NITTA GELATIN INDIA LIMITED v. KADUKUTTY GRAMA PANCHAYAT & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY ,THE 22ND DAY OF MARCH 2019 / 1ST CHAITHRA, 1941** ## **WP(C).No. 8752 of 2019** ## **PETITIONER :** **NITTA GELATIN INDIA LIMITED, HAVING REGISTERED OFFICE @ 27/472, SBT AVENUE, PANAMPILLY NAGAR, COCHIN - 682 036, HAVING FACTORY @ KATHIKUDAM, KADUKUTTY P.O., THRISSUR DISTRICT - 680 309, REPRESENTED BY THE EXECUTIVE DIRECTOR MR.SHAJI MOHAN.** **BY ADVS. SRI.K.ANAND (SR.) SMT.LATHA ANAND SRI.JOSEPH SEBASTIAN (PARACKAL) SRI.M.N.RADHAKRISHNA MENON SRI.S.VISHNU (ARIKKATTIL)** ## **RESPONDENTS:** - **1 KADUKUTTY GRAMA PANCHAYAT,KADUKUTTY, TRICHUR DISTRICT - 680 309, REPRESENTED BY ITS SECRETARY.** - **2 SECRETARY, KADUKUTTY GRAMA PANCHAYAT, KADUKUTTY, TRICHUR DISTRICT - 680 309.** - **3 KERALA STATE POLLUTION CONTROL BOARD, GANDHI NAGAR, KADAVANTHARA, ERNAKULAM - 682 020, REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE.** - **4 STATE OF KERALA, DEPARTMENT OF INDUSTRIES AND COMMERCE, REPRESENTED BY THE SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **R4 BY SRI S.KANNAN- GOVERNMENT PLEADER ; R3 BY SRI T.NAVEEN- STANDING COUNSEL ; R1 & 2 BY SRI SHEEJO CHACKO - STANDING COUNSEL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.8752 of 2019** **2** ## **JUDGMENT** The petitioner, which is a company registered under the provisions of the Companies Act, which is having a factory within the jurisdiction of the 1[st] respondent Grama Panchayath, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P6 order dated 08.03.2019 issued by the 2[nd] respondent, who is the Secretary of the 1[st] respondent Grama Panchayath, whereby the application made by the petitioner for renewal of D&O licence for the year 2019-24 stands rejected, for the reasons stated therein. The petitioner has also sought for a writ of mandamus commanding the 1[st] respondent Grama Panchayath to renew the D&O licence of the petitioner for the year 2019-2014; a declaration that the action of respondents 1 and 2 in refusing to issue D&O licence in respect of petitioner's factory for the year 2019-2024 is illegal; and a **WP(C).No.8752 of 2019** **3** direction permitting the petitioner to function the factory, till the licence is issued by the Panchayath. 2. Heard the learned Senior Counsel for the petitioner, the learned Standing Counsel for the 1[st] respondent Grama Panchayath representing respondents 1 and 2, the learned Standing Counsel for the Pollution Control Board representing the 3[rd] respondent and also the learned Government Pleader appearing for the 4[th] respondent. 3. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P6 order dated 08.03.2019 of the 2[nd] respondent, whereby an application made by the petitioner for renewal of D&O licence for the year 201924 stands rejected for the reasons stated therein. 4. The fact that Ext.P6 order of the 1[st] respondent is appelable before the Panchayath Committee, in view of the provisions under sub-section (1) of Section 276 of the Kerala Panchayath Raj Act, 1994 ( 'the Act' for **WP(C).No.8752 of 2019** **4** short) is not in serious dispute. As per sub-section (1) of Section 276, an appeal shall lie to the Panchayath against the notice issued or order passed or action taken by the President or Secretary, in exercise of the powers conferred as per the provisions of the said Act, rules, bye-laws or regulations made thereunder except Sections 235I, 235J, 235N, 235W and 235X. As per the proviso to sub-section (1) of Section 276, an appeal or matters connected with tax shall be filed before the standing committee for finance of the Village Panchayat. 5. Sub-section (2) of Section 276 of the Act provides that if an application is submitted during the pendency of an appeal filed under sub-section (1), the President may, by order, stay the operation of the notice, order or other action appealed against. Every case in which an order has been passed shall be reported by the President to the Panchayath at its next ordinary meeting with the reasons for making such an **WP(C).No.8752 of 2019** **5** order and the Panchayath shall either confirm such order with or without modification or revoke it, failing which it shall stand cancelled. As per sub-section (3) an appeal filed under sub-section (1) shall be disposed of by the Panchayath or the Standing Committee in the manner as it may deem fit within sixty days of its receipt. 