Beena Albert v. District Collector, Poovachal Grama Panchayath and Kerala State Pollution Control Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941** ## **WP(C).No. 9509 of 2019** ## **PETITIONER :** **BEENA ALBERT AGED 53 YEARS W/O. ALBERT, HAPPY VILLA, MUTHIYAVILA, THIRUVANANTHAPURAM.** ## **BY ADV. SMT.M.HEMALATHA** ## **RESPONDENTS:** |**1**|**THE DISTRICT COLLECTOR**| |---|---| ||**COLLECTORATE, CIVIL STATION, KUDAPPANAKUNNU,**| ||**THIRUVANANTHAPURAM-695005.**| |**2**|**THE POOVACHAL GRAMA PANCHAYATH**| ||**POOVACHAL P.O, THIRUVANANTHAPURAM-695575, REPRESENTED**| ||**BY ITS SECRETARY.**| |**3**|**THE KERALA STATE POLLUTION CONTROL BOARD,**| ||**REPRESENTED BY ENVIRONMENTAL ENGINEER,**| ||**DISTRICT OFFICE, THIRUVANANTHAPURAM-695004.**| **BY SRI T.NAVEEN, STANDING COUNSEL,POLLUTION CONTROL BOARD BY SRI MANU RAJ K.J, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 9509 of 2019** **2** ## **JUDGMENT** The petitioner has been issued with Ext.P9 notice dated 06.03.2019 issued by the 2[nd] respondent Grama Panchayath, whereby she has been asked to close down the poultry farm in the property referred to in Ext.P2 building permit, as the same is being conducted without obtaining necessary licence from the Panchayath in accordance with the provisions under the Kerala Panchayath Raj Act, 1994 and the rules made thereunder. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P9 notice. The petitioner has also sought for an order staying further proceedings pursuant to Ext.P9 notice, pending disposal of this writ petition. 2. According to the petitioner, on account of the pendency of an application for licence made by her son Akshay Albert on 11.01.2019 for the year 2018-19, he got the benefit of a deemed licence and on the strength **WP(C).No. 9509 of 2019** **3** of that deemed licence, the poultry farm was being conducted till 31.03.2019. The learned counsel for the petitioner would submit that, now the petitioner's son proposes to make a fresh application for licence to conduct a poultry farm, based on necessary consent/ permission/no-objection certificate from the statutory authorities. 3. On 28.03.2019, when this writ petition came up for admission, the learned Government Pleader took notice on admission for the 1[st] respondent. The learned Standing Counsel took notice on admission for the 3[rd] respondent. Urgent notice on admission by speed post was ordered to the 2[nd] respondent returnable within ten days. 4. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for the 1[st] respondent and also the learned Standing Counsel for the Pollution Control Board, representing the 3[rd] respondent. Despite service of notice, none appears for **WP(C).No. 9509 of 2019** **4** the 2[nd] respondent Grama Panchayath. 5. The learned Standing Counsel for the 3[rd] respondent would submit that the Pollution Control Board has already issued Ext.P5 consent dated 04.01.2019 to operate a poultry farm by the petitioner's son. 6. The learned counsel for the petitioner would point out that Ext.P7 no-objection certificate dated 23.12.2016 has already been issued by the Fire and Rescue Department and that, on receipt of Ext.P9 notice, the petitioner has already submitted Ext.P10 objection dated 14.03.2019 before the Secretary of the 2[nd] respondent Grama Panchayath. 7. Since the petitioner has already submitted Ext.P10 objection to Ext.P9 notice before the Secretary of the 2[nd] respondent Grama Panchayath, it is for the said authority to take an appropriate decision as to the further course to be taken in the matter, based on Ext.P9 notice, after affording the petitioner and her son **WP(C).No. 9509 of 2019** **5** Akshay Albert an opportunity of being heard. When Ext.P9 notice issued by the Secretary of the 2[nd] respondent Grama Panchayath can be challenged before the appropriate authority, by invoking the statutory remedy under Section 276 of the Kerala Panchayath Raj Act, 1994, the petitioner cannot invoke writ jurisdiction of this Court under Article 226 of the Constitution of India seeking a writ of certiorari to quash that notice. 8. 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 **WP(C).No. 9509 of 2019** **6** 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. 9. 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's case (supra)** , i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in **WP(C).No. 9509 of 2019** **7** 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 by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 10. 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 **WP(C).No. 9509 of 2019** **8** 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 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 **WP(C).No. 9509 of 2019** **9** 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. 11. In _**Titaghur Paper Mills' case (supra)**_ a Three-Judge 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 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 **WP(C).No. 9509 of 2019** **10** 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 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**_ **WP(C).No. 9509 of 2019** **11** _**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. 12. 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. 13. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that no interference under Article 226 of the Constitution of India is warranted on Ext.P9 notice issued by the Secretary of the 2[nd] respondent Grama Panchayath, in view of the statutory remedy available under Section 276 of the Kerala Panchayath Raj Act. 14. In such circumstances, this writ petition is disposed of by directing the Secretary of the 2[nd] respondent Grama Panchayath to consider Ext.P10 **WP(C).No. 9509 of 2019** **12** objection made by the petitioner to Ext.P9 notice and take an appropriate decision as to the further course to be taken in the matter, based on that notice. A decision in this regard shall be taken, strictly in accordance with law, with notice to the petitioner and her son, and after affording them an opportunity of being heard, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/12/4 **WP(C).No. 9509 of 2019** **13** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RECEIPT OF THE APPLICATION FOR LICENSE DATED 11.1.2019. EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT FOR CONSTRUCTION OF THE BUILDING DATED 17.2.2017. EXHIBIT P3 THE TRUE COPY OF THE LOAN PASS BOOK. EXHIBIT P4 THE TRUE COPY OF THE MDS PASS BOOK. EXHIBIT P5 TRUE COPY OF THE CERTIFICATE ISSUED BY THE 3RD RESPONDENT DATED 04.01.2019.** **EXHIBIT P6 TRUE COPY OF THE SAKSHYAPATHRAM DATED 10.7.2017. EXHIBIT P7 TRUE COPY OF THE CERTIFICATE ISSUED BY THE FIRE AND RESCUE DEPARTMENT DATED 23.12.2016. EXHIBIT P8 TRUE COPY OF THE RECEIPT DATED 11.1.2019. EXHIBIT P9 TRUE COPY OF THE NOTICE DATED 6.3.2019. EXHIBIT P10 TRUE COPY OF THE REPLY DATED 14.3.2019.**