Kerala High Court

K.H.Mouammed Ashraff vs The State Of Kerala on 9 February, 2021

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

     TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942

                      W.P.(C) No.3192 OF 2021(Y)


PETITIONER:

               K.H.MOUAMMED ASHRAFF,
               AGED 72 YEARS,
               RESIDING AT PUTHEN PURACKAL,
               ERUVA,KAYAMKULAM,ALAPPUZHA DISTRICT,
               PROPRIETOR QUILON METAL INDUSTRIES,
               MUNDAKKAL DEVELOPMENT PLOT NO.36,
               KOLLAM DISTRICT.

               BY ADVS.
               SRI.R.RAJASEKHARAN PILLAI
               SMT.SABINA JAYAN

RESPONDENTS:

      1        THE STATE OF KERALA
               REPRESENTED BY ITS SPECIAL SECRETARY,
               INDUSTRIES DEVELOPMENT, GOVT.SECRETARIAT,
               THIRUVANANTHAPURAM-695 001.

      2        DIRECTOR OF INDUSTRIES AND COMMERCE,
               DIRECTORATE OF INDUSTRIES COMMERCE,
               VIKAS BHAVAN.P.O,
               THIRUVANANTHAPURAM, KERALA-695 033.

      3        THE GENERAL MANAGER,
               DISTRICT INDUSTRIES CENTRE,
               ASRAMAM, KOLLAM-691 002.

      4        THE TALUK INDUSTRIES OFFICER,
               ASRAMAM, KOLLAM-691 002.

      R1-R4    SMT.VIDHYA A.C., GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.3192 OF 2021(Y)
                                 -2-


                             JUDGMENT

The petitioner, who is running an industrial unit in plot No.36

of Mundakkal Industrial Development Area, has filed this writ

petition under Article 226 of the Constitution of India, seeking a

writ of certiorari to quash Ext.P5 order dated 22.01.2021 issued

by the 3rd respondent General Manager, District Industries Centre,

Kollam, whereby the land of that industrial unit is ordered to be

resumed for the reasons stated therein. The petitioner has also

sought for a writ of mandamus commanding the 1 st respondent

State to consider Ext.P6 appeal dated 01.02.2021 and pass

appropriate orders, after hearing the petitioner.

2. Heard the learned counsel for the petitioner and also

the learned Government Pleader appearing for the respondents.

3. The document placed on record as Ext.P6 is an appeal

filed by the petitioner before the 1 st respondent State, against

Ext.P5 order dated 22.01.2021 of the 3rd respondent.

4. The learned Government Pleader would point out Rule

24 of the Government Land (Allotment and Assignment for

Industrial Purposes) Rules, 2020, which provides that the allottee,

if aggrieved by the decision of General Manager, may file appeal,

before the Director of Industries and Commerce, within thirty days W.P.(C) No.3192 OF 2021(Y)

on receipt of a copy of resumption order and the Director shall

dispose of the appeal within thirty days.

5. The learned Government Pleader would submit that

Ext.P6 appeal filed before the 1 st respondent will be transmitted

forthwith to the 2nd respondent Director of Industries and

Commerce, who is the appellate authority and thereafter, the said

respondent will consider the same and pass appropriate orders

thereon, with notice to the petitioner and after affording him an

opportunity of being heard.

6. The learned counsel for the petitioner would point out

that as there is threat of dispossession based on Ext.P5 order,

immediate interference of the 2 nd respondent appellate authority is

highly essential.

7. 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 W.P.(C) No.3192 OF 2021(Y)

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.

8. 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. W.P.(C) No.3192 OF 2021(Y)

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.

9. In view of the law laid down in the decisions referred to

supra, when there is a statutory remedy of appeal provided under

Rule 24 of the Government Land (Allotment and Assignment for

Industrial Purposes) Rules, before the 2 nd respondent, the

petitioner cannot invoke the writ jurisdiction of this Court under

Article 226 of the Constitution of India in order to challenge

Ext.P5 order.

10. Feeling aggrieved by Ext.P5 order, the petitioner has

already filed Ext.P6 appeal before the 1 st respondent. The 2nd

respondent is the appellate authority as per Rule 24 of the

Government Land (Allotment and Assignment for Industrial W.P.(C) No.3192 OF 2021(Y)

Purposes) Rules.

In such circumstances, this writ petition is disposed of with

the following directions;

i) The 1st respondent shall forthwith transmit Ext.P6 appeal filed by the petitioner against Ext.P5 order dated 22.01.2021 of the 3rd respondent to the 2nd respondent Director of Industries and Commerce.

ii) Thereafter, the 2nd respondent Director of Industries and Commerce shall consider that appeal and take an appropriate decision thereon, with notice to the petitioner and after affording him an opportunity of being heard.

iii) The petitioner shall file an application for stay of operation of Ext.P5 order before the 2 nd respondent, along with a certified copy of this judgment, which shall be considered by the said respondent, with notice to the petitioner and take a decision thereon, within a period of one week.

iv) Status quo as on today shall be maintained for a period of 10 days from this date, so as to enable the petitioner to approach the 2nd respondent with an application for stay of operation of Ext.P5 order.