AHAMMED v. PERUMANNA KLARI GRAMA PANCHAYATH & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY ,THE 08TH DAY OF MARCH 2019 / 17TH PHALGUNA, 1940** ## **WP(C).No. 6656 of 2019** ## **PETITIONER/S:** **AHAMMED, S/O.MUHAMMEDAJI, AGED 60 YEARS, KODIYERITHODI HOUSE, PALACHIRAMADU,EDARICODE.P.O,PERUMANNA, MALAPPURAM-676501.** **BY ADV. SMT.N.DEEPA** ## **RESPONDENTS:** |**1**|**PERUMANNA KLARI GRAMA PANCHAYATH, REPRESENTED BY ITS**| |---|---| ||**SECRETARY, PANCHAYATH OFFICE, P.O. KLARI, MALAPPURAM**| ||**DISTRICT - 676 501**| |**2**|**SECRETARY,**| ||**PERUMANNA KLARI GRAMA PANCHAYATH,PANCHAYATH OFFICE,**| ||**P.O.KLARI,MALAPPURAM DISTRICT-676 501.**| |**3**|**TAHSILDAR,**| ||**TALUK OFFICE,TIRUR,**| ||**MALAPPURAM DISTRICT - 676 101**| **SRI K.P. HARISH, SENIOR GOVERNMENT PLEADER SRI HARISH R MENON, STANDING COUNSEL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 6656 of 2019 2** ## **JUDGMENT** The petitioner, who is stated to be the owner in possession of 10 cents of property in Survey No.157 of Perumanna Village covered by Ext.P1 tax receipt dated 13.03.2017 issued by the Village Officer, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P10 notice dated 05.02.2019 issued by the 2[nd] respondent who is the Secretary of the 1[st] respondent Grama Panchayat, whereby, the petitioner has been asked to demolish the building and structures in Re.survey No.158 of the Perumanna Klari Grama Panchayat, within fifteen days of the receipt of the same, failing which action will be taken under Section 279 of the Kerala Panchayat Raj Act. The petitioner has also sought for a writ of mandamus commanding the 2[nd] respondent to produce before this Court, the report stated to have been submitted by the 3[rd] respondent Thahsildar, based on which Ext.P10 notice has been issued. 2. On 06.03.2019, when this writ petition came up for ## **WP(C).No. 6656 of 2019 3** admission, the learned Standing Counsel for respondents 1 and 2 and also the Senior Government Pleader for the 3[rd] respondent, were directed to get instructions. 3. Heard the learned counsel for the petitioner, learned Standing Counsel for respondents 1 and 2 and also the learned Senior Government Pleader appearing for the 3[rd] respondent. 4. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P10 notice issued by the 2[nd] respondent, in exercise of the writ jurisdiction of this Court under Article 226 of the Constitution of India. 5. The fact that Ext.P10 notice issued by the 2[nd] respondent whereby the petitioner has been asked to demolish certain constructions is appealable under the provisions of sub-section (4) of Section 276 of the Kerala Panchayat Raj Act, 1994 before the Tribunal for Local Self Government Institutions is not in dispute. It is also not in dispute that as per sub-section (4) of Section 276, in an appeal filed before the Tribunal, the appellant can file an ## **WP(C).No. 6656 of 2019 4** application for stay of the notice, order or action taken, pending disposal of that appeal. 6. 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 Article 226. 7. In **Authorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85]** the Apex Court reiterated that the discretionary jurisdiction under **WP(C).No. 6656 of 2019 5** 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 ## **WP(C).No. 6656 of 2019 6** 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. 8. 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 Court does not generally enter upon a determination of questions **WP(C).No. 6656 of 2019 7** 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. 9. 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 ## **WP(C).No. 6656 of 2019 8** 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 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. **WP(C).No. 6656 of 2019 9** 10. 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. 