In Commissioner Of Income Tax v. Chhabildas Agarwal [(2014) 1 Scc 603], The Apex Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941WP(C).No. 11529 of 2019 PETITIONER : BIJU N.AGED 37 YEARSS/O. NARENDRAN, BETHEL COTTEGE, KULAKKADA P.O., ERATHKULAKKADA, KOTTARAKKARA TALUK, KOLLAM DISTRICT. BY ADVS.SRI.T.V.GEORGESRI.JIMMY GEORGE (THADATHIL) RESPONDENTS: 1THE DISTRICT COLLECTORCIVIL LINES, KOLLAM-601013.CIVIL LINES, KOLLAM-601013. 2THE TAHSILDAR THALUK OFFICE, KOTTARAKKARA, KOLLAM-691506. 3VILLAGE OFFICERVILLAGE OFFICE, KULAKKADA, KOLLAM-691521.VILLAGE OFFICE, KULAKKADA, KOLLAM-691521. 4REVENUE DIVISIONAL OFFICERPUNALUR, KOLLAM-691305.PUNALUR, KOLLAM-691305. 5AGRICULTURE OFFICERKRISHI BHAVAN, KULAKKADA, KOLLAM-691001.KRISHI BHAVAN, KULAKKADA, KOLLAM-691001. *ADDL. R6PRINCIPAL AGRICULTURAL SECRETARY, DEPARTMENT OF AGRICULTURE,DEPARTMENT OF AGRICULTURE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001IS SUO MOTU IMPLEADED AS THE ADDITIONAL 6TH RESPONDENT VIDE ORDER DATED 12.4.2019IS SUO MOTU IMPLEADED AS THE ADDITIONAL 6TH RESPONDENT VIDE ORDER DATED 12.4.2019 BY SRI MANU RAJ K.J, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, who is stated to be the owner inpossession and enjoyment of 02.40 Ares (5.05 cents)of land in Re.Sy.No.162/22 in Kulakkada Village inKottarakkara Taluk, Kollam District covered by SaleDeed No.327/2016 of Kalayapuram Sub Registrar Officeand Ext.P1 land tax receipt, has filed this writ petitionunder Article 226 of the Constitution of India, seeking awrit of certiorari to quash Ext.P9 notice dated07.03.2019 issued by the 1[st] respondent. Thepetitioner has also sought for a writ of mandamuscommanding the respondents to grant him sanctionand permit to construct a residential building in theaforesaid property by allowing Exts.P4 and P7applications, as the property is found to be reclaimedland, far prior to 2008, i.e., before the KeralaConservation of Paddy Land and Wetland Act, 2008 came into force. 2. On 10.04.2019, when this writ petition came up for admission, this Court noticed that Ext.P9 order isrevisable under Section 28 of the Kerala Conservationof Paddy Land and Wetland Act, 2008. The learnedcounsel for the petitioner sought adjournment. 3. Heard the learned counsel for the petitionerand also the learned Government Pleader appearing forthe respondents. 4. Ext.P9 order issued by the 1[st] District Collector, whereby the petitioner has been directed to restore theland in question, is an order passed by the saidrespondent in exercise of the powers under Section 13of the Kerala Conservation of Paddy Land and WetlandAct, 2008, which is revisable before the additional 6[th]respondent Principal Agricultural Secretary in view ofthe provisions under Section 28 of the Act. 5. In Commissioner of Income Tax v. ChhabilDas Agarwal [(2014) 1 SCC 603], the Apex Court held that non-entertainment of a writ petition under 3. Heard the learned counsel for the petitionerand also the learned Government Pleader appearing forthe respondents. 4. Ext.P9 order issued by the 1[st] District Collector, whereby the petitioner has been directed to restore theland in question, is an order passed by the saidrespondent in exercise of the powers under Section 13of the Kerala Conservation of Paddy Land and WetlandAct, 2008, which is revisable before the additional 6[th]respondent Principal Agricultural Secretary in view ofthe provisions under Section 28 of the Act. 5. In Commissioner of Income Tax v. ChhabilDas Agarwal [(2014) 1 SCC 603], the Apex Court held that non-entertainment of a writ petition under Article 226 of the Constitution of India when anefficacious alternative remedy is available is a rule andself imposed limitation. It is essentially a rule of policy,convenience and discretion rather than a rule of law.Undoubtedly, it is within the discretion of the HighCourt to grant relief under Article 226 of theConstitution of India, despite the existence ofalternative remedy. However, High Court must notinterfere if there is an adequate efficacious alternativeremedy available to the petitioner and he hasapproached the High Court without availing the same,unless he has made out an exceptional case warrantingsuch interference or there exists sufficient ground toinvoke the extraordinary jurisdiction under Article 226.6. In Authorised Officer, State Bank ofTravancore v. Mathew K.C.