Dismissed

Sreekumar.S v. Corporation of Thiruvananthapuram

Kerala HC24 Jul 2019WP(C)/13237/2019

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a writ petition by a small-scale food unit operator. The court held that the statutory remedy under Section 509 of the Kerala Municipality Act was available and efficacious. Furthermore, the petition was dismissed for abuse of process due to the petitioner's suppression of material facts regarding an undertaking to shift his business and prior non-compliance with

What did the court decide?

Writ petition dismissed; petitioner directed to challenge the rejection of its license renewal application via statutory remedy.

Sreekumar.S Vs Corporation of Thiruvananthapuram — Service and Employment | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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WEDNESDAY, THE 24TH DAY OF JULY 2019 / 2ND SRAVANA, 1941

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WP(C).No.13237 of 2019

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PETITIONER :

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SREEKUMAR.S AGED 50 YEARS T.C.NO.36/241(7) AMRITHA COOK, PERUMTHANNI, THIRUVANANTHAPURAM.

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BY ADVS. SRI.B.S.SWATHY KUMAR SMT.ANITHA RAVINDRAN

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RESPONDENTS:

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1 CORPORATION OF THIRUVANANTHAPURAM PALAYAM, THIRUVANANTHAPURAM-695 033 REPRESENTED BY ITS SECRETARY.

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2 THE HEALTH INSPECTOR SREEKANTESWARAM CIRCLE, CORPORTION OF THIRUVANANTHAPURAM, PALAYAM, THIRUVANANTHAPURAM-695 033.

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3 S.MANIKANDAN S/O. SREEKANDAN, T.C.36/240, GIRIJA NIVAS, PERUMTHANNI, VALLAKKADAVU P.O., THIRUVANANTHAPURAM695 008.

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BY ADVS.

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SRI.N.NANDAKUMARA MENON (SR.) SRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.13237 of 2019

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JUDGMENT

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The petitioner is conducting a small scale unit by name 'Amritha Cooks' in building No.36/241(7) at Perumthanni in Thiruvananthapuram District where rice is pounded to make 'dosa batter' and 'appam batter'. The unit is also engaged in making half-cooked Chappathi, Poori, etc. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P5 notice dated 19.03.2019 issued by the Health Officer of the 1^st respondent Corporation in Sreekanteswaram Circle. The petitioner has also sought for a declaration that he is legally entitled to continue the functioning of the unit, without any sought [sic: sort] of obstruction or hindrance from the respondents and that Ext.P5 is legally unsustainable and vitiated with violation of the mandatory provisions of the Rules and also the basic principles of natural justice, hence legally

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unsustainable and liable to be quashed; a writ of mandamus commanding respondents 1 and 2 to allow the petitioner to continue the functioning of the unit at least for a period of 8 months within which time he plans to shift the unit from its present place; and a writ of certiorari [sic: writ of mandamus] commanding respondents 1 and 2 to receive the renewal fee for the year 2019-20 from the petitioner and allow him to continue the functioning of the unit.

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On 23.05.2019, when this writ petition came up for admission, the learned Standing Counsel for the Thiruvananthapuram Corporation took notice on admission for respondents 1 and 2. This Court issued urgent notice on admission by speed post to the 3^rd respondent, returnable within two weeks. Respondents 1 and 2 were directed to file statement/counter affidavit.

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On 06.06.2019, the petitioner filed I.A.No.1 of

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2019 seeking an order to accept Exts.P6 and P7 as additional documents. Ext.P6 is a copy of the application dated 17.05.2019 submitted by the petitioner before the 1^st respondent for renewal of trade licence for the year 2019-20. The document marked as Ext.P7 is a copy of the receipt regarding advance collection of licence fee for the year 2019-20, amounting to Rs.750/-.

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On 20.06.2019, when the matter was taken up for consideration, the learned Standing Counsel for the 1^st respondent Corporation sought time to get instructions as to the present status of Ext.P6 application for trade licence, for the year 2019-20.

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On 24.06.2019, when this writ petition came up for consideration, the learned Standing Counsel for the 1^st respondent Corporation was directed to get specific instructions from the Secretary of the Corporation as to the action taken in pursuance of

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WP(C).No.13237 of 2019

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Ext.P5 notice dated 19.03.2019.

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On 28.06.2019, the learned Senior Counsel for the 1^st respondent Corporation submitted that the Secretary of the Corporation shall pass appropriate orders on Ext.P6 application for trade licence made by the petitioner, by 05.07.2019, with notice to the petitioner. This Court ordered that the petitioner shall be personally present in the office of the Secretary of the Corporation, on 05.07.2019 at 11.00 a.m.

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A statement has been filed by respondents 1 and 2 opposing the reliefs sought for in this writ petition. Along with that statement, Annexure-I order dated 09.07.2019 of the Secretary of the Corporation is placed on record.

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Heard the learned counsel for the petitioner and also the learned Standing Counsel for the Corporation, representing respondents 1 and 2. Despite service of notice, none appears for the 3^rd

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respondent.

