In Commissioner Of Income Tax v. Wp(C)

IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942 WP(C).No.3368 OF 2021(U) PETITIONER: SAIDALAVI THOTTINGALAGED 55 YEARSS/O.KUNHALI, THOTTINGAL HOUSE, CHERPULASSERY, PALAKKAD DISTRICT. BY ADVS.SRI.M.SASINDRANSRI.V.VENUGOPAL RESPONDENTS: 1STATE OF KERALAREPRESENTED BY SECRETARY TO THE GOVERNMENT, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.REPRESENTED BY SECRETARY TO THE GOVERNMENT, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2THE COMMISSIONER OF LAND REVENUEPUBLIC OFFICE BUILDINGS, MUSEUM, THIRUVANANTHAPURAM - 695 033.PUBLIC OFFICE BUILDINGS, MUSEUM, THIRUVANANTHAPURAM - 695 033. 3THE REVENUE DIVISIONAL OFFICER/THE SUB COLLECTOROTTAPPALAM, PALAKKAD DISTRICT - 679 101.OTTAPPALAM, PALAKKAD DISTRICT - 679 101. 4THE TAHSILDAR (LAND RECORDS)OTTAPPALAM - 679 101.OTTAPPALAM - 679 101. 5THE VILLAGE OFFICERCHERPULASSERY, PALAKKAD DISTRICT - 679 503.CHERPULASSERY, PALAKKAD DISTRICT - 679 503. BY SMT A.C.VIDHYA - GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON10.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, who is stated to be the absolute owner inpossession and enjoyment of 4.8 Ares of property inRe.Sy.No.213/1/1 covered by Ext.P1 sale deed bearing No.3667 ofSub Registrar Office, Cherpulassery, has filed this writ petitionunder Article 226 of the Constitution of India, seeking a writ ofcertiorari to quash Ext.P12 order dated 31.01.2021 issued by the3[rd] respondent Revenue Divisional Officer, Ext.P6 notice dated12.03.2019 and Ext.P7 order dated 12.03.2020 issued by the 4[th]respondent. The petitioner has also sought for a writ of mandamuscommanding the 2[nd] respondent to consider and pass orders onExt.P13(a) stay petition and Ext.P13 revision without delay; and awrit of mandamus commanding respondents 4 and 5 not to enforceExt.P12 order during the pendency of Ext.P13 revision. 2.Heard the learned counsel for the petitioner and also thelearned Government Pleader appearing for the respondents. 3.The learned counsel for the petitioner would point outthat challenging Ext.P12 order dated 31.01.2021 issued by the 3[rd]respondent, the petitioner has filed Ext.P13 revision petition beforethe 2[nd] respondent Commissioner of Land Revenue, invoking the provisions under sub section (4) of Section 16 of the Kerala LandConservancy Act. The said petition along with Ext.P13 (a)application for stay are now pending consideration before the 2[nd]respondent. 4.The learned Government Pleader would submit that ifExt.P13 revision petition and Ext.P13(a) stay petition filed by thepetitioner are in order, the 2[nd] respondent will consider consider thesame and pass appropriate orders thereon, with notice to thepetitioner and after affording him an opportunity of being heard. 5.In Commissioner of Income Tax v. Chhabil DasAgarwal [(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 Court without 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. without 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 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 SCC 433] 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 statutoryforum is created by law for redressal of grievances, a writ petitionshould not be entertained ignoring the statutory dispensation. 