[(2018) 3 SCC 85], theApex Court reiterated that the discretionary jurisdictionunder Article 226 of the Constitution of India is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. Thenormal rule is that a writ petition under Article 226 ofthe Constitution of India ought not to be entertained ifalternative statutory remedies are available, except incases falling within the well defined exceptions asobserved in Chaabil Das Agarwal's case (supra),i.e., where the statutory authority has not acted inaccordance with the provisions of the enactment inquestion or in defiance of the fundamental principles ofjudicial procedure, or has resorted to invoke theprovisions which are repealed, or when an order hasbeen 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 MillsCompany Ltd. v. State of Orissa [(1983) 2 SCC433]the Apex Court held that High Court will notentertain a petition under Article 226 of the Constitution if an effective alternative remedy isavailable to the aggrieved person or the statute underwhich the action complained of contains a mechanismfor redressal of grievance. Therefore, when a statutoryforum is created by law for redressal of grievances, awrit petition should not be entertained ignoring thestatutory dispensation. 7. In Thansingh Nathmal's case (supra)aConstitution Bench ofthe Apex Court held that, thejurisdiction of the High Court under Article 226 of theConstitution is couched in wide terms and the exercisethereof is not subject to any restrictions except theterritorial restrictions which are expressly provided inthe Article. But the exercise of the jurisdiction isdiscretionary: it is not exercised merely because it islawful to do so. The very amplitude of the jurisdictiondemands that it will ordinarily be exercised subject tocertain self imposed limitations. Resort to thatjurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode 7. In Thansingh Nathmal's case (supra)aConstitution Bench ofthe Apex Court held that, thejurisdiction of the High Court under Article 226 of theConstitution is couched in wide terms and the exercisethereof is not subject to any restrictions except theterritorial restrictions which are expressly provided inthe Article. But the exercise of the jurisdiction isdiscretionary: it is not exercised merely because it islawful to do so. The very amplitude of the jurisdictiondemands that it will ordinarily be exercised subject tocertain self imposed limitations. Resort to thatjurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily, the court will notentertain a petition for a writ under Article 226, wherethe petitioner has an alternative remedy, which withoutbeing unduly onerous, provides an equally efficaciousremedy. Again the High Court does not generally enterupon a determination of questions which demand anelaborate examination of evidence to establish the rightto enforce for which the writ is claimed. The High Courtdoes not, therefore, act as a court of appeal againstthe decision of a court or tribunal, to correct errors offact, and does not by assuming jurisdiction underArticle 226 trench upon an alternative remedy providedby statute for obtaining relief. Where it is open to theaggrieved petitioner to move another tribunal or evenitself in another jurisdiction for obtaining redress in themanner provided by a statute, the High Court normallywill not permit by entertaining a petition under Article226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so setup. 