Abdul Saleem V.P. v. The Sulthan Bathery Municipality and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 28TH DAY OF JUNE 2019 / 7TH ASHADHA, 1941** ## **WP(C).No.17496 of 2019** ## **PETITIONER :** **ABDUL SALEEM V.P., AGED 54 YEARS EDAN HOUSE, KOTTOOLY, KUTHIRAVATTOM P.O., KOZHIKODE DISTRICT, PIN - 673 016.** **BY ADVS. SRI.T.R.HARIKUMAR SRI.ADITHYA RAJEEV SRI.ARJUN RAGHAVAN** ## **RESPONDENTS:** |**1**|**THE SULTHAN BATHERY MUNICIPALITY,**| |---|---| ||**REPRESENTED BY ITS SECRETARY, SULTHAN BATHERY,**| ||**WAYANAD, PIN - 673 592.**| |**2**|**THE SECRETARY, SULTHAN BATHERY MUNICIPALITY,**| ||**SULTHAN BATHERY, WAYANAD, PIN - 673 592.**| |**3**|**THE MUNICIPAL COUNCIL,**| ||**SULTHAN BATHERY MUNICIPALITY, REPRESENTED BY ITS**| ||**CHAIRMAN, SULTHAN BATHERY, WAYANAD, PIN- 673 592.**| ||**BY ADV. SRI.T.V.JAYAKUMAR NAMBOODIRI**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.17496 of 2019** **2** ## **JUDGMENT** The petitioner, who is stated to be the Managing Partner of a hotel by name 'Solar Live Restaurant & Fast Food' functioning in Room No.20/651 in the building situated in Re-Sy.No.243/19, Block No.16 of Kuppady Village in Sulthan Bathery Taluk, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P8 notice dated 21.06.2019 issued by the 2[nd] respondent Secretary of the 1[st] respondent Municipality, whereby he has been informed that since he is conducting the hotel without obtaining or applying for license from the 1[st] respondent Municipality, he has to make necessary application to obtain such license, within a period of seven days from the receipt of that notice and on failure of which, the hotel shall be closed down and the petitioner has to face penal actions. The petitioner has also sought for a declaration that the **WP(C).No.17496 of 2019** **3** aforesaid hotel has obtained deemed license and can be permitted to function. 2. On 27.06.2019, when this writ petition came up for admission, the learned Standing Counsel for the respondent Municipality, on instructions, submitted that the petitioner is yet to make an application for renewal of trade licence. The learned counsel for the petitioner sought adjournment and accordingly, the matter is listed today for consideration. 3. Heard the learned counsel for the petitioner and also the learned Standing Counsel appearing for the Municipality, representing respondents 1 to 3. 4. Today, when the case is taken up for consideration, the learned counsel for the petitioner would submit that the petitioner proposes to file an application for renewal of trade license by tomorrow (29.06.2019). 5. The sole issue that arises for consideration in this writ petition is as to whether any interference is **WP(C).No.17496 of 2019** **4** warranted on Ext.P8 notice issued by the 2[nd] respondent, in exercise of the writ jurisdiction of this Court under Article 226 of the Constitution of India. 6. Having considered the pleadings and materials on record and also the submissions made by the learned counsel on both sides, this Court finds that, by Ext.P8 notice, the petitioner has only been asked to submit an application for license to run the hotel, within the time limit specified therein. The petitioner was also informed that if he is running the hotel without obtaining necessary licence, he will have to face the penal consequences. 7. If the petitioner is feeling aggrieved by Ext.P8 notice issued by the 2[nd] respondent, who is the Secretary of the 1[st] respondent Municipality, it is for him to challenge the same in an appeal filed under Section 509 of the Kerala Municipality Act, 1994 before the appropriate forum. If, as a matter of fact, the petitioner is running the hotel without a valid **WP(C).No.17496 of 2019** **5** license, he cannot have any grievance on Ext.P8 notice. ## 8. 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 **WP(C).No.17496 of 2019** **6** Article 226. 9. 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. **WP(C).No.17496 of 2019** **7** 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. 10. 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 **WP(C).No.17496 of 2019** **8** 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 trench upon an **WP(C).No.17496 of 2019** **9** 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. ## 11. In _**Titaghur Paper Mills' case (supra)**_ a Three-Judge 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 **WP(C).No.17496 of 2019** **10** 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: "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." 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 **WP(C).No.17496 of 2019** **11** to be equally applicable to enforcement of rights and has been followed by the Apex Court throughout. 12. 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. 13. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the petitioner cannot challenge Ext.P8 notice of the Secretary of the 1[st] respondent Municipality, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, on the grounds raised in this writ petition, when a statutory remedy is available under Section 509 of the Kerala Municipality Act. In such circumstances, this writ petition filed on 26.06.2019, is dismissed for the aforesaid reason; **WP(C).No.17496 of 2019** **12** however without prejudice to the right of the petitioner to challenge Ext.P8 notice of the 2[nd] respondent by invoking the statutory remedy available under Section 509 of the Municipality Act, and without prejudice to his right to submit an application for renewal of trade license and pursue that application. Sd/- **ANIL K.NARENDRAN, JUDGE** AV/28/6 **WP(C).No.17496 of 2019** **13** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE PARTNERSHIP DEED DATED 19/03/2019 EXECUTED BETWEEN THE PETITIONER AND MR.ASHRAF K.** - **EXHIBIT P2 A TRUE COPY OF THE LICENSE DATED 08/11/2017 ISSUED BY THE 2ND RESPONDENT FOR THE YEAR 2017-2018.** - **EXHIBIT P3 A TRUE COPY OF THE CERTIFICATE DATED 27/01/2017 ISSUED BY THE VILLAGE OFFICER, KOOPPADI.** **EXHIBIT P4 A TRUE COPY OF THE RECEIPT DATED 14/05/2018 SHOWING REMITTANCE OF THE LICENSE FEES FOR THE YEAR 20182019.** **EXHIBIT P5 A TRUE COPY OF THE AGREEMENT DATED 29/06/2018.** - **EXHIBIT P6 A TRUE COPY OF THE LICENSE DATED 06/05/2019, ISSUED BY THE FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA.** - **EXHIBIT P7 A TRUE COPY OF THE 'REPORT ON ANALYSIS OF WATER' DATED 22/02/2019.** **EXHIBIT P8 A TRUE COPY OF THE NOTICE SHOWING ONLY THE DATE AS 21, ISSUED BY THE 2ND RESPONDENT.**