Shahul Hameed S/o Kasim v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941** ## **WP(C).No.17524 OF 2019(M)** ## **PETITIONER:** **SHAHUL HAMEED S/O.KASIM, AGED 45 YEARS THOPPIL PARAMBIL HOUSE, VEDIMARA, MANNAM P.O., NORTH PARAVUR, ERNAKULAM DISTRICT.** **BY ADVS. SRI.ANOOP.V.NAIR SRI.M.S.SANDEEP SUDHAKARAN** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE NORTH PARAVUR MUNICIPALITY, NORTH PARAVUR, ERNAKULAM DISTRICT, REPRESENTED BY ITS SECRETARY, PIN-683520.** - **3 THE SECRETARY, NORTH PARAVUR MUNICIPALITY, NORTH PARAVUR, ERNAKULAM DISTRICT-683520.** - **4 SABIRA, W/O.SHAMEER, THOPPIL PARAMBIL HOUSE, VEDIMARA, MANNAM P.O., NORTH PARAVUR, ERNAKULAM DISTRICT-683520.** - **5 THE HEALTH SUPERVISOR, NORTH PARAVUR MUNICIPALITY, NORTH PARAVUR, ERNAKULAM DISTRICT-683520.** **R2-3 BY ADV. SRI.C.S.AJITH PRAKASH R4 BY ADV. SRI.MANSOOR.B.H. SRI HARISH K.P-SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 W.P.(C) No.17524/19 ## **JUDGMENT** The petitioner, who is a resident in Vedimara at Mannam within the jurisdiction of the second respondent Municipality, has filed this Writ Petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 notice dated 22.6.2019 issued by the fifth respondent, on behalf of the second respondent, whereby the petitioner is asked to stop slaughtering of animals in the property in question and drainage of waste water to the public drainage. The petitioner has also sought for a writ of mandamus commanding respondents 2 and 3 to consider and pass orders on Ext.P5 application filed by him, within a time limit to be fixed by this Court; a writ of mandamus commanding respondents 2 and 3 to keep in abeyance all further proceedings pursuant to Ext.P4 and not to take further action on Ext.P4; and also a writ of mandamus commanding respondents 2 and 3 to keep in abeyance all further proceedings pursuant to Ext.P4, pending consideration of Ext.P5. 3 W.P.(C) No.17524/19 2. On 27.06.2019, when this Writ Petition came up for admission, the learned Government Pleader took notice on admission for the first respondent. Urgent notice on admission by special messenger was ordered to respondents 2 to 5, returnable by 04.07.2019. 3. A counter affidavit has been filed by the third respondent opposing the reliefs sought for in this Writ Petition. Paragraphs 3 to 5 of the said counter affidavit read thus; “3. It is submitted that the neighbours and local residents gave complaints to the District Collector on 30.5.2019 against the petitioner for his slaughter activity and draining of the blood and waste water to the public road and drainage. The Health Department of the Municipality conducted inspection and found that the petitioner is draining blood and waste water to the public drainage. Even though notice as per No.PH1-11266/18 dated 11.6.2019 has been issued to the petitioner to stop the activity, he without obeying the notice continued the illegal activity. 4. It is submitted that conduct of slaughter activity in his residential compound and draining the blood and waste water to public drainage and road is illegal and punishable offence as per Section 455(1) 4 W.P.(C) No.17524/19 and 337 of the Kerala Municipality Act, 1994. It cannot be justified that other people of that area are doing the slaughtering activity or he is doing the slaughtering activity only on Saturdays and Sundays will not give him right to continue the illegal activity. As the petitioner continued the illegal activity and not cared to obey the directions issued by the Municipal Authorities, notice has been issued to the petitioner to stop the activity within twenty four hours as per notice No.PH1-12166/2018 on 22.6.2019. But in the reply dated 25.6.2019, the petitioner has not given any assurance to stop the illegal activity, but tried to justify his illegal activity. Therefore, letter has been given to him rejecting his reply as per letter No.PH1-11266/2019 dated 27.6.2019. 5. It is submitted that conduct of illegal slaughter house and draining of blood and waste water to public road and public drainage is an offence. The Municipality has taken legal action alone against the petitioner based on the genuine complaint of the local residents. Disobeying of a legally issued notice is also an offence. The Municipality has taken stringent action against the petitioner on finding that the petitioner is not obeying the legally issued directions of the Municipal Authorities. Hence communications No.PH1-11266/2018 dated 4.6.2019 and 22.6.2019 has been issued to the Station House Officer, Paravoor Police Station to 5 W.P.