Sunil M.P. v. The State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 07TH DAY OF JUNE 2019 / 17TH JYAISHTA, 1941** ## **WP(C).No. 15595 of 2019** ## **PETITIONER:** **SUNIL.M.P, AGED 41 YEARS, S/O.LATE PREBHAKARAN, MECHERY HOUSE, KURIACHIRA P.O., NEGRU NAGAR, THRISSUR.** **BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)** ## **RESPONDENTS:** |**1**|**THE STATE OF KERALA,**| |---|---| ||**REPRESENTED BY CHIEF SECRETARY,**| ||**SECRETARIAT, THIRUVANANTHAPURAM- 695 001.**| |**2**|**THE JOINT REGIONAL TRANSPORT OFFICER,**| ||**REGIONAL TRANSPORT OFFICE, THRISSUR- 680 003.**| |**3**|**THE SECRETARY,**| ||**REGIONAL TRANSPORT AUTHORITY, CIVIL STATION,**| ||**THRISSUR- 680 003.**| |**4**|**THE THRISSUR CORPORATION,**| ||**THE OFFICE OF THE THRISSUR CORPORATION,**| ||**THRISSUR- 680 001, REP. BY ITS SECRETARY.**| ||**SRI. SANTHOSH P.PODUVAL, SC, THRISSUR CORPORATION**| ||**SRI MANU RAJ K.J - GOVERNMENT PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 15595 of 2019 2** ## **JUDGMENT** The petitioner is the registered owner of an autorickshaw bearing registration No.KL-08/BS-6557, covered by Ext.P3 certificate of registration and Ext.P4 contract carriage permit, whereby he has been permitted to ply the said autorickshaw in all fit roads of Thrissur district, subject to the condition that the said vehicle shall not park or pick up passengers from and within the city, with parking place at Marathakkara. The petitioner moved an application seeking variation of the conditions of permit in so far as the parking place is concerned, in order to change the parking place to Paramekkavu Temple. The said application now stands rejected by Ext.P5 order dated 11.04.2019 of the 3[rd] respondent. Feeling aggrieved, the petitioner is before this Court in this writ petition filed under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P5 order; a writ of mandamus commanding the 2[nd] respondent to issue permit to the petitioner's autorickshaw bearing registration No.KL-08/BS-6557. 2. The learned counsel for the petitioner would place reliance on Ext.P6 order of the State Transport Appellate Tribunal, ## **WP(C).No. 15595 of 2019 3** Ernakulam in MVAA No.408/2012, which is an order passed by the Tribunal in an appeal filed under Section 89 of the Motor Vehicles Act, 1988 against the order rejecting the application for variation of the conditions of a contract carriage permit of another autorickshaw. 3. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 3 and also the learned Standing Counsel for the 4[th] respondent Corporation. 4. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P5 order dated 11.04.2019 of the 3[rd] respondent, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. 5. Admittedly, Ext.P5 order of the 3[rd] respondent is appealable before the State Transport Appellate Tribunal, in view of the provisions under Section 89 of the Act. The said fact is not in dispute. 6. 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 ## **WP(C).No. 15595 of 2019 4** 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. 7. 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 ## **WP(C).No. 15595 of 2019 5** 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 entertained ignoring the statutory dispensation. 8. 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 ## **WP(C).No. 15595 of 2019 6** 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 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 ## **WP(C).No. 15595 of 2019 7** 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. 9. 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 ## **WP(C).No. 15595 of 2019 8** 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 been held to be equally applicable to enforcement of rights and has been followed by the Apex Court throughout. 10. In view of the law laid down in the decisions referred to supra, the petitioner cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, challenging Ext.P5 order dated 11.04.2019 of the 3[rd] respondent, on the grounds raised in this writ petition. In such circumstances, this writ petition filed on 06.06.2019 is dismissed for the aforesaid reason; however, without prejudice to **WP(C).No. 15595 of 2019 9** the right of the petitioner to challenge Ext.P5 order by filing a statutory appeal before the State Transport Appellate Tribunal, invoking the provisions under Section 89 of the Motor Vehicles Act, 1988. **Sd/ANIL K.NARENDRAN JUDGE** sru **WP(C).No. 15595 of 2019 10** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RATION CARD NO.1841068073.** **EXHIBIT P2 TRUE COPY OF THE OFFER LETTER TO THE PETITIONER ISSUED BY THE 4TH RESPONDENT. EXHIBIT P3 TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF THE VEHICLE BEARING REGISTRATION NO.KL 08 BS 6557.** **EXHIBIT P4 TRUE COPY OF THE CONTRACT CARRIAGE PERMIT OF THE VEHICLE BEARING REGISTRATION NO.KL 08 BS 6557.** **EXHIBIT P5 TRUE COPY OF THE ORDER NO.G 12/3691/19 R DATED 11.04.2019 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN M.V.A.A.NO.408/2012 OF THE STATE TRANSPORT APPELLATE TRIBUNAL, ERNAKULAM DATED 11.12.2012.**