BINS JACOB v. SECRETARY, KANCHIYAR GRAMA PANCHAYAT and KANCHIYAR GRAMAPANCHAYAT

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY ,THE 21ST DAY OF MARCH 2019 / 30TH PHALGUNA, 1940** ## **WP(C).No. 8649 of 2019** ## **PETITIONER/S:** **BINS JACOB AGED 43 YEARS S/O. JACOB,CHETTAYIL HOUSE, KALTHOTTIKARA,KANCHIYAR VILLAGE, KANCHIYAR PANCHAYT, KALTHOTTY P.O., IDUKKI685 507** **BY ADVS. SRI.C.K.PAVITHRAN SMT.NEENU PAVITHRAN** ## **RESPONDENT/S:** **1 SECRETARY, KANCHIYAR GRAMA PANCHAYAT KANCHIYAR P.O., IDUKKI DISTRICT, PIN-685 511** **2 KANCHIYAR GRAMAPANCHAYAT** **REPRESENTED BY SECRETARY, KANCHIYAR P.O., IDUKKI DISTRICT, PIN-685 511** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Kkj -:2:- **WP(C).No. 8649 of 2019** ## **JUDGMENT** The petitioner, who is stated to be owner in possession of 40 cents of land in the second respondent Grama Panchayat, who has obtained Ext.P2 building permit dated 08.08.2018 issued by the first respondent Secretary of the Grama Panchayat, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P4 stop memo dated 25.02.2019 issued by the first respondent, whereby the petitioner has been directed to stop the entire construction, on the ground that he had carried out construction in deviation of the building plan and without keeping sufficient space, as provided under sub-rule (3) of Rule 27 of the Kerala Panchayat Building Rules. 2. Heard the learned counsel for the petitioner. 3. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P4 stop memo issued by the first respondent, invoking the writ jurisdiction of this Court under Article 226 of the Constitution. 4. Section 276 of the Kerala Panchayat Raj Act, 1994 ## -:3:- ## **WP(C).No. 8649 of 2019** 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 Section 235-I, 325J, 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. In addition to that, sub-rule (1) of Rule 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 Kerala Panchayat Raj Act, 1994. 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 stopping erection of building or execution of work. Therefore, against Ext.P4 stop memo issued by the first respondent, the petitioner is having a statutory remedy of appeal before the Tribunal for Local Self Government Institutions, in view of the aforesaid provisions. **WP(C).No. 8649 of 2019** ## -:4:- ## 5. In **Commissioner of Income Tax v. Chhabil Das** **Agarwal [(2014) 1 SCC 603]** , the Apex Court held that nonentertainment 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. 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 ## -:5:- ## **WP(C).No. 8649 of 2019** 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 of grievance. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring -:6:- ## **WP(C).No. 8649 of 2019** 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 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 ## -:7:- ## **WP(C).No. 8649 of 2019** 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 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 ## -:8:- ## **WP(C).No. 8649 of 2019** 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. 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 ## -:9:- ## **WP(C).No. 8649 of 2019** 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 jurisdiction of this Court under Article 226 of the Constitution of India, in order to challenge Ext.P4 stop memo dated 25.02.2019 issued by the first respondent, on the grounds raised in this writ petition, in view of the statutory remedy of appeal before the Tribunal for Local Self Government Institutions available under Section 276 of the Kerala Panchayat Raj Act and Rule 151 of the Kerala Panchayat Building Rules. In such circumstances, this writ petition filed on 20.03.2019 is dismissed for the aforesaid reason; however, without prejudice to the right of the petitioner to avail statutory remedy against Ext.P4 stop memo by filing an appeal before the Tribunal for Self Government Institutions. Sd/- ## **ANIL K.NARENDRAN** ## **JUDGE** kkj -:10:- **WP(C).No. 8649 of 2019** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF INTIMATION DATED 19.09.18 SANCTIONING THE LOAN FROM THE COOPERATIVE BANK** **EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT NO.V2/BA 192649/2018 DATED 08.08.18 ALONG WITH TE APPROVED PLAN** **EXHIBIT P3 TRUE COPY OF THE PHOTOGRAPH OF THE BUILDING UNDER CONSTRUCTION** **EXHIBIT P4 TRUE COPY OF THE STOP MEMO NO.A3377/19 DATED 25.02.2019** **EXHIBIT P5 TRUE COPY OF THE PETITION DATED 07.03.2019** **// true copy //** **Sd/PA to Judge**