Dismissed

Rajan v. the Kottayi Grama Panchayat

Kerala HC18 Jul 2019WP(C)/15961/2019

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a stop memo issued to close a clinical lab, holding that the petitioner had an efficacious alternative remedy under Section 276 of the Kerala Panchayat Raj Act and could not invoke Article 226 jurisdiction.

What did the court decide?

The writ petition was dismissed with the right to challenge the notice via the statutory remedy under Section 276 of the Kerala Panchayat Raj Act not affected.

Rajan Vs the Kottayi Grama Panchayat — Constitutional and Fundamental Rights | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

¶4

THURSDAY, THE 18TH DAY OF JULY 2019 / 27TH ASHADHA, 1941

¶5

WP(C).No.15961 of 2019

¶6

PETITIONER/S:

¶7

RAJAN, AGED 65 YEARS, S/O.RAMAN, KUNDANMARI, PULINELLI, KOTTAI, PALAKAKD.

¶8

BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)

¶9

RESPONDENT/S:

¶10

1 THE KOTTAYI GRAMA PANCHAYAT, KOTTAYI P.O., PALAKKAD 678 572, REPRESENTED BY ITS SECRETARY.

¶11

2 THE SECRETARY, THE KOTTAYI GRAMA PANCHAYT, KOTTAYI P.O., PALAKKAD 678 572.

¶12

3 ADDL.R3. THE SUPERINTENDENT OF POLICE, THRISSUR RANGE, SASHASTRA SEEMA BAL (SSB), THRISSUR - 680 001.

¶13

4 ADDL.R4. THE ASSISTANT ENGINEER (LSGD), THE KOTTAYI GRAMA PANCHAYAT, KOTTAYI P.O., PALAKKAD - 678 572.

¶14

R3 AND R4 ARE IMPLEADED AS PER ORDER DATED 26/6/19 IN I.A.NO.1/2019 IN WPC NO.15961/2019.

¶15

W.P.C.15961/2019

¶16

¶17

5 ADDL.R5.NOUSHAD P.S, SON OF P.M. SHAHUL HAMEED(LATE), AGED 36 YEARS, 9/258 VICTORY HOUSE, KOTTAYI, PALAKKAD DISTRICT. R5 IS IMPLEADED AS PER ORDER DATED 9/07/2019 IN IA 2/19 IN W.P.(C) 15961/2019. BY ADVS. GOVERNMENT PLEADER SRI.JACOB SEBASTIAN SMT.ANU JACOB SRI.K.V.WINSTON

¶18

OTHER PRESENT:

¶19

SRI MANU RAJ K.J-GOVERNMENT PLEADER

¶20

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.C.15961/2019

JUDGMENT

The petitioner is the owner in possession of a shop room bearing No.9/314 of Kottayi Grama Panchayat, where he is conducting a Clinical Lab by name RBL Lab, on the strength of Ext.P1 ownership certificate and Ext.P2 trade licence. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 stop memo dated 29.05.2019 issued by the 2^nd respondent, who is the Secretary of the 1^st respondent Grama Panchayat, whereby he has been directed to close down the Clinical Lab, on the ground that the building is in a dilapidated condition. Along with the writ petition, the petitioner has placed on record Ext.P3 photograph of the shop room, where he is conducting RBL Clinical Lab.

¶25

On 26.06.2019, when this writ petition came up

¶26

for consideration, this Court issued notice to respondents 1 and 2, returnable by 09.07.2019. The learned Government Pleader took notice on admission for respondents 3 and 4.

¶27

W.P.C.15961/2019

¶28

¶29

The shop room in question forms part of a two storied building. One of the legal heirs of the original owner of that building, got himself impleaded in this writ petition as additional 5^th respondent, by the order dated 09.07.2019 in I.A.No.2 of 2019. Along with the said interlocutory application he has produced the photograph of the building, as Annexure A1.

