Chithrangathan v Kalpetta Municipality and Government of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY,THE 26TH DAY OF MARCH 2019/5TH CHAITHRA, 1941** ## **WP(C).No. 8863 of 2019** ## **PETITIONER:** **CHITHRANGATHAN, AGED 49 YEARS S/O GANGADHARA PANICKER, RESIDING AT ARYA NIVAS, OANIVAYAL, KALPETTA P.O., WAYANAD.** **BY ADV. SMT.CELINE JOSEPH** ## **RESPONDENTS:** **1 KALPETTA MUNICIPALITY, REPRESENTED BY SECRETARY, KALPETTA MUNICIPALITY, WAYANAD-673121. 2 THE SECRETARY, KALPETTA MUNICIPALITY, WAYANAD-673121. 3 GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY TO LOCAL SELF GOVT., INSTITUTION, SECRETARIAT, THIRUVANANTHAPURAM-695001.** ## **SRI PAUL ABRAHAM VAKKANAL, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.8863/2019 -2- ## **JUDGMENT** The petitioner, who is running a fish stall in Kalpetta Town on the strength of Ext.P1 D&O licence granted by the 2[nd] respondent for the year 2018-19 has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari (wrongly stated as writ of mandamus) to set aside Ext.P7 notice dated 12.03.2019 issued by the 2[nd] respondent and a writ of mandamus commanding respondents 1 and 2 to entertain Ext.P5 request dated 19.2.2019. The petitioner has also sought for an order directing respondents 1 and 2 to abstain from cancelling the D&O licence granted to his shop as informed in Ext.P7 notice. 2. Heard learned counsel for the petitioner and also the learned Government Pleader appearing for the 3[rd] respondent. 3. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P7 notice dated 12.03.2019 issued by the 2[nd] respondent, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. W.P.(C)No.8863/2019 -3- 4. By Ext.P7 notice dated 12.09.2018 issued by the 2[nd] respondent, the petitioner has been informed that if he is conducting sale of fish in shop room No.12/256 contrary to the conditions in Ext.P1 D&O licence, the same shall be cancelled and steps shall be taken to seal the shop. As per Ext.P1 D&O licence, the petitioner has to keep fish in cold storage. 5. If the petitioner is aggrieved by Ext.P7 notice, he can file an appeal before the Municipal Council, in view of the provisions under sub-section (1) of Section 509 of the Kerala Municipality Act, 1994. As per sub-section (3) of Section 509, pending decision on an appeal under sub-section (1), the Chairperson may, if an application is made, stay the operation of the notice, order or other proceedings on which the appeal is based. 6. 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 W.P.(C)No.8863/2019 -4- 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 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 W.P.(C)No.8863/2019 -5- 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 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 W.P.(C)No.8863/2019 -6- 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 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 W.P.(C)No.8863/2019 -7- 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 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 W.P.(C)No.8863/2019 -8- 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. 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. W.P.(C)No.8863/2019 -9- 11. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the petitioner cannot challenge Ext.P7 notice issued by the 2[nd] respondent by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, in view of the statutory remedy available under Section 509 of the Kerala Municipality Act, on the grounds raised in this writ petition. In the result, this writ petition filed on 20.03.2019 is dismissed for the aforesaid reason; however without prejudice to the right, if any, of the petitioner to challenge Ext.P7 notice by filing an appeal under sub-section (1) of Section 509 Kerala Municipality Act before the Municipal Council. Sd/- **ANIL K. NARENDRAN JUDGE** dsn W.P.(C)No.8863/2019 -10- ## **APPENDIX** **PETITIONER'S EXTS:** **EXHIBIT P1** **TRUE COPY OF THE TRADE LICENSE NO.PH 428/X11-286 DATED 9.2.2018** **EXHIBIT P2** **THE COUNCIL DECISION PERMITTING THE PETITIONER FOR SALE OF FISH IN THE FISH STALL DATED 1.12.17** **EXHIBIT P3 THE CERTIFICATE ISSUED BY THE POLLUTION CONTROL BOARD DATED 29.6.17** **EXHIBIT P4** **TRUE COPY OF THE PROFESSIONAL TAX RECEIPT ISSUED TO THE 2ND RESPONDENT** **EXHIBIT P5 TRUE COPY OF THE REQUEST DATED 19.2.19 SUBMITTED BEFORE THE MUNICIPALITY** **EXHIBIT P6 LICENCE ISSUED TO ONE MUJEEB S BY MEPPAD GRAMA PANCHAYAT** **EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 12.3.2019** **RESPONDENTS' EXTS: NIL**