High Court of Kerala

Joseph Kurian Vs. The District Collector, Collectorate and Ors.

MANU/KE/0667/2021

15.03.2021

Property

No interference is warranted invoking writ jurisdiction of present Court, when a statutory remedy of appeal is available

The Petitioner has filed present writ petition under Article 226 of the Constitution of India, 1950 seeking a writ of certiorari to quash proceedings dated 8th March, 2021 and report dated 1st February, 2021 of the 3rd Respondent, Tahsildar (LR). The Petitioner has also sought for a writ of mandamus commanding Respondents 3 and 4 to conduct measurement of the property owned by the Petitioner of Vellilapilly Village strictly following the directions in Exhibit P6 judgment of present Court dated 14th July, 2020, within a time frame to be fixed by this Court and till such time, not to dispossess the Petitioner from the property. The further relief sought for is stay of all further proceedings pursuant to Exhibit P7 to the extent it directs the Petitioner to surrender the property alleged to have encroached, pending disposal of present writ petition.

In Commissioner of Income Tax v. Chhabil Das Agarwal, the Apex Court held that, non-entertainment of a writ petition under Article 226 of the Constitution, 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, 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 of the Constitution.

In view of the law laid down, no interference is warranted on order of the 3rd Respondent, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, when a statutory remedy of appeal is available before the additional 5th Respondent Revenue Divisional Officer, under Section 16 of the Kerala Land Conservancy Act, 1957.

In State of U.P. v. Harish Chandra, the Apex Court held that, no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. In Bhaskara Rao A.B. v. CBI, the Apex Court reiterated that, generally, no Court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law.

Therefore, in terms of the direction contained in present judgment, the additional 5th Respondent Revenue Divisional Officer shall take an appropriate decision in the matter, strictly in accordance with law.

Relevant

Commissioner of Income Tax v. Chhabil Das Agarwal MANU/SC/0802/2013
, State of U.P. v. Harish Chandra MANU/SC/0546/1996
, Bhaskara Rao A.B. v. CBI MANU/SC/1110/2011

Tags : Proceedings Alternative remedy Availability

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