¶30

A counter affidavit has also been filed by the additional 3^rd respondent, the Superintendent of Police, Thrissur Range, opposing the reliefs sought for in this writ petition. As can be seen from the counter affidavit filed by the 3^rd respondent, the building in question is a dilapidated tiled building, more than 65 years old, situated about 100 meters away from Kottayi junction. A parallel college is functioning in the first floor of that building. About 65 students are attending classes for 'plus one' and 'plus two' and other business establishments are functioning in the ground floor. The photographs of the dilapidated building are placed on record as Ext.R3(b). Paragraphs 2 to 4 of the said counter affidavit read thus;

¶31

“2. It is submitted that a source report which was

¶32

W.P.C.15961/2019

¶33

¶34

submitted from this office to Superintendent of Police, Special Branch CID. Thrissur Range (Additional respondent in the Writ Petition) as No.1465/SBCID/19/PKD on 17.05.2019 was forwarded to 2^nd respondent for further necessary action. A true copy of the Communication dated 17.05.2019 is produced herewith and marked as Exhibit R3(a).

¶35

In the source report it was submitted that Eminence College (Parallel College) is functioning in the 1st floor of an approximately more than 65 years old dilapidated tiled building situated about 100 meters away from Kottayi Jn towards Peringottukurussi within Kottai Grama Panchayath. It was also mentioned in the source report that about 65 students are attending classes for Plus one & Plus Two in the above said Eminence College and lot of business establishments are functioning in the ground floor. It was mentioned in the source report that the building is in a dilapidated condition and is in the ownership of Sri.Noushad, S/o.Shahul Hameed, Victory House, Kottai and requested the addressee to initiate action to bring it to the notice of the concerned and to avert further incidents which might occur due to the falling of the dilapidated building considering the security point of view. The source report was submitted only by considering the extent of damage if the old tiled building collapses in the rainy season and if such a scenario occurs, it will be a big threat to the lives of the students of the said

¶36

W.P.C.15961/2019

¶37

¶38

college as well as that of ordinary general civic. A true copy of photograph of the building taken during the relevant time is produced herewith and marked as Exhibit R3(b).

¶39

The source report was submitted in accordance with section 21, 2(a) of Kerala Police Act, 2011. Section 21, 2 of Kerala Police Act, 2011 states that “the Government may create units or make special arrangements inter alia, for the following matters namely”.

¶40

(A) Collection of intelligence directly or indirectly affecting national security, security of the State, maintenance of Law and Order, maintenance of Public Safety, prevention of crime, security of vital installations and individuals facing grave threats from terrorists or extremists.” The source report was prepared and submitted well within the limits of Kerala Police Act, 2011 considering maintenance of law and order and maintenance of public safety with regard to the dilapidated tiled building.”

¶41

(underline supplied)

¶42

Heard the learned counsel for the petitioner, the

¶43

learned Government Pleader appearing for additional respondents 3 and 4 and Smt.Anu Jacob, learned counsel appearing for additional 5^th respondent. Despite service of notice, none appears for the 1^st respondent, Grama Panchayat and the 2^nd respondent Secretary of that Grama Panchayat.

¶44

W.P.C.15961/2019

¶45

¶46

In the order dated 18.06.2018 in W.P.(C) No.17195 of 2018, this Court noticed Circular No.1068103(3)/D.A.2/2016-LSGD dated 20.12.2016, whereby the Government has directed all Local Authorities in the State to take prompt action to ensure representation in the matters listed before this Court. Paragraphs 3 and 4 of the said order read thus;

¶47

“3. I felt it necessary to implead the State of Kerala, as an additional respondent in this case, since a number of instances have come to my notice where Secretaries of various Panchayats/Municipalities within the State fail to respond to notices issued to them from this Court, in writ petitions filed on behalf of the persons seeking deemed licenses for activities such as quarrying/crushing operations which have a significant impact on the environment. The absence of any representation on he part of the Panchayats/ Municipalities in such cases, inevitably leads to a situation where this Court is compelled to treat the averments in the writ petition as uncontroverted, and find that, in the absence of any order of rejection of the applications filed for the D&O Licence, or renewal thereof, the petitioner/applicant is entitled to the benefit of the deeming provision, and consequently a deemed licence for the activity in question. In taking such a view, this Court follows the precedents laid down in Rajesh Ramachandran v. Corporation of

¶48

W.P.C.15961/2019

¶49

¶50

Trivandrum [2008(3) KLT 419] , which was affirmed by a Division Bench in Sudhakaran v. Pallichal Grama Panchayat [2016(2) KLT 175] . Although a caveat is entered in all judgments, that it will be open to the local authority concerned, to take action for cancellation of the deemed licenses, in the event of their establishing that there is a violation of the conditions of the deemed licenses or a violation of the statutory provisions by the applicant concerned, the said safeguard may not be sufficient to ensure protection of the environment.