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The pleadings and materials on record would show that the Health Officer of the 1^st respondent Corporation in Sreekanteswaram Circle issued Ext.P5 notice to the petitioner, while he was running the Unit by name 'Amritha Cooks' without necessary licence. As the functioning of the unit was causing water pollution in the locality, there were complaints from the local residents, based on which, the Health Inspector conducted an inspection and submitted a report and it is thereafter that the petitioner has been issued with Ext.P5 notice dated 19.03.2019.

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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

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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.

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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

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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

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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.

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In view of the provisions under Section 509 of the Kerala Municipality Act, 1994, the petitioner could have challenged Ext.P5 notice dated 19.03.2019 by availing the statutory remedy of appeal, by approaching the appropriate forum, within the time limit specified in the statute. Instead, he has moved this writ petition, on 06.05.2019, challenging Ext.P5 notice, invoking the writ jurisdiction under Article 226 of the Constitution of India. Moreover, the submission of Ext.P6 application by the petitioner on 17.05.2019 for renewal of licence, would make it explicitly clear that, as on the date of issuance of Ext.P5 notice, and

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even on the date of filing of this writ petition, he was running the unit without necessary licence. Therefore, no interference is warranted on Ext.P5 notice, in exercise of the writ jurisdiction under Article 226 of the Constitution of India, on the grounds raised in this writ petition.

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13. As discernible from the statement filed by respondents 1 and 2, the proceedings initiated against the petitioner is one based on a general order passed by the National Greens Tribunal, directing all Local Authorities to take stringent action against those persons responsible for water pollution by releasing filthy water, waste water, etc. into water bodies, streams, drains, etc. In the statement, it has also been stated that, on inspection it was found that the petitioner has been releasing filthy water and other waste water containing left over food articles, by connecting his work place to a public drain and finally

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releasing the waste water into 'Parvathy Puthanar Thodu'. Since the above action of the petitioner was in violation of the provisions under Sections 340, 340A and 340B of the Kerala Municipality Act, notice dated 08.03.2018 was issued to the petitioner to stop the business activities. Later, another notice dated 07.04.2019 was also issued to the petitioner to abate nuisance. The 3 rd respondent, who is a neighbour, filed complaint before the Kerala State Human Rights Commission as HRMP No.4603/2018/TBM-Trivandrum, against the petitioner. The petitioner informed the Human Rights Commission that he will shift the business to another place within three months. Recording the said submission, the Commission closed that complaint. However, the petitioner did not comply with that undertaking given before the Human Rights Commission. Later, the petitioner was issued with a notice dated 24.05.2018, directing him to stop the

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business. However, he did not comply with that notice. It was followed by another notice dated 25.04.2019, directing the petitioner to close down his workplace and report the matter to the Corporation within 24 hours. The said notice was also not complied with. In the statement it has also been stated that the online application made by the petitioner for licence for the year 2019-20 has already been rejected by the Corporation, after conducting a personal hearing on 28.06.2019.

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14. Though in paragraph 2 of the writ petition, the petitioner has mentioned about the proceedings before the Human Rights Commission, he has suppressed the factum of closure of that complaint based on an undertaking given by him to shift the unit to another place, within three months from that date, so also the issuance of various notices by the Corporation, invoking the provisions under Section 340

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of the Kerala Municipality Act, which deals with prohibition of throwing rubbish or filth into public places; Section 340A, which deals with prohibition of deposit of rubbish, filth or excreta in water bodies and water sources; etc. Paragraphs 2 and 3 of the statement of facts in this writ petition read thus;

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“2. The petitioner is residing to the immediate west of the Unit, the 4^th respondent resides on the southern side of the unit at a distance 50 meters, till date nobody has ever raised any objection or complaint against the functioning of the unit. The unit is being conducted complying with all the measures to protect the environment causing no nuisance of any kind to the people of the locality. The 3^rd respondent who is a relative of the petitioner has recently turned hostile towards him for the reason that the petitioner purchased a house and property from the uncle of the 3^rd respondent on which the 3^rd respondent had an eye. Due to this animosity a complaint was filed by the 3^rd respondent before the respondents 1 and 2 and also before the Human Rights Commission. The Human Rights Commission issued a notice dated 3.9.2018 calling upon the petitioner to appear in person on 17.9.2018 and offer explanation to the

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complaint a copy of which was enclosed along with, since the copy of the complaint is inlegible and unreadable the same is not produced before this Hon'ble Court. The gist of the complaint is that the water from the unit flows into the public drain causing obnoxious smell and blocking free flow of water through the drain. The petitioner filed a reply before the commission stating the true facts and informing that he propose to shift his unit to Pravachambalam were a new building for the unit is to be constructed at his own property. The petitioner is not having the copy of the said explanation, hence unable to produce before this Hon'ble Court.