(C) No.17524/19 initiation legal action against the petitioner. As the petitioners' act amount to an offence of not obeying legally issued directions, the Municipality is taking steps to initiate prosecution against the petitioner.” (Underline supplied) 4. The fourth respondent, who is the complainant before the Municipality, has also filed a counter affidavit opposing the reliefs sought for in this Writ Petition. Paragraphs 4 and 5 of the said counter affidavit read thus; “4. It is submitted that aggrieved by the inaction on the part of the respondent Municipality to prevent illegal slaughtering, this respondent and local residents have preferred a complaint to the District Collector, Ernakulam and on receipt of the same, the District Collector has forwarded the complaint to the respondent Municipality for further action. True copy of the complaint and receipt dated 30.5.2019 is produced herewith and marked as Ext.R4(A). It is further pointed out that there is no civil dispute pending between this respondent and the petitioner as alleged in the Writ Petition and averment in paragraph 3 of the Writ Petition in this regard is false and hence denied. 5. It is submitted that on receipt of Ext.R4(A), the second respondent has deputed the Health Supervisor for conducting an inspection and accordingly the fifth respondent has submitted Ext.P2 report to the second respondent and based on 6 W.P.(C) No.17524/19 the said report impugned Ext.P4 was issued to the petitioner.” (Underline supplied) ## 5. The petitioner has filed a reply affidavit. Paragraphs 5 to 7 of the said reply affidavit read thus; “5. It is humbly submitted that the petitioner have not conducted any offence or activities as stated in para 4 of the counter. The petitioner alone have not conducted any illegal activity as stated in para 4 of the counter. Absolutely wrong allegation have been raised against the petitioner. To the notice issued by the third respondent on 22.6.2019 the petitioner have given a proper reply and the petitioner have stated his contentions in the reply. Moreover the third respondent admits in para 5 that only against the petitioner notice have been issued for taking actions. It is humbly submitted that in the entire locality the activities is being conducted by the local people. Therefore, initiating actions against the petitioner upon a false complaint is highly illegal and unjust and it is only to wreck vengeance against the petitioner such an action is taken as per Ext.P4. It is only a personal enmity between the petitioner and the fourth respondent which have led to such a complaint filed by the fourth respondent. The petitioner have not committed any offence as alleged by the fourth respondent. 6. As alleged in the counter there is no health problems in the locality and no complaints arose from any corner before the complaint filed by the 7 W.P.(C) No.17524/19 fourth respondent. The petitioner have taken all precautionary measures to see that no nuisance is caused to any nearby residents of the locality including the fourth respondent while conducting his business. The said business is his only livelihood and if the business is stopped the petitioner and the family will be put to irreparable injuries, loss and hardships. The entire family will be thrown to streets if the business is stopped. The petitioner is not conducting any slaughter activity as alleged by the third and fourth respondents. The petitioner is not dumping any waste particles in public place and he does not do any activity of sale and no shop is conducted in his compound. Moreover the petitioner is conducting the business in his own compound and property and therefore it is not going to affect anybody in the locality. 7. It is humbly submitted that in the presence of the petitioner no inspection was conducted by the Health Inspector and the petitioner is not aware of any inspection or report filed by the Health Inspector. The petitioner has duly obeyed all the directions of the third respondent as directed in Ext.P2 and therefore, no pollution is caused by the petitioner to any of the residents. The petitioner have complied with the directions of the Municipality.” (Underline supplied) 6. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for the first 8 W.P.(C) No.17524/19 respondent, the learned Standing Counsel for respondents 2, 3 and 5 and also the learned counsel for the fourth respondent. 7. The issue that arises for consideration in this Writ Petition is as to whether any interference is warranted on Ext.P2 notice dated 11.6.2019 issued by the third respondent, who is the Secretary of the second respondent Municipality, whereby the petitioner has been asked to stop slaughtering of animals in the property in question and drainage of waste water to the public drainage. 8. For slaughtering animals, the petitioner is not holding any licence issued by the local authority. The said fact is not in dispute. The pleadings and materials on record would show that illegal slaughtering is going on in the area in question. In the reply affidavit, the petitioner would contend that he is conducting business in his own compound and therefore, it will not affect anybody in the locality. The petitioner would also contend that such activities are being conducted by others in the locality and the petitioner alone has been issued with notice proposing action. If the petitioner or any other 9 W.P.(C) No.17524/19 residents in the locality are conducting slaughtering of animals without valid licence, the third respondent has to issue stop memo. 9. Ext.P4 is only a notice issued by the officer, who is exercising the powers of the Secretary of the Municipality, in view of delegation of powers under sub-section (2) of Section 50 of the Kerala Municipality Act, 1994 based on a notification issued by the Government. When the power or authority of the person who issued Ext.P4 notice is not under challenge, writ jurisdiction of this Court under Article 226 of the Constitution of India cannot be invoked to challenge that notice, in view of the statutory remedy of appeal provided under Section 509 of the Kerala Municipality Act. 10. 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 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 10 W.P.(C) No.17524/19 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. ## 11. 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 11 W.P.(C) No.17524/19 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. 12. 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 12 W.P.(C) No.17524/19 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 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 13 W.P.(C) No.17524/19 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. 13. 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 14 W.P.(C) No.17524/19 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. 14. In view of the law laid down in the decisions referred to supra, no interference is warranted on Ext.P4 notice invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, on the grounds raised in this Writ Petition. 15. In such circumstances, this Writ Petition filed on 26.06.2019 is dismissed for the aforesaid reason; however, without prejudice to the right of the petitioner to avail statutory remedy of appeal under Section 509 of the Kerala Municipality Act, if he is feeling aggrieved by Ext.P4 notice. 15 W.P.(C) No.17524/19 The Secretary of the second respondent Municipality shall take stern action, in accordance with Section 532 of the Kerala Municipality Act, against illegal slaughtering of animals within the municipal area, if found necessary, by seeking police assistance under clause (b) of sub-section (1) of Section 550 of the said Act. Sd/- **ANIL K.NARENDRAN JUDGE** csl 16 W.P.(C) No.17524/19 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1** **TRUE COPY OF THE RECEIPT IN RESPECT OF THE PROPERTY OF THE PETITIONER.** - **EXHIBIT P2** - **TRUE COPY OF THE NOTICE DATED 11.06.2019 ISSUED BY THE 2ND RESPONDENT'S OFFICE TO THE PETITIONER.** ## **EXHIBIT P3** - **TRUE COPY OF THE PHOTOGRAPHS WHICH SHOWS THE CONCRETE PIT AND THE PETITIONER'S PROPERTY.** - **EXHIBIT P3 (a) TRUE COPY OF THE PHOTOGRAPHS WHICH SHOWS DRAINAGE ON THE PUBLIC ROAD.** - **EXHIBIT P4** - **TRUE COPY OF THE NOTICE DATED 22.06.2019 ISSUED BY THE 5TH RESPONDENT ON BEHALF OF THE 2ND RESPONDENT.** - **EXHIBIT P5** - **TRUE COPY OF THE REPLY LETTER DATED 24.06.2019 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** - **RESPONDENTS' EXHIBITS:** - **EXHIBIT 4 (A)** **TRUE COPY OF THE COMPLAINT AND RECEIPT DATED 30/5/2019**