Kunjabdulla Haji.P v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY ,THE 25TH DAY OF MARCH 2019 / 4TH CHAITHRA, 1941** ## **WP(C).No. 9023 of 2019** ## **PETITIONER :** **KUNJABDULLA HAJI.P AGED 60 YEARS E.V. HOUSE, EMILY P.O, KALPATTA, WAYANAD DISTRICT BY ADV. DR.GEORGE ABRAHAM** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY SECRETARY TO GOVERNMENT, INDUSTRIES**| ||**DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001**| |**2**|**DEPUTY SECRETARY**| ||**INDUSTRIES DEPARTMENT, THIRUVANANTHAPURAM - 695 001**| |**3**|**GEOLOGIST**| ||**DISTRICT OFFICE, DEPARTMENT OF MINING AND GEOLOGY,**| ||**MEENANGADI, WAYANAD - 673 591**| |**4**|**DEPUTY TAHSILDAR**| ||**REVENUE RECOVERY, TALUK OFFICE, VYTHIRI, WAYANAD**| ||**DISTRICT - 673 576**| |**5**|**VILLAGE OFFICER**| ||**VILLAGE OFFICE, KALPATTA, WAYANAD - 673 121**| ## **SRI MANU RAJ K.J, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 9023 of 2019** **2** ## **JUDGMENT** The petitioner, who is stated to be the Proprietor of a quarrying unit in Kalpatta, who has been granted with Ext.P1 quarrying permit, Ext.P2 consent and Ext.P3 D&O licence, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Exts.P4, P6 notices of the 3[rd] respondent and Ext.P9 order of the 2[nd] respondent and seeking a writ of mandamus commanding respondents 4 and 5 not to initiate any revenue recovery proceedings based on Exts.P6 and P9. 2. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents. 3. The fact that against Ext.P9 order of the 2[nd] respondent Deputy Secretary, who is the Appellate Authority, in an appeal filed by the petitioner under clause (a) of sub-rule (1) of Rule 98 of the Kerala **WP(C).No. 9023 of 2019** **3** Minor Mineral Concession Rules, 2015 a second appeal will lie before the Secretary, Industries Department under clause (b) of sub-rule (1) of Rule 98 of the said Rules, is not in dispute. 4. 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 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 **WP(C).No. 9023 of 2019** **4** warranting such interference or there exists sufficient ground to invoke the extraordinary jurisdiction under Article 226. 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 **WP(C).No. 9023 of 2019** **5** 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. 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 **WP(C).No. 9023 of 2019** **6** 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 decision of a court or tribunal, to correct errors of fact, and does not by **WP(C).No. 9023 of 2019** **7** 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 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 **WP(C).No. 9023 of 2019** **8** created by 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**_ **WP(C).No. 9023 of 2019** **9** _**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 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 the petitioner cannot challenge Ext.P9 order of the 2[nd] respondent, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, in view of the statutory remedy available under clause (b) of sub-rule (1) of Rule 98 of the Kerala Minor Mineral Concession Rules, 2015. In such circumstances, this writ petition, filed on 22.03.2019 challenging Ext.P9 order dated 02.02.2019 **WP(C).No. 9023 of 2019** **10** of the 2[nd] respondent, is dismissed for the aforesaid reason; however, without prejudice to the right of the petitioner to file a second appeal before the 1[st] respondent Secretary, Industries Department, invoking the provisions under clause (b) of sub-rule (1) of Rule 98 of the Kerala Minor Mineral Concession Rules and pursue the same. All legal and factual contentions raised by the petitioner are left open to be raised before the appropriate authority at appropriate stage. ## **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/26/3 **WP(C).No. 9023 of 2019** **11** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE QUARRYING PERMIT ISSUED TO THE PETITIONER** **EXHIBIT P2 TRUE COPY OF THE CONSENT ORDER DATED 28/11/2015, ISSUED TO THE PETITIONER** **EXHIBIT P3 TRUE COPY OF THE LICENSE ISSUED BY THE KALPATTA MUNCIPALITY** **EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 27/10/2017** **EXHIBIT P5 TRUE COPY OF THE REPLY FILED BY THE PETITIONER DATED 15/11/2017** **EXHIBIT P6 TRUE COPY OF THE NOTICE DATED 13/4/2018** **EXHIBIT P7 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER DATED 3RD MAY, 2018** **EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 20870/18** **EXHIBIT P9 TRUE COPY OF THE GOVERNMENT ORDER DATED 02/02/2019**