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2019 DIGILAW 651 (KER)

Eldho v. Mudakuzha Grama Panchayat

2019-08-13

ANIL K.NARENDRAN

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JUDGMENT : 1. The petitioner, who is residing with his family in a residential building bearing No.444A in Ward No.12 of the 1st respondent Grama Panchayat, has filed this Writ Petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 to 3 to take necessary legal action against the plastic pipe cutting and blending unit run by the 5th respondent in his property, within a time limit to be fixed by this Court. The petitioner has also sought for a writ of mandamus commanding the 2nd respondent, who is the Secretary of the 1st respondent Grama Panchayat to issue a stop memo to the 5th respondent to close down the plastic pipe cutting and blending unit functioning in his property, within a time limit to be fixed by this Court. 2. On 03.06.2019, when this Writ Petition came up for admission, this Court issued urgent notice on admission by speed post to respondents 1, 2 and 5. The learned Standing Counsel took notice on admission for the 3rd respondent. The learned Government Pleader took notice on admission for the 4th respondent. This Court has directed that the Environmental Engineer of the 3rd respondent Kerala State Pollution Control Board at Perumbavoor or any person authorised by him shall inspect the pipe cutting and blending unit of the 5th respondent and submit a report before this Court. 3. A report has been filed by the Environment Engineer, which was followed by a counter affidavit filed by respondents 1 and 2 and also that by the 5th respondent. Along with the report of the 3rd respondent, Ext.R3(a) consent to operate for pipe blending unit of the 5th respondent is placed on record. Along with the counter affidavit filed by the 5th respondent, the consent to operate issued for running the poultry farm owned by the 5th respondent is placed on record. Ext.R5(b) is a copy of trade licence issued for running the pipe blending unit. The petitioner has also filed a reply affidavit to the counter affidavit filed by the 5th respondent. 4. As can be seen from the pleadings and materials on record, the 5th respondent has already obtained consent to operate/trade licence for running his unit. Ext.R5(b) is a copy of trade licence issued for running the pipe blending unit. The petitioner has also filed a reply affidavit to the counter affidavit filed by the 5th respondent. 4. As can be seen from the pleadings and materials on record, the 5th respondent has already obtained consent to operate/trade licence for running his unit. Though the petitioner has raised various contentions on the illegalities in the consent/trade licence granted to the 5th respondent, this Court finds that all those issues can be raised before the statutory authorities, by filing appeals against the consent to operate granted by the Pollution Control Board and also the trade licence granted by the Secretary of the Grama Panchayat. 5. 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. 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. 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 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. In such circumstances, this Writ Petition is disposed of, leaving open all legal and factual contentions raised by both sides and relegating the petitioner to avail statutory remedy against Exts.R3(a) and R5(a) consent to operate and Ext.R5(b) trade licence before appropriate authorities.