8. In Titaghur Paper Mills' case (supra)a Three-Judge Bench of the Apex Court held that, theOrissa Sales Tax Act, 1947 provides for a completemachinery to challenge an order of assessment, andthe impugned orders of assessment can only bechallenged by the mode prescribed by the Act and notby a petition under Article 226 of the Constitution. It isnow well recognised that where a right or liability iscreated by a statute which gives a special remedy forenforcing it, the remedy provided by that statute onlymust be availed of. This rule was stated with greatclarity by Willes, J. in Wolverhampton New WaterWorks Co. v. Hawkesford [(1859) 6 CBNS 336] atpage 356 in the following passage: "There are three classes of cases in which aliability may be established founded uponstatute ..... But there is a third class, viz., where a liability not existing at common law is created by astatute which at the same time gives a special andparticular remedy for enforcing it ..... the remedyprovided by the statute must be followed, and it isnot competent to the party to pursue the courseapplicable to cases of the second class. The formgiven by the statute must be adopted and adheredto." The rule laid down in that passage was approved by the House of Lords in Neville v. London ExpressNewspaper Ltd.[1919 AC 368] and has beenreaffirmed by the Privy Council in Attorney Generalof Trinidad and Tobago v. Gordon Grant and Co.[1935 AC 532] and Secretary of State v. Maskand Co. . It has also been held tobe equally applicable to enforcement of rights and hasbeen followed by the Apex Court throughout. 9. In Pavithran V. State of Kerala (2009 (4)KHC 4), a Full Bench of this Court held that, wheneveran adverse order is passed against a person, unless thesame is challenged before the appropriate forum,within the prescribed time limit, the said order will become final. 10. In view of the statutory remedy available under Section 28 of the Kerala Conservation of PaddyLand and Wetland Act, 2008, no interference on Ext.P9order is warranted, invoking the writ jurisdiction of thisCourt under Article 226 of the Constitution of India, onthe grounds raised in this writ petition. 9. In Pavithran V. State of Kerala (2009 (4)KHC 4), a Full Bench of this Court held that, wheneveran adverse order is passed against a person, unless thesame is challenged before the appropriate forum,within the prescribed time limit, the said order will become final. 10. In view of the statutory remedy available under Section 28 of the Kerala Conservation of PaddyLand and Wetland Act, 2008, no interference on Ext.P9order is warranted, invoking the writ jurisdiction of thisCourt under Article 226 of the Constitution of India, onthe grounds raised in this writ petition. 11. The learned counsel for the petitioner wouldsubmit that the petitioner shall file a revision petitionbefore the additional 6[th] respondent, challenging Ext.P9order of the 1[st] respondent District Collector, asprovided under Section 28 of the Kerala Conservationof Paddy Land and Wetland Act, 2008. 12. The learned Government Pleader would submit that if such a revision petition is filed before theadditional 6[th] respondent, the said respondent shallconsider the same and pass appropriate ordersthereon, within a time limit to be specified by thisCourt. In such circumstances, this writ petition is disposed of with the following directions; i) Within two weeks from the date of receipt of a certified copy of this judgment, thepetitioner shall file a revision petitionagainst Ext.P9 order, before the additional6[th] respondent, invoking the provisionsunder Section 28 of the Kerala Conservationof Paddy Land and Wetland Act, 2008. petitioner shall file a revision petitionagainst Ext.P9 order, before the additional6[th] respondent, invoking the provisionsunder Section 28 of the Kerala Conservationof Paddy Land and Wetland Act, 2008. ii) The additional 6[th] respondent shall consider the said revision petition and passappropriate orders thereon, strictly inaccordance with law, with notice to thepetitioner and after affording him anopportunity of being heard, as expeditiouslyas possible, at any rate, within a period ofthree months from the date of receipt ofsuch revision petition.appropriate orders thereon, strictly inaccordance with law, with notice to thepetitioner and after affording him anopportunity of being heard, as expeditiouslyas possible, at any rate, within a period ofthree months from the date of receipt ofsuch revision petition. iii) It would be open to the petitioner to movean interim application in the revisionpetition filed before the additional 6[th]respondent, in which event, the saidrespondent shall pass appropriate orders onthat application, within a period of twoan interim application in the revisionpetition filed before the additional 6[th]respondent, in which event, the saidrespondent shall pass appropriate orders onthat application, within a period of two weeks. The petitioner shall produce a certified copy of this judgment along with a copy of the writ petition beforerespondents 1 and 6. AV/12/4 Sd/- ANIL K.NARENDRAN, JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE TAX PAID RECEIPT OFTHE YEAR 2017-2018 ISSUED FROM THE VILLAGE OFFICE, KULAKKADA ON 16.8.2017.THE YEAR 2017-2018 ISSUED FROM THE VILLAGE OFFICE, KULAKKADA ON 16.8.2017. EXHIBIT P2 TRUE PHOTOGRAPH OF THE PRESENT SITUATION OF THE PETITIONER'S PROPERTY & NEIGHBOURING PROPERTY.SITUATION OF THE PETITIONER'S PROPERTY & NEIGHBOURING PROPERTY. EXHIBIT P3TRUE COPY OF THE REJECTION ORDER DATED 2.7.2018 ISSUED BY SECRETARY OF THE KULAKKADA GRAMA PANCHAYAT.DATED 2.7.2018 ISSUED BY SECRETARY OF THE KULAKKADA GRAMA PANCHAYAT. EXHIBIT P4TRUE COPY OF APPLICATION DATED 10.7.2018 BEFORE THE IST RESPONDENT,BY THE PETITIONER.10.7.2018 BEFORE THE IST RESPONDENT,BY THE PETITIONER. EXHIBIT P4 ATRUE COPY OF THE ENDORSEMENT MADE BYTHE REVENUE DIVISIONAL OFFICER, IN EXT P4 APPLICATION.THE REVENUE DIVISIONAL OFFICER, IN EXT P4 APPLICATION. EXHIBIT P2 TRUE PHOTOGRAPH OF THE PRESENT SITUATION OF THE PETITIONER'S PROPERTY & NEIGHBOURING PROPERTY.SITUATION OF THE PETITIONER'S PROPERTY & NEIGHBOURING PROPERTY. EXHIBIT P3TRUE COPY OF THE REJECTION ORDER DATED 2.7.2018 ISSUED BY SECRETARY OF THE KULAKKADA GRAMA PANCHAYAT.DATED 2.7.2018 ISSUED BY SECRETARY OF THE KULAKKADA GRAMA PANCHAYAT. EXHIBIT P4TRUE COPY OF APPLICATION DATED 10.7.2018 BEFORE THE IST RESPONDENT,BY THE PETITIONER.10.7.2018 BEFORE THE IST RESPONDENT,BY THE PETITIONER. EXHIBIT P4 ATRUE COPY OF THE ENDORSEMENT MADE BYTHE REVENUE DIVISIONAL OFFICER, IN EXT P4 APPLICATION.THE REVENUE DIVISIONAL OFFICER, IN EXT P4 APPLICATION. EXHIBIT P4 BTRUE COPY OF THE ENDORSEMENT MADE BYTHE DISTRICT COLLECTOR IN EXT P4-APPLICATION.THE DISTRICT COLLECTOR IN EXT P4-APPLICATION. EXHIBIT P5TRUE COPY OF STOP MEMO DATED 10.5.2017 ISSUED BY THE VILLAGE OFFICER, KULAKKADA.10.5.2017 ISSUED BY THE VILLAGE OFFICER, KULAKKADA. EXHIBIT P6TRUE COPY OF POSSESSION CERTIFICATE DATED 29.7.06 ISSUED BY THE VILLAGE OFFICER, KULAKKADA.DATED 29.7.06 ISSUED BY THE VILLAGE OFFICER, KULAKKADA. EXHIBIT P7 TRUE COPY OF APPLICATION BEFORE THE LOCAL LEVEL MONITORING COMMITTEE PREFERRED BY PETITIONER.LOCAL LEVEL MONITORING COMMITTEE PREFERRED BY PETITIONER. EXHIBIT P8TRUE COPY OF DEMAND DRAFT DATED 11.7.2018 FOR RS.1,500/-11.7.2018 FOR RS.1,500/- EXHIBIT P9TRUE COPY OF NOTICE DATED 7.3.2019 ISSUED BY THE 1ST RESPONDENT.ISSUED BY THE 1ST RESPONDENT.