In Commissioner Of Income Tax v. Chhabil Das

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942 W.P.(C) No.29145 OF 2020(P) PETITIONER: IBRAHIMKUTTY,AGED 60 YEARS, S/O.ALIYARUKUNJU, ALMUBARAK MANZIL, VENGARA KARA, THODIYOOR NORTH P.O., KARUNAGAPPALLY TALUK, KOLLAM DISTRICT-690 544, ANAS WIRECUT BRICKS, VALLIKUNNAM. BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL RESPONDENTS: THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON19.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.29145 OF 2020(P) JUDGMENT The petitioner, who is the owner in possession of 31.208 cents of land situated in Re.Sy. No.336/8-2 in Block No.12 ofAngamaly Village in Aluva Taluk, has filed this writ petition underArticle 226 of the Constitution of India seeking a writ ofmandamus commanding the 3[rd] respondent to consider Ext.P4 andcarry out fixation of fair value of petitioner's property situated inRe.Sy.No.336/8-2 of Angamaly Village, without any delay. Thepetitioner has also sought for a writ of mandamus commandingthe 3[rd] respondent to consider the nature of diminution in thevalue of the property and also its utility, while fixing the fair value;a writ of mandamus commanding the 2[nd] respondent DistrictCollector to permit the petitioner to file an appeal against theexisting fair value of the land in the event of the 3[rd] respondentnot able to carry out fixation of fair value; and a writ ofmandamus commanding the 1[st] respondent to issue orders, ifnecessary, to enable respondents 2 and 3 to carry out fixation offair value of the property of the petitioner. 2.Heard the learned counsel for the petitioner and alsothe learned Senior Government Pleader appearing for the W.P.(C) No.29145 OF 2020(P) respondents. 3.Section 28A of the Kerala Stamp Act, 1959 deals withfixation of fair value of land. As per sub-section (1) of Section28A, every Revenue Divisional Officer shall, subject to such rulesas may be made by the Government in this behalf, fix the fairvalue of the lands situate within the area of his jurisdiction, forthe purpose of determining the duty chargeable at the time ofregistration of instruments involving lands. As per sub-section(1A) of Section 28A, subject to such rules as may be prescribed,the fair value of land fixed under sub-section (1) may be revisedby the Revenue Divisional Officer every five years or earlier if sodirected by the Government, if in the opinion of the Governmentany substantial change of the fair value of land has taken place.As per sub-section (3) of Section 28A, the fair value of land fixedunder sub-section (1) and the revised fair value of land fixedunder sub-section (1A) shall be published in such manner as maybe provided in the rules made under this Act. As per sub-section(4) of Section 28A, any person aggrieved by the fixation of fairvalue under sub-section (1) or the revision of fair value under W.P.(C) No.29145 OF 2020(P) W.P.(C) No.29145 OF 2020(P) sub-section (1A) may, within one year of its publication undersub-section (3), appeal to the Collector. As per the proviso tosub-section (4) of Section 28A, inserted with effect from01.04.2010, the Collector may admit an appeal preferred after thesaid period of one year if he is satisfied that the appellant hadsufficient causefor not preferring the appeal within the saidperiod. As per sub-section (5) of Section 28A, after the publicationof the increased fair value of land under sub-section (1B), anyperson aggrieved by the fixation of fair value of land in an appealunder sub-section (4) may, within a period of one year from thedate of publication of the notification under sub-section (1B), filean application to the Collector to review the order passed inappeal and the Collector shall dispose of the same in such mannerand within such period as may be prescribed. Therefore, if thepetitioner is feeling aggrieved by the fixation of fair value by theRevenue Divisional Officer, he can avail the statutory remedybefore the 2[nd] respondent District Collector, by filing an appeal,under sub-section (4) of Section 28A of the Act, read with Rule 5of the Kerala Stamp (Fixation of Fair Value of Land) Rules, 1995, in Form B, affixing Court Fee Stamp as required by sub-rule (1) ofRules. 4.