MARY, W/o DEAVASSY, MENACHERY HOUSE, OLARIKKARA, PULLAZHI P.O., THRISSUR DISTRICT - 680 012 v. REGIONAL TRANSPORT AUTHORITY, OFFICE OF THE REGIONAL TRANSPORT AUTHORITY, CIVIL STATION, AYYANTHOLE, THRISSUR DISTRICT - 680 003; THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, OFFICE OF THE REGIONAL TRANSPORT AUTHORITY, CIVIL STATION, AYYANTHOLE, THRISSUR DISTRICT - 680 003; THE DISTRICT COLLECTOR, CHAIRMAN, THE REGIONAL TRANSPORT AUTHORITY, CIVIL STATION, AYYANTHOLE, THRISSUR - 680 003; STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, MOTOR VEHICLES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001; THRISSUR CORPORATION, MUNICIPAL OFFICE ROAD, KURUPPAM, THEKKINKADU MAIDAN, THRISSUR DISTRICT - 680 001

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 18TH DAY OF JUNE 2019 / 28TH JYAISHTA, 1941** ## **WP(C).No.16523 of 2019** ## **PETITIONER:** **MARY, AGED 59 YEARS, W/o.DEAVASSY, MENACHERY HOUSE, OLARIKKARA, PULLAZHI P.O., THRISSUR DISTRICT - 680 012** **BY ADVS. SRI.K.A.MOHAMED HARIS SMT.K.A.MUMTAZ** ## **RESPONDENTS:** - **1 THE REGIONAL TRANSPORT AUTHORITY, OFFICE OF THE REGIONAL TRANSPORT AUTHORITY, CIVIL STATION, AYYANTHOLE, THRISSUR DISTRICT - 680 003, REPRESENTED BY ITS SECRETARY.** - **2 THE SECRETARY, REGIONAL TRANSPORT AUTHORITY, OFFICE OF THE REGIONAL TRANSPORT AUTHORITY, CIVIL STATION, AYYANTHOLE, THRISSUR DISTRICT - 680 003** - **3 THE DISTRICT COLLECTOR, CHAIRMAN, THE REGIONAL TRANSPORT AUTHORITY, CIVIL STATION, AYYANTHOLE, THRISSUR - 680 003** - **4 STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, MOTOR VEHICLES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001** - **5 THRISSUR CORPORATION, MUNICIPAL OFFICE ROAD, KURUPPAM, THEKKINKADU MAIDAN, THRISSUR DISTRICT - 680 001** **BY ADV. SRI. SANTHOSH P.PODUVAL, SC, THRISSUR CORPORATION SRI MANU RAJ K.J- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WP(C)16523 OF 2019 ## **JUDGMENT** The petitioner, who is the registered owner of an autorickshaw bearing registration No.KL-08/AX-4175 covered by a contract carriage permit, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 order dated 31.01.2019 issued by the 1[st] respondent. The petitioner has also sought for other consequential reliefs. 2. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 4 and also the learned Standing Counsel for the 3[rd] respondent Corporation. 3. The petitioner has moved an application before the 1[st] respondent, seeking variation of the conditions of the contract carriage permit, in order to change the parking place from Chettupuzha to Ayyanthole. W.P.(C) No.12486 of 2018, which was filed by the petitioner herein, seeking an order to consider that application by the 1[st] respondent, was disposed of by Ext.P2 judgment dated 10.07.2018 with the following directions; “(i) Within one week from the date of receipt of a 3 WP(C)16523 OF 2019 certified copy of this judgment, the petitioner shall resubmit Ext.p1 application before the Secretary of the 1[st] respondent Regional Transport Authority, and remit the requisite fee. (ii) If the application submitted by the petitioner is in order, the 1[st] respondent shall consider the same and pass appropriate orders thereon, strictly in accordance with law,with notice to the petitioner and also to the Secretary of the 3[rd] respondent Corporation. (iii) Decision in this regard shall be taken, as expeditiously as possible, at any rate, within a period of six weeks thereafter.” 4. Pursuant to the directions contained in that judgment, the 1[st] respondent Regional Transport Authority has considered and rejected that application made by the petitioner, stating various reasons, as discernible from Ext.P4 order. The said order issued by the 1[st] respondent is appealable before the State Transport Appellate Tribunal, in view of the provisions under Section 89 of the Motor Vehicles Act, 1988. The said fact is not in dispute. 5. 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 4 WP(C)16523 OF 2019 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 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., 5 WP(C)16523 OF 2019 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 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. 7. 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 6 WP(C)16523 OF 2019 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 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 7 WP(C)16523 OF 2019 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. 8. 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 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 8 WP(C)16523 OF 2019 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. 9. 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. 10. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that, if the petitioner is feeling aggrieved by Ext.P4 order, he has to approach the Tribunal by filing an appeal under Section 89 of the Motor Vehicles Act. 11. In such circumstances, the challenge made in this 9 WP(C)16523 OF 2019 writ petition against Ext.P4 order cannot be entertained in exercise of the writ jurisdiction of this Court under Article 226 of the Constitution of India, on the grounds raised in this writ petition. 12. In the result, the challenge made in this writ petition against Ext.P4 fails for the aforesaid reasons and the writ petition filed on 17.06.2019 is accordingly dismissed; however without prejudice to the right of the petitioner to challenge Ext.P4 order, by filing an appeal before the State Transport Appellate Tribunal. All legal and factual contentions raised in this writ petition are left open to be raised before the Tribunal, at appropriate stage. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 10 WP(C)16523 OF 2019 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 14.02.2018 FOR THE VARIATION OF THE CONDITIONS IN THE PERMIT** **EXHIBIT P2 TRUE COPY OF THE JUDGMENT OF THIS COURT IN WPC NO. 12486 OF 2018 DATED 10.07.2018** **EXHIBIT P3 TRUE COPY OF THE APPLICATION RESUBMITTED BY THE PETITIONER DATED 17.07.2018 FOR THE VARIATION OF THE CONDITIONS IN THE PERMIT BEFORE THE 1ST RESPONDENT EXHIBIT P4 TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 31.01.2019, SIGNED ON 24.03.2019** ## **RESPONDENT'S EXHIBITS:NIL** **TRUE COPY** **P.A. TO JUDGE**