Annie Mathew and Achamma George v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY ,THE 08TH DAY OF MARCH 2019 / 17TH PHALGUNA, 1940** ## **WP(C).No. 37719 of 2018** ## **PETITIONERS :** |**1**|**ANNIE MATHEW**| |---|---| ||**AGED 49 YEARS**| ||**W/O SAMUEL MATHEW,**| ||**VALUMANNIL HOUSE,**| ||**VELLAPPAD,**| ||**PALA P.O,**| ||**KOTTAYAM - 686575.**| |**2**|**ACHAMMA GEORGE**| ||**AGED 70 YEARS**| ||**W/O.V.C.GEORGE, VATTAKKUNNEL HOUSE, VELLAPPAD, PALA**| ||**P.O., KOTTAYAM - 686 575.**| ||**BY ADVS.**| ||**SRI.DIPU.R**| ||**SMT. DEVI KRIPA R.**| ||**SMT.DHANYA BABU**| ||**SMT.K.P.SUSMITHA**| ||**SMT.P.A.PRIYA**| ||**SRI.SANAL P.RAJ**| ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695001.**| |**2**|**THE SECRETARY**| ||**DEPARTMENT OF TAXES, GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**3**|**THE KERALA STATE BEVERAGES (MANUFACTURING AND**| ||**MARKETING) CORPORATION**| ||**(BEVCO), REPRESENTED BY ITS MANAGING DIRECTOR, BEVCO**| ||**HEAD OFFICE, (BEVCO TOWER), VIKAS BHAVAN, PALAYAM,**| ||**THIRUVANANTHAPURAM - 695 033.**| **WP(C).No. 37719 of 2018** **2** - **4 THE EXCISE COMMISSIONER OFFICE OF THE EXCISE COMMISSIONER, (EXCISE HEAD QUARTERS), BAKERY JUNCTION ROAD, NANDAVANAM, THIRUVANANTHAPURAM - 695 033.** - **5 THE PALA MUNICIPALITY REPRESENTED BY ITS SECRETARY, PALA MUNICIPAL OFFICE, PALA P.O., KOTTAYAM - 686 575.** - **6 THE PALA MUNICIPAL COUNCIL REPRESENTED BY ITS CHAIRPERSON, PALA MUNICIPAL OFFICE, PALA P.O., KOTTAYAM - 686 575.** - **7 THE DISTRICT COLLECTOR KOTTAYAM DISTRICT, COLLECTORATE BUILDING, KOTTAYAM - 686 002.** - **8 THE DISTRICT POLICE CHIEF KOTTAYAM, OFFICE OF THE DISTRICT POLICE CHIEF, KOTTAYAM - 686 001.** - **9 THE EXCISE CIRCLE INSPECTOR PALA, OFFICE OF THE EXCISE CIRCLE INSPECTOR (EXCISE CIRCLE OFFICE), PALA, KOTTAYAM - 686 575.** - **10 THE STATION HOUSE OFFICER PALA POLICE STATION, PALA P.O., KOTTAYAM - 686 575.** - **11 THE SHOP MANAGER FL-1 NO.5026, SHOP OF KERALA BEVERGES (MANUFACTURING AND MARKETING) CORPORATION (BEVCO), VELLAPPAD, PALA, KOTTAYAM - 686 575.** ## **BY ADVS.** **SRI.NAVEEN.T., SC, KERALA STATE BEV.CO. M. AND M. SRI.SUJITH MATHEW JOSE, SC, PALA MUNICIPALITY** **SRI PAUL ABRAHAM VAKKANAL, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 37719 of 2018** **3** ## **JUDGMENT** The petitioners, who are residents of Vellappad at Pala in Kottayam District, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 D&O license dated 31.07.2018 issued to the 3[rd] respondent Beverages Corporation for its FL-1 shop at Vellappad and Ext.P12 order dated 31.10.2018 of the Secretary of the 2[nd] respondent Municipality, whereby the decision taken by the 3[rd] respondent Municipal Council on 30.10.2018 rejecting the appeal filed by the petitioners against grant of Ext.P1 D&O licence was intimated to the petitioners; and a writ of mandamus commanding the respondents either to close down or to shift the foreign liquor outlet of the Beverages Corporation with shop No. 5026 to any other locality. 2. On 21.11.2018, when this writ petition came up for admission, the learned Standing Counsel was directed **WP(C).No. 37719 of 2018** **4** to get instructions. 3. Heard the learned counsel for the petitioners, the learned Government Pleader appearing for the official respondents, the learned Standing Counsel for the Beverages Corporation representing respondents 3 and 11 and also the learned Standing Counsel for the Pala Municipality representing respondents 5 and 6. 4. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Exts.P1 and P12 in exercise of the writ jurisdiction of this Court under Article 226 of the Constitution of India. 5. Ext.P1, which is under challenge in this writ petition, is a D&O licence issued by the 5[th] respondent Municipality to the 3[rd] respondent Beverages Corporation for conducting an FL-1 outlet at Vellappad. Challenging the grant of Ext.P1 D&O licence, the petitioners filed Ext.P8 appeal before the 6[th] respondent Municipal Council, as provided under sub-section (1) of Section 509 of the Kerala Municipality Act. The said appeal ended in dismissal **WP(C).No. 37719 of 2018** **5** as stated in Ext.P12 order dated 31.10.2018, vide the decision taken by the 6[th] respondent Municipal Council on 30.10.2018 as Item No.3, which is placed on record as Ext.P14 along with I.A.No.1 of 2019. By Ext.P12 order of the Secretary of the 5[th] respondent Municipality, such a decision taken by the 6[th] Municipal Council is intimated to the petitioners. 6. Ext.P14 decision taken by the 6[th] respondent Municipal Council in the appeal filed by the petitioners under sub-section (1) of Section 509 of the Municipality Act against the grant of Ext.P1 D&O licence to the 3[rd] respondent Beverages Corporation has to be challenged before the Tribunal for Local Self Government Institutions by filing a revision under sub-section (8) of Section 509 of the said Act. The said fact is not in dispute. 7. 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 **WP(C).No. 37719 of 2018** **6** 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. 8. 