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2024 Supreme(Online)(KER) 41759
HIGH COURT OF KERALA
ANIL K. NARENDRAN, P. G. Ajithkumar, JJ
MANI – Appellant
Versus
THE DISTRICT COLLECTOR – Respondent
WP(C) 35002/2024
ADV.SRI RAJMOHAN S - SENIOR GOVERNMENT PLEADER, ADV.SRI K P SUDHEER - STANDING COUNSEL
The High Court's jurisdiction under Article 226 is discretionary and should not be exercised if an efficacious alternative remedy exists, as reinforced by the Kerala Land Conservancy Act.
Headnote:(A) Constitution of India - Article 226 - Kerala Land Conservancy Act, 1958 - Sections 16 - Writ petition for mandamus to reconsider property measurement - Petitioner claims title over property but cannot claim ownership of adjacent land - Court emphasized that alternative statutory remedies must be availed before seeking writ relief - Petition dismissed for maintainability. (Paras 1, 6, 16)
(B) Jurisdiction of High Court - Discretionary power under Article 226 is not absolute and should not be exercised when an efficacious alternative remedy exists - The court reiterated principles from various precedents regarding the exercise of writ jurisdiction. (Paras 10-15)
Facts of the case:
The petitioner sought a writ of mandamus regarding property measurement, claiming ownership based on a sale deed. The court found that the property in question did not match the one claimed by the petitioner, and the survey was conducted properly.
Findings of Court:
The court found that the petitioner could not claim ownership of the land in question as per the sale deed and emphasized the need to follow statutory remedies.
Issues: The main issues included the petitioner’s claim to ownership based on a sale deed and the appropriateness of invoking writ jurisdiction in light of available statutory remedies.
Ratio Decidendi: The court ruled that the existence of an alternative remedy under the Kerala Land Conservancy Act precludes the petitioner from seeking relief under Article 226, reinforcing the principle that writ jurisdiction should not circumvent statutory provisions.
Result: Writ petition dismissed.
JUDGMENT
Anil K. Narendran, J.
The petitioner, who claims title over 9⅞ cents of property comprised in Survey No.213/2 of Methala Village, covered by Ext.P1 Sale Deed bearing No.893/1982 of the Sub Registrar Office, Kodungallur, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2nd respondent Special Tahsildar, Land Conservancy Unit, Cochin Devaswom Board, to re-consider Ext.P2 Form C notice issued under the provisions of Rule 11 of the Kerala Land Conservancy Rules, 1958, conduct an enquiry and measure the property of the petitioner as per the survey plan and Ext.P1 Sale deed, with proper opportunity of hearing before the proceedings are finalised, and till such time keep in abeyance the steps pursuant to Ext.P2 notice, in the light of Ext.P4 judgment of this Court dated 05.07.2023 in W.P.(C)No.19816 of 2022.
2. On 04.10.2024, when this writ petition came up for admission, the learned counsel for the petitioner sought time to file an application to implead the Cochin Devaswom Board, represented its Secretary as an additional respondent. By the order dated 07.10.2024, I.A.No.1 of 2024 filed by the petitioner was allowed and the Cochin Devaswom Board was impleaded as the additional 4th respondent.
3. On 07.10.2024, the learned Standing Counsel for Cochin Devaswom Board pointed out the judgment of this Court dated 12.02.2024 in W.P.(C)No.14604 of 2021. The learned Standing Counsel has also pointed out that going by Ext.P1 sale deed, the property owned by the petitioner is comprised in Survey No.213/2 of Methala village, whereas the encroachment in Devaswom land noted in Ext.P2 Form-C notice is 0.0022 Hectors in Survey No.212 of Methala village. The learned Standing Counsel sought time to get instructions as to whether the survey of the property was conducted with notice to the petitioner.
4. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for respondents 1 and 3 and learned Standing Counsel for Cochin Devaswom Board for respondents 2 and additional 4th respondent.
5. As already noticed hereinbefore, the petitioner is seeking relief in this writ petition, placing reliance on Ext.P4 judgment dated 05.07.2023 of a learned Single Judge of this Court in W.P.(C)No.19816 of 2022. In that judgment, considering the facts and circumstances of that case, the learned Single Judge directed the Executive Engineer, PWD Road Division, Thrissur, to issue notice to the individual encroachers and conduct survey again, if found necessary, and finalise the proceedings after affording the encroachers an opportunity of being heard. Relying on the direction contained in Ext.P4 judgment of the learned Single Judge, which was one issued considering the facts and circumstances of the case, the petitioner cannot contend that the 2nd respondent Special Tahsildar has to conduct another survey of the Devaswom land. In the instant case, as already noticed hereinbefore, the survey conducted by the Special Tahsildar, Land Conservancy Unit, is in the presence of the petitioner’s husband, Shanmughan. In addition to that, on the strength of Ext.P1 sale deed, the petitioner cannot claim ownership or possession of any land in Survey No.212 of Methala village, since the land covered by that sale deed is comprised in Survey No.213/2 of Methala village.
6. The proceedings initiated under the Kerala Land Conservancy Act , 1957 and the Rules made thereunder in respect of the Devaswom land of Sree Keraleshwarapuram Temple, which is a temple under the management of the Cochin Devaswom Board is one initiated pursuant to the directions contained in the judgment of this Court dated 12.02.2024 in W.P.(C)No.14604 of 2021, whereby that writ petition was disposed of by directing the Special Tahsildar (Land Conservancy Unit), Cochin Devaswom Board, the 2nd respondent herein to finalise the proceedings already initiated for the survey of the Devaswom land of that temple comprised in Su
