Kirankumar vs State Of Kerala And Ors

The petitioner, who was allotted a plot having an extent of 25 cents in Sy.No.366/2 of Puthussery Central Village, in the New Industrial Development Area, Kanjikode on the strength of Ext.P1 allotment letter dated 25.01.2018 issued by the 3rd respondent General Manager, District Industries Centre, Palakkad, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P15 proceedings dated 18.12.2020 issued by the 3rd respondent, ordering resumption of the said land. The petitioner has also sought for a writ of mandamus commanding the 2nd respondent Director of Industries and Commerce to consider Ext.P16 appeal and pass appropriate orders.

Heard the learned counsel for the petitioner and also the learned Government Pleader for the respondents.

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.

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.

Feeling aggrieved by Ext.P15 order of resumption, the petitioner has already moved a statutory appeal before the 2nd respondent Director of Industries and Commerce, which is pending consideration. In view of the statutory remedy of appeal available against Ext.P15 order, the petitioner cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India in order to challenge that order.

The learned counsel for the petitioner would submit that Ext.P16 appeal filed by the petitioner against Ext.P15 order is pending consideration before the 2nd respondent appellate authority. During the pendency of that appeal, steps are being taken to implement Ext.P15 order.

The learned Government Pleader would submit that, if Ext.P16 appeal filed by the petitioner is in order and the same is still pending consideration, the 2nd respondent shall consider the same and pass appropriate orders thereon, with notice to the petitioner and after affording him an opportunity of being heard. If any application for interim relief is filed, that application shall also be considered by the 2nd respondent.

Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of by directing the 2nd respondent to consider and pass appropriate orders on Ext.P16 appeal filed by the petitioner against Ext.P15 order dated 18.12.2020 of the 3rd respondent, if that appeal is in order and the same is still pending consideration, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment, after affording the petitioner an opportunity of being heard.

In case, the petitioner files an application in Ext.P16 appeal seeking interim relief against Ext.P15, within one week from the date of receipt of a certified copy of this judgment, the 2nd respondent shall consider the same and pass appropriate orders, within a period of one week from the date of receipt of such application. Legal and factual contentions raised by the petitioner are left open to be raised before the 2nd respondent, at appropriate stage.