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 **WP(C).No. 37719 of 2018** **7** 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's case (supra)** , 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 v. Superintendent of Taxes [AIR 1964 SC 1419]** and_ _**Titaghur Paper Mills Company Ltd. v. State of Orissa**_ _**[(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 **WP(C).No. 37719 of 2018** **8** by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 9. In _**Thansingh Nathmal's case (supra)**_ a Constitution Bench of the Apex Court held that, the jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily, the court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not **WP(C).No. 37719 of 2018** **9** generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce for which the writ is claimed. The High Court does not, therefore, act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up. 10. In _**Titaghur Paper Mills' case (supra)**_ a ThreeJudge Bench of the Apex Court held that, the Orissa Sales Tax Act, 1947 provides for a complete machinery to challenge an order of assessment, and the impugned **WP(C).No. 37719 of 2018** **10** orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in _**Wolverhampton New Water Works Co. v. Hawkesford [(1859) 6 CBNS 336]**_ at page 356 in the following passage: "There are three classes of cases in which a liability may be established founded upon statute ..... But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it ..... the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to." The rule laid down in that passage was approved by the House of Lords in _**Neville v. London Express Newspaper Ltd.[1919 AC 368]**_ and has been reaffirmed **WP(C).No. 37719 of 2018** **11** by the Privy Council in _**Attorney General of Trinidad and Tobago v. Gordon Grant and Co. [1935 AC 532] and Secretary of State v. Mask and Co. [AIR 1940 PC 105]**_ . It has also been held to be equally applicable to enforcement of rights and has been followed by the Apex Court throughout. 11. In _**Pavithran V. State of Kerala (2009 (4) KHC 4)**_ , a Full Bench of this Court held that, whenever an adverse order is passed against a person, unless the same is challenged before the appropriate forum, within the prescribed time limit, the said order will become final. 12. In view of the law laid down in the decisions referred to supra, conclusion is irresistible that no interference is warranted on Ext.P14 decision taken by the 6[th] respondent Municipal Council on the appeal filed by the petitioners, challenging the grant of Ext.P1 D&O licence to the FL-1 outlet of the 3[rd] respondent Beverages Corporation at Vellappad. Therefore, it is for the petitioners to avail the statutory remedy under sub- **WP(C).No. 37719 of 2018** **12** section (8) of Section 509 of the Kerala Municipality Act by filing a revision before the Tribunal for Local Self Government Institutions. 13. In such circumstances, this writ petition filed on 19.11.2018, is dismissed for the aforesaid reasons; however without prejudice to the right of the petitioners to challenge Ext.P14 decision of the 6[th] respondent Municipal Council, referred to in Ext.P12 order of the Secretary of the 5[th] respondent Municipality, by filing a revision before the Tribunal for Local Self Government Institutions under sub-section (8) of Section 509 of the Municipality Act. 14. Since the petitioners have filed this writ petition on 19.11.2018 within the statutory limit fixed for filing a revision against Ext.P14 decision of the 6[th] respondent Municipal Council dated 30.10.2018, before the Tribunal for Local Self Government Institutions, if a revision petition is filed within two weeks from the date of receipt of a certified copy of this judgment, the same shall be entertained by the Tribunal for Local Self Government **WP(C).No. 37719 of 2018** **13** Institutions as one filed within the statutory time limit. All legal and factual contentions raised by the petitioners are left open to be raised before the Tribunal at appropriate stage. **Sd/-** **ANIL K.NARENDRAN, JUDGE** AV/8/3 **WP(C).No. 37719 of 2018** **14** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE D & O LICENCE WITH NO.446 (LICENCE NO.280/XXIV/2018) DATED 31/7/2018.** - **EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.28835/17 DATED 24/10/2017.** - **EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 31/3/2018 ISSUED BY THE MADHYA VIRUDHA JANAKEEYA SAMITHI.** - **EXHIBIT P4 TRUE COPY OF THE MASS PETITION DATED 2/7/2018 SUBMITTED BEFORE THE RESPONDENTS.** - **EXHIBIT P5 TRUE COPY OF THE MASS PETITION DATED 2/7/18 SUBMITTED BEFORE THE 4TH RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE PHOTOGRAPH SHOWING THE TRAFFIC CONGESTION.** - **EXHIBIT P7 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE ACCUMULATION OF PLASTIC BOTTLES.** - **EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 18/8/2018 SUBMITTED BEFORE THE 6TH RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF THE RECEIPT WITH NO.12837 DATED 19/8/2018.** - **EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 3/9/2018 IN W.P(C) NO.28914/2018.** - **EXHIBIT P11 TRUE COPY OF THE APPLICATION DATED 25/10/2018, BEFORE THE 5TH RESPONDENT.** - **EXHIBIT P12 TRUE COPY OF THE ORDER WITH NO.H3-4511/18, DATED 31/10/2018.** - **EXHIBIT P13 TRUE COPY OF THE RELEVANT PORTION OF THE REPORT OF THE HEALTH INSPECTOR OBTAINED UNDER RTI ACT.** **EXHIBIT P14 TRUE COPY OF THE COMMUNICATION WITH NO.H34511/18, AS THE DECISION NO.3 OF PALA** **WP(C).No. 37719 of 2018** **15** ## **MUNICIPALITY DATED 30.10.2018** **EXHIBIT P15 TRUE COPY OF THE LETTER WITH NO.H3-4511/18 DATED 21.11.2018**