Santhosh v. Regional Transport Authority, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 21ST DAY OF MAY 2019 / 31ST VAISAKHA, 1941** ## **WP(C).No. 13153 of 2019** ## **PETITIONER:** **SANTHOSH, AGED 51 YEARS,S/O.PRABHAKARAN, VIYYATH HOUSE, KARUVANNUR, THRISSUR.** **BY ADV. SRI.K.T.RAVEENDRAN** ## **RESPONDENT:** **THE REGIONAL TRANSPORT AUTHORITY, ERNAKULAM REPRESENTED BY ITS SECRETARY, REGIONAL TRANSPORT OFFICE, KOCHI-682030.** **SRI.MANURAJ K.J., GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 13153 of 2019** -2- ## **JUDGMENT** The petitioner is a stage carriage operator on the route Chottanikkara-Thrissur as Limited Stop Ordinary Service, in respect of his stage carriage bearing registration No.KL-58/M-670. The petitioner has submitted an application for variation of permit, which was directed to be reconsidered by the respondent Regional Transport Authority, vide Ext.P2 judgment of the State Transport Appellate Tribunal in MVAA No.199/2018. The petitioner has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P1 order dated 19.01.2019 of the respondent Regional Transport Authority, whereby that application for variation stands rejected. The petitioner has also sought for a writ of mandamus commanding the respondent to reconsider his application for variation of permit in compliance with Ext.P2 judgment of the State Transport Appellate Tribunal, by extending an opportunity to submit a modified application limiting the distance covered by the variation **WP(C).No. 13153 of 2019** -3- within 24 kms, in consonance with the 1[st] proviso to subsection (3) of Section 80 of the Motor Vehicles Act, 1988. 2. On 07.05.2019, when this writ petition came up for admission, this Court adjourned the matter to 21.05.2019. 3. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondent. 4. The main relief sought for in this writ petition is a writ of certiorari to quash Ext.P1 order dated 19.01.2019 of the respondent Regional Transport Authority, whereby the application made by the petitioner for variation of the regular permit in respect of his stage carriage bearing registration No.KL-58/M-670 stands rejected. Ext.P1 order of the respondent is appealable before the State Transport Appellate Tribunal under Section 89 of the Motor Vehicles Act. 5. In **Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603]** , the Apex Court held **WP(C).No. 13153 of 2019** -4- that non-entertainment 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 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 **WP(C).No. 13153 of 2019** -5- 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 mechanism for redressal of grievance. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be **WP(C).No. 13153 of 2019** -6- ## 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 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 **WP(C).No. 13153 of 2019** -7- 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 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 **WP(C).No. 13153 of 2019** -8- 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 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 **WP(C).No. 13153 of 2019** -9- been held to be equally applicable to enforcement of rights and has been followed by the Apex Court throughout. 9. In view of the statutory remedy available under Section 89 of the Motor Vehicles Act against Ext.P1 order of the respondent Regional Transport Authority, the petitioner cannot challenge the said order invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. In the result, this writ petition fails for the aforesaid reason and the same is accordingly dismissed; however, without prejudice to the right of the petitioner to challenge Ext.P1 order by invoking the statutory remedy available under Section 89 of the Motor Vehicles Act by approaching the State Transport Appellate Tribunal. Sd/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No. 13153 of 2019** -10- ## **APPENDIX** **PETITIONER'S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE PROCEEDING OF THE RESPONDENT DATED 19.01.2019 EXHIBIT P2 A TRUE COPY OF THE JUDGMENT DATED 22.09.2018 IN MVAA NO.199/2018** **RESPONDENT'S EXHIBITS: NIL**