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K.H. Mouammed Ashraff, Proprietor Quilon Metal Industries, Kollam v/s The State of Kerala, Represented by Its Special Secretary, Industries Development, Govt. Secretariat, Thiruvananthapuram & Others

    W.P.(C). No. 3192 of 2021 (Y)

    Decided On, 09 February 2021

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN

    For the Petitioner: R. Rajasekharan Pillai, Sabina Jayan, Advocates. For the Respondents: R1-R4, A.C. Vidhya, Government Pleader.



Judgment Text

1. 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 1st 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 1st 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 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 1st 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 2nd 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 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 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 226.8. 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. 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 2nd 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 1st respondent. The 2nd respondent is the appellate authority as per Rule 24 of the Government Land (Allotment and Assignment for Industrial 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 dec

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ision 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 2nd 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.
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