High Court of KeralaSingle Judge2019-08-13Writ petition disposed of; petitioner relegated...

Eldho.K.I v Mudakuzha Grama Panchayat and Others

Case / Petition Number:WP(C).No.15166 OF 2019(U)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anil K. Narendran
Judgment Date: 2019-08-13
Court Decision / Holding: In such circumstances, this writ petition is disposed of, leaving open all legal and factual contentions raised by both sides and relegating the petitioner to avail statutory remedy against Exts.R3(a) and R5(a) consent to operate and Ext.R5(b) trade licence before appropriate authorities.
Final Disposition: Writ petition disposed of; petitioner relegated to pursue statutory remedies against the PCB consent and Panchayat licence before appropriate authorities; no adjudication on merits at this stage.

Parties to the Case

Appellants / Petitioners

Eldho.K.I

Respondents

Mudakuzha Grama Panchayat represented by its Secretary
The Secretary Mudakuzha Grama Panchayat
The Kerala State Pollution Control Board represented by Environmental Engineer, District Office (Ernakulam-II), Perumbavoor, Ernakulam District
District Collector, Collectorate, Kakkanad, Ernakulam-682 030
A.V. Elias aged 52 years s/o Varkey, Arackakudy House, Mudakuzha P.O., Ernakulam District

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Pramod Kochuthommen.E

Counsels for Respondents

• Sri R. Ranjith, Senior Counsel, Mudakuzha Grama Panchayat
• Sri T. Naveen, Senior Counsel, Kerala State Pollution Control Board
• Sri T.A. Unnikrishnan, Advocate

Case Synopsis & Summary

ELDHO.K.I, a resident of Ward 12, Mu-dakuzha Grama Panchayat area, filed a writ petition under Article 226 seeking to compel authorities to act against a plastic pipe cutting and blending unit operated by the fifth respondent on his property and to issue a stop memorandum against further operation. The petition alleged environmental nuisance and illegalities in the consent and trade license granted to the fifth respondent. On admission, the court ordered inspections by the Kerala State Pollution Control Board (PCB) and considered affidavits and records, including Ext.R3(a) consent to operate for a pipe bending unit and Ext.R5(b) a corresponding licence; The PCB report and counter-affidavits indicated that the unit already had a consent to operate and that the fifth respondent also operates a poultry farm with a license. The petitioner argued that the alleged irregularities warranted writ intervention to protect environmental and residential interests. However, the court found that all contentious issues could be addressed through statutory remedies, since the PCB consent and Panchayat licence are subject to appeal or other statutory remedies. Relying on Supreme Court precedents on discretionary writs and the availability of efficacious remedies, the High Court disposed of the petition, relegating the petitioner to pursue remedies before the appropriate statutory authorities rather than entertaining a general writ petition.

Provisions of Law Cited

Article 226 of the Constitution of IndiaRight to Information Act

Legal Doctrines & Maxims

Discretionary jurisdiction under Article 226 is not absolute and should be exercised judiciously when there exists an efficacious alternative remedy.
Normal rule that writ petitions under Article 226 should not be entertained if an effective statutory remedy is available, except in well-defined exceptional cases.
If a statutory remedy is provided for redressal of grievances, the High Court should ordinarily refrain from entertaining a writ petition ignoring the statutory dispensation.
Natural justice principles – orders passed in total violation of natural justice may warrant exceptions to the above rule.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues that a plastic pipe cutting and blending unit operated by the fifth respondent on the petitioner's property causes environmental nuisance and that there are alleged illegalities in the consent to operate and in the trade licence. He seeks mandamus to compel action by the Panchayat and PCB and to stop the unit from functioning within a court-fixed time, contending that statutory rights and environmental protections require immediate relief. The petitioner emphasizes urgent action to prevent pollution and nuisance and maintains that the existing consents/licences may be flawed or insufficient to protect residents.

