Kevin Mathew v. Villiyamattom Grama Panchayat & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **THURSDAY, THE 22ND DAY OF AUGUST 2019 / 31ST SRAVANA, 1941** ## **WP(C).No.22906 OF 2019(K)** ## **PETITIONER:** **KEVIN MATHEW, AGED 32 YEARS S/O. MATHEW GEORGE, NIRAPPEL HOUSE, THODUPUZHA POST, IDUKKI DISTRICT, PIN CODE - 685 585.** **BY ADVS. SRI.ARUN CHANDRAN SRI.THOMAS J.ANAKKALLUNKAL** ## **RESPONDENTS:** |**1**|**THE VILLIYAMATTOM GRAMA PANCHAYAT,**| |---|---| ||**OFFICE OF THE GRAMA PANCHAYAT, PANNIMATTOM POST,**| ||**THODUPUZHA, IDUKKI DISTRICT, PIN CODE - 685 588.**| ||**REPRESENTED BY ITS SECRETARY.**| |**2**|**THE PANCHAYAT COMMITTEE,**| ||**OFFICE OF THE VELLIYAMATTOM GRAMA PANCHAYAT,**| ||**PANNIMATTOM POST, THODUPUZHA, IDUKKI DISTRICT,**| ||**PIN CODE - 685 588. REPRESENTED BY ITS PRESIDENT.**| |**3**|**TESSYMOL MATHEW,**| ||**PANCHAYAT MEMBER, WARD NO.13,**| ||**OFFICE OF THE GRAMA PANCHAYAT, PANNIMATTOM POST,**| ||**THODUPUZHA, IDUKKI DISTRICT, PIN CODE - 685 588.**| |**4**|**GLADY JOSEPH,**| ||**MANIMALA HOUSE, WARD NO.13,**| ||**VELLIYAMATTOM GRAMA PANCHAYAT, PANNIMATTOM POST,**| ||**THODUPUZHA, IDUKKI DISTRICT, PIN CODE - 685 588.**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.22906 OF 2019 -2- ## **JUDGMENT** The petitioner, who is conducting a piggery by name 'Vellys Farms" at Velliyamattom in Idukki District, in the property comprised in Survey No.109/1 of Velliyamattom Village, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P10 communication dated 25.07.2019, whereby the petitioner has been asked to close down the piggery within 30 days from that date and intimate the said fact to the Grama Panchayat. The petitioner has sought for a direction to respondents 1 and 2 to grant extension of one more month's time to sell the remaining pigs and to close down the piggery by taking a lenient view. The further relief sought for is a writ of mandamus commanding the respondents not to take any coercive steps including the closing down of the piggery for a period of one month from 25.08.2019; and a direction to the 1[st] respondent to extend the license granted to the petitioner's piggery for a further period of one month from 25.08.2019. 2. Heard the learned counsel for the petitioner. 3. The issue that arises for consideration in this writ petition is as to whether the petitioner is entitled to seek the WP(C).No.22906 OF 2019 -3- reliefs sought for in this writ petition, invoking the writ jurisdiction under Article 226 of the Constitution of India. 4. The fact that, on the strength of Ext.P9, the petitioner can conduct piggery only upto 25.08.2019 is not in dispute. Ext.P9 licence, limiting its validity from 16.07.2019 to 25.08.2019 was granted by respondents 1 and 2 in order to enable the petitioner to dispose of the pigs in his piggery. Now the petitioner is seeking indulgence of this Court to permit him to run the piggery for a further period of one month from 25.08.2019, after the expiry of the validity of Ext.P9 licence. 5. In **Vinod Kumar v. District Geologist and others [2019 (3) KHC 79]** in the context of Rule 14 of the Kerala Minor Mineral Concession Rules, 2015, this Court held that if the application made seeking permission under sub-rule (2) of Rule 14 for mineral transit pass is not supported by the mandatory documents as per the proviso to sub-rule (2) of Rule 14, and also an affidavit as per the mandate of sub-rule (3) of Rule 14, it cannot be said that there is any failure on the part of the District Geologist in discharging his statutory obligations, so as to enable the petitioner to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a WP(C).No.22906 OF 2019 -4- writ of mandamus for considering that application. When the application made by the petitioner is not supported by the mandatory documents, as per the provisos to sub-rule (2) of Rule 14, and also an affidavit as per the mandate of sub-rule (3) of Rule 14, this Court cannot direct the District Geologist to consider that application in contravention of the statutory provisions, as no mandamus can be issued to do something which is contrary to law. Paragraphs 9 to 16 of the said decision read thus; “9. A reading of the provisions under sub-rules (2) and (3) of Rule 14 of the Kerala Minor Mineral Concession Rules make it explicitly clear that an application for mineral transit passes for transportation of ordinary earth shall be accompanied by a valid building permit for construction of building, obtained from the Local Self Government authority concerned; land development permit obtained from the Local Self Government authority concerned, in cases where the levelling of the land and extraction of earth is involved; and possession and enjoyment certificate of the land issued by the Village Officer concerned. As per the second proviso to sub-rule (2), in cases where the levelling of the land and extraction of ordinary earth is involved, the building permit shall be accompanied by an approved building plan obtained from the Local Self Government authority concerned, which shall contain the area of the land to be WP(C).No.22906 OF 2019 -5- developed for the construction of the building and quantity of ordinary earth to be extracted for such construction. 