SHIBU Vs. STATE OF KERALA

JUDGEMENT

(1.) Against the petitioner an order under S.15(1) of the Kerala Anti Social Activities (Prevention) Act, 2007 (hereinafter referred to as the 'KAAPA') has been passed by the 2nd respondent. Ext. P3 is the said order of restraint passed under S.15(1) of the KAAPA. That reveals that show cause notice was issued to the petitioner. He was given opportunity to make his representation. He was heard and it was thereafter that the impugned order Ext. P3 was passed.

(2.) The petitioner claims to be aggrieved by Ext. P3 order. He has rushed to this Court with this Writ Petition under Art.226 of the Constitution of India. It is a well recognised self imposed rule of orderly procedure consistently followed by Constitutional Courts that though the sweep of the powers under Art.226 of the Constitution is wide, such powers, in the absence of exceptional and compelling reasons, shall not be invoked when an equally efficacious and alternative remedy is available to the aggrieved party. We see that the petitioner has an equally efficacious alternative remedy to challenge the impugned order under S.15(2) of the KAAPA. Of course S.15(2) of the KAAPA does not use the expression 'appeal'. But, only states that a representation can be made to the Advisory Board duly constituted under S.8 of the KAAPA. We extract S.15(2) of the KAAPA below:

(3.) Though the right to challenge is couched in the expression 'representation', it is evident that the Advisory Board constituted under S.8 of the KAAPA is obliged to consider such representation in challenge and has the legal competence to 'annul, amend or confirm' the order. In these circumstances, we take the view that though the expression 'appeal' is not employed in S.15(2) of the KAAPA there is an effective right for the aggrieved to challenge an order of restraint passed under S.15(1), before a duly constituted Advisory Board under S.8 of the Kerala Anti Social Activities (Prevention) Act, 2007 (hereinafter referred to as the 'KAAPA'), under S.15(2) of the KAAPA. The Legislature in its anxiety to ensure expedition has also stipulated that the Advisory Board is obliged to dispose of such challenge within a period of 30 days from the receipt thereof. By no stretch of imagination can it be held that S.15(2) of the KAAPA does not offer to the aggrieved an effective, efficacious and alternative remedy.