7.In view of the law laid down in the decisions referred tosupra, when there is a statutory remedy of revision providedagainst Ext.P12 order dated 31.01.2021 issued by the 3[rd]respondent, under sub-section (4) of Section 16 of the Kerala LandConservancy Act, the petitioner cannot invoke the writ jurisdictionof this Court under Article 226 of the Constitution of India in orderto challenge Ext.P12 order on the grounds raised in this writpetition. Since Ext.P13 revision petition filed by the petitioner alongwith Ext.P13(a) stay petition are pending consideration before the2[nd] respondent, this writ petition is disposed of with the followingdirections: i)If Ext.P13 revision petition and Ext.P13(a) stay petition filed by the petitioner are in order, the 2[nd] respondentshall consider the same and pass appropriate ordersthereon, as expeditiously as possible, at any rate,within a period of two months from the date of receiptof a certified copy of this judgment. ii) The 2[nd] respondent shall consider Ext.P13(a) staypetition filed by the petitioner and take an appropriatedecision, within a period of one week from the date ofreceipt of a certified copy of this judgment. The legal and factual contentions raised by the petitioner in this writ petition are left open to be raised before the appropriateforum. JV Sd/- ANIL K.NARENDRAN JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1A TRUE COPY OF THE VERUMPATTA SALE DEED DATED 12/9/1994.DATED 12/9/1994. EXHIBIT P2A TRUE COPY OF THE SALE DEED NO.2920/1978OF CHERPULASSERY SRO 25/12/1978.OF CHERPULASSERY SRO 25/12/1978. EXHIBIT P3A TRUE COPY OF THE BASIC TAX RECEIPT DATED 01/10/2019 ISSUED BY THE VILLAGE OFFICER, CHERPULASSERY.DATED 01/10/2019 ISSUED BY THE VILLAGE OFFICER, CHERPULASSERY. EXHIBIT P3(A)A TRUE COPY OF THE BASIC TAX RECEIPT DATED 14/01/2019 ISSUED BY THE VILLAGE OFFICER, CHERPULASSERY.DATED 14/01/2019 ISSUED BY THE VILLAGE OFFICER, CHERPULASSERY. EXHIBIT P3(B)A TRUE COPY OF THE BASIC TAX RECEIPT DATED 27/04/2017 ISSUED BY THE VILLAGE OFFICER, CHERPULASSRY.DATED 27/04/2017 ISSUED BY THE VILLAGE OFFICER, CHERPULASSRY. EXHIBIT P4A TRUE COPY OF THE POSSESSION CERTIFICATEISSUED BY THE VILLAGE OFFICER, CHERPULASSERY.ISSUED BY THE VILLAGE OFFICER, CHERPULASSERY. EXHIBIT P2A TRUE COPY OF THE SALE DEED NO.2920/1978OF CHERPULASSERY SRO 25/12/1978.OF CHERPULASSERY SRO 25/12/1978. EXHIBIT P3A TRUE COPY OF THE BASIC TAX RECEIPT DATED 01/10/2019 ISSUED BY THE VILLAGE OFFICER, CHERPULASSERY.DATED 01/10/2019 ISSUED BY THE VILLAGE OFFICER, CHERPULASSERY. EXHIBIT P3(A)A TRUE COPY OF THE BASIC TAX RECEIPT DATED 14/01/2019 ISSUED BY THE VILLAGE OFFICER, CHERPULASSERY.DATED 14/01/2019 ISSUED BY THE VILLAGE OFFICER, CHERPULASSERY. EXHIBIT P3(B)A TRUE COPY OF THE BASIC TAX RECEIPT DATED 27/04/2017 