Riyas T.A. and Others v. The District Collector, Civil Station, Kakkanad, Ernakulam; The Tahsildar, Kunathunad Taluk, Perumbavoor; The Chief Environmental Engineer, Kerala State Pollution Control Board, Perumbavoor; The Village Officer, Pattimattom; Kizhakkkambalam Grama Panchayat represented by its Secretary; The Station House Officer, Kunnathunad Police Station; Periyar Lime Industries

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 13TH DAY OF AUGUST 2019 / 22ND SRAVANA, 1941** ## **WP(C).No.21225 OF 2019(C)** ## **PETITIONER/S:** |**1**|**RIYAS.T.A, AGED 27 YEARS**| |---|---| ||**S/O. ABDUL RAHIM, THUTHOPILLY HOUSE, VENGOLA**| ||**P.O, ARACKAPADY, PIN 683556**| |**2**|**NAVAS T.A, AGED 34 YEARS**| ||**S/O. ABDUL RAHMAN, THUTHOOPILLY HOUSE, VENGOLA**| ||**P.O, ARACKAPADY, PIN 683556**| |**3**|**SHAMSUDEEN, AGED 40 YEARS**| ||**S/O. KASIM, URGANAL HOUSE, VENGOLA P.O,**| ||**ARACKAPADY, PIN 683556**| |**4**|**SHAMEER, AGED 45 YEARS**| ||**S/O. ABDUL KHADER, THEKKALAKUDY HOUSE, VENGOLA**| ||**P.O, ARACKAPADY, PIN 683556**| |**5**|**ALIYAR, AGED 57 YEARS**| ||**S/O. AHMED, THEKKALAKUDY HOUSE, VENGOLA P.O,**| ||**ARACKAPADY, PIN 683556**| ||**BY ADVS.**| ||**SRI.SAM ISAAC POTHIYIL**| ||**SHRI.VISHNU DAS**| ||**SRI. SRUTHI DAS**| ## **RESPONDENT/S:** - **1 THE DISTRICT COLLECTOR CIVIL STATION, KAKKANAD, ERNAKULAM, PIN 682 030** - **2 THE TAHSILDAR, KUNNATHUNAD TALUK, PERUMBAVOOR, PIN 682 542** -2- W.P.(C). No. 21225 of 2019 - **3 THE CHIEF ENGIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, PERUMBAVOOR, PIN 682542** - **4 THE VILLAGE OFFICER, PATTIMATTOM OFFICE, PATTIMATTOM, PIN 682562** - **5 KIZHAKKAMBALAM GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, KIZJAKKAMBALAM PIN 682 562** - **6 STATION HOUSE OFFICER, KUNNATHUNAD POLICE STATION, PATTIMATTOM, PIN 682 562** - **7 PERIYAR LIME INDUSTRIES, 7TH WARD, KUMMANODE, KIZHAKKAMBALAM GRAMA PANCHAYAT, KIZHAKKAMBALAM, PIN 682 562** - **R5 BY SRI.THOMAS GEORGE, SC, KIZHAKKAMBALAM GRAMA PANCHAYAT R7 BY ADV. SRI.SIRAJ KAROLY** ## **OTHER PRESENT:** ## **SRI MANU RAJ K.J- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- W.P.(C). No. 21225 of 2019 ## **JUDGMENT** Petitioners, who are stated to be residents near an industrial unit run by the 7[th] respondent, within the jurisdiction of the 5[th] respondent Grama Panchayat, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 5[th] respondent Panchayat to cancel the licence issued to the 7[th] respondent; and a writ of mandamus commanding the 3[rd] respondent Pollution Control Board to cancel the consent to operate granted to the 7[th] respondent. 2. On 05.08.2019, when this writ petition came up for admission, the learned Government Pleader took notice on admission for respondents 1, 2, 4 and 6. The learned Standing Counsel for the Pollution Control Board took notice on admission for the 3[rd] respondent. The learned Standing Counsel for Kizhakkambalam Grama Panchayat took notice on admission for the 5[th] respondent. Urgent notice on admission by special messenger was ordered to the 7[th] respondent. This Court, while issuing notice on admission, has made it clear that the maintainability of the writ petition shall be considered with notice to the 7[th] respondent. -4- W.P.(C). No. 21225 of 2019 3. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1, 2, 4 and 6, the learned Standing Counsel for the 3[rd] respondent, the learned Standing Counsel for the 5[th] respondent and also the learned counsel for the 7[th] respondent. 4. The issue that arises for consideration in this writ petition is as to whether the petitioner can seek cancellation of trade licence issued by the 5[th] respondent Grama Panchayat and the consent to operate issued by the 3[rd] respondent Pollution Control Board to the industrial unit of the 7[th] respondent, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, in view of the statutory remedy available under Section 276 of the Kerala Panchayat Raj Act, 1994 and that under Section 31 of the Air (Prevention and Control of Pollution) Act, 1981 and Section 28 of the Water (Prevention and Control of Pollution) Act, 1974. 5. 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 -5- W.P.(C). No. 21225 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 -6- W.P.(C). No. 21225 of 2019 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 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 -7- W.P.(C). No. 21225 of 2019 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 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 -8- ## W.P.(C). No. 21225 of 2019 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. 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 -9- W.P.(C). No. 21225 of 2019 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 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 the -10- W.P.(C). No. 21225 of 2019 petitioner cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India for cancellation of trade licence issued by the 5[th] respondent, in view of the statutory remedy available under Section 276 of the Kerala Panchayat Raj Act, and also the cancellation of consent to operate granted by the 3[rd] respondent, in view of the statutory remedy available under Section 31 of the Air (Prevention and Control of Pollution) Act, 1981 and Section 28 of the Water (Prevention and Control of Pollution) Act, 1974. In such circumstances, this writ petition filed on 310.07.2019 is dismissed for the aforesaid reason; however, without prejudice to the right of the petitioner to avail the statutory remedy against the trade licence granted by the 5[th] respondent Grama Panchayat and the consent to operate granted by the 3[rd] respondent, by invoking the statutory remedy before the appropriate forums. ## **Sd/-** **ANIL K.NARENDRAN JUDGE** das -11- W.P.(C). No. 21225 of 2019 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER OF THE POLLUTION CONTROL BOARD ORDER DATED 29-06-2018** **EXHIBIT P2 TRUE COPY OF THE RECEIPT OF THE COMPLAINT FILED BY THE 2ND PETITIONER BEARING NO. 675, DATED 30-01-2018** **EXHIBIT P3 TRUE COPY OF THE RECEIPT OF THE COMPLAINT FILED BY THE 5TH PETITIONER BEARING NO. 677, DATED 30-01-2018** - **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 25-01-2019 FILED BY THE PETITIONERS BEFORE THE 5TH RESPONDENT GRAMA PANCHAYAT** **EXHIBIT P5 TRUE COPY OF THE RECEIPT OF THE COMPLAINT FILED BY THE PETITIONERS BEARING N NO. 557, DATED 25-01-2019.** **EXHIBIT P6 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT DATED 10-04-2019** **EXHIBIT P7 TRUE COPY OF THE RECEIPT OF THE COMPLAINT FILED BY THE PETITIONERS BEARING NO. M2-256407/2019/TDCEKM, DATED 10-04-2019**