Kirankumar v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942** ## **WP(C).No.142 OF 2021(P)** ## **PETITIONER :** **KIRANKUMAR,AGED 34 YEARS S/O. KRISHNANKUTTY, VATTEKKATT VALAPPIL HOUSE, P.O, AVANNOOR, THRISSUR DISTRICT, PIN- 680541.** **BY ADVS. SRI.DINESH MATHEW J.MURICKEN SRI.N.R.SANGEETHARAJ SRI.VINOD S. PILLAI SMT.SREELAKSHMI R. SHRI.MOHAMMED THAYIB N.M.** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, INDUSTRIES AND COMMERCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PALAYAM P.O, PIN - 695001. 2 THE DIRECTOR, DIRECTORATE OF INDUSTRIES AND COMMERCE DEPARTMENT, VIKAS BHAVAN, 3RD FLOOR, UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PALAYAM P.O, THIRUVANANTHAPURAM DISTRICT, PIN - 695033, 3 THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, KENATHUPARAMBU, KUNATHURMEDU P.O, PALAKKAD DISTRICT, PIN - 678001.** **R BY SMT A.C.VIDHYA- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- WP(C).No.142 OF 2021(P) ## **JUDGMENT** The petitioner, who was allotted a plot having an extent of 25 cents in Sy.No.366/2 of Puthussery Central Village, in the New Industrial Development Area, Kanjikode on the strength of Ext.P1 allotment letter dated 25.01.2018 issued by the 3[rd] respondent General Manager, District Industries Centre, Palakkad, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P15 proceedings dated 18.12.2020 issued by the 3[rd] respondent, ordering resumption of the said land. The petitioner has also sought for a writ of mandamus commanding the 2[nd] respondent Director of Industries and Commerce to consider Ext.P16 appeal and pass appropriate orders. 2. Heard the learned counsel for the petitioner and also the learned Government Pleader for the respondents. 3. 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 -3- ## WP(C).No.142 OF 2021(P) 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. 4. 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 -4- ## WP(C).No.142 OF 2021(P) 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 by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 5. Feeling aggrieved by Ext.P15 order of resumption, the petitioner has already moved a statutory appeal before the 2[nd] respondent Director of Industries and Commerce, which is pending consideration. In view of the statutory remedy of appeal available against Ext.P15 order, the petitioner cannot invoke the writ jurisdiction of this Court -5- WP(C).No.142 OF 2021(P) under Article 226 of the Constitution of India in order to challenge that order. 6. The learned counsel for the petitioner would submit that Ext.P16 appeal filed by the petitioner against Ext.P15 order is pending consideration before the 2[nd] respondent appellate authority. During the pendency of that appeal, steps are being taken to implement Ext.P15 order. 7. The learned Government Pleader would submit that, if Ext.P16 appeal filed by the petitioner is in order and the same is still pending consideration, the 2[nd] respondent shall consider the same and pass appropriate orders thereon, with notice to the petitioner and after affording him an opportunity of being heard. If any application for interim relief is filed, that application shall also be considered by the 2[nd] respondent. 8. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of by directing the 2[nd] respondent to consider and pass appropriate orders on Ext.P16 appeal filed by the petitioner against Ext.P15 order dated 18.12.2020 of the 3[rd] respondent, if that appeal is in order and the same is still pending -6- ## WP(C).No.142 OF 2021(P) consideration, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment, after affording the petitioner an opportunity of being heard. 9. In case, the petitioner files an application in Ext.P16 appeal seeking interim relief against Ext.P15, within one week from the date of receipt of a certified copy of this judgment, the 2[nd] respondent shall consider the same and pass appropriate orders, within a period of one week from the date of receipt of such application. Legal and factual contentions raised by the petitioner are left open to be raised before the 2[nd] respondent, at appropriate stage. ## **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/5/1 -7- WP(C).No.142 OF 2021(P) ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ALLOTMENT LETTER ISSUED BY THE 3RD RESPONDENT DATED 25.01.2018.** **EXHIBIT P2 TRUE COPY OF THE LICENCE CUM LEASE AGREEMENT EXECUTED BETWEEN THE PETITIONER AND THE 3RD RESPONDENT DATED 17.07.2018.** **EXHIBIT P3 TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT DATED 28.11.2019.** **EXHIBIT P4 TRUE COPY OF THE REPLY TO EXHIBIT P3 LETTER GIVEN BY THE PETITIONER TO THE 3RD RESPONDENT DATED 04.12.2019.** **EXHIBIT P5 TRUE COPY OF THE GST REGISTRATION CERTIFICATE ISSUED BY THE GOVERNMENT OF INDIA DATED 19.10.2019.** **EXHIBIT P6 TRUE COPY OF THE ELECTRICITY BILL ISSUED FROM THE KERALA STATE ELECTRICITY BOARD DATED 05.05.2020** **EXHIBIT P7 TRUE COPY OF THE RECEIPT OF PAYMENT OF ELECTRICITY CHARGES ISSUED FROM THE KERALA STATE ELECTRICITY BOARD DATED 13.07.2020.** **EXHIBIT P8 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 01.07.2020.** **EXHIBIT P9 TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DATED 30.07.2020. EXHIBIT P10 TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER TO EXHIBIT P9 LETTER TO THE 3RD RESPONDENT DATED 04.08.2020.** -8- WP(C).No.142 OF 2021(P) **EXHIBIT P11** **TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DATED 07.08.2020.** **EXHIBIT P12 TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER TO EXHIBIT P11 LETTER TO THE 3RD RESPONDENT DATED 13.08.2020** **EXHIBIT P13** **TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DATED 26.08.2020.** **EXHIBIT P14** **TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER TO EXHIBIT P13 LETTER TO THE 3RD RESPONDENT DATED 19.09.2020.** **EXHIBIT P15** **TRUE COPY OF THE ORDER NO.I-3/1086/ 2013 ISSUED BY THE 3RD RESPONDENT DATED 18.12.2020.** **EXHIBIT P16** **TRUE COPY OF THE APPEAL FILED BY THE PETITIONER AGAINST EXHIBIT P15 ORDER BEFORE THE 2ND RESPONDENT DATED 27.12.2020.**