WP(C) No. 6383 of 2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 12TH DAY OF MARCH 2019 / 21ST PHALGUNA, 1940** ## **WP(C).No. 6383 of 2019** ## **PETITIONERS:** **1 RAJESH.K.K., AGED 41 YEARS, S/O.KELAN, KANIYANKANDY HOUSE, KALLACHI.P.O., VADAKARA, KOZHIKODE DISTRICT, RC OWNER OF VEHICLE NO.KL-58-J-5988** - **2 RASAK, AGED 42 YEARS, S/O.AMMAD, KUNIYIL HOUSE, VARIKKOLI, NADAPURAM, KALLACHI.P.O., KOZHIKODE DISTRICT, RC OWNER OF VEHICLE NO.KL-58-E-8510.** - **3 ASOKAN.K.C., AGED 54 YEARS, S/O.BALAN, ASHIN NIVAS, CHERUVANCHERY.P.O., PATTIAM GRAMA PANCHAYATH, THALASSERY, KANNUR DISTRICT, PIN-670650. RC OWNER OF VEHICLE NO.KL-58-J-9316.** - **4 RATHEESH.V.P., AGED 42 YEARS, S/O.ANANDAN, VAYALAPARAMBATH HOUSE, CHERUVANCHERY.P.O, THALASSERY, KANNUR DISTRICT, PIN-670650. RC OWNER OF VEHICLE NO.KL-58-J-6612** - **5 SHAMJITH.T., AGED 31 YEARS, S/O.CHANDRAN.K.N., KANHIRAKKUNNUMMAL HOUSE, CHERUVANCHERY.P.O, THALASSERY, KANNUR DISTRICT, PIN-670650. RC OWNER OF VEHICLE NO.KL-59-G-7332.** - **6 JITHIN LAL, AGED 28 YEARS, S/O.PADHMANABHAN.K., SNEHATHEERAM, KANHIRAKKUNNU, CHERUVANCHERY.P.O., THALASSERY, KANNUR DISTRICT, PIN-670650. RC OWNER OF VEHICLE NO.KL-58-J-7625.** 2 WP(C)6383 OF 2019 **7 SUBEESH.P., AGED 31 YEARS, S/O.SURENDRAN.K.P, PONNATH HOUSE, CHERUVANCHERY.P.O., THALASSERY, KANNUR DISTRICT, PIN-670650. RC OWNER OF VEHICLE NO.KL-58-G-3251.** **8 SAJITH, AGED 32 YEARS, S/O.BALAN, PUTHALATH THAAZHKUNIYIL HOUSE, KADAVATHUR.P.O., THALASSERY, KANNUR DISTRICT, PIN-670676. RC OWNER OF VEHICLE NO.KL-58-C-3982.** - **9 VINESH.K., AGED 32 YEARS, S/O.BALAN, KUNNUMAL HOUSE, EAST KATHIRUR.P.O, THALASSERY, KANNUR DISTRICT. RC OWNER OF VEHICLE NO.KL-58-G-6512.** **BY ADVS. SRI.JACKSON JOHNY SRI.MUHAMMED YASIL** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, INDUSTRIES DEPARTMENT, THIRUVANANTHAPURAM-695001.** - **2 THE DISTRICT COLLECTOR, COLLECTORATE ROAD, KANNUR, PIN-670002.** - **3 STATION HOUSE OFFICER, KANNAVAM POLICE STATION, KANNUR DISTRICT-670001.** - **4 VILLAGE OFFICER, CHERUVANCHERY VILLAGE OFFICE, CHERUVANCHERY-670650.** - **5 THE GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY DISTRICT OFFICE, CIVIL STATION -E BLOCK, KANNUR-670002.** WP(C)6383 OF 2019 3 **6 ADDL.R6 - THE DEPUTY SECRETARY TO GOVERNMENT, INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. R6 IS SUO MOTU IMPLEADED AS PER ORDER DATED 12.03.2019.** **SRI MANURAJ K.J, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 4 WP(C)6383 OF 2019 ## **JUDGMENT** The petitioners, who are the registered owners of goods carriages covered by Exts.P1 to P1(h) certificates of registration, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P3 common order dated 23.12.2018 of the 2[nd] respondent District Collector, whereby they have been imposed with a fine of Rs.2 lakhs each, under Rule 29 of the Kerala Mineral (Prevention of Illegal Mining, Storage & Transportation) Rules, 2015, Rule 108(1) of the Kerala Minor and Mineral Concession Rules, 2015 and Section 21(2) of the Mines and Minerals (Development and Regulation) Act, 1957. 2. The petitioners were proceeded against under the aforesaid provisions, on account of seizure of their vehicles by the 4[th] respondent Village Officer and the 3[rd] respondent Station House Officer, vide Ext.P2 Seizure Mahazar dated 30.10.2018, alleging that the said vehicles were used for transportation of laterite stone from 'Navodaya Kunnu' in Resurvey No.137 of Cheruvanchery Village in Thalassery Taluk. The petitioners have also sought for a writ of mandamus commanding the 2[nd] respondent to consider Ext.P5 representation and to review Ext.P3 order, within a time limit 5 WP(C)6383 OF 2019 to be specified by this Court, with notice to the petitioners and after affording them an opportunity of being heard; a writ of mandamus commanding the respondents to compound the offences as per Ext.P4 Government Order dated 21.06.2017; and directing the 2[nd] respondent to release the petitioners' vehicles, which are seized as per Ext.P2 Seizure Mahazar. 3. On 01.03.2019, when this writ petition came up for admission, the learned Government Pleader sought time to get instructions. 4. Today, when the case is taken up for consideration, the petitioners have produced Ext.P6 appeal filed before the additional 6[th] respondent against Ext.P3 order dated 23.12.2018 of the 2[nd] respondent, by invoking the provisions under Rule 98 of the Kerala Mines and Minerals Concession Rules, 2015. 