In Commissioner Of Income Tax v. Chhabil

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 13TH DAY OF AUGUST 2019 / 22ND SRAVANA, 1941 WP(C).No.15166 OF 2019(U) PETITIONER : ELDHO.K.IAGED 48 YEARSS/O ITTOOP, KAPPADAKAMADATHIL HOUSE, MUDAKUZHA P.O., ERNAKULAM DISTRICT, PIN-683 546. BY ADV. SRI.PRAMOD KOCHUTHOMMEN.E. RESPONDENTS: 1MUDAKUZHA GRAMA PANCHAYATREPRESENTED BY ITS SECRETARY, MUDAKUZHA P.O., ERNAKULAM DISTRICT, PIN-683 546.REPRESENTED BY ITS SECRETARY, MUDAKUZHA P.O., ERNAKULAM DISTRICT, PIN-683 546. 2THE SECRETARYMUDAKUZHA GRAMA PANCHAYAT, MUDAKUZHA P.O., ERNAKULAM DISTRICT, PIN-683 546. 3THE KERALA STATE POLLUTION CONTROL BOARDREPRESENTED BY ENVIRONMENTAL ENGINEER, DISTRICT OFFICE (ERNAKULAM-II), PERUMBAVOOR, ERNAKULAM DISTRICT, PIN-683 542.REPRESENTED BY ENVIRONMENTAL ENGINEER, DISTRICT OFFICE (ERNAKULAM-II), PERUMBAVOOR, ERNAKULAM DISTRICT, PIN-683 542. 4DISTRICT COLLECTORCOLLECTORATE, KAKKANAD, ERNAKULAM-682 030.COLLECTORATE, KAKKANAD, ERNAKULAM-682 030. 5A.V.ELIASAGED 52 YEARSS/O VARKEY, ARACKAKUDY HOUSE, MUDAKUZHA P.O., ERNAKULAM DISTRICT, PIN-683 546. R1-2 BY SRI.R.RANJITH, SC, MUDAKUZHA GRAMA PANCHAYATR3 BY SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL BOARD, R5 BY ADV. SRI.T.A.UNNIKRISHNAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON13.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, who is residing with his family in a residential building bearing No.444 A in Ward No.12 ofthe 1[st] respondent Grama Panchayat, has filed this writpetition under Article 226 of the Constitution of India,seeking a writ of mandamus commanding respondents1 to 3 to take necessary legal action against the plasticpipe cutting and blending unit run by the 5[th]respondent in his property, within a time limit to befixed by this Court. The petitioner has also sought for awrit of mandamus commanding the 2[nd] respondent,who is the Secretary of the 1[st] respondent GramaPanchayat to issue a stop memo to the 5[th] respondentto close down the plastic pipe cutting and blending unitfunctioning in his property, within a time limit to befixed by this Court. 2. On 03.06.2019, when this writ petition came upfor admission, this Court issued urgent notice on admission by speed post to respondents 1, 2 and 5. The learned Standing Counsel took notice on admissionfor the 3[rd] respondent. The learned GovernmentPleader took notice on admission for the 4[th]respondent. This Court has directed that theEnvironmental Engineer of the 3[rd] respondent KeralaState Pollution Control Board at Perumbavoor or anyperson authorised by him shall inspect the pipe cuttingand blending unit of the 5[th] respondent and submit areport before this Court. 3. A report has been filed by the Environment Engineer, which was followed by a counter affidavit filedby respondents 1 and 2 and also that by the 5[th]respondent. Along with the report of the 3[rd]respondent, Ext.R3(a) consent to operate for pipebending unit of the 5[th] respondent is placed on record.Along with the counter affidavit filed by the 5[th]respondent, the consent to operate issued for runningthe poultry farm owned by the 5[th] respondent is placed on record. Ext.R5(b) is a copy of trade licence issued for running the pipe bending unit. The petitioner hasalso filed a reply affidavit to the counter affidavit filedby the 5[th] respondent. 4. As can be seen from the pleadings and 3. A report has been filed by the Environment Engineer, which was followed by a counter affidavit filedby respondents 1 and 2 and also that by the 5[th]respondent. Along with the report of the 3[rd]respondent, Ext.R3(a) consent to operate for pipebending unit of the 5[th] respondent is placed on record.Along with the counter affidavit filed by the 5[th]respondent, the consent to operate issued for runningthe poultry farm owned by the 5[th] respondent is placed on record. Ext.R5(b) is a copy of trade licence issued for running the pipe bending unit. The petitioner hasalso filed a reply affidavit to the counter affidavit filedby the 5[th] respondent. 4. As can be seen from the pleadings and materials on record, the 5[th] respondent has alreadyobtained consent to operate/trade licence for runninghis unit. Though the petitioner has raised variouscontentions on the illegalities in the consent/tradelicence granted to the 5[th] respondent, this Court findsthat all those issues can be raised before the statutoryauthorities, by filing appeals against the consent tooperate granted by the Pollution Control Board and alsothe trade licence granted by the Secretary of theGrama Panchayat. 