6. A reading of the aforesaid provisions under Section 276 of the Act make it explicitly clear that a statutory remedy of appeal is provided to a person, who is feeling aggrieved by an order issued by the Secretary of the Grama Panchayath, whereby the application filed for renewal of D&O licence stands rejected. Sub-section (2) of Section 276 of the Act provides for interim relief, during the pendency of an appeal. 7. 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 **WP(C).No.8752 of 2019** **6** 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 jurisdiction under Article 226. 8. 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 **WP(C).No.8752 of 2019** **7** 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 an effective alternative remedy is **WP(C).No.8752 of 2019** **8** 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. 9. 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 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 **WP(C).No.8752 of 2019** **9** 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 under the statute to be bypassed, and will leave the party **WP(C).No.8752 of 2019** **10** applying to it to seek resort to the machinery so set up. 10. 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 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 **WP(C).No.8752 of 2019** **11** 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 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. 11. 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. 12. Viewed in the light of the law laid down in the **WP(C).No.8752 of 2019** **12** decisions referred to supra, conclusion is irresistible that the petitioner cannot challenge Ext.P6 order dated 08.03.2019 of the 2[nd] respondent, the Secretary of the 1[st] respondent Grama Panchayat, whereby the application made for renewal of D&O licence stands rejected invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, on the grounds raised in this writ petition, when a statutory remedy is available under Section 276 of the Act. Moreover, the question as to whether there is any violation of the statutory provisions, as stated in Ext.P6, or not is a factual dispute, the adjudication of which is not possible in exercise of the writ jurisdiction under Article 226 of the Constitution of India. In such circumstances, the challenge made in this writ petition against Ext.P6 order dated 08.03.2019 of the 2[nd] respondent fails for the aforesaid reason. 13. In the result, this writ petition is dismissed; however without prejudice to the right of the petitioner **WP(C).No.8752 of 2019** **13** to challenge Ext.P6 order by availing the statutory remedy by filing an appeal before the Panchayath Committee under sub-section (1) of Section 276 of the Act. 14. If any such appeal is filed along with an application for interim stay, as provided under subsection (2) of Section 276, the said interlocutory application shall be considered by the appropriate authority and appropriate orders shall be passed, as expeditiously as possible, at any rate, within a period of three days from the date of filing of such appeal. All legal and factual contentions raised by the petitioner are left open to be raised before the appellate authority, at appropriate stage. ## **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/23/3 **WP(C).No.8752 of 2019** **14** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE JUDGMENT DATED 26/03/2010 IN WPC NO.20891 OF 2009.** **EXHIBIT P2** **TRUE COPY OF THE ORDER REJECTING THE RENEWAL OF LICENSE OF THE PETITIONER FOR THE YEAR 2018-19.** **EXHIBIT P3** - **TRUE COPY OF THE INTERIM ORDER IN WPC NO.10600/2018.** - **EXHIBIT P3 A TRUE COPY OF ORDER DATED 27/11/2018 ISSUED BY THE INSPECTOR OF FACTORIES AND BOILERS.** **EXHIBIT P4** **TRUE COPY OF THE CONSENT TO OPERATE ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD.** **EXHIBIT P4 A TRUE COPY OF SANITATION CERTIFICATE DATED 19/2/2019 ISSUED BY THE HEALTH INSPECTOR.** **EXHIBIT P5** **TRUE COPY OF THE APPLICATION FOR D&O LICENSE FOR THE YEARS 2019-2024.** **EXHIBIT P6** **TRUE COPY OF THE REJECTION ORDER DATED 8/3/2019 ISSUED BY KADUKUTTY GRAMA PANCHAYAT.**