10. As per sub-rule (3) of Rule 14, a person who applies for mineral transit passes for transportation of ordinary earth under Rule 14 shall also submit along with the application, a sworn affidavit in stamped paper to the effect that he will carry out the proposed construction as per the building plan and building permit and shall complete at least the construction of basement of the building within one year from the date of issuance of mineral transit passes and intimate the same to the competent authority. 11. In the instant case, the fact that Ext.P3 application made by the petitioner before the 1[st] respondent for issuance of mineral transit passes is not supported by any of the documents as per the mandate of the provisos to sub-rule (2) of Rule 14 and also an affidavit as per the mandate of sub-rule (3) of Rule 14 of the Kerala Minor Mineral Concession Rules is not in dispute. Though Ext.P3 application is one dated 04.02.2019, the same was sent by speed post to the office of the 1[st] respondent only on 20.02.2019, as evidenced by Ext.R1(a) envelop, which was received in the office of the said respondent only on 23.02.2019. The said fact is also not in dispute. During the course of arguments, the submission made by the learned counsel for the petitioner is that the petitioner is prepared to produce Ext.P1 building permit, Ext.P2 development permit and also an affidavit as per the mandate of sub-rule (3) of Rule 14 before the 1[st] WP(C).No.22906 OF 2019 -6- respondent, within a time limit to be fixed by this Court. 12. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145]** a Three-Judge Bench of the Apex Court held that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. Paragraph 15 of the said decision reads thus; " **15.** .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute to enforce its performance. (See Lekhraj Satramdas Lalvani v. Deputy Custodian- WP(C).No.22906 OF 2019 -7- cum-Managing Officer [1966 (1) SCR 120 : AIR 1966 SC 334], Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College [1962 Supp (2) SCR 144 : AIR 1962 SC 1210] and Dr. Umakant Saran v. State of Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964]. In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Art.226 of the Constitution and the High Court was not competent to issue the same." (underline supplied) 13. In **Oriental Bank of Commerce v. Sunder Lal Jain [(2008) 2 SCC 280]** the Apex Court held that, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed that the principles on which a writ of mandamus can be issued have been stated in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. WP(C).No.22906 OF 2019 -8- Ferris, Jr. that, mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. Paragraphs 11 and 12 of the said decision read thus; " **11.** The principles on which a writ of mandamus can be issued have been stated as under in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. : **Note 187** .- Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duly to which the party applying for the writ is entitled of legal right to have performed. **Note 192** .- Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed WP(C).No.22906 OF 2019 -9- by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and Tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty. **Note 196** .- Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the Court, subject always to the well settled principles which have been established by the Courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and Judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the Court may, and should, look to the larger public interest which may be concerned - an interest which private litigants are apt to over look when striving for private ends. The Court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in WP(C).No.22906 OF 2019 -10- every case a discretion dependent upon all the surrounding facts and circumstances. **Note 206** .- .......... The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action. **12.** These very principles have been adopted in our country. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145 : AIR 1977 SC 2149]** , after referring to the earlier decisions in **Lekhraj Satramdas Lalvani v. N.M. Shah [AIR 1966 SC 334]** , **Dr. Rai Shivendra Bahadur v. Nalanda College [AIR 1962 SC 1210]** and **Dr. Umakant Saran v. State of Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964]** , this Court observed as follows in paragraph 15 of the reports: "15. .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of the officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate WP(C).No.22906 OF 2019 -11- Tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. ......... In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Art.226 of the Constitution and the High Court was not competent to issue the same." Therefore, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. The respondents have not been able to show that there is any statute or rule having the force of law which casts a duty on the appellant bank to declare their account as NPA from 31[st] WP(C).No.22906 OF 2019 -12- March, 2000 and apply RBI guidelines to their case." 14. **In State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that, under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. Paragraph 10 of the said decision reads thus; " **10.** Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the court came to hold that the list does not expire after a period of one year which on the face of its erroneous. Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the Writ Petitioners. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may WP(C).No.22906 OF 2019 -13- be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court issue the impugned direction to recruit the respondents who were included in the select list prepared on 4.4.87 and the list no longer survived after one year and the rights, if any, of persons included in the list did not subsist. ......." 15. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court reiterated that, generally, no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass orders or directions which are contrary to what has been injected by law. Vide: State of Punjab v. Renuka Singla [(1996) 8 SCC 90], State of U.P. v. Harish Chandra [1996 (9) SCC 309], Union of India v. Kirloskar Pneumatic Co. Ltd. [(1996) 4 SCC 453], University of Allahabad v. Dr. Anand Prakash Mishra [(1997) 10 SCC 264] and Karnataka SRTC v. Ashrafulla Khan [(2002) 2 SCC 560]. 16. In the instant case, as borne out from the pleadings and materials on record, the petitioner filed this writ petition before this Court on 22.02.2019, even before the WP(C).No.22906 OF 2019 -14- receipt of Ext.P3 application for mineral transit passes by the 1[st] respondent. Moreover, the said application is not supported by the mandatory documents, as per the provisos to sub-rule (2) of Rule 14, and also an affidavit as per the mandate of sub-rule (3) of Rule 14. In such circumstances, it cannot be said that there is any failure on the part of the 1[st] respondent in discharging his statutory obligations, so as to enable the petitioner to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India seeking a writ of mandamus for consideration of Ext.P3 application. When Ext.P3 application made by the petitioner is not one supported by the mandatory documents as per the provisos to subrule (2) of Rule 14 and also an affidavit as per the mandate of sub-rule (3) of Rule 14, this Court cannot direct the 1[st] respondent to consider that application in contravention of the statutory provisions, as no mandamus can be issued to do something which is contrary to law.” 6. Viewed in the light of the law laid down in the decision referred to supra, conclusion is irresistible that the petitioner cannot seek writ of mandamus commanding respondents 1 and 2, to permit him to run the piggery for a period of one month after expiry of the validity of Ext.P9 licence. Any such direction will be contrary to the statute, which cannot be issued by this Court in exercise of the writ jurisdiction, as no writ of WP(C).No.22906 OF 2019 -15- mandamus can be issued directing the statutory authority to do something, which is contrary to law. 7. The fact that Ext.P10 notice dated 25.07.2019 issued by the Secretary of the 1[st] respondent Grama Panchayat can be challenged in an appeal filed before the appropriate forum, invoking the provisions under Section 276 of the Kerala Panchayath Raj Act, 1994 is not in dispute. 8. 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 WP(C).No.22906 OF 2019 -16- 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 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 WP(C).No.22906 OF 2019 -17- 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. Viewed in light of the law laid down in the decisions referred to supra, conclusion is irresistible that in view of the statutory remedy available under Section 276 of the Kerala Panchayath Raj Act, the petitioner cannot invoke the writ of jurisdiction under Article 226 of the Constitution of India, in order to challenge Ext.P10 notice, on the grounds raised in this writ petition. In the result the writ petition fails and the same is accordingly dismissed; however without prejudice to the right of the petitioner to challenge Ext.P10 notice, by availing the statutory remedy. **Sd/-** ## **ANIL K.NARENDRAN** ## **JUDGE** VV WP(C).No.22906 OF 2019 -18- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** - **TRUE COPY OF THE RENEWED CONSENT TO OPERATE ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD DATED 04.04.2017.** - **EXHIBIT P2 TRUE COPY OF THE RECEIPT EVIDENCING THE PAYMENT OF FEE FOR THE D AND O LICENSE WITH THE PANCHAYAT FOR THE YEAR 201819.** - **EXHIBIT P3 TRUE COPY OF THE SITE PLAN SHOWING OF THE PIGGERY.** - **EXHIBIT P4 TRUE COPY OF THE REPORT OF THE HEALTH INSPECTOR, ILAMDESOM DATED 10.08.2017.** - **EXHIBIT P5 TRUE COPY OF THE EXPLANATION DATED 23.09.2017 SUBMITTED BY THE PETITIONER TO THE PANCHAYAT.** - **EXHIBIT P6 TRUE COPY OF THE MINUTES OF THE MEETING DATED 17.12.2018.** - **EXHIBIT P7 TRUE COPY OF THE NOTICE ISSUED BY THE SECRETARY OF THE GRAMA PANCHAYAT DATED 18.06.2019.** - **EXHIBIT P8 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER TO THE PANCHAYATH DATED 24.06.2019.** - **EXHIBIT P9 TRUE COPY OF THE LICENCE GRANTED TO THE PETITIONER TO RUN THE PIGGERY DATED 16.07.2019.** - **EXHIBIT P10 TRUE COPY OF THE COMMUNICATION BEARING DATED 25.07.2019 DIRECTING THE CLOSURE OF THE PIGGERY.** //TRUE COPY// PA TO JUDGE