Contentions of Respondents

The respondents contend that the fifth respondent already has consent to operate for the pipe bending unit and a trade licence, along with a poultry farm licence, making the issues suitable for redress through statutory remedies (appeals and objections before the PCB and Panchayat). They argue that the writ petition is not the correct forum where statutory channels are available and that the court should defer to those mechanisms rather than intervene, citing well-established principles on discretionary relief and the availability of an efficacious remedy.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Commissioner of Income Tax v. Chhabil Das Agarwal	(2014) 1 SCC 603	Positive	Cited to support the principle that writ petitions under Article 226 should not be entertained where an efficacious alternative remedy exists; discretion in granting relief.
Authorised Officer, State Bank of Travancore v. Mathew K.C.	(2018) 3 SCC 85	Positive	Reiterates that discretionary jurisdiction under Article 226 is not absolute and that writs should normally be avoided where statutory remedies exist.
Thansingh Nathmal v. Superintendent of Taxes	AIR 1964 SC 1419	Positive	Cited as part of the jurisprudence defining exceptions to the general rule on entertaining writs in presence of remedies.
Titaghur Paper Mills Company Ltd. v. State of Orissa	(1983) 2 SCC 433	Positive	Cited for the well-defined exceptions to the rule against entertaining writs where statutory redress is available.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 13TH DAY OF AUGUST 2019 / 22ND SRAVANA, 1941** ## **WP(C).No.15166 OF 2019(U)** ## **PETITIONER :** **ELDHO.K.I AGED 48 YEARS** **S/O ITTOOP, KAPPADAKAMADATHIL HOUSE, MUDAKUZHA P.O., ERNAKULAM DISTRICT, PIN-683 546.** **BY ADV. SRI.PRAMOD KOCHUTHOMMEN.E.** ## **RESPONDENTS:** - **1 MUDAKUZHA GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, MUDAKUZHA P.O., ERNAKULAM DISTRICT, PIN-683 546.** - **2 THE SECRETARY MUDAKUZHA GRAMA PANCHAYAT, MUDAKUZHA P.O., ERNAKULAM DISTRICT, PIN-683 546.** - **3 THE KERALA STATE POLLUTION CONTROL BOARD REPRESENTED BY ENVIRONMENTAL ENGINEER, DISTRICT OFFICE (ERNAKULAM-II), PERUMBAVOOR, ERNAKULAM DISTRICT, PIN-683 542.** - **4 DISTRICT COLLECTOR COLLECTORATE, KAKKANAD, ERNAKULAM-682 030.** - **5 A.V.ELIAS AGED 52 YEARS S/O VARKEY, ARACKAKUDY HOUSE, MUDAKUZHA P.O., ERNAKULAM DISTRICT, PIN-683 546.** - **R1-2 BY SRI.R.RANJITH, SC, MUDAKUZHA GRAMA PANCHAYAT R3 BY SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL BOARD, R5 BY ADV. SRI.T.A.UNNIKRISHNAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.15166 OF 2019(U)** **2** ## **JUDGMENT** The petitioner, who is residing with his family in a residential building bearing No.444 A in Ward No.12 of the 1[st] respondent Grama Panchayat, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 to 3 to take necessary legal action against the plastic pipe cutting and blending unit run by the 5[th] respondent in his property, within a time limit to be fixed by this Court. The petitioner has also sought for a writ of mandamus commanding the 2[nd] respondent, who is the Secretary of the 1[st] respondent Grama Panchayat to issue a stop memo to the 5[th] respondent to close down the plastic pipe cutting and blending unit functioning in his property, within a time limit to be fixed by this Court. 2. On 03.06.2019, when this writ petition came up for admission, this Court issued urgent notice on **WP(C).No.15166 OF 2019(U)** **3** admission by speed post to respondents 1, 2 and 5. The learned Standing Counsel took notice on admission for the 3[rd] respondent. The learned Government Pleader took notice on admission for the 4[th] respondent. This Court has directed that the Environmental Engineer of the 3[rd] respondent Kerala State Pollution Control Board at Perumbavoor or any person authorised by him shall inspect the pipe cutting and blending unit of the 5[th] respondent and submit a report before this Court. 3. A report has been filed by the Environment Engineer, which was followed by a counter affidavit filed by respondents 1 and 2 and also that by the 5[th] respondent. Along with the report of the 3[rd] respondent, Ext.R3(a) consent to operate for pipe bending unit of the 5[th] respondent is placed on record. Along with the counter affidavit filed by the 5[th] respondent, the consent to operate issued for running the poultry farm owned by the 5[th] respondent is placed **WP(C).No.15166 OF 2019(U)** **4** on record. Ext.R5(b) is a copy of trade licence issued for running the pipe bending unit. The petitioner has also filed a reply affidavit to the counter affidavit filed by the 5[th] respondent. 4. As can be seen from the pleadings and materials on record, the 5[th] respondent has already obtained consent to operate/trade licence for running his unit. Though the petitioner has raised various contentions on the illegalities in the consent/trade licence granted to the 5[th] respondent, this Court finds that all those issues can be raised before the statutory authorities, by filing appeals against the consent to operate granted by the Pollution Control Board and also the trade licence granted by the Secretary of the Grama Panchayat. 5. 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 **WP(C).No.15166 OF 2019(U)** **5** 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. 6. 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 **WP(C).No.15166 OF 2019(U)** **6** 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 available to the aggrieved person or the statute under **WP(C).No.15166 OF 2019(U)** **7** 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. In such circumstances, this writ petition is disposed of, leaving open all legal and factual contentions raised by both sides and relegating the petitioner to avail statutory remedy against Exts.R3(a) and R5(a) consent to operate and Ext.R5(b) trade licence before appropriate authorities. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/17/8 **WP(C).No.15166 OF 2019(U)** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1** **THE TRUE COPY OF THE COMPLAINT DATED 3.1.2019 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT, SECRETARY MUDAKUZHA GRAMA PANCHAYATH.** - **EXHIBIT P2 THE TRUE COPY OF THE COMPLAINT DATED 4.1.2019 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P3 THE TRUE COPY OF REQUEST DATED 26.2.2019 FILED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P4** - **THE TRUE COPY OF THE LETTER DATED 21.3.2019 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** - **EXHIBIT P5 THE TRUE COPY OF LETTER DATED 19.2.2019 ISSUED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT.** - **EXHIBIT P6 THE TRUE COPY OF THE COMPLAINT DATED 10.5.2019 BEFORE THE 4TH RESPONDENT, DISTRICT COLLECTOR, ERNAKULAM.** - **EXHIBIT P7 THE TRUE COPY OF THE LETTER DATED 20.5.2019 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** - **EXHIBIT P8 THE TRUE COPY OF THE DECISION NO.7(2) DATED 10.5.2019 PASSED BY THE IST RESPONDENT, PANCHAYATH.** ## **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R3 (A) TRUE COPY OF THE CONSENT TO OPERATE DATED 29.04.2019 ISSUED BY THE PCB** - **EXHIBIT R5 A** - **TRUE COPY OF THE CONSENT TO OPERATE ISSUED ON 14/5/2019 BY THE ENVIRONMENTAL ENGINEER,KERALA STATE POLLUTION CONTROL BOARD,ERNAKULAM** **WP(C).No.15166 OF 2019(U)** **9** **EXHIBIT R5 B TRUE COPY OF THE LICENCE DATED 4/7/2019 ISSUED BY THE 2ND RESPONDENT.**