5. In Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603], the Apex Courtheld that non-entertainment of a writ petition underArticle 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 HighCourt to grant relief under Article 226 of theConstitution of India, despite the existence ofalternative remedy. However, High Court must notinterfere if there is an adequate efficacious alternativeremedy available to the petitioner and he hasapproached the High Court without availing the same,unless he has made out an exceptional case warrantingsuch interference or there exists sufficient ground toinvoke the extraordinary jurisdiction under Article 226. 6. In Authorised Officer, State Bank ofTravancore v. Mathew K.C.[(2018) 3 SCC 85], theApex Court reiterated that the discretionary jurisdictionunder Article 226 of the Constitution of India is notabsolute but has to be exercised judiciously in thegiven facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 ofthe Constitution of India ought not to be entertained ifalternative statutory remedies are available, except incases falling within the well defined exceptions asobserved in Chaabil Das Agarwal's case (supra),i.e., where the statutory authority has not acted inaccordance with the provisions of the enactment inquestion or in defiance of the fundamental principles ofjudicial procedure, or has resorted to invoke theprovisions which are repealed, or when an order hasbeen passed in total violation of the principles ofnatural justice. After referring to the law laid down inThansingh Nathmal v. Superintendent of Taxes and Titaghur Paper MillsCompany Ltd. v. State of Orissa [(1983) 2 SCC433]the Apex Court held that High Court will notentertain a petition under Article 226 of theConstitution if an effective alternative remedy isavailable to the aggrieved person or the statute under which the action complained of contains a mechanism for redressal of grievance. Therefore, when a statutoryforum is created by law for redressal of grievances, awrit petition should not be entertained ignoring thestatutory dispensation. In such circumstances, this writ petition is which the action complained of contains a mechanism for redressal of grievance. Therefore, when a statutoryforum is created by law for redressal of grievances, awrit petition should not be entertained ignoring thestatutory dispensation. In such circumstances, this writ petition is disposed of, leaving open all legal and factualcontentions raised by both sides and relegating thepetitioner to avail statutory remedy against Exts.R3(a)and R5(a) consent to operate and Ext.R5(b) tradelicence before appropriate authorities. AV/17/8 Sd/- ANIL K.NARENDRAN, JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 THE TRUE COPY OF THE COMPLAINT DATED3.1.2019 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT, SECRETARYMUDAKUZHA GRAMA PANCHAYATH. EXHIBIT P2THE TRUE COPY OF THE COMPLAINT DATED4.1.2019 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.4.1.2019 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P3THE TRUE COPY OF REQUEST DATED 26.2.2019 FILED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT BEFORE THE 3RD RESPONDENT.26.2.2019 FILED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT BEFORE THE 3RD RESPONDENT. EXHIBIT P4THE TRUE COPY OF THE LETTER DATED 21.3.2019 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.21.3.2019 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXHIBIT P5THE TRUE COPY OF LETTER DATED 19.2.2019 ISSUED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT.19.2.2019 ISSUED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT. EXHIBIT P6 THE TRUE COPY OF THE COMPLAINT DATED10.5.2019 BEFORE THE 4TH RESPONDENT,DISTRICT COLLECTOR, ERNAKULAM.10.5.2019 BEFORE THE 4TH RESPONDENT,DISTRICT COLLECTOR, ERNAKULAM. EXHIBIT P7THE TRUE COPY OF THE LETTER DATED 20.5.2019 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.20.5.2019 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXHIBIT P8THE TRUE COPY OF THE DECISION NO.7(2) DATED 10.5.2019 PASSED BY THE IST RESPONDENT, PANCHAYATH.NO.7(2) DATED 10.5.2019 PASSED BY THE IST RESPONDENT, PANCHAYATH. RESPONDENT'S/S EXHIBITS: EXHIBIT R3 (A)TRUE COPY OF THE CONSENT TO OPERATE DATED 29.04.2019 ISSUED BY THE PCBDATED 29.04.2019 ISSUED BY THE PCB EXHIBIT R5 ATRUE COPY OF THE CONSENT TO OPERATE ISSUED ON 14/5/2019 BY THE ENVIRONMENTAL ENGINEER,KERALA STATE POLLUTION CONTROL BOARD,ERNAKULAMISSUED ON 14/5/2019 BY THE ENVIRONMENTAL ENGINEER,KERALA STATE POLLUTION CONTROL BOARD,ERNAKULAM EXHIBIT R5 B TRUE COPY OF THE LICENCE DATED 4/7/2019 ISSUED BY THE 2ND RESPONDENT.