In Commissioner Of Income Tax v. Chhabil Das

THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942 W.P.(C) No.120 OF 2021(L) PETITIONER: SURESH P.R @ SURESH KURUP,AGED 57 YEARS, S/O.K.R.KURUP, SAJJANAKUDI, ELAMKUNNAPUZHA POST, VYPEEN-682 503. BY ADV. SRI.DENIZEN KOMATH RESPONDENTS: 1STATE OF KERALA (CORRECTED)REPRESENTED BY ITS SECRETARY, MINISTRY OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM-695 001. REPRESENTED BY ITS SECRETARY, MINISTRY OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM-695 001. *STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, NORTH BLOCK, GOVERNEMNT SECRETARIAT, THIRUVANANTHAPURAM-695 004. (R1 IS CORRECTED AS PER ORDER DATED 11-1-2021 IN I.A.NO.1/2021 IN W.P.(C) NO.120/2021).DEPARTMENT OF REVENUE, NORTH BLOCK, GOVERNEMNT SECRETARIAT, THIRUVANANTHAPURAM-695 004. (R1 IS CORRECTED AS PER ORDER DATED 11-1-2021 IN I.A.NO.1/2021 IN W.P.(C) NO.120/2021).2THE LAND REVENUE COMMISSIONER,OFFICE OF THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM-695 033.OFFICE OF THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM-695 033.3REVENUE DIVISIONAL OFFICER,FORT KOCHI-682 001.FORT KOCHI-682 001.4THE SPECIAL TAHZILDAR,COCHIN DEVASWOM BOARD, THRISSUR-680 002.COCHIN DEVASWOM BOARD, THRISSUR-680 002.5TAHZILDAR,TALUK OFFICE, FORT KOCHI-682 001.TALUK OFFICE, FORT KOCHI-682 001. **ADDL R6COCHIN DEVASWOM BOARDREPRESENTED BY ITS SECRETARY,SWARAJ ROUND WEST, THRISSUR-680 001.REPRESENTED BY ITS SECRETARY,SWARAJ ROUND WEST, THRISSUR-680 001. **ADDL.R6 IS IMPLEADED AS PER ORDER DATED 22.01.2021 INI.A.NO.2 OF 2021 IN W.P.(C) NO.120 OF 2021.I.A.NO.2 OF 2021 IN W.P.(C) NO.120 OF 2021. R1-R5SMT.VIDHYA A.C., GOVERNMENT PLEADER ADDL. R6SRI.K.P.SUDHEER, STANDING COUNSEL ADDL. R6SRI.K.P.SUDHEER, STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON02.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.120 OF 2021(L) -2- JUDGMENT The petitioner, who is stated to be the owner in possessionand enjoyment of 3.94 Ares of land in Sy.No.291/1 ofElamkunnapuzha Village, covered by sale deed bearingNos.638/2004 and 2847/2004 of Sub Registrar Office, Njarakkal,has filed this writ petition under Article 226 of the Constitution ofIndia seeking a writ of certiorari to quash Ext.P1 notice dated27.01.2016 and Ext.P2 notice dated 03.02.2017 issued by the 4[th]respondent Special Tahsildar, Ext.P4 order dated 05.11.2019 ofthe 3[rd] respondent Revenue Divisional Officer and Ext.P8 orderdated 10.11.2020 of the 2[nd]respondent Land RevenueCommissioner. The petitioner has also sought for a writ ofmandamus commanding the 2[nd] respondent to conduct de novohearing on the challenge raised against Ext.P4 order of the 3[rd]respondent, after considering Ext.P7 series of documents; and adeclaration that the property forming subject matter of dispute inExts.P1 and P2 is a 'revenue puramboke' and not 'Devaswompuramboku'. 2.On 18.01.2021, when this writ petition came up foradmission, the petitioner was directed to file an application toimplead Cochin Devaswom Board as additional respondent. On W.P.