Petitioners seeking to quash demand notices for D&O licence fees and penalties operated without a licence. The court dismissed the writ petition, holding the statutory appeal remedy under Section 509 was available and efficacious, and the petitioners failed to avail it within the time limit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
FRIDAY, THE 15TH DAY OF MARCH 2019/24TH PHALGUNA, 1940
WP(C).No. 4777 of 2019
PETITIONERS:
2 DR. V.N.CHANDRASEKHARAN, S/O. NARAYANA, POORNACHANDRIKA HOUSE, PERUMPALLY P.O., MULAMTHURUTHY, ERNAKULAM
BY ADV. SRI.DOMSON J.VATTAKUZHY
RESPONDENTS:
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 4777 of 2019 2
JUDGMENT
The petitioners 1 to 4, who are doctors by profession and petitioners 5 and 6, who are running diagnostic laboratories, after obtaining D&O licence from the first respondent Municipality, have filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Exts.P1 to P6 proceedings, dated 13.06.2018 issued by the first respondent, whereby a demand for payment of D&O licence fee is made for the year 2016-17 together with fine and late fee.
WP(C).No. 4777 of 2019 3
WP(C).No. 4777 of 2019 4
year 2016-17 and it was in such circumstances that the 1st respondent has issued Exts.P1 to P6 notices, demanding the defaulted D&O licence fee, together with fine and late fee. If the petitioners were feeling aggrieved by Exts.P1 to P6 notices, they could have very well invoked the statutory remedy of appeal provided under Section 509 of the Kerala Municipality Act, by approaching the appellate authority, within the time limit specified in the Statute.
Agarwal [(2014) 1 SCC 603] , the Apex Court held that nonentertainment 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.
WP(C).No. 4777 of 2019 5
8. 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 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 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
WP(C).No. 4777 of 2019 6
writ petition should not be entertained ignoring the statutory dispensation.
WP(C).No. 4777 of 2019 7
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.
"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
WP(C).No. 4777 of 2019 8
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."
The rule laid down in that passage was approved by the 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.
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.
WP(C).No. 4777 of 2019 9
time limit specified in that judgment, further proceedings pursuant to that notice shall be dropped.
In the result, this writ petition fails and the same is accordingly dismissed.
SD/-
ANIL K.NARENDRAN
JUDGE
DCS
WP(C).No. 4777 of 2019 10
APPENDIX
PETITIONER'S EXHIBITS:
| EXHIBIT P1 | TRUE COPY OF THE 1ST PETITIONER BY 13.06.2018 |
PROCEEDINGS ISSUED TO THE THE 1ST RESPONDENT DATED |
|---|---|---|
| EXHIBIT P2 | TRUE COPY OF THE 2ND PETITIONER BY 13.06.2018 |
PROCEEDINGS ISSUED TO THE THE 1ST RESPONDENT DATED |
| EXHIBIT P3 | TRUE COPY OF THE 3RD PETITIONER BY 13.06.2018 |
PROCEEDINGS ISSUED TO THE THE 1ST RESPONDENT DATED |
| EXHIBIT P4 | TRUE COPY OF THE 4TH PETITIONER BY 13.06.2018 |
PROCEEDINGS ISSUED TO THE THE 1ST RESPONDENT DATED |
| EXHIBIT P5 | TRUE COPY OF THE 5TH PETITIONER BY 13.06.2018 |
PROCEEDINGS ISSUED TO THE THE 1ST RESPONDENT DATED |
| EXHIBIT P6 | TRUE COPY OF THE 6TH PETITIONER BY 13.06.2018 |
PROCEEDINGS ISSUED TO THE THE 1ST RESPONDENT DATED |
| EXHIBIT P7 | TRUE COPY OF THE W.P(C)NO.30211/20 |
JUDGMENT IN 18 OF THIS HON'BLE COURT |
3 issues framed by the court
Whether the writ petition is maintainable under Article 226 given the availability of the statutory appeal remedy under Section 509 of the Kerala Municipality Act.
Whether the High Court has jurisdiction to entertain the writ petition when the petitioner failed to exhaust the statutory remedy within the prescribed time limit.
Whether the petitioner is entitled to equality and indulgence despite ignoring the statutory mandate and delaying payment of the demanded fees.
Colour shows how this judgement treated each authority
Commissioner of Income Tax v. Chhabil Das AgarwalRelied on¶7
Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603] · Who else cites this
Authorised Officer, State Bank of Travancore v. Mathew K.C.Relied on¶8
Authorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85] · Who else cites this
Commissioner of Income Tax v. Chhabil Das AgarwalReferred¶8
Chaabil Das Agarwal's case
Thansingh Nathmal v. Superintendent of TaxesRelied on¶89
Thansingh Nathmal v. Superintendent of Taxes [AIR 1964 SC 1419] · Who else cites this
Titaghur Paper Mills Company Ltd. v. State of OrissaRelied on¶810
Titaghur Paper Mills Company Ltd. v. State of Orissa [(1983) 2 SCC 433] · Who else cites this
Wolverhampton New Water Works Co. v. HawkesfordReferred¶10
Wolverhampton New Water Works Co. v. Hawkesford [(1859) 6 CBNS 336]
Neville v. London Express Newspaper Ltd.Referred¶10
Neville v. London Express Newspaper Ltd.[1919 AC 368]
Attorney General of Trinidad and Tobago v. Gordon Grant and Co.Referred¶10
Attorney General of Trinidad and Tobago v. Gordon Grant and Co. [1935 AC 532]
Secretary of State v. Mask and Co.Referred¶10
Secretary of State v. Mask and Co. [AIR 1940 PC 105] · Who else cites this
Pavithran V. State of KeralaRelied on¶11
Pavithran V. State of Kerala (2009 (4) KHC 4)
2 provisions across 2 enactments
Dr.P.Kuriososa et al.
The Piravom Municipality
The Secretary The Piravom Municipality
Anil K. Naren dran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
