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N.K. Sarada Thampatty Vs. Secretary to Government of Kerala - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberA.S. No. 1103 of 1959
Judge
Reported inAIR1960Ker351
ActsConstitution of India - Article 226
AppellantN.K. Sarada Thampatty
RespondentSecretary to Government of Kerala
Appellant Advocate K. Kuttikrishna Menon and; V. Balakrishnan Eradi, Advs.
Respondent AdvocateGovernment Pleader
DispositionWrit petition allowed
Cases ReferredU. P. State v. Mohd. Nooh
Excerpt:
.....collector for permission to lease property for raising rubber plantation - collector rejected application on ground that soil not suitable for rubber plantation - appellant challenged order - ground on which application rejected by collector was one against appellant - appellant had no opportunity to show cause which resulted in violation of rule of natural justice - order of collector vacated - direction given to collector to decide new application afresh after affording to appellant full opportunity of hearing. - - 2. the appellant bad under section 3(1) (a) of the madras preservation of private forests act, act' no. 3. the respondent's objection, which has been allowed by the learned judge, to the petition under article 226, is that the appellant, not having availed herself..........of by the party invoking the article, and the legal position would not be improved where a party's remedy of appeal is allowed to become time-barred.in vishwamitra karyalaya press v. authority appointed under payment of wages act, 1936 for kaupur, air 1955 all 702, it has been held that the remedy under article 226 would not be open to an applicant, whose right to appeal has become barred by limitation, and the same view has been taken in promode lal v. additional district magistrate, 24 parganas, air 1957 cal 164. there are, however, exceptions to the principle of withholding, on the aforesaid ground, the relief under the article, and one such exception is where the authority, exercising quasi-judicial functions, has violated the fundamental principles of natural justice. the aforesaid.....
Judgment:

Ansari, C.J.

1. This appeal is against the judgment by a learned judge of this Court, dismissing a petition under Article 226 of the Constitution. By the aforesaid petition, the appellant seeks to vary an order by the Collector of Kozhikode which had dismissed, on October 26, 1958, an application for permission to lease property. The appellant, thereafter, had appealed to the Government of Kerala, which appeal was dismissed on February 18, 1959, on the-ground that it was barred by limitation. The writ petition prays that the latter order should also be vacated. To appreciate the grounds on which these-orders are challenged, it is necessary to state some more facts.

2. The appellant bad under Section 3(1) (a) of the Madras Preservation of Private Forests Act, Act' No. XXVII of 1949, applied to the Collector, for permission to lease part of her property in Re. Survey No. 155/1, for raising rubber plantation. This application was on November 16, 1956 and, on November 1, 1957, the Collector had refused the permission on the ground of the soil not being suitable for the rubber plantation. On November 28, 1957, the appellant applied for reconsideration of the earlier order, producing certificates regarding the suitability of the land for planting rubber.

This application has been rejected on October 26, 1958, on the ground that, if the soil were to be exposed by felling, that would cause erosion, and adversely affect neighbouring Reserve Forests. The appellant received copy of the order on October 29. 1958; and she preferred an appeal to the Board of Revenue on December 26, 1958. This is conceded to be erroneous under Section 4 of the Madras Preservation of Private Forests Act, as the appeal lay to the State Government. The Board of Revenue naturally returned the memorandum of appeal on January 2, 1959, and the appellant forwarded the appeal to the State Government on January, 4, 1959; and this has been dismissed on the ground that it was barred by limitation.

Thereafter, the appellant has invoked the jurisdiction of this court under Article 226 of the Constitution, and has asked this Court to vacate both the orders. Her complaint against both the orders is that they have been made in violation of the rules of natural justice, without affording the appellant an opportunity to be heard in support of her application. The next ground against the Collect for's order, is that the permission had been refused on considerations, which are extraneous to the scope and object of the Madras Preservation of Private Forests Act.

3. The respondent's objection, which has been allowed by the learned Judge, to the petition under Article 226, is that the appellant, not having availed herself of the alternative remedy by way of appeal, provided by the Act, has disentitled he self to the relief from this Court under Article 226. We agree with the learned Judge that the State Government has not committed any violation of the rules of natural justice, by dismissing the appeal without hearing the appellant, because the appeal was clearly barred by limitation, and, in the absence of any provision authorising the State Government to condone the delay, nothing useful would have resulted, even if the appellant had been heard.

In these circumstances, the learned Judge has rightly held that the appellate authority could not have condoned the delay, and the petitioner's appeal was justifiably dismissed on the ground of being barred by limitation. We, however, do not agree that, by allowing her right of appeal to be ' barred by limitation, the appellant has become disentitled to claim the relief under Article 226. It is true that the relief under the aforesaid Article, is generally not granted where there is the alternative relief that can be availed of by the party invoking the Article, and the legal position would not be improved where a party's remedy of appeal is allowed to become time-barred.

