Dismissed

Patrick Davis, v. Irinjalakuda Municipality

Kerala HC8 Mar 2019WP(C)/4123/2019

Case brief

AI extract

What is this about?

The Court dismissed a writ petition seeking to quash a reject order on a building permit application. It held that the writ jurisdiction under Article 226 could not be invoked as an alternative remedy against the impugned order, given the availability of a statutory appeal under Section 509 of the Kerala Municipality Act.

What did the court decide?

Writ petition dismissed; period of pendency excluded for computing limitation for statutory appeal.

Patrick Davis, Vs Irinjalakuda Municipality — Writ and Judicial Review | 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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FRIDAY ,THE 08TH DAY OF MARCH 2019 / 17TH PHALGUNA, 1940

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WP(C).No. 4123 of 2019

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PETITIONER :

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PATRICK DAVIS,AGED 50 YEARS LAPPAKKARAN HOUSE,RAMAKRISHNA IYER ROAD, IRINJALAKUDA-680121,THRISSUR DT.

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BY ADVS.

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SRI.K.G.BALASUBRAMANIAN SMT.AMBILY (PREMKUMAR)

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RESPONDENTS:

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1 IRINJALAKUDA MUNICIPALITY, REPRESENTED BY ITS SECRETARY,IRINJALAKUDA.P.O-680121, THRISSUR DISTRICT.

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2 THE SECRETARY(AGRICULTURAL OFFICER), LOCAL LEVEL MONITORING COMMITTEE,IRINJALAKUDA VILLAGE/PO -680121,THRISSUR DISTRICT.

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3 THE TAHSILDAR, MUKUNDAPURAM TALUK,THRISSUR-680001.

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4 STATE OF KERALA, REPRESENTED BY SECRETARY,MINISTRY OF REVENUE, SECRETARIAT,THIRUVANANTHAPURAM-695001.

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BY ADVS. SRI.K.K.CHANDRAN PILLAI (SR.) SMT.S.AMBILY

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BY SRI PAUL ABRAHAM VAKKANAL, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 4123 of 2019

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JUDGMENT

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The petitioner, who is stated to be the owner of 15 cents and 15 square links of dry land in Survey No.295/1 of Irinjalakkuda Village, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P5 order dated 20.12.2018 of the Secretary of the 1^st respondent Municipality and a writ of mandamus commanding the 1^st respondent to issue building permit as per BA 855/17-18 (mentioned in Exts.P4 and P5) in respect of the property covered by Exts.P1 to P3, in Survey No.295/1 of Irinjalakuda Village.

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On 12.02.2019, when this writ petition came up for admission, the learned Government Pleader and also the learned Standing Counsel for Thrissur Municipality were directed to get instructions.

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Heard the learned counsel for the petitioner, the learned Government Pleader for respondents 2 to 4 and also the learned Standing Counsel appearing for the 1^st

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WP(C).No. 4123 of 2019

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respondent Municipality.

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The sole issue that arises for consideration in this writ petition is as to whether Ext.P5 order of the Secretary of the 1^st respondent Municipality, whereby the application made by the petitioner for building permit stands rejected, warrants an interference of this Court, in exercise of the writ jurisdiction under Article 226 of the Constitution of India.

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The petitioner made an application for building permit in respect of the property referred to hererinbefore, which now stands rejected by Ext.P5 order dated 20.12.2018 issued by the Secretary of the 1^st respondent Municipality. The fact that Ext.P5 order of the Secretary of the 1^st respondent Municipality is appealable before the Municipal Council as per the provisions of subsection (1) of Section 509 of the Kerala Municipality Act, is not in dispute.

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In Commissioner of Income Tax v. Chhabil

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Das Agarwal [(2014) 1 SCC 603] , the Apex Court held

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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.

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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

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facts of a case and in accordance with law. The normal

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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

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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 Thansingh Nathmal's case (supra) a 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,

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which without being unduly onerous, provides an equally 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.

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9. In Titaghur Paper Mills' case (supra) a Three-

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Judge Bench of the Apex Court held that, the Orissa Sales

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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 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

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Wolverhampton New Water Works Co. v. Hawkesford [(1859) 6 CBNS 336] at page 356 in the following passage:

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"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."

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The rule laid down in that passage was approved by the

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House of Lords in Neville v. London Express Newspaper Ltd.[1919 AC 368] and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. [1935 AC 532] and Secretary of State v. Mask and Co. [AIR 1940 PC 105] . It has also been held to be equally applicable to enforcement of rights and has been followed by the Apex Court throughout.

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In Pavithran V. State of Kerala (2009 (4)

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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.

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Viewed in the light of the law laid down by this Court in the decisions referred to supra, conclusion is irresistible that the petitioner cannot challenge Ext.P5 order of the Secretary of the 1^st respondent Municipality, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, when a statutory remedy

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is available under Section 509 of the Kerala Municipality

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Act.

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The learned counsel for the petitioner would submit that immediately after receipt of Ext.P5 order dated 20.12.2018, the petitioner has moved this writ petition before this Court on 11.02.2019, and therefore, the period of pendency of this writ petition has to be excluded while computing the time limit prescribed under sub-section (5) of Section 509 of the Act for filing an appeal.

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In the result, this writ petition is dismissed as no interference is warranted on Ext.P5 order invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, in view of the statutory remedy available under sub-section (1) of Section 509 of the Municipality Act; however without prejudice to the right of the petitioner to challenge Ext.P5 order by filing an appeal under sub-section (1) of Section 509 of the Kerala Municipality Act before the Municipal Council. The period

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of pendency of this writ petition shall be excluded while computing the time limit prescribed in sub-section (5) of Section 509 of the Kerala Municipality Act for filing such appeal.

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All legal and factual contentions raised by the petitioner are left open to be raised before the appellate authority, at appropriate stage.

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Sd/-

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ANIL K.NARENDRAN, JUDGE

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AV/11/3

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