Shajahan v. The District Collector, Kalpetta and The Tahasildar, Sulthan Bathery, Wayanad

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY ,THE 19TH DAY OF MARCH 2019 / 28TH PHALGUNA, 1940** ## **WP(C).No. 5522 of 2019** ## **PETITIONER:** **SHAJAHAN AGED 29 YEARS S/O.ASHRAF, VILATHIVAYAL HOUSE, KOLAGAPPARA POST, AMBALAVAYAL VILLAGE, SULTHAN BATHERY TALUK, WAYANAD DISTRICT, PIN - 673 592.** **BY ADV. SRI.GEORGE VARGHESE KIZHAKKAMBALAM** ## **RESPONDENTS:** |**1**|**THE DISTRICT COLLECTOR**| |---|---| ||**OFFICE OF THE DISTRICT COLLECTOR,**| ||**KALPETTA, WAYANAD, PIN - 673 121.**| |**2**|**THE TAHASILDAR**| ||**SULTHAN BATHERY, WAYANAD, PIN - 673 592.**| **SRI K.P. HARISH , SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.5522/2019 -2- ## **JUDGMENT** The petitioner who is stated to the registered owner of a tipper lorry bearing Reg.No.KL-73/3816, which was confiscated under the provisions of Kerala Conservation of Paddy and Wetland Act, 2008 by Ext.P3 proceedings dated 28.06.2017 of the 1[st] respondent District Collector, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent to release vehicle bearing Registration No.KL-73/3816, as per the terms contained in Ext.P6 Government order. 2. Heard the learned Counsel for the petitioner and also the learned Senior Government Pleader appearing for the respondents. 3. Ext.P3 order dated 28.06.2017 of the 1[st] respondent District Collector confiscating the petitioner's tipper lorry is an order passed under Section 20 of the Kerala Conservation of Paddy and Wetland Act, 2008. As per Section 21 of the said Act, any person aggrieved by an order of confiscation under Section 20 of the Act, within thirty days from the date of communication W.P.(C)No.5522/2019 -3- of the order, appeal to the District Collector having jurisdiction over the area in which the articles were seized and the District Judge shall, after giving the parties a reasonable opportunity of the issuance of such order either confirming or amending the order against him. 4. In view of the statutory remedy available under Section 21 of the Conservation of Paddy and Wetland Act, 2008, the petitioner cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, either to challenge Ext.P3 order or seek any consequential direction, which will in effect amounts to interference with the order of confiscation. 5. In **Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603]** , the Apex Court held that nonentertainment 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 W.P.(C)No.5522/2019 -4- 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 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 W.P.(C)No.5522/2019 -5- 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 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 W.P.(C)No.5522/2019 -6- 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 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 W.P.(C)No.5522/2019 -7- 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 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." W.P.(C)No.5522/2019 -8- 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. In the instant case, the relief sought for is a writ of mandamus commanding the respondents to release the vehicle covered by Ext.P3 order of confiscation as per the terms contained in Ext.P6 Government order. 11. As can be seen from Ext.P3 order dated 28.06.2017, the petitioner's vehicle has been confiscated, alleging illegal transportation of river sand, in violation of the provisions under the Act. Ext.P6 Government order is in respect of compounding W.P.(C)No.5522/2019 -9- of offences, relating to illegal transportation of sand under the provisions of Mines and Mineral (Development and Regulation) Act and the Kerala Mines and Minerals (Prevention of illegal Mining, storage and Transportation) Rules, 2015 and also Kerala Minor Mineral Concession Rules, 2015. Therefore Ext.P6 Government Order has no application in the matter of confiscation of petitioner's vehicle. In such circumstances, this writ petition is dismissed as not maintainable, in view of the fact that Ext.P3 order of the 1[st] respondent is an order appealable under Section 21 of the Conservation of Paddy and Wetland Act, 2008 before the District Court; and without prejudice to the right, if any, of the petitioner to challenge the said order before the appropriate authority. **Sd/ANIL K.NARENDRAN JUDGE** sru W.P.(C)No.5522/2019 -10- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF CERTIFICATE OF REGISTRATION DATED 27/04/2014 OF THE VEHICLE BEARING REG.NO.KL-73-3816.** **EXHIBIT P2 TRUE COPY OF THE PETITION DATED 5/1/2017 FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT.** **EXHIBIT P3 TRUE COPY OF ORDER NO.L92015/8548/12(1) DATED 28/06/2017 OF THE FIRST RESPONDENT.** **EXHIBIT P4 PHOTOGRAPH SHOWING THE PRESENT CONDITION OF THE VEHICLE BEARING REG.NO.KL-73-3816.** **EXHIBIT P5 PHOTOGRAPH SHOWING THE PRESENT CONDITION OF THE VEHICLE BEARING REG.NO.KL-73-3816.** **EXHIBIT P6 TRUE COPY OF GOVERNMENT ORDER G.O.(MS) NO.51/2017/ID DATED 21/6/2017.** **RESPONDENT'S EXHIBITS:NIL**