Sainul Abideen.K.M. v. Sub Inspector of Police, Bakel Police Station, Bakel, Kasargode; Sub Divisional Magistrate, Kasaragode at Kanhangad; District Collector, Kasaragode District; Geologist, Department of Mining and Geology, Kasaragode

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY,THE 14TH DAY OF MARCH 2019 / 23RD PHALGUNA, 1940** ## **WP(C).No. 1735 of 2019** ## **PETITIONER:** **SAINUL ABIDEEN.K.M., AGED 27 YEARS, S/O. AYISHA HAJUMMA, POONKAVANAM MANZIL, MANIKOTH P.O, KASARGODE - 671 329.** **BY ADV. SRI.K.I.SAGEER** ## **RESPONDENTS:** - **1 SUB INSPECTOR OF POLICE, BAKEL POLICE STATION, BAKEL, KASARGODE,PIN - 671 318.** - **2 SUB DIVISIONAL MAGISTRATE, KASARGODE AT KANHANGAD PIN - 671 315.** - **3 DISTRICT COLLECTOR, KASARGODE DISTRICT, COLLECTORATE, KASARGODE.** - **4 GEOLOGOST, DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE, KASARGODE. PIN - 671 121. SRI MANU RAJ K.J, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HA VING COME UP FOR ADMISSION ON 14.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 1735 of 2019** -2- ## **JUDGMENT** The petitioner, who is the registered owner of MGVTipper lorry bearing registration No.KL-60/E-7547 covered by Ext.P1 certificate of registration, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P5 order of the 2[nd] respondent Sub-Divisional Magistrate and Ext.P6 order of the 3[rd] respondent District Collector, Kasaragod and seeking a writ of mandamus commanding the 3[rd] respondent to send the sample taken from the petitioner's tipper lorry to the 4[th] respondent for re-testing and directing the 4[th] respondent to file a report before this Court. The petitioner has also sought for a writ of mandamus commanding the respondents to release Tipper lorry bearing registration No.KL-60/E-7547. 2. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for respondents 1 to 4. 3. Going by the averments in the writ petition, on **WP(C).No. 1735 of 2019** -3- 06.09.2014, the petitioner's vehicle was intercepted and seized by the 1[st] respondent Sub-Inspector of Police, alleging that it was involved in illegal transportation of river sand, which is punishable under Section 20 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. Ext.P1 is the copy of FIR in Crime No.705 of 2014 of Bakel Police Station and Ext.P2 is the seizure mahazar. The 1[st] respondent reported the seizure of the vehicle to the 2[nd] respondent Sub-Divisional Magistrate, before whom the petitioner submitted Ext.P4 representation for interim custody. The 2[nd] respondent passed Ext.P5 order, wherein it was found that the petitioner's vehicle was used for transportation of river sand in violation of the provisions under Section 20 of the Act and the Rules made thereunder and hence ordered confiscation of the vehicle. 4. Feeling aggrieved by Ext.P5 order, the petitioner preferred a revision petition before the 3[rd] respondent District Collector, which ended in dismissal by Ext.P6 order. It is feeling aggrieved by Exts.P5 and P6 orders that the **WP(C).No. 1735 of 2019** -4- petitioner has filed this writ petition, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. 5. Section 23C of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 provides for an appeal to the District Court against an order passed by the District Collector in a revision filed under Section 23C of the Act. As per sub-section (1) of Section 23C, any person aggrieved by an order passed by the District Collector under Section 23B may, within 30 days from the date of order of the District Collector, file an appeal before the District Court having jurisdiction over the area from where the property is seized. As per sub-section (2), the decision of the District Court on the appeal under subsection (1) shall be final. 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 **WP(C).No. 1735 of 2019** -5- 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 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 **WP(C).No. 1735 of 2019** -6- 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 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 **WP(C).No. 1735 of 2019** -7- 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 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 **WP(C).No. 1735 of 2019** -8- 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." The rule laid down in that passage was approved by the ## House of Lords in **Neville v. London Express Newspaper** **WP(C).No. 1735 of 2019** -9- **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. When a statutory remedy under Section 23C of the Act is provided for challenging an order passed by the District Collector, in exercise of his powers under Section 23B of the Act, the petitioner cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, challenging Ext.P6 order. In such circumstances, this writ petition filed on 17.01.2019 is dismissed; however without prejudice to the **WP(C).No. 1735 of 2019** -10- right, if any, of the petitioner to challenge Ext.P6 order, by invoking the statutory provisions under Section 23C of the Kerala Protection of River Banks and Regulation of Removal of Sand Act. Sd/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No. 1735 of 2019** -11- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE RC PARTICULARS OF MGV - TIPPER LORRY BEARING REG. NO. KL-60 E 7547.** **EXHIBIT P2 A TRUE COPY OF THE FIR IN CRIME NO. 705/2014 OF BAKEL POLICE STATION. EXHIBIT P3 A TRUE COPY OF THE RELEVANT EXTRACT OF THE SEIZURE MAHAZAR PREPARED BY THE POLICE.** **EXHIBIT P4 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE SUB COLLECTOR [RDO], KANHANGAD DT. 1209-2014.** **EXHIBIT P5 A TRUE COPY OF THE ORDER NO.H-1080/14 OF THE SUB DIVISIONAL MAGISTRATE, KASARGODE DT.06-03-2015. EXHIBIT P6 A TRUE COPY OF THE ORDER NO. G216017/2015 DT.01/2017 OF THE 3RD RESPONDENT.** ## **RESPONDENTS' EXHIBITS: NIL**