Balan v. Arimbur Grama Panchayath and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY ,THE 12TH DAY OF MARCH 2019 / 21ST PHALGUNA, 1940** ## **WP(C).No. 4866 of 2019** ## **PETITIONER:** **BALAN, AGED 62 YEARS S/O KUTTAPPAN, KOLATT HOUSE, ERAVU VILLAGE, ERAVU DESOM, ERAVU P.O. THRISSUR** **BY ADVS. SRI.C.D.DILEEP SMT.SHYLAJA VARGHESE** ## **RESPONDENTS:** - **1 ARIMBUR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, ARIMBUR, THRISSUR DISTRICT 680 620** - **2 THE VILLAGE OFFICER, ERAVU VILLAGE, ERAVU, THRISSUR DISTRICT 680 620** **3 RAMESH, AGED 50 YEARS S/O VELAYUDAN, PATHIYATH HOUSE, ERAVU VILLAGE, ERAVU DESOM, ERAVU P.O. THRISSUR 680 620** **4 SASI, AGED 54 YEARS S/O VELAYUDAN, PATHIYATH HOUSE, ERAVU VILLAGE, ERAVU DESOM, ERAVU P.O. THRISSUR 680 620** **BY ADV. SRI.G.SANTHOSH KUMAR (P), STANDING COUNSEL SRI K.P. HARISH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C)No.4866 of 2019** ## **:-2-:** ## **J U D G M E N T** The petitioner, who is stated to be the owner of 31¼ cents of property comprised in Survey No.187/2 of Eravu Village within the 1st respondent Grama Panchayat, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 building permit dated 6.1.2018 granted to the 3rd respondent. The petitioner has also sought for a declaration that Ext.P1 building permit is illegal and outcome of mala fide exercise of power; a writ of mandamus commanding the 1st respondent Panchayat to conduct inquiry on Ext.P1 building permit and the construction based on that permit and to take further legal action; a writ of mandamus commanding the 1st respondent Panchayat to cancel Ext.P1 building permit; a writ of mandamus commanding the 1st respondent to pass orders to stop unauthorised ## **W.P.(C)No.4866 of 2019** ## **:-3-:** construction based on Ext.P1 building permit and to direct the Local Self Government Tribunal to accept appeal against Ext.P1 building permit without considering delay in filing the appeal. 2. Heard the learned counsel for the petitioner, the learned Standing Counsel for the 1st respondent Grama Panchayat and also the learned Government Pleader appearing for the 2nd respondent. 3. A reading of the reliefs sought for in the writ petition would show that it is challenging the grant of Ext.P1 building permit dated 6.1.2018 issued by the 1st respondent Grama Panchayat to the 3rd respondent that the petitioner is before this Court in this writ petition. Section 235F of the Kerala Panchayat Raj Act deals with application to construct or re-construct buildings and Section 235I prescribes the period within which approval or disapproval of an application made under Section 235F shall be intimated to the applicant, by an ## **W.P.(C)No.4866 of 2019** **:-4-:** order in writing. Section 235J prescribes the period within which Secretary has to grant or refuse to grant permission to execute work. Section 276 of the Act deals with appeal and revision. As per sub-section (4) of Section 276, an appeal on the notice, order or action of the Secretary under Sections 235I, 235J, 235N 235W and 235X shall be filed before the Tribunal constituted for Local Self Government Institutions under Section 271S, and it may on an application by an order, stay the operation of the said notice, order or action taken pending disposal of the appeal. As per sub-section (6) of Section 276, an appeal or revision shall be filed within thirty days from the date of notice or order or action taken and such appeal or revision, as the case may be, shall be disposed of within sixty days from the date of receipt of such appeal or revision. 4. In addition to this, sub-rule (1) of Rule ## **W.P.(C)No.4866 of 2019** **:-5-:** 151 of the Kerala Panchayat Buildings Rules, 2011 provides that any person aggrieved by an order passed by the Secretary may submit an appeal to the Tribunal for Local Self Government Institutions constituted under Section 271S of the Act. As per sub-rule (2) of Rule 151, without prejudice to the provisions under the Kerala Panchayat Raj Act, an appeal may lie against any order enumerated in clauses (i) to (viii) of sub-rule (2), which includes granting or refusing permit to execute work. 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 ## **W.P.(C)No.4866 of 2019** ## **:-6-:** 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 alternative ## **W.P.(C)No.4866 of 2019** ## **:-7-:** 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 ## **W.P.(C)No.4866 of 2019** ## **:-8-:** 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 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, ## **W.P.(C)No.4866 of 2019** ## **:-9-:** 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 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 ## **W.P.(C)No.4866 of 2019** ## **:-10-:** 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 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 ## **W.P.(C)No.4866 of 2019** **:-11-:** 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. 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 ## **W.P.(C)No.4866 of 2019** **:-12-:** 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 invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, challenging the grant of Ext.P1 building permit to the 3rd respondent, in view of the statutory remedy available under subsection (4) of Section 276 of the Kerala Panchayat Raj Act and Rule 151 of the Kerala Panchayat Building Rules, on the grounds raised in this writ petition. As per sub-section (6) of Section 276, an appeal or revision shall be filed within thirty days from the date of notice or order or action taken. Going by the averments in the writ petition, the petitioner obtained a copy of Ext.P1 building permit issued to the 3rd respondent, by filing an ## **W.P.(C)No.4866 of 2019** **:-13-:** application under the Right to Information Act, 2005. The date on which the petitioner was issued with a copy of Ext.P1 building permit is not discernible from Ext.P1. In such circumstances, this writ petition filed on 14.2.2019 is dismissed for the aforesaid reason; however, without prejudice to the right, if any, of the petitioner to challenge the grant of Ext.P1 building permit to the 3rd respondent, by filing an appeal before the Tribunal for Local Self Government Institutions. Sd/- **JUDGE** **ANIL K.NARENDRAN** ami/ ## **W.P.(C)No.4866 of 2019** **:-14-:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE BUILDING PERMIT NO A3-BA(5255)/2018 DATED 6.1.2018 EXHIBIT P2 A TRUE COPY OF THE INJUNCTION ORDER DATED 18.12.2017 IN IA NO 19824/2017 IN OS NO 5367/2017 EXHIBIT P3 A TRUE COPY OF THE COMMISSION REPORT WITH SURVEY SKETCH. EXHIBIT P4 A TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER DATED 13.12.2017**