In Vishwamitra Karyalaya Press v. Authority appointed under Payment of Wages Act, 1936 for Kaupur, AIR 1955 All 702, it has been held that the remedy under Article 226 would not be open to an applicant, whose right to appeal has become barred by limitation, and the same view has been taken in Promode Lal v. Additional District Magistrate, 24 Parganas, AIR 1957 Cal 164. There are, however, exceptions to the principle of withholding, on the aforesaid ground, the relief under the Article, and one such exception is where the authority, exercising quasi-judicial functions, has violated the fundamental principles of natural justice. The aforesaid exception was hold in S.C. Prashar v. Vasantsen Dwarkadas, (S) AIR 1956 Bom 530, to be established, for the learned Judges have, at page 534, observed as follows :

'The two exceptions to the ordinary rule that the Court will not give relief by means of a writ when the petitioner can get the same relief by ordinary legal remedies available to him which are well established, are these : One is that if the threat involves an encroachment upon the fundamental right of the petitioner, the Court will interfere and will not compel him to exhaust his legal remedies and the other exception, which is equally well established, is that if the authority against whom a complaint is made, lias violated rules of natural justice, the court will interfere and protect the petitioner and not insist upon his going to a higher tribunal for relief.'

The judges in Assistant Collector of Customs v. Soorajmull Nagarmull, AIR 1952 Cal 656, were dealing with the order of the Assistant Collector of Customs, which had levied additional duty and fine for misdeclaration, and the party aggrieved had not been given an opportunity of being heard. In these circumstances, Harries, C. J., held that, if public policy affects the issue of a writ, then, clearly public policy demands that where a decision by a statutory authority be contrary to all accepted principles of justice, the High Court should issue a writ, and not compel the party to proceed by way of appeal or revision to the higher authority under the particular statute. We respectfully agree with the aforesaid observations. Also Sinha, J., in Rakhaldas Mukherjee v. S.P. Chose,. AIR 1952 Cal 171, has summed up the result of authorities, and, while so doing, has stated as follows :

'(a) The writs of mandamus, certiorari and prohibition, and for the matter of that, all high prerogative writs, arc ordinarily not issued where there exists an alternative remedy equally efficient and adequate.

(f) In the following cases, it has been held that a writ will be issued notwithstanding an alternative remedy, whether under a statutory provision or otherwise :

(i) Whore an inferior tribunal assumes jurisdiction and the want of jurisdiction is patent on the face of it:

(ii) Where the proceedings complained of are against the principles of natural justice; and

(iii) Where the alternative remedy is too costly or ineffective or entails such delay that the applicant would be irreparably prejudiced or the remedy might prove valueless.

It follows that, should the procedure adopted by the Collector be opposed to principles of natural justice, the fact that the aggrieved party had filed no appeal, would not disentitle such party from getting relief under Article 226. Nor we would be justified in declining to interfere where a party's appeal has become barred, through honest mistakes, where delay could have been condoned, had the appellate authority the necessary statutory powers of condoning the delay.

We further think that a different rule has not been laid in U. P. State v. Mohd. Nooh, AIR 1958 SC 86, for it was held there that ordinarily, the court would not interfere where there be an alternative remedy available, though in a proper case, it should do so, and a superior court would readily issue a certiorari where there be denial of natural justice. We, therefore, think that, should the order of a quasi-judicial! authority be vitiated by having violated the principles of natural justice, that would be a fit case for interference, and this, notwithstanding the statutory remedy of appeal or revision having been not availed of or having been allowed honestly to become barred, by the party invoking the Article.

4. Coming to the facts of the case, it is clear that the ground on which the writ petitioner's fresh application has been rejected by the Collector, was one against which she had no opportunity to show cause, and this omission has resulted in the violation of rules of natural justice. We find that the appellant has expert opinions to show the earlier ground of rejection being incorrect, and claims the ground rejecting the new application to be legally and otherwise incorrect. The latter claim is not obviously incorrect, and should be properly adjudicated upon.

The appellant should, therefore, be allowed tourge what she has in support of her fresh application and against the grounds on which this application has been rejected. The result is that thisappeal is allowed and the order of the Collectorof October 26, 1958 is vacated. He is directed todecide the new application afresh, after affordingthe applicant before him fall opportunity of beingheard in support of her case and showing causeagainst the grounds for its rejection. The writ petition is accordingly allowed, and the Collector isdirected to proceed as directed above. The partieswill bear their costs.


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