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3. After the receipt of notice from the Human Rights Commission there has been no communications from respondents 1 and 2 till date. It is understood that the Human Rights Commission has written to the 2 nd respondent to take action against the petitioner's unit. Now on 3.5.2019, a peon from the 1 st respondent came in person and served a copy of an order No.H.15/64522/13 dated 19.3.2019 styled itself as a notice directing the closure of the unit within 24 hours of the receipt of the order stating that the 2 nd respondent has filed a report ref: to as 2 nd paper that he has issued prosecution notices to the petitioner several times and that the water from

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the unit is being flowed to the road. True copy of the order No.H.15/64522/13 dated 19.3.2019 is produced herewith and marked as Exhibit P5.” (Underline supplied)

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In Prestige Lights Limited v. State Bank

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of India [(2007) 8 SCC 449] the Apex Court held that a prerogative remedy is not a matter of course. Therefore, in exercising extraordinary power, a Writ Court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, the Court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the Writ Courts would become

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impossible.

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16. In Prestige Lights' case (supra) the Apex

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Court held further that, under Article 226 of the Constitution of India, the High Court is exercising discretionary and extraordinary jurisdiction. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter.

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In K.D. Sharma v. Steel Authority of

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India Ltd. [(2008) 12 SCC 481] , the Apex Court held that the party who invokes the extraordinary jurisdiction of the Apex Court under Article 32 or of a

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High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play 'hide and seek' or to 'pick and choose' the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of Writ Courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because, "the Court knows law but not facts".

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In K.D. Sharma's case (supra) , the Apex Court held further that, if the primary object as highlighted in R. v. Kensington Income Tax Commissioners [1917 (1) KB 486] is kept in mind,

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an applicant who does not come with candid facts and 'clean breast' cannot hold a writ of the Court with 'soiled hands'. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the Court, the Court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the Court does not reject the petition on that ground, the Court would be failing in its duty. In fact, such an applicant requires to be dealt with for Contempt of Court for abusing the process of the Court.

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19. Therefore, it is well settled that, a litigant

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who invokes the extraordinary jurisdiction of this Court under Article 226 of the Constitution must come with clean hands and clean objects. The judicial proceedings are sacrosanct, and no person would be allowed to abuse the judicial process, particularly, in public law remedy. In writ proceedings, the Court places implicit faith on the parties and their pleadings, as it does not indulge in any fact finding or roving enquiry of what has been asserted. Since Article 226 of the Constitution of India espouses equity jurisprudence, a litigant who has approached the Court with unclean hands, without disclosing full facts, is not entitled for any reliefs.

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20. The petitioner has filed this writ petition suppressing material facts from the notice of this Court. The petitioner, after giving an undertaking before the Human Rights Commission that he will shift the unit to another place within three months from

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that date, has chosen to approach this Court, by invoking the writ jurisdiction under Article 226 of the Constitution of India, on 06.05.2019, much after the expiry of the period, seeking an order to function the unit at least for a period of 8 months, stating that, within that time, he plans to shift the unit from its present location. As held by the Apex Court in K.D.Sharma's case (supra) , an applicant who does not come with candid facts and 'clean breast' cannot hold a writ of the Court with 'soiled hands'. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction.

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Therefore, the challenge made in this writ petition against Ext.P5 notice fails on the above ground as well. Now, as can be seen from the statement filed by respondents 1 and 2 and also Annexure-I order dated

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09.07.2019, the online application made by the petitioner for renewal of trade licence has already been rejected by the Secretary of the 1^st respondent Corporation. Therefore, it is for the petitioner to challenge that order and also Annexure A1 order, invoking the statutory remedy, if so advised, in appropriate proceedings, before the appropriate forum. Without prejudice to the aforesaid right of the petitioner, this writ petition is dismissed.

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Sd/-

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ANIL K.NARENDRAN, JUDGE

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AV/24/7

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE RECEIPT NO.08224610 ISSUED BY THE IST RESPONDENT.
EXHIBIT P2	THE TRUE COPY OF THE INTEGRATED CONSENT TO OPERATE-RENEWAL DATED 21.7.2017 BY THE POLLUTION CONTROL BOARD.
EXHIBIT P3	TRUE COPY OF THE LICENSE ISSUED BY THE DEPARTMENT OF FACTORIES & BOILERS DATED 5.2.2015.
EXHIBIT P4	TRUE COPY OF THE LICENSE ISSUED BY THE FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA DATED 18.5.2017.
EXHIBIT P5	TRUE COPY OF THE NOTICE NO.H.15/64522/13 DATED 19.3.2019 ISSUED BY THE IST RESPONDENT.
EXHIBIT P6	TRUE COPY OF APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT
EXHIBIT P7	TRUE COPY OF THE INTERNET PAYMENT RECEIPT ISSUED BY THE 1ST RESPONDENT DATED 17-5- 2019

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RESPONDENTS'S EXHIBITS

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ANNEXURE-I THE PHOTOSTAT COPY OF THE ORDER NO.H15/38739/19 DATED 9-7-2019 ISSUED BY THE SECRETARY, CORPORATION OF THIRUVANANTHAPURAM

Sreekumar.S v. Corporation of Thiruvananthapuram

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Sreekumar.S v. Corporation of Thiruvananthapuram

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