ISSUED BY THE VILLAGE OFFICER, CHERPULASSRY.DATED 27/04/2017 ISSUED BY THE VILLAGE OFFICER, CHERPULASSRY. EXHIBIT P4A TRUE COPY OF THE POSSESSION CERTIFICATEISSUED BY THE VILLAGE OFFICER, CHERPULASSERY.ISSUED BY THE VILLAGE OFFICER, CHERPULASSERY. EXHIBIT P5A TRUE COPY OF THE RECEIPT ISSUED BY THE CHERPULASSERY MUNICIPALITY ON REMITTANCE OF PROPERTY TAX IN RESPECT OF THE SHOP ROOM NO.12/247 8/3/2017.CHERPULASSERY MUNICIPALITY ON REMITTANCE OF PROPERTY TAX IN RESPECT OF THE SHOP ROOM NO.12/247 8/3/2017. EXHIBIT P5(A)A TRUE COPY OF THE RECEIPT ISSUED BY THE CHERPULASSERY MUNICIPALITY ON REMITTANCE OF PROPERTY TAX IN RESPECT OF THE SHOP ROOM NO.12/248 8/3/2017.CHERPULASSERY MUNICIPALITY ON REMITTANCE OF PROPERTY TAX IN RESPECT OF THE SHOP ROOM NO.12/248 8/3/2017. EXHIBIT P5(B)A TRUE COPY OF THE RECEIPT ISSUED BY THE CHERPULASSERY MUNICIPALITY ON REMITTANCE OF PROPERTY TAX IN RESPECT OF THE SHOP ROOM NO.12/249.CHERPULASSERY MUNICIPALITY ON REMITTANCE OF PROPERTY TAX IN RESPECT OF THE SHOP ROOM NO.12/249. EXHIBIT P5(C)A TRUE COPY OF THE RECEIPT ISSUED BY THE CHERPULASSERY MUNICIPALITY ON REMITTANCE OF PROPERTY TAX IN RESPECT OF THE SHOP ROOM NO.12/250.CHERPULASSERY MUNICIPALITY ON REMITTANCE OF PROPERTY TAX IN RESPECT OF THE SHOP ROOM NO.12/250. EXHIBIT P5(D)A TRUE COPY OF THE RECEIPT ISSUED BY THE CHERPULASSERY MUNICIPALITY ON REMITTANCE OF PROPERTY TAX IN RESPECT OF THE SHOP ROOM NO.12/251.CHERPULASSERY MUNICIPALITY ON REMITTANCE OF PROPERTY TAX IN RESPECT OF THE SHOP ROOM NO.12/251. EXHIBIT P6A TRUE COPY OF THE NOTICE DATED 12/03/2019 ISSUED BY THE 4TH RESPONDENT.12/03/2019 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P7A TRUE COPY OF THE ORDER NO.12-2020/1276/9/400 DATED 12/03/2020 ISSUED BY THE 4TH RESPONDENT.2020/1276/9/400 DATED 12/03/2020 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P8A TRUE COPY OF THE JUDGMENT IN WP(C) NO.18386 OF 2020 DATED 8/9/2020.NO.18386 OF 2020 DATED 8/9/2020. EXHIBIT P9A TRUE COPY OF THE APPEAL MEMORANDUM FILED BY THE PETITIONER'S WIFE BEFORE THE3RD RESPONDENT DATED 9/7/2020.FILED BY THE PETITIONER'S WIFE BEFORE THE3RD RESPONDENT DATED 9/7/2020. EXHIBIT P10A TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P11A TRUE COPY PETITION DATED 7/1/2021 FILEDBY THE PETITIONER'S WIFE BEFORE THE 3RD RESPONDENT FOR CONDUCTING MEASUREMENT OF THE PROPERTY.BY THE PETITIONER'S WIFE BEFORE THE 3RD RESPONDENT FOR CONDUCTING MEASUREMENT OF THE PROPERTY. EXHIBIT P12A TRUE COPY OF THE ORDER NO.F-2512/2020 DATED 31/1/2021.DATED 31/1/2021. EXHIBIT P13A TRUE COPY OF THE REVISION PETITION FILED BY THE PETITIONER ON 4/2/2021 BEFORE THE 2ND RESPONDENT.FILED BY THE PETITIONER ON 4/2/2021 BEFORE THE 2ND RESPONDENT. EXHIBIT P13(A)A TRUE COPY OF THE STAY PETITION FILED BYTHE PETITIONER ON 4/2/2021 BEFORE THE 2NDRESPONDENT.THE PETITIONER ON 4/2/2021 BEFORE THE 2NDRESPONDENT. EXHIBIT P14A TRUE COPY OF THE POSTAL RECEIPT DATED 5/2/2021 SHOWING OF SENDING OF EXHIBIT P13 AND EXHIBIT P13(A).5/2/2021 SHOWING OF SENDING OF EXHIBIT P13 AND EXHIBIT P13(A).