M/S Pooja Modern Rice Mill v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 04TH DAY OF JUNE 2019 / 14TH JYAISHTA, 1941** ## **WP(C).No.13019 of 2019** ## **PETITIONER:** **M/S.POOJA MODERN RICE MILL, CHENGAL, VADAKKUM BHAGOM VILLAGE, ALUVA, KALADY P.O, PIN-683574, REPRESENTED BY ITS MANAGING PARTNER, K.D.BABY, S/O. DEVASSY, KOLENCHERRY HOUSE, SREEMOOLANAGARAM P.O, KANJOOR, KALADY P.O, ERNAKULAM -683580.** **BY ADV. SRI.DINESH MATHEW J.MURICKEN** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY SECRETARY TO**| ||**GOVERNMENT(REVENUE), GOVERNMENT OF KERALA,**| ||**SECRETARIAT, THIRUVANANTHAPURAM DISTRICT,**| ||**PIN-695001.**| |**2**|**KANJOOR GRAMA PANCHAYATH,**| ||**KANJOOR P.O, ERNAKULAM DISTRICT, PIN-683575,**| ||**REPRESENTED BY ITS SECRETARY.**| |**3**|**THE PANCHAYATH COMMITTEE,**| ||**KANJOOR GRAMA PANCHAYATH,**| ||**KANJOOR P.O, ERNAKULAM DISTRICT, PIN-683575.**| |**4**|**THE SECRETARY,**| ||**KANJOOR GRAMA PANCHAYATH,**| ||**KANJOOR P.O, ERNAKULAM DISTRICT, PIN-683575.**| ||**BY ADVS.**| ||**SRI.V.A.VINOD**| ||**SRI.P.G.JOSE**| ||**SRI PAUL ABRAHAM VAKKANAL- GOVERNMENT PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WP(C)13019 OF 2019 ## **JUDGMENT** The petitioner, which is a partnership firm running a rice mill in 128.088 ares of property comprised in survey Nos.327/12, 327/19, 349/1, 349/2, 349/7, 349/8, 350/1, 350/2, 349/2-2, 350/1, 342/10, 349/2, 349/9 and 350/4 of Kanjoor Village, Aluva Taluk covered by Ext.P1 tax receipt, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P14 order dated 16.04.2019, wherein it has been stated that the application for licence made by the petitioner cannot be considered since the petitioner has completed the construction while the order of _status quo_ in Ext.P12 judgment dated 18.12.2018 in W.P.(C) No.41253 of 2018 was in force. According to the petitioner, no construction was done after the status quo order passed by this Court on 18.12.2018. Hence, the reasons stated in Ext.P14 order for non-consideration of application for licence is illegal and unsustainable. Feeling aggrieved by Ext.P14 order, the petitioner has already preferred Ext.P15 appeal before the 3[rd] respondent, invoking the provisions under Section 276 of the Kerala Panchayat Raj Act, 1994 which is now pending 3 WP(C)13019 OF 2019 consideration. The further relief sought for in this writ petition is a writ of mandamus commanding the 3[rd] respondent to consider Ext.P15 appeal dated 30.04.2019 and to pass appropriate orders. 2. On 03.05.2019, when this writ petition came up for admission, the learned Government Pleader took notice for the 1[st] respondent. Urgent notice by speed post was ordered to respondents 2 to 4. 3. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P14 order dated 16.04.2019 of the 4[th] respondent Secretary of the 2[nd] respondent Grama Panchayat. 4. 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 4 WP(C)13019 OF 2019 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. 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 which are repealed, or when 5 WP(C)13019 OF 2019 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 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 6 WP(C)13019 OF 2019 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 High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created 7 WP(C)13019 OF 2019 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 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 applicable to cases of the second class. The form given by the statute must be adopted and adhered to." 8 WP(C)13019 OF 2019 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. 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. Therefore, in view of the statutory remedy available under Section 276 of the Kerala Panchayat Raj Act, the petitioner cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India challenging Ext.P14 order, on the grounds raised in this writ petition. The petitioner has already moved Ext.P15 appeal before the 3[rd] respondent Panchayat Committee, which is now pending 9 WP(C)13019 OF 2019 consideration. Therefore, it is for the petitioner to pursue Ext.P15 appeal before the Appellate Authority. 10. In such circumstances, this writ petition is disposed of by directing the 3[rd] respondent to consider Ext.P15 appeal filed by the petitioner against Ext.P14 order and pass appropriate orders thereon, strictly in accordance with law, with notice to the petitioner and after affording the petitioner an opportunity of being heard. Necessary orders in this regard shall be passed, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 10 WP(C)13019 OF 2019 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PROPERTY TAX RECEIPT WITH RESPECT TO 128.08 ARES OF PROPERTY OF THE PETITIONER DATED 13.04.2018.** - **EXHIBIT P2 THE TRUE COPY OF LICENSE ISSUED BY FACTORIES AND BOILERS DEPARTMENT DATED 23.11.2018.** - **EXHIBIT P3 TRUE COPY OF THE INTEGRATED CONSENT TO OPERATE RENEWAL ISSUED FROM THE POLLUTION CONTROL BOARD DATED 16.04.2019.** - **EXHIBIT P4 TRUE COPY OF THE D&O LICENCE ISSUED FROM THE KANJOOR GRAMA PANCHAYATH DATED 21.05.2018.** - **EXHIBIT P5 TRUE PHOTOGRAPHS SHOWING THE AFTERMATH OF THE FLOOD IN THE RICE MILL.** - **EXHIBIT P6 THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 30.08.2018.** **EXHIBIT P7 THE TRUE COPY OF THE CLAIM FORM SUBMITTED BY THE PETITIONER BEFORE THE SBI GENERAL INSURANCE.** - **EXHIBIT P8 THE TRUE COPY OF THE NOTICE ISSUED BY THE 5TH RESPONDENT DATED 23.10.2018.** - **EXHIBIT P9 THE TRUE COPY OF THE REPLY TO EXHIBIT P8 NOTICE SUBMITTED BY THE PETITIONER DATED 05.11.2018** - **EXHIBIT P10 THE TRUE COPY OF THE PROVISIONAL ORDER ISSUED BY THE 4TH RESPONDENT DATED 16.11.2018.** - **EXHIBIT P11 THE TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER TO EXHIBIT P10 PROVISIONAL ORDER DATED 03.12.2018.** 11 WP(C)13019 OF 2019 **EXHIBIT P12 TRUE COPY OF THE JUDGMENT IN WPC NO.41253/2018 PASSED BY THIS HONOURABLE COURT DATED 18.12.2018.** **EXHIBIT P13 TRUE COPY OF THE APPLICATION FOR RENEWING THE LICENCE BEFORE THE 2ND RESPONDENT DATED 28.02.2019.** **EXHIBIT P14 TRUE COPY OF THE COMMUNICATION SENT BY THE 4TH RESPONDENT TO THE PETITIONER DATED 16.04.2019.** **EXHIBIT P15 TRUE COPY OF THE APPEAL SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 30.04.2019.** ## **RESPONDENT'S EXHIBITS:NIL** **TRUE COPY** **P.A. TO JUDGE**