Roy Jacob vs Thasildar And Ors

The petitioner, who was conducting quarrying operations in Government land comprised in Re-survey No.36/4 in Block No.37 of Velinalloor Village

of Kottarakkara Taluk, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P9 order dated

27.07.2020 issued by the 1st respondent. The petitioner has also sought for a declaration that the claim based on Ext.P9 is totally unsustainable.

On 04.01.2021, when this writ petition came up for admission, the learned Government Pleader was directed to get instructions.

On 11.01.2021, when the matter came up for consideration, the learned Government Pleader submitted that a statutory remedy of appeal is

available against Ext.P9 order, in view of the provisions under clause (a) in sub-section (1) of Section 16 of the Kerala Land Conservancy Act, 1957.

The learned counsel for the petitioner raised a question as to whether the 1st respondent Tahsildar (LR) is competent to issue Ext.P9 order.

Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for the respondents.

Vide Notification No.LRD4-18737/57/Rev. dated 01.10.1958 published in Kerala Gazette dated 07.10.1957 Part I, the Government of Kerala in

exercise of the powers conferred under Section 15 of the Kerala Land Conservancy Act, authorised all Taluk Tahsildars to exercise by virtue of their

office all the powers of the District Collector under the said Act, within their respective jurisdiction, except the power of hearing under Section 16.

Thereafter, vide Notification No.LRD4-18737/57/Rev. dated 25.10.1958 published in Kerala Gazette dated 01.11.1958 Part I the Government of

Kerala in exercise of the powers conferred by Section 16 of the Kerala Land Conservancy Act directed that the appeal from the decision or order of

the Taluk Tahsildar empowered under Section 15 of the said Act shall lie to the Collector of the District.

Section 16 of the Kerala Land Conservancy Act, which deals with appeal and revision, was substituted by Act 11 of 1971 with 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 any officer authorised under Section

15 may appeal; (a) where such officer is the Revenue Divisional Officer, to the Collector; (b) in all other cases, to the Revenue Divisional Officer, and

the Collector or the Revenue Divisional Officer, as the case may be, may pass such order 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 case where the order is passed by the Revenue Divisional Officer on appeal under

clause (b). In view of the provisions under Section 16 of the Act, Ext.P9 order dated 27.07.2020 of the 1st respondent Tahsildar (LR) is appealable

before the Revenue Divisional Officer, under clause (a) of sub-section (1) of Section 16 of the Act.

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 the Constitution of India when an efficacious alternative remedy is available is a rule and self-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 High Court to grant relief under Article

226 of the Constitution of India, despite the existence of alternative remedy. However, High Court must not interfere if there is an adequate

efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same, unless he has made out an

exceptional case warranting such interference or there exists sufficient ground to invoke the extraordinary jurisdiction under Article 226.

In Authorised Officer, State Bank of Travancore v. Mathew K.C. [(2018) 3 SCC 85] the Apex Court reiterated that the discretionary jurisdiction

under 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. The normal rule is that a writ petition under Article 226 of the Constitution of India ought not to be entertained if alternative statutory remedies

are available, except in cases falling within the well-defined exceptions as observed in Chaabil Das Agarwal [(2014) 1 SCC 603], i.e., where the

statutory authority has not acted in accordance with the provisions of the enactment in question or in defiance of the fundamental principles of judicial

procedure or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural

justice. After referring to the law laid down in Thansingh Nathmal [AIR 1964 SC 1419] and Titaghur Paper Mills Company Ltd. [(1983) 2 SCC 433]

the Apex Court held that High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to

the aggrieved person or the statute under which the action complained of contains a mechanism for redressal of grievance. Therefore, when a

statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.

In view of the law laid down in the decisions referred to supra, conclusion is irresistible that since a statutory remedy of appeal is provided under

clause (a) of sub-section (1) of Section 16 of the Kerala Land Conservancy Act, against Ext.P9 order dated 27.07.2020 of the 1st respondent

Tahsildar (LR), the petitioner cannot challenge that order by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India,

on the grounds raised in this writ petition.

In such circumstances, this writ petition filed on 22.12.2020 is disposed of by relegating the petitioner to avail the statutory remedy of appeal by

approaching the concerned Revenue Divisional Officer.