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 of law.Undoubtedly, it is within the discretion of the High Court to grantrelief under Article 226 of the Constitution of India, despite theexistence of alternative remedy. However, High Court must notinterfere if there is an adequate efficacious alternative remedyavailable to the petitioner and he has approached the High Courtwithout availing the same, unless he has made out an exceptionalcase warranting such interference or there exists sufficient groundto invoke the extraordinary jurisdiction under Article 226. 5.In Authorised Officer, State Bank of Travancore v.Mathew K.C.[(2018) 3 SCC 85] the Apex Court reiterated thatthe discretionary jurisdiction under Article 226 of the Constitution W.P.(C) No.29145 OF 2020(P) of India is not absolute but has to be exercised judiciously in thegiven facts of a case and in accordance with law. The normal ruleis that a writ petition under Article 226 of the Constitution of Indiaought not to be entertained if alternative statutory remedies areavailable, except in cases falling within the well defined exceptionsas observed in Chaabil Das Agarwal's case (supra), i.e., wherethe statutory authority has not acted in accordance with theprovisions of the enactment in question or in defiance of thefundamental principles of judicial procedure, or has resorted toinvoke the provisions which are repealed, or when an order hasbeen passed in total violation of the principles of natural justice.After referring to the law laid down in Thansingh Nathmal v.Superintendent of Taxes and TitaghurPaper Mills Company Ltd. v. State of Orissa [(1983) 2 SCC433] the Apex Court held that High Court will not entertain apetition under Article 226 of the Constitution if an effectivealternative remedy is available to the aggrieved person or thestatute under which the action complained of contains amechanism for redressal of grievance. Therefore, when a W.P.(C) No.29145 OF 2020(P) statutory forum is created by law for redressal of grievances, awrit petition should not be entertained ignoring the statutorydispensation. W.P.(C) No.29145 OF 2020(P) statutory forum is created by law for redressal of grievances, awrit petition should not be entertained ignoring the statutorydispensation. 6.In such circumstances, this writ petition is disposed ofby relegating the petitioner to avail statutory remedy of appealunder sub-section (4) of Section 28A of the Kerala Stamp Act,read with sub-rule (5) of Rule 5 of the Kerala Stamp (Fixation ofFair Value of Land) Rules before the 2[nd] respondent DistrictCollector. 7.If any such appeal is filed within a period of one monthfrom the date of receipt of a certified copy of this judgment, the2[nd] respondent shall consider the same and pass appropriateorders thereon, with notice to the petitioner, and after affordinghim an opportunity of being heard, as expeditiously as possible. 8.In State of U.P. v. Harish Chandra [(1996) 9 SCC309] the Apex Court held that no mandamus can be issued todirect the Government to refrain from enforcing the provisions oflaw or to do something which is contrary to law. In BhaskaraRao A.B. v. CBI [(2011) 10 SCC 259] the Apex Court W.P.(C) No.29145 OF 2020(P) -8- reiterated that, generally, no Court has competence to issue adirection contrary to lawnor can the Court direct an authority toact in contravention of the statutory provisions. The courts aremeant to enforce the rule of law and not to pass the orders ordirections which are contrary to what has been injected by law. Therefore, in terms of the direction contained in thisjudgment, the 2[nd] respondent shall take an appropriate decision inthe matter, strictly in accordance with law, taking note of therelevant statutory provisions and also the law on the point. bpr Sd/- ANIL K. NARENDRAN JUDGE APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1TRUE COPY OF THE SALE DEED NO.2783/99 OFANGAMALI SUB REGISTRY.EXHIBIT P2TRUE COPY OF THE COMMISSIONER REPORT ALONG WITH THE PLAN SUBMITTED IN OS NO.405/2009.EXHIBIT P3TRUE COPY OF THE FINAL DECREE PROCEEDINGS IN IA NO.2951/2011 IN OS NO.405/2009.EXHIBIT P4TRUE COPY OF THE FAIR VALUE NOTIFICATIONOF LAND IN RESURVEY NO.336 OF ANGAMALI VILLAGE.EXHIBIT P5TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 3RD RESPONDENT. RESPONDENTS' EXHIBITS: NIL