Aboobacker M. v. Kozhikode Municipal Corporation & Secretary, Kozhikode Municipal Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY ,THE 14TH DAY OF MARCH 2019 / 23RD PHALGUNA, 1940** ## **WP(C).No. 31488 of 2018** ## **PETITIONER :** **ABOOBACKER M. AGED 61 YEARS S/O. KUTTIYAPPA, IYKARAPADI, CHERUKAVU AMSOM DESOM, ERNAD TALUK - 676 517, MALAPPURRAM DISTRICT, KERALA** **BY ADVS. ARUN AJAY SHANKAR SRI.JIKKU SEBAN GEORGE** ## **RESPONDENTS:** - **1 THE KOZHIKODE MUNICIPAL CORPORATION CALICUT BEACH, NEAR AKASHAVANI, KOZHIKODE DISTRICT - 673 032, REPRESENTED BY ITS SECRETARY.** **2 THE SECRETARY KOZHIKODE MUNICIPAL CORPORATION, CALICUT BEACH, NEAR AKASHAVANI, KOZHIKODE DISTRICT – 673 032.** **BY ADV. SRI.G.SANTHOSH KUMAR, SC, KOZHIKODE MUNICIPAL CORPORATION** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 31488 of 2018** **2** ## **JUDGMENT** The petitioner, who is stated to be the owner in possession of 8.502 Ares of land comprised in Re-Survey No.336 of Kozhikode Taluk, vide Sale Deed No.632 of 2012 of Chalapuram Sub Registry Office, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P6 order dated 28.07.2018 of the 2[nd] respondent, whereby the application made by the petitioner for building permit stands rejected. The petitioner has also sought for a declaration that Ext.P6 order passed by the 2[nd] respondent is arbitrary and illegal. The further relief sought for is a writ of mandamus commanding the 2[nd] respondent to reconsider the application for building permit made by the petitioner, within a time limit to be fixed by this Court. 2. On 26.09.2018, when this writ petition came up for admission, the learned Standing Counsel for the **WP(C).No. 31488 of 2018** **3** respondent Corporation was directed to get instructions. 3. Heard the learned counsel for the petitioner and also the learned Standing Counsel appearing for the respondents. 4. The issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P6 order, whereby the application made by the petitioner for building permit stands rejected by the 2[nd] respondent, who is the Secretary of the 1[st] respondent Corporation. The fact that Ext.P6 order of the 2[nd] respondent is appealable before the Tribunal for Local Self Government Institutions under Section 509 of the Municipality Act and also under Rule 160 of the Kerala Municipality Building Rules, is not in dispute. 5. 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 **WP(C).No. 31488 of 2018** **4** 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. 6. 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 **WP(C).No. 31488 of 2018** **5** 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 writ **WP(C).No. 31488 of 2018** **6** petition should not be entertained ignoring the statutory dispensation. 7. 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, which without being unduly onerous, provides an equally efficacious remedy. Again the High **WP(C).No. 31488 of 2018** **7** 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. 8. 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 **WP(C).No. 31488 of 2018** **8** 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 [(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 **WP(C).No. 31488 of 2018** ## **9** 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. 9. 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. 10. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the petitioner cannot challenge Ext.P6 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 is **WP(C).No. 31488 of 2018** **10** available under Section 509 of the Kerala Municipality Act or under Rule 160 of the Kerala Municipality Building Rules by approaching the Tribunal for Local Self Government Institutions. 11. The learned counsel for the petitioner would submit that the petitioner proposes to file a fresh application for building permit. In such circumstances, this writ petition is dismissed as no interference is warranted on Ext.P6 order for the aforesaid reason; however, without prejudice to the right of the petitioner, if any, to avail statutory remedy against that order. It is made clear that this judgment will not stand in the way of the petitioner filing a fresh application for building permit and the same being considered by the respondents in accordance with law. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/15/3 **WP(C).No. 31488 of 2018** **11** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REGISTERED SALE DEED NO.632/2012.** **EXHIBIT P2** **A TRUE COPY OF THE POSSESSION CERTIFICATE DATED 13/03/2018.** **EXHIBIT P3 A TRUE COPY OF THE TAX RECEIPT DATED 24/02/2018. EXHIBIT P4 A TRUE COPY OF THE BUILDING PLAN. EXHIBIT P5 A TRUE COPY OF THE BUILDING SKETCH. EXHIBIT P6 A TRUE COPY OF THE ORDER OF REJECTION** **A TRUE COPY OF THE TAX RECEIPT DATED 24/02/2018.** **A TRUE COPY OF THE BUILDING SKETCH.** **A TRUE COPY OF THE ORDER OF REJECTION OF BUILDING PERMIT ISSUED BY THE 2ND RESPONDENT DATED *(04/04/2018) CORRECTED** *** CORRECTED THE DATE GIVEN IN ITEM 9 OF THE INDEX PORTION AS THE DATE OF REJECTION OF EXT.P6 AS FROM 4.04.2018 TO 28.07.2018 AS PER ORDER DTD 31/10/18 IN IA 1/18.**