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 6 WP(C)6383 OF 2019 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 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 WP(C)6383 OF 2019 7 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. 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 8 WP(C)6383 OF 2019 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 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 9 WP(C)6383 OF 2019 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." 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 10 WP(C)6383 OF 2019 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, Ext.P3 order passed by the 2[nd] respondent is appealable before the additional 6[th] respondent under Rule 98(1)(a) of the Kerala Minor and Mineral Concession Rules, 2015. When such a statutory remedy is available under the Rule 98(1)(a), the petitioners cannot challenge Ext.P3 order before this Court, by invoking the writ jurisdiction under Article 226 of the Constitution of India. 11. The learned counsel for the petitioners would submit that the petitioners have filed this writ petition before this Court on 28.02.2019, challenging Ext.P3 order and now, on noticing the fact that the said order has to be challenged by filing a statutory appeal under Rule 98 of the Kerala Mines and Minerals Concession Rules, 2015, they have filed Ext.P6 appeal, which may be directed to be considered by the additional 6[th] respondent. WP(C)6383 OF 2019 11 12. The learned Government Pleader would submit that, if Ext.P6 appeal filed by the petitioners is in order and the petitioners have remitted the requisite fee, the additional 6[th] respondent shall consider that appeal and pass appropriate orders, with notice to the petitioners and after affording them an opportunity of being heard. 13. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of by directing the additional 6[th] respondent to consider and pass appropriate orders on Ext.P6 appeal filed by the petitioners against Ext.P3 order (if the same is in order and the petitioners have remitted the requisite fee), with notice to the petitioners and after affording them an opportunity of being heard. Necessary orders in this regard shall be passed, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment. The legal and factual contentions raised by the petitioners are left open to be raised before the additional 6[th] respondent at appropriate stages. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 12 WP(C)6383 OF 2019 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 A TRUE COPY REGISTRATION CERTIFICATE OF VEHICLE KL-58-J-5988 OF PETITIONER NO.1** **EXHIBIT P1 A A TRUE COPY REGISTRATION CERTIFICATE OF VEHICLE KL-58-E-8510 OF PETITIONER NO.2 EXHIBIT P1 B A TRUE COPY REGISTRATION CERTIFICATE OF VEHICLE KL-58-J-9316 OF PETITIONER NO.3** **EXHIBIT P1 C A TRUE COPY REGISTRATION CERTIFICATE OF VEHICLE KL-58-J-6612 OF PETITIONER NO.4** **EXHIBIT P1 D A TRUE COPY REGISTRATION CERTIFICATE VEHICLE KL-59-G-7332 OF PETITIONER NO.5 EXHIBIT P1 E A TRUE COPY REGISTRATION CERTIFICATE OF VEHICLE KL-58-J-7625 OF PETITIONER NO.6. EXHIBIT P1 F A TRUE COPY REGISTRATION CERTIFICATE OF VEHICLE KL-58-G-3251 OF PETITIONER NO.7.** - **EXHIBIT P1 G A TRUE COPY REGISTRATION CERTIFICATE OF VEHICLE KL-58-C-3982 OF PETITIONER NO.8** - **EXHIBIT P1 H A TRUE COPY REGISTRATION CERTIFICATE OF VEHICLE KL-58-G-6512 OF PETITIONER NO.9** **EXHIBIT P2 A TRUE COPY OF THE SEIZURE MAHAZAR PREPARED BY THE 4TH RESPONDENT DATED 30/10/2018. EXHIBIT P3 A TRUE COPY OF THE COMMON ORDER DATED 23/12/2018 ISSUED BY THE 2ND RESPONDENT.** WP(C)6383 OF 2019 13 |**EXHIBIT P4**|**A TRUE COPY OF THE G.O.**| |---|---| ||**(MS)NO.51/2017/ID DATED 21/06/2017**| ||**ISSUED BY THE 1ST RESPONDENT.**| |**EXHIBIT P5**|**A TRUE COPY OF THE REPRESENTATION**| ||**DATED 15/01/2019 SUBMITTED BEFORE THE**| ||**2ND RESPONDENT.**| |**EXHIBIT P6**|**A TRUE COPY OF THE APPEAL MEMORANDUM**| ||**AND AN INTERIM APPLICATION FILED**| ||**BEFORE THE DEPUTY SECRETARY AND**| ||**INDUSTRIES DEPARTMENT, GOVERNMENT OF**| ||**KERALA.**| |**EXHIBIT P7**|**A TRUE COPY OF THE POSTAL RECEIPTS**| ||**ADDRESSED TO THE DEPUTY SECRETARY**| ||**INDUSTRIES DEPARTMENT.**| ## **RESPONDENTS' EXHIBITS:NIL** **TRUE COPY** **P.A. TO JUDGE**