Shihabudheen v. Revenue Divisional Officer / Sub Divisional Magistrate Kozhikode & The Sub Inspector of Police, Mukkom Police Station, Kozhikode District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 02ND DAY OF JULY 2019 / 11TH ASHADHA, 1941** ## **WP(C).No.12977 of 2019** ## **PETITIONER/S:** **SHIHABUDHEEN, AGED 27 YEARS S/O.ABDULLA, NAYIPOTTAMMAL HOUSE, UCHAKKAVU, KODIYATHOOR, KOZHIKODE DISTRICT.** **BY ADV. SRI.BABU S. NAIR** ## **RESPONDENT/S:** **1 THE REVENUE DIVISIONAL OFFICER/SUB DIVISIONAL MAGISTRATE, KOZHIKKODE, PIN - 673 001. 2 THE SUB INSPECTOR OF POLICE, MUKKOM POLICE STATION, KOZHIKKODE DISTRICT, PIN- 673 602.** ## **OTHER PRESENT:** **SRI.MANURAJ.K.J., GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- W.P.(C). No. 12977 of 2019 ## **JUDGMENT** The petitioner is stated to be the registered owner of a mini lorry bearing registration No.KL-10X/2981, which was seized by the second respondent on 15.07.2011, and registered Crime No. 241 of 2011 of Mukkom Police Station, alleging unauthorised transportation of river sand in violation of the provisions under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. According to the petitioner, at the time of seizure, the vehicle was transporting M-sand from a crusher unit. On receipt of notice, the petitioner appeared before the first respondent SubDivisional Magistrate/Revenue Divisional Officer and pointed out that the material transported is 'M-Sand' and not river sand and as such, the provisions under the Kerala Protection of River Banks and Regulation of Removal of Sand Act have no application. The petitioner made a request for interim custody of the vehicle and the same was granted on payment of 1/3[rd] of the value assessed by the competent authority. Accordingly, the petitioner remitted a sum of Rs.63,000/- on 16.09.2011 and got interim custody of the vehicle. Now the -3- W.P.(C). No. 12977 of 2019 petitioner has been issued with Ext.P1 order dated 28.12.2018 of the first respondent, whereby he has been directed to remit a sum of Rs.1,47,000/-, being the balance amount towards the value of the said mini lorry, in lieu of confiscation. Aggrieved by Ext.P1 order, the petitioner has filed this writ petition, under Article 226 of the Constitution of India, seeking a writ of certiorari to quash the said order dated 28.12.2018. 2. On 03.05.2019, when this writ petition came up for admission, the learned Government Pleader sought time to get instructions. 3. On 22.05.2019, when this writ petition came up for consideration, this Court noticed that one of the grounds raised in this writ petition is that Ext.P1 order is one passed in violation of the principles of natural justice. The learned Government Pleader sought time to get instructions. 4. The learned Government Pleader has made available for the perusal of this Court the file notes of Ext.P1 order dated 28.12.2018, which would show that, on 25.07.2018, the petitioner was represented by counsel before the first respondent. The matter was adjourned to 12.09.2018 -4- W.P.(C). No. 12977 of 2019 for counter. On 10.10.2018, a representative of the counsel was present and the mater was posted to 24.10.2018 for filing counter. Thereafter, on 24.10.2018, summons was issued to the petitioner with hearing date as 28.11.2018. On 12.12.2018, the petitioner was present before the first respondent and he claimed that the material transported in the vehicle was 'M-Sand' and that he is not having bills to substantiate the said fact. It was thereafter that the first respondent issued Ext.P1 order dated 28.12.2018. 5. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents. 6. The issue that arises for consideration in this petition is as to whether any interference is warranted on Ext.P1 order dated 28.12.2018 issued by the first respondent, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. 7. Ext.P1 order is one issued by the first respondent, in exercise of his power under Section 23A of the Act, which empowers the said respondent to order confiscation of the -5- W.P.(C). No. 12977 of 2019 sand, vehicle, etc. If a person is feeling aggrieved by an order of confiscation, he can avail the statutory revision provided under Section 23B of the Act before the District Collector and such revision has to be filed within fifteen days from the date of order of confiscation. As per the proviso to Section 23B, where the District Collector is satisfied that the revision petitioner had sufficient cause for not filing the revision within the time limit, he may condone the delay up to 15 days, but further delay shall not be condoned. 8. A reading of the provisions under Section 23B of the Act would make it expressly clear that a person, who is feeling aggrieved by an order of confiscation has to challenge it in a revision before the District Collector, within the time limit specified under Section 23B of the Act, and the District Collector is empowered under the proviso to Section 23B to condone the delay up to fifteen days. 9. In the instant case, the petitioner has not chosen to avail the statutory remedy against Ext.P1 order, within the time limit specified under Section 23B of the Act. The present writ petition is one filed on 02.05.2019, much after the expiry -6- W.P.(C). No. 12977 of 2019 of the time limit for filing a statutory revision under Rule 23B of the Act against Ext.P1 order. 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 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 -7- W.P.(C). No. 12977 of 2019 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 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 -8- W.P.(C). No. 12977 of 2019 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 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 -9- W.P.(C). No. 12977 of 2019 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. 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 -10- W.P.(C). No. 12977 of 2019 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." 14. 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. -11- W.P.(C). No. 12977 of 2019 15. 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. 16. One of the contentions raised in this writ petition, in order to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, is that Ext.P1 order is one passed in violation of the principles of natural justice, inasmuch as no notice has been issued to the petitioner nor he has been heard [see: Ground No.C]. However, the file notes of Ext.P1 order of the first respondent would show that initially the petitioner was represented by counsel. Thereafter, when summons was issued, the petitioner appeared before the first respondent. The presence of the petitioner on 12.12.2018, the date on which the matter was heard by the first respondent, is also reflected in Ext.P1 order. Therefore, the petitioner cannot contend that Ext.P1 order is one passed in violation of the principles of natural justice. 17. Another contention raised in the writ petition is -12- W.P.(C). No. 12977 of 2019 that, the findings of the first respondent in Ext.P1 order regarding illegal transportation of river sand is erroneous, since the petitioner was transporting 'M-Sand' at the time of seizure, which is outside the purview of the Act. 'M-Sand' (Manufactured Sand) is produced from granite stone by crushing. The said contention has been rightly rejected by the first respondent in Ext.P1 order, as the petitioner has not chosen to produce any material to prove transportation of 'MSand' in the vehicle in question. 18. In such circumstances, I find absolutely no grounds to interfere with Ext.P1 order of confiscation passed by the first respondent. 19. The learned counsel for the petitioner would submit that the petitioner had already paid a sum of Rs.63,000/- out of Rs.2,10,000/- fixed as the value of the vehicle, and that, by Ext.P1 he has been directed to remit the balance amount of Rs.1,47,000/-. According to the learned counsel, the first respondent arbitrarily fixed the value of the vehicle at Rs.2,10,000/-. 20. As can be seen from Ext.P1 order, such fixation of -13- W.P.(C). No. 12977 of 2019 value has been made by the first respondent, relying on the assessment made by the Regional Transport Officer. In the absence of any vitiating circumstances pointed out in the fixation of the value of vehicle in Ext.P1 order, no interference is warranted in exercise of the writ jurisdiction of this Court under Article 226 of the Constitution of India. In the result, the writ petition fails and the same is accordingly dismissed. **Sd/-** **ANIL K.NARENDRAN JUDGE** das -14- W.P.(C). No. 12977 of 2019 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 28/12/2018 ISSUED BY THE FIRST RESPONDENT AS ORDER NO.M.6944/13.**