C.K. Sulaiman 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. 6156 of 2019** ## **PETITIONER:** **C.K.SULAIMAN, AGED 70 YEARS, S/O KOCHA AHAMED, NOORI INDUSTRIES, ALLAPRA P.O. ORNA, PERUMBAVOOR, ERNAKULAM - 683 542.** **BY ADV. SRI.PRAVEEN K. JOY** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY SECRETARY,**| ||**DEPARTMENT OF ENVIRONMENT,**| ||**SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**2**|**THE ENVIRONMENTAL ENGINEER,**| ||**KERALA STATE POLLUTION CONTROL BOARD,**| ||**ERNAKULAM DISTRICT - 682 020.**| |**3**|**KERALA STATE POLLUTION CONTROL BOARD,**| ||**THIRUVANANTHAPURAM,**| ||**REPRESENTED BY ITS SECRETARY - 695 004.**| ||**SRI T.NAVEEN-STANDING COUNSEL ; SRI**| ||**SRI.K.P.HARISH,SENIOR GOVERNMENT PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WP(C)6156 OF 2019 ## **JUDGMENT** The petitioner, who is the owner of a property having an extent of 30.72 ares in Survey No.189/8-2 in Block No.21 of Vengola Village, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2[nd] respondent to take up application for renewal of consent for his plywood unit and to reconsider the same in view of Ext.P11 judgment, after setting aside Ext.P10 order and to pass appropriate orders on merits, within a time limit to be fixed by this Court; a writ of certiorari to quash Ext.P10 order and declare that the said order is illegal, arbitrary and nonest; and a writ of mandamus commanding respondents 2 and 3 to consider the application made by the petitioner on 17.10.2013, vide application dated 24.09.2013, and renew consent for the plywood unit. 2. 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 respondents 2 and 3. 3. The petitioner has filed this writ petition challenging 3 WP(C)6156 OF 2019 Ext.P10 order dated 23.01.2019 of the 2[nd] respondent, whereby the application made for renewal of consent for his plywood unit stands rejected. The fact that Ext.P10 order passed by the 2[nd] respondent is appealable before the appellate authority under Section 28 of the Water Act, 1974 and Section 31 of the Air Act, 1981 is not in dispute. 4. In **Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603]** , the Apex Court held that nonentertainment 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 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. WP(C)6156 OF 2019 4 5. 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 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 5 WP(C)6156 OF 2019 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. 6. 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)6156 OF 2019 6 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. 7. 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 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 7 WP(C)6156 OF 2019 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 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. 8. In **Pavithran V. State of Kerala (2009 (4) KHC** 8 WP(C)6156 OF 2019 **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. 9. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that, when Ext.P10 order passed by the 2[nd] respondent is appealable before the Appropriate Authority under the provisions of Section 28 of the Water Act, 1974 and Section 31 of the Air Act, 1981, the petitioner cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, challenging the said order. If Ext.P10 order of the 2[nd] respondent is erroneous, it is for the petitioner to challenge the same before the Appellate Authority, by availing the staturoty remedy. 10. In the result, this writ petition filed on 27.02.2019 is dismissed for the aforesaid reason; however, without prejudice to the right of the petitioner to challenge Ext.P10 order by filing a statutory appeal before the Statutory Authority. WP(C)6156 OF 2019 9 All legal and factual contentions raised by the petitioner are left open to be raised before the Appellate Authority, at appropriate stage. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** WP(C)6156 OF 2019 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 THE TRUE PHOTOCOPY OF THE LICENSE DATED 31/10/17 OF DIVISIONAL FOREST OFFICER, MALAYATOOR DIVISION.** - **EXHIBIT P2 THE TRUE PHOTOCOPY OF THE NO OBJECTION CERTIFICATE OF FIRE AND RESCUE SERVICES, ERNAKULAM DATED 05.05.2016.** - **EXHIBIT P3 THE TRUE PHOTOCOPY OF THE MEMORANDUM FILED BEFORE DEPARTMENT OF INDUSTRIES, GOVERNMENT OF INDIA DATED 09-06-2014.** - **EXHIBIT P4 THE TRUE PHOTOCOPY OF THE CONSENT TO OPERATE CERTIFICATE FROM THE KERALA POLLUTION CONTROL BOARD ERNAKULAM DATED 1804-2016.** - **EXHIBIT P5 THE TRUE PHOTOCOPY OF THE LICENSE FROM VENGOLA GRAMA PANCHAYATH FOR PLYWOOD AND VENEER ERNAKULAM DATED 17-04-2018.** - **EXHIBIT P6 THE TRUE PHOTOCOPY OF THE CERTIFICATE OF THE DISTRICT MEDICAL OFFICER AT ERNAKULAM DATED 16.8.06.** - **EXHIBIT P7 THE TRUE PHOTOCOPY OF THE NO OBJECTION CERTIFICATE OF INSPECTOR OF FACTORIES AND BOILER IN ERNAKULAM DATED 13.02.2019.** - **EXHIBIT P8 THE TRUE PHOTOCOPY OF THE CONSENT TO ESTABLISH DATED 07-08-2006 OF KERALA STATE POLLUTION CONTROL BOARD.** - **EXHIBIT P9 THE TRUE COPY OF THE JUDGMENT DATED 06.08.18 IN WPC 24182/2018 OF THIS HON'BLE COURT.** - **EXHIBIT P10 THE TRUE COPY OF THE ORDER DATED 23.01.2019 OF KERALA STATE POLLUTION CONTROL BOARD.** - **EXHIBIT P11 THE TRUE COPY OF THE JUDGMENT DATED 08.02.2019 IN WPC 18622/2016 OF THIS HON'BLE COURT.** ## **RESPONDENTS' EXHIBITS:NIL** **TRUE COPY** **P.A. TO JUDGE**