATED22.07.2017 BEFORE THE 2ND RESPONDENT. EXHIBIT P6TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT AS NOTICE BEARING NO.B1-22095/2016 TO THE PETITIONER.3RD RESPONDENT AS NOTICE BEARING NO.B1-22095/2016 TO THE PETITIONER. EXHIBIT P7TRUE COPY OF THE NOTICE DATED 07.03.2020 BEARING NO.5646/2016 FROM THE 3RD RESPONDENT TO THE PETITIONER.07.03.2020 BEARING NO.5646/2016 FROM THE 3RD RESPONDENT TO THE PETITIONER. EXHIBIT P8TRUE COPY OF THE EXPLANATION DATED 18.06.2020 SUBMITTED BY PETITIONER TO 1ST RESPONDENT.18.06.2020 SUBMITTED BY PETITIONER TO 1ST RESPONDENT. EXHIBIT P9TRUE COPY OF THE PROCEEDINGS DATED 27.07.2020.27.07.2020. EXHIBIT P10TRUE COPY OF THE G.O.(P) NO.50/15/RD DATED 02.02.2015.DATED 02.02.2015. EXHIBIT P11TRUE COPY OF THE NOTIFICATION BEARING NO.G.O.(P) NO.132/16/RD DATED 18.02.2016.NO.G.O.(P) NO.132/16/RD DATED 18.02.2016. WP(C).No.29121 OF 2020(M) EXHIBIT P12 TRUE COPY OF THE INTERIM ORDER DATED 01.10.2019 FOR RECOVERY OF AMOUNT BASED ON EXHIBIT P11 NOTIFICATION IN WP(C) NO.26189/2019.