(C) No.120 OF 2021(L) -3- 22.01.2021, I.A.No.2 of 2021 filed by the petitioner for impleading Cochin Devaswom Board as additional 6[th] respondent was allowed. 3.Heard the learned counsel for the petitioner, thelearned Government Pleader appearing for respondents 1 to 5 andalso the learned Standing Counsel for the additional 6[th]respondent Cochin Devaswom Board. 2.On 18.01.2021, when this writ petition came up foradmission, the petitioner was directed to file an application toimplead Cochin Devaswom Board as additional respondent. On W.P.(C) No.120 OF 2021(L) -3- 22.01.2021, I.A.No.2 of 2021 filed by the petitioner for impleading Cochin Devaswom Board as additional 6[th] respondent was allowed. 3.Heard the learned counsel for the petitioner, thelearned Government Pleader appearing for respondents 1 to 5 andalso the learned Standing Counsel for the additional 6[th]respondent Cochin Devaswom Board. 4.Ext.P8 order of the 2[nd] respondent Land RevenueCommissioner dated 10.11.2020 is under challenge in Ext.P9revision petition filed by the petitioner before the 1[st] respondentState, which is one filed invoking the provisions under sub-section(5) of Section 16 of the Kerala Land Conservancy Act. As persub-section (6) of Section 16, pending disposal of any appeal orrevision, the appellate authority or revisional authority, as thecase may be, may suspend the execution of the decision or orderappealed against or sought to be revised. 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 theConstitution of India when an efficacious alternative remedy isavailable is a rule and self imposed limitation. It is essentially a W.P.(C) No.120 OF 2021(L) -4- rule 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. 6.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 Constitutionof 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 the W.P.(C) No.120 OF 2021(L) -5- fundamental 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 astatutory forum is created by law for redressal of grievances, awrit petition should not be entertained ignoring the statutorydispensation. 7.Since the petitioner has already availed a statutoryremedy of revision against Ext.P8 order, no interference of thatorder is warranted under the extra ordinary jurisdiction of thisCourt under Article 226 of the Constitution of India, on thegrounds raised in this writ petition. 8.The learned Government Pleader would submit that the W.P.(C) No.120 OF 2021(L) -6- 7.Since the petitioner has already availed a statutoryremedy of revision against Ext.P8 order, no interference of thatorder is warranted under the extra ordinary jurisdiction of thisCourt under Article 226 of the Constitution of India, on thegrounds raised in this writ petition. 8.The learned Government Pleader would submit that the W.P.(C) No.120 OF 2021(L) -6- 1[st] respondent will consider and pass appropriate orders on Ext.P9 revision petition filed by the petitioner, with notice to thepetitioner and also to the additional 6[th] respondent CochinDevaswom Board, within a time limit to be fixed by this Court. 