¶51

4. I note, in this connection, that the Government has, through a circular dated 20.12.2016, already directed the various local authorities in the State to take prompt action in such cases filed before this Court, and also ensure proper representation in such matters before this Court. Notwithstanding the said unambiguous instructions issued by the Local Self Government Department of the Government of Kerala, many instances have come to the notice of this Court, where the local authorities do not respond in a timely manner to the writ petitions filed before this Court. The additional 4 th respondent is therefore directed to cause an enquiry to be done in the matter, and furnish a report before this Court as regards instances where deemed licences for quarrying/crushing activities have been obtained by applicants, on account of the default occasioned by the Secretaries of the various Municipalities/Panchayats in the State, as observed

¶52

W.P.C.15961/2019

¶53

¶54

above. A fresh circular, on the same lines as the earlier circular dated 20.12.2016, may also be issued by the State Government, exhorting the Secretaries of the Municipalities/Panchayats to strictly comply with the directions therein and warning them of penal consequences in the event of default.” (underline supplied)

¶55

Pursuant to the directions contained in the order of

¶56

this Court dated 18.06.2018, the Government issued Circular No.358/D.A.2/2018 LSGD dated 02.07.2018. The said Circular reads thus;

¶57

"തദ�ശസ�യ�ഭരണ സ�പനങള� എത�ർ കക�ക��ക� ഫയൽ ള�യള�ട ന റ�ട$ ളപറ&ഷന ക��ൽ എത�ർ വ�ദ� നടത നത�ന പപസത ത തദ�ശസ�യ�ഭരണ സ�പങൾ ഒര സ�ൻഡ�ങ ക4ൺസ�ല�ളന � മതലദയൽ��ക കകദയ� അളല9ങ�ൽ ബഹ .ഹഹദക�ടത�യ�ൽ പപ�കട&സ ള�യ?ന അഡ�ദകറ$ മ ദ@ന റ�ട$ ളപറ&ഷന കൾ പര�ഗണ�ക �ദബ�ൾ അവര ളട വ�ദ� ഉനയ�ക നത�ന നടപട� സ�&കര�ക കയ � � മതലദയൽ��ചവർ ഹ�ജര�ക ന ളEന$ ഉറ�$ വര ത കയ � ള�യ?നത�ന നടപട� സ�&കര�ക�ൻ സF�ന (1) സർക ലർ പപക�ര� ന�ർദ�ശ� നലക�യ�ര ന . എന�ൽ ദമൽ ന�ർദ�ശ� തദ�ശസ�യ�ഭരണ സ�പങ��ളല ളസപകടറ�മ�ർ പ�ല�ക ന�ല9ളയന �

¶58

ആയത�ന�ൽ ബഹ .ഹഹദക�ടത� മ ൻപ�ളക വ�വ�ധ തദ�ശസ�യ�ഭരണ സ�പങള� എത�ർ കക�യ�ക� ഫയൽ ള�യത�ട?ള ദകസ ക��ൽ, ദക�ടത�യ�ൽ ഹ�ജര�ക�ന ള സമൻസ ലഭ�ച ദശഷവ � ഹ�ജര�ക�ത തദ�ശസ�യ�ഭരണ സ�പനങ��ളല ളസപകടറ�മ�ർളകത�ളര ശ�ക നടപട�കൾ സ�&കര�കണ� എന$ സF�ന (2) പപക�ര� ബഹ .ഹഹദക�ടത� ഉതരവ�യ�ട?E$.

¶59

ദമൽ സ�ഹ�രLത�ൽ സF�ന (1) സർക ലറ�ളല ന�ർദ�ശങൾ തദ�ശസ�യ�ഭരണ സ�പന ളസപകടറ�മ�ർ കർശനമ�യ� പ�ല�ദകEത�ളണന$ ന�ർദ�ശ�ക നദത�ളട�� തദ�ശസ�യ�ഭരണ സ�പനങള� എത�ർ കക�ക��ക� ഫയൽ ള�യള�ട ന ദകസ ക��ൽ ദക�ടത�യ�ൽ സമൻസ ഹ�ജര�ക�ന ള ലഭ�ച ദശഷവ �

¶60

W.P.C.15961/2019

¶61

¶62

ഹ�ജര�ക�ത തദ�ശസ�യ�ഭരണ സ�പനങ��ളല ളസപകടറ�മ�ർളകത�ളര വക �$തല ശ�ക� നടപട�കൾ സ�&കര�ച$ സർക�ര�ദലക$ റ�ദ��ർട$ ള�ദയEത�ളണന � ന�ർദ�ശ�ക ന .”