11. In the light of the law laid down in the decisions referred to supra, conclusion is irresistible that no interference under Article 226 of the Constitution of India is warranted on Ext.P10 notice issued by the by the 2[nd] respondent, in view of the statutory remedy available under sub-section (4) of Section 276 of the Kerala Panchayat Raj Act. 12. Learned Counsel for the petitioner would submit that the petitioner received Ext.P10 notice of the 2[nd] respondent only on 03.03.2019 and immediately thereafter he moved this writ petition before this Court on 05.03.2019. 13. In the result, in view of the statutory remedy available under sub-section (4) of Section 276 of the Kerala Panchayat Raj Act, this writ petition filed on 05.03.2019, challenging Ext.P10 notice issued by the 2[nd] respondent is dismissed, since the petitioner has not made out a case **WP(C).No. 6656 of 2019 10** warranting interference on Ext.P10, invoking the writ jurisdiction under Article 226 of the Constitution of India; however without prejudice to the right of the petitioner to challenge Ext.P10 by filing an appeal before the Tribunal for Local Self Government Institutions, under sub-section (4) of Section 276 of the Act. The legal and factual contentions raised by the petitioner are left open to be raised before the Tribunal, at appropriate stage. **Sd/-** **ANIL K.NARENDRAN JUDGE** sru **WP(C).No. 6656 of 2019 11** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LAND TAX RECEIPT ISSUED BY THE VILLAGE OFFICER,PERUMANNA DATED 13.03.2017** - **EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN W.P(C)NO.31107/2014,DATED 21.11.2014.** - **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE TALUK SURVEYOR,TIRUR,DATED 05.12.2014.** **EXHIBIT P4 TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 30.12.2016.** - **EXHIBIT P5 TRUE COPY OF THE PROVISIONAL ORDER ISSUED BY THE 1ST RESPONDENT DATED 30.12.2016.** **EXHIBIT P6 TRUE COPY OF THE REPLY DATED 06.01.2017. EXHIBIT P7 TRUE COPY OF THE INTIMATIN DATED 08.03.2017 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE ORDER NO.E24829/2016 DATED 08.03.2017 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF THE JUDGMENT IN W.P(C)N0.11532/2017,DATED 31.10.2018.** - **EXHIBIT P10 TRUE COPY OF THE NOTICE DATED 05.02.2019 SENT BY THE 2ND RESPONDENT.** - **EXHIBIT P11 TRUE COPY OF THE NOTICE DATED 30.11.2018 ISSUED BY THE 3RD RESPONDENT** **EXHIBIT P12 TRUE COPY OF THE NOTICE DATED 10.12.2018 ISSUED BY THE 3RD** ## **WP(C).No. 6656 of 2019 12** ## **RESPONDENT.** - **EXHIBIT P13 TRUE COPY OF THE TAX** **RECEIPT,BUILDING NO.V/287,ISSUED BY THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019.** - **EXHIBIT P13(a) TRUE COPY OF THE TAX RECEIPT,BUILDING NO.V/288,ISSUED BY THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019.** - **EXHIBIT P13(b) TRUE COPY OF THE TAX RECEIPT,BUILDING NO.V/289,ISSUED BY THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019.** - **EXHIBIT P13(c) TRUE COPY OF THE TAX** - **RECEIPT,BUILDING NO.V/290,ISSUED BY THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019.** - **EXHIBIT P13(d) TRUE COPY OF THE TAX** - **RECEIPT,BUILDING NO.V/291,ISSUED BY THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019.** - **EXHIBIT P13(e)** - **TRUE COPY OF THE TAX** - **RECEIPT,BUILDING NO.V/292,ISSUED BY THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019.** - **EXHIBIT P13(f)** - **TRUE COPY OF THE TAX** - **RECEIPT,BUILDING NO.V/293,ISSUED BY THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019.** - **EXHIBIT P13(g)** - **TRUE COPY OF THE TAX** - **RECEIPT,BUILDING NO.V/293A,ISSUED BY THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019.** - **EXHIBIT P13(h)** - **TRUE COPY OF THE TAX RECEIPT,BUILDING NO.V/293B,ISSUED BY THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019.** **WP(C).No. 6656 of 2019 13** **BUILDING NO.V/293C,ISSUED BY THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019. EXHIBIT P13(j) TRUE COPY OF THE TAX RECEIPT,BUILDING NO.V/293D,ISSUED BY THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019. EXHIBIT P13(k) TRUE COPY OF THE TAX RECEIPT,BUILDING NO.V/293E,ISSUED BY THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019.**