9.The learned counsel for the petitioner would submitthat the petitioner shall file an application under sub-section (6) ofSection 16 of the Kerala Land Conservancy Act, in Ext.P9 revisionpetition filed before the 1[st] respondent, seeking interim relief. 10.The learned Standing Counsel for the additional 6[th]respondent Cochin Devaswom Board would submit thatconsideration of Ext.P9 revision petition and any application forinterim relief may be with notice to the Cochin Devaswom Board. 11.Having considered the submissions made by thelearned counsel on both sides, this writ petition is disposed of bydirecting the 1[st] respondent to consider and pass appropriateorders on Ext.P9 revision petition filed by the petitioner againstExt.P8 order dated 10.11.2020 of the 2[nd] respondent LandRevenue Commissioner, with notice to the petitioner and also tothe additional 6[th] respondent Cochin Devaswom Board, asexpeditiously as possible, at any rate, within a period of two W.P.(C) No.120 OF 2021(L) -7- months from the date of receipt of a certified copy of thisjudgment. 12.In case any application for interim relief is filed inExt.P9 revision petition, under sub-section (6) of Section 16 of theKerala Land Conservancy Act, within 10 days from the date ofreceipt of a certified copy of this judgment, the 1[st] respondentshall consider the same and pass appropriate orders thereon, withnotice to the petitioner and also to the additional 6[th] respondentCochin Devaswom Board, as expeditiously as possible, at anyrate, within a period of ten days from the date of receipt of thatapplication. The legal and factual contentions raised by the petitioner areleft open to be raised before the 1[st] respondent revisional authorityat appropriate stage. bpr Sd/- ANIL K. NARENDRAN JUDGE W.P.(C) No.120 OF 2021(L) -8- APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1TRUE PHOTOCOPY OF THE NOTICE ISSUED UNDER SECTION 12 OF THE KERALA LAND CONSERVANCY ACT DATED 27.01.2016SECTION 12 OF THE KERALA LAND CONSERVANCY ACT DATED 27.01.2016 EXHIBIT P2TRUE PHOTOCOPY OF THE IMPUGNED NOTICE ISSUED UNDER SECTION 11 OF THE KERALA LAND CONSERVANCY ACT DATED 03.02.2017ISSUED UNDER SECTION 11 OF THE KERALA LAND CONSERVANCY ACT DATED 03.02.2017 EXHIBIT P3TRUE PHOTOCOPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC NO.8516/2017 DATED 14.03.2017HONOURABLE COURT IN WPC NO.8516/2017 DATED 14.03.2017 EXHIBIT P4TRUE PHOTOCOPY OF THE IMPUGNED ORDER ISSUEDBY THE 3RD RESPONDENT DATED 05.11.2019 VIDEREFERENCE NUMBER F-1749/2017BY THE 3RD RESPONDENT DATED 05.11.2019 VIDEREFERENCE NUMBER F-1749/2017 EXHIBIT P5TRUE PHOTOCOPY OF THE NOTICE ISSUED BY THE DEVASWOM OFFICER, ELAMKUNNAPUZHA DATED 08.01.2020DEVASWOM OFFICER, ELAMKUNNAPUZHA DATED 08.01.2020 EXHIBIT P6TRUE PHOTOCOPY OF THE JUDGMENT OF THE HON'BLE COURT IN WPC NO.1022/2020 DATED 23.01.2020HON'BLE COURT IN WPC NO.1022/2020 DATED 23.01.2020 EXHIBIT P7TRUE PHOTOCOPY OF THE BTR REGISTER OF ELAMKUNNAPUZHA VILLAGE OFFICE, WHICH SHOW THAT THE DISPUTED LAND IS REVENUE LANDELAMKUNNAPUZHA VILLAGE OFFICE, WHICH SHOW THAT THE DISPUTED LAND IS REVENUE LAND EXHIBIT P4TRUE PHOTOCOPY