Dismissed

Siby Jose, v. the Secretary

Kerala HC6 Mar 2019WP(C)/5373/2019

Case brief

AI extract

What is this about?

The petitioner challenged a municipality notice via Article 226, claiming unauthorized construction. The Court held that since an efficacious alternative remedy exists under the Kerala Municipalities Act, the writ petition was dismissed without adjudicating the merits of the construction claim.

What did the court decide?

The writ petition filed on 20.02.2019 is dismissed with directions to file an appeal before the Municipal Council under Section 509 of the Kerala Municipalities Act.

Siby Jose, Vs the Secretary — Municipal and Town Planning | 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 06TH DAY OF MARCH 2019 / 15TH PHALGUNA, 1940

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WP(C).No. 5373 of 2019

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PETITIONER:

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SIBY JOSE, AGED 52 YEARS, S/O.,LATE K.S.JOSEPH, RESIDING AT KOCHUPURAYIL HOUSE, VALLICHIRA.P.O, PALA-686574.

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BY ADV. SMT.LIZA P.CHERIAN

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RESPONDENT:

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THE SECRETARY, PALA MUNICIPALITY, PALA-686575.

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BY ADV.SUJITH MATHEW JOSE, SC, PALA MUNICIPALITY

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 5373 of 2019

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JUDGMENT

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The petitioner, who is in occupation of shop room Nos.G37, G38, G39, F10, F11, F12 and F13 in the Municipal Market Complex of the respondent Municipality, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P6 notice dated 12.02.2018 issued by the respondent Municipality and seeking a writ of mandamus commanding the respondent to consider Ext.P5 request dated 22.12.2018 and not to interfere in any manner the issuance of licences and other formalities for commencing the restaurant, after completing the proposed construction.

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On 22.02.2019, when this writ petition came up for admission, the learned Standing Counsel for Pala Municipality sought time to get instructions.

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Heard the learned counsel for the petitioner and also the learned Standing Counsel for the respondent Municipality.

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Going by the averments in the writ petition, the

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WP(C).No. 5373 of 2019

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petitioner who is a licencee of certain shop rooms in the Municipal Market Complex, is constructing canopy in front of the shop room No.G39. According to the petitioner, such construction is permitted as per the terms of Ext.P1 licence deed and that, there is also no violation of any statutory provisions.

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Ext.P6 notice, which is under challenge in this writ petition is appealable before the Municipal Council, in view of the provisions under sub-section (1) of Section 509 of the Kerala Municipalities Act, 1994. As per sub-section (5) of Section 509, an appeal has to be filed within thirty days from the date of receipt of such order.

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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 of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of

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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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7. In Authorised Officer, State Bank of

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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.,

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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 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

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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 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

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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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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 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

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[(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 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) KHC

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4) , a Full Bench of this Court held that, whenever an adverse order is passed against a person, unless the same is

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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 the decisions referred to supra , no interference is warranted on Ext.P6 notice, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, on the grounds raised in this writ petition.

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In view of the statutory remedy available under Section 509 of the Kerala Municipalities Act, 1994, if the petitioner is feeling aggrieved by Ext.P6 notice dated 12.02.2018, it is for him to file an appeal before the Municipal Council.

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In such circumstances, without prejudice to the right of the petitioner to challenge Ext.P6 notice dated 12.02.2018 before the Municipal Council, by filing an appeal under Section 509 of the Kerala Municipalities Act, this writ petition filed on 20.02.2019 is dismissed.

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Sd/- ANIL K. NARENDRAN JUDGE

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bpr

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	THE TRUE COPY OF DATED 28.12.2017.	THE RENT AGREEMENT
EXHIBIT P2	THE TRUE COPY OF 02.07.2018.	THE LETTER DATED
EXHIBIT P3	THE TRUE COPY OF 29.08.2018.	THE REPLY DATED
EXHIBIT P4	THE TRUE COPY OF	F.A.R.
EXHIBIT P5	THE TRUE COPY OF 22.12.2018.	THE LETTER DATED
EXHIBIT P6	THE TRUE COPY OF MUNICIPALITY.	THE NOTICE ISSUED BY

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RESPONDENT'S EXHIBITS: NIL

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//TRUE COPY//

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P.A. TO JUDGE

Siby Jose, v. the Secretary

Case brief

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Siby Jose, v. the Secretary

Case brief

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