Alice Jose v. Cherthala Municipality and Secretary, Cherthala Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 20TH DAY OF JUNE 2019 / 30TH JYAISHTA, 1941** ## **WP(C).No.16843 of 2019** ## **PETITIONER :** **ALICE JOSE AGED 70 YEARS W/O.LATE C.J.JOSE, HOUSE WIFE, CHAKKALAKKAL HOUSE, CHERTHALA P.O., ALAPPUZHA-688 524** **BY ADVS. SRI.T.JAYAKRISHNAN SRI.R.KRISHNAKUMAR (CHERTHALA)** ## **RESPONDENTS:** |**1**|**CHERTHALA MUNICIPALITY**| |---|---| ||**MUNICIPAL OFFICE, CHERTHALA-688 524,REP.BY ITS**| ||**SECRETARY**| |**2**|**THE SECRETARY,**| ||**CHERTHALA MUNICIPALITY,MUNICIPAL OFFICE, CHERTHALA-**| ||**688 524**| ## **BY SRI JOBY CYRIAC- STANDING COUNSEL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.16843 of 2019** **2** ## **JUDGMENT** The petitioner, who is stated to be the owner of shop room bearing Building No.23/181 situates at Muttom Bazar within the 1[st] respondent Municipality, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 provisional order dated 03.12.2018 issued by the 2[nd] respondent, who is the Secretary of the said Municipality, in exercise of his powers under sub-section (1) and (2) of Section 406 of the Kerala Municipality Act, 1994, whereby the petitioner has been directed to demolish certain constructions made in the aforesaid building, without obtaining necessary building permit; and Ext.P7 order dated 15.05.2019 issued by the 2[nd] respondent, whereby Ext.P1 order stands confirmed. The petitioner has also sought for a declaration that 'alteration' as defined in Kerala Municipal Building Rules will not take within its ambit a change of a portion of 'brick wall' to 'glass wall plus **WP(C).No.16843 of 2019** **3** shutter' when no new opening is created. The further relief sought for is a writ of mandamus commanding the respondents to take decision in the application for regularisation, as shown in Ext.P2 plan submitted by the petitioner, before taking any further action in Ext.P7. 2. Heard the learned counsel for the petitioner and also the learned Standing Counsel appearing for the Municipality, representing respondents 1 and 2. 3. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P1 provisional order and Ext.P7 final order issued by the 2[nd] respondent, in exercise of the writ jurisdiction of this Court under Article 226 of the Constitution of India. 4. The fact that Ext.P7 final order issued by the 2[nd] respondent, whereby the petitioner has been directed to remove the alleged unauthorised construction, is an order appealable before the Tribunal **WP(C).No.16843 of 2019** **4** for Local Self Government Institutions, in view of the provisions under Section 509 of the Kerala Municipality Act 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 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 **WP(C).No.16843 of 2019** **5** 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 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 **WP(C).No.16843 of 2019** **6** 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. 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 **WP(C).No.16843 of 2019** **7** 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.16843 of 2019** **8** 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 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.16843 of 2019** **9** 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 **WP(C).No.16843 of 2019** **10** 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 Exts.P1 and P7 orders 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 19.06.2019, is dismissed for the aforesaid reason; **WP(C).No.16843 of 2019** **11** however without prejudice to the right of the petitioner to challenge Exts.P1 and P7 orders of the 2[nd] respondent by invoking the statutory remedy available under Section 509 of the Municipality Act. Sd/- ## **ANIL K.NARENDRAN, JUDGE** AV/20/6 **WP(C).No.16843 of 2019** **12** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **THE TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 3.12.2018** - **EXHIBIT P2 A TRUE COPY OF PLAN SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT MUNICIPALITY ALONG WITH APPLICATION FOR REGULARISATION** - **EXHIBIT P3 A TRUE COPY OF PLAINT IN O.S.NO.157/2019 I THE FILES OF MUNSIFFS COURT,CHERTHALA DTD 29.3.2019** - **EXHIBIT P4 A TRUE COPY OF UNDATED COMMISSIONER'S REPORT OBTAINED IN EXHIBIT P3** - **EXHIBIT P5 A TRUE COPY OF NOTICE DATED 20.4.2019 ISSUED BY THE RED 2ND RESPONDENT TO THE PETITIONER** - **EXHIBIT P6 A TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT** - **EXHIBIT P7 A TRUE COPY OF PROCEEDINGS DATED 15.5.2019 ISSUED BY THE 2ND RESPONDENT**