OF THE IMPUGNED ORDER ISSUEDBY THE 3RD RESPONDENT DATED 05.11.2019 VIDEREFERENCE NUMBER F-1749/2017BY THE 3RD RESPONDENT DATED 05.11.2019 VIDEREFERENCE NUMBER F-1749/2017 EXHIBIT P5TRUE PHOTOCOPY OF THE NOTICE ISSUED BY THE DEVASWOM OFFICER, ELAMKUNNAPUZHA DATED 08.01.2020DEVASWOM OFFICER, ELAMKUNNAPUZHA DATED 08.01.2020 EXHIBIT P6TRUE PHOTOCOPY OF THE JUDGMENT OF THE HON'BLE COURT IN WPC NO.1022/2020 DATED 23.01.2020HON'BLE COURT IN WPC NO.1022/2020 DATED 23.01.2020 EXHIBIT P7TRUE PHOTOCOPY OF THE BTR REGISTER OF ELAMKUNNAPUZHA VILLAGE OFFICE, WHICH SHOW THAT THE DISPUTED LAND IS REVENUE LANDELAMKUNNAPUZHA VILLAGE OFFICE, WHICH SHOW THAT THE DISPUTED LAND IS REVENUE LAND EXHIBIT P7(A)TRUE PHOTOCOPY OF THE CO-RELATION STATEMENTOF VILLAGE OFFICER , ELAMKUNNAPUZHA, SHOWING THE STATUS OF SAID LAND AS REVENUE 'PURAMBOKU'OF VILLAGE OFFICER , ELAMKUNNAPUZHA, SHOWING THE STATUS OF SAID LAND AS REVENUE 'PURAMBOKU' EXHIBIT P7(B)TRUE PHOTOCOPY OF THE LETTER DATED 18.01.2020ISSUED BY THE 5TH RESPONDENT STATING THAT RE-SURVEY 310/3 IS 'REVENUE PURAMBOKU'18.01.2020ISSUED BY THE 5TH RESPONDENT STATING THAT RE-SURVEY 310/3 IS 'REVENUE PURAMBOKU' EXHIBIT P7(C)TRUE PHOTOCOPY OF THE FAIR VALUE GOVERNMENTORDER DATED 06.03.2010ORDER DATED 06.03.2010 EXHIBIT P7(D)TRUE PHOTOCOPY OF THE LAND BANK DETAILS OF RESURVEY 310/3 WHICH SHOW THAT THE LAND IS A GOVERNMENT LANDRESURVEY 310/3 WHICH SHOW THAT THE LAND IS A GOVERNMENT LAND EXHIBIT P7(E)TRUE PHOTOCOPY OF THE REPORT OF VILLAGE OFFICER, ELAMKUNNAPUZHA SPECIFYING THAT LAND DISPUTED IS A' GOVERNMENT LAND'OFFICER, ELAMKUNNAPUZHA SPECIFYING THAT LAND DISPUTED IS A' GOVERNMENT LAND' EXHIBIT P7(F)TRUE PHOTOCOPY OF THE SKETCH MAHAZAR SHOWING THAT THE PROPERTY IS A 'GOVENRMENT LAND'SHOWING THAT THE PROPERTY IS A 'GOVENRMENT LAND' EXHIBIT P7(G)TRUE PHOTOCOPY OF THE ENDORSEMENT MADE BY DISTRICT COLLECTOR, ERNAKULAM RECOMMENDING ASSIGNMENT OF 3 CENTS OF PURAMBOKU FROM THEDISPUTED LANDDISTRICT COLLECTOR, ERNAKULAM RECOMMENDING ASSIGNMENT OF 3 CENTS OF PURAMBOKU FROM THEDISPUTED LAND EXHIBIT P7(H)TRUE PHOTOCOPY OF THE ORDER DATED 28.03.2007 OF THE ADDL. DISTRICT MAGISTRATE, ERNAKULAM SHOWING THE STATUS OFDISPUTED LAND AS 'REVENUE PURAMBOKU'28.03.2007 OF THE ADDL. DISTRICT MAGISTRATE, ERNAKULAM SHOWING THE STATUS OFDISPUTED LAND AS 'REVENUE PURAMBOKU' EXHIBIT P7(I)TRUE PHOTOCOPY OF THE EXTRACT OF DEVASWOM THANATHU REGISTER AND OF BTR REGISTER WHICHSUBSTANTIATE WRONG ENTRIES INT EH SAID REGISTERTHANATHU REGISTER AND OF BTR REGISTER WHICHSUBSTANTIATE WRONG ENTRIES INT EH SAID REGISTER EXHIBIT P8TRUE PHOTOCOPY OF THE IMPUGNED ORDER ISSUEDBY THE 2ND RESPONDENT VIDE REFERENCE NO.LR(K) 4-7067/20 DATED 10.11.2020BY THE 2ND RESPONDENT VIDE REFERENCE NO.LR(K) 4-7067/20 DATED 10.11.2020 EXHIBIT P9TRUE PHOTOCOPY OF THE CHALLENGE MADE BY THEPETITIONER BEFORE THE 1ST RESPONDENT DATED 30.12.2020PETITIONER BEFORE THE 1ST RESPONDENT DATED 30.12.2020 EXHIBIT P10TRUE PHOTOCOPY OF THE SUIT FILED BY THE PETITIONER BEFORE MUNSIFF COURT, KOCHI AS O.S. NO.33/20PETITIONER BEFORE MUNSIFF COURT, KOCHI AS O.S. NO.33/20 RESPONDENTS' EXHIBITS: NIL