¶63

Despite the order of this Court dated 18.06.2018

¶64

in W.P.(C).No.17185 of 2018 and the Circular dated 02.07.2018 issued by the Government, respondents 1 and 2 have not chosen to enter appearance and engage a counsel in this matter. Such a conduct on the part of a Local Self Government Institution in a matter directly affecting public safety has to be deprecated in strongest terms and I do so.

¶65

In Circular No.358/D.A.2/2018 LSGD dated 02.07.2018,

¶66

it was made clear that any failure on the part of the Secretary of the Local Self Government Institution in contesting the matters listed before this Court, after receipt of notice has to be viewed seriously and appropriate action has to be taken against the Secretary. Therefore, it is for the Deputy Director of Panchayats, Palakkad to take necessary action in this regard, in terms of Circular dated 02.07.2018.

¶67

Exhibit P4 notice, which is under challenge in this writ petition is one issued by the 2^nd respondent, who is the Secretary of the Grama Panchayat, in exercise of his powers under the Kerala Panchayat Raj Act and the Rules made

¶68

W.P.C.15961/2019

¶69

¶70

thereunder. In view of the provisions under Section 276 of the Kerala Panchayat Raj Act, The petitioner can challenge Ext.P4 notice by invoking the statutory remedy, before the appropriate forum. The said fact is not in dispute.

¶71

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.

¶72

In Authorised Officer, State Bank of

¶73

W.P.C.15961/2019

¶74

¶75

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

¶76

W.P.C.15961/2019

¶77

¶78

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.

¶79

13. In Thansingh Nathmal's case (supra) a

¶80

Constitution Bench of the Apex Court held that, the jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily, the court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally

¶81

W.P.C.15961/2019

¶82

¶83

efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce for which the writ is claimed. The High Court does not, therefore, act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.

¶84

In Titaghur Paper Mills' case (supra) a ThreeJudge Bench of the Apex Court held that, the Orissa Sales Tax Act, 1947 provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226

¶85

W.P.C.15961/2019

¶86

¶87

of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Water Works Co. v. Hawkesford [(1859) 6 CBNS 336] at page 356 in the following passage:

¶88

"There are three classes of cases in which a liability may be established founded upon statute ..... But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it ..... the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to."

¶89

The rule laid down in that passage was approved

¶90

by the House of Lords in Neville v. London Express

¶91

Newspaper Ltd.[1919 AC 368] and has been reaffirmed by the Privy Council in Attorney General of Trinidad and

¶92

Tobago v. Gordon Grant and Co. [1935 AC 532] and

¶93

Secretary of State v. Mask and Co. [AIR 1940 PC 105] . It has also been held to be equally applicable to enforcement

¶94

W.P.C.15961/2019

¶95

¶96

of rights and has been followed by the Apex Court throughout.

¶97

In Pavithran V. State of Kerala (2009 (4) KHC 4) , a Full Bench of this Court held that, whenever an adverse order is passed against a person, unless the same is challenged before the appropriate forum, within the prescribed time limit, the said order will become final.

¶98

In view of the law laid down in the decisions referred to supra, conclusion is irresistible that the petitioner cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, in order to challenge Ext.P4 notice dated 29.05.2019 issued by the 2^nd respondent, on the grounds raised in this writ petition, in view of the statutory remedy available under Section 276 of the Kerala Panchayat Raj Act.

¶99

In such circumstances, this writ petition fails and the same is accordingly dismissed; however, without prejudice to the right of the petitioner to challenge Ext.P4 notice, by invoking the statutory remedy.

¶100

Registry shall forward a copy of this judgment to the

¶101

W.P.C.15961/2019

¶102

¶103

Director of Panchayats and also the Deputy Director of Panchayats, Palakkad for necessary action in terms of Circular dated 02.07.2018. The action taken report shall be filed before this Court, within a period of two months from this date.

¶104

Sd/-

¶105

ANIL K.NARENDRAN, JUDGE

W.P.C.15961/2019

APPENDIX

PETITIONER'S/S EXHIBITS: