C.K. Abdurahiman @ C.K.Anthru v. Kozhikode Corporation and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR** **TUESDAY, THE 1ST FEBRUARY 2011 / 12TH MAGHA 1932** **WP(C).No. 2671 of 2011(H)** **---------------------------------------** ## **PETITIONER(S):** **-------------------------** **C.K.ABDURAHIMAN @ C.K.ANTHRU, S/O.ABOOBACKER, AGED 62 YEARS, RESIDING AT 13/114, C.K.HOUSE, THEKKUMTHALA, KUTTICHIRA NAGARAM AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT.** **BY ADV. SRI.C.P.MOHAMMED NIAS** **RESPONDENT(S):** **---------------------------** **1. THE KOZHIKODE CORPORATION, KOZHIKODE, REPRESENTED BY ITS SECRETARY - 673 001.** **2. THE SECRETARY, KOZHIKODE CORPORATION, KOZHIKODE - 673 001.** **3. OMBUDSMAN FOR LOCAL SELF GOVT.INSTITUTIONS, SAPHALYAM COMPLEX, 4TH FLOOR, TRIDA BUILDING, UNIVERSITY P.O. THIRUVANANTHAPURAM - 695 034.** **4. CHERIYANALAKATH HAJARA, D/O.P.T.ALIKKOYA, AJEEGHAR, 19/575, P.O.CHALAPPURAM, KASBA AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT - 673 001.** **R1 & R2 BY ADV. SRI.K.D.BABU,SC,KOZHIKODE CORPORATION** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **C.T. RAVIKUMAR, J.** ## **-------------------------------------------W.P.(C). NO.2671 OF 2011 --------------------------------------------** Dated this the 1[st] day of February, 2011 ## **JUDGMENT** The petitioner is a tenant of the building bearing No.27/97-H2 in Ward No.27 of the Kozhikode Corporation belonging to the 4[th] respondent. On obtaining licence issued from the first respondent Corporation and after executing Ext.P1 lease agreement, the petitioner had been running business in glass products under the name and style 'Glass India' in the said building. This Writ Petition has been filed mainly with the prayer to issue a writ of certiorari to quash Exts.P7 and P8 and to declare the entire proceedings initiated by the Corporation in the matter as illegal, unjust and unconstitutional and that they infringe the fundamental right available to the petitioner under Constitution of India to carry out lawful trade. Earlier, alleging unauthorised construction viz., making material alteration of the building in question, a complaint was preferred against the petitioner before the respondent Corporation. Thereupon, the petitioner has offered him explanation thereon, as per Ext.P6. According to the petitioner, without considering the explanation offered by him as per **W.P.(C) NO.2671/2011** 2 Ext.P6, Ext.P7 notice was issued requiring him to show cause why licence issued to him by the Corporation should not be cancelled. Thereafter, the petitioner was heard on the matter and Ext.P8 order was passed. Ext.P8 is dated 2.12.2010. As per Ext.P8, the petitioner was directed to close down the business premises occupied by him. Immediately thereafter, the corporation authorities came to the business premises of the petitioner on 9.12.2010 and closed down the place of premises. Ext.P9 is the mahazar prepared by the corporation authorities on 9.12.2010. The contention of the petitioner is that the Secretary of the Corporation has acted purportedly under Section 532 of the Municipality Act and that in the facts and circumstances of the case, Section 532 of the Municipality Act could not have been invoked. In short, according to the petitioner, action on the part of the secretary in ordering closing down of the business premises is absolutely without any jurisdiction and authority. Feeling aggrieved by Ext.P8 order and consequential action in closing down of the place of premises, the petitioner preferred Ext.P10 appeal before the corporation council on 21.12.2010. Later, the petitioner has approached the Ombudsman for the Local Self Government Institutions by filing a complaint challenging the action of the secretary, on 23.12.2010. **W.P.(C) NO.2671/2011** 3 According to the petitioner, the appeal and complaint preferred respectively before the corporation council and also the Ombudsman for Local Self Government Institutions did not evoke any response at all. It is in the said circumstances that this Writ Petition has been filed, inter alia, with the aforesaid prayers. 2 **.** I have heard the learned counsel for the petitioner and also the learned standing counsel for the first respondent. 3. Obviously, Ext.P8 impugned order was passed on 2.12.2010. Admittedly, pursuant to Ext.P8, the business premises of the petitioner was closed down on 9.12.2010. Thereafter, the petitioner has preferred a statutory appeal before the corporation council viz., Ext.P10 on 21.12.2010. Ext.P10 appeal is still pending before the corporation council. The petitioner has also moved the Ombudsman for Local Self Government Institutions. In the writ Petition, it is stated that after the filing of a complaint before the Ombudsman, the petitioner was served with Ext.P13 requiring him to cure certain defects noted by the registry of the Ombudsman. According to the petitioner, he had cured all the defects and re-presented the appeal. However, no action was taken thereon. **W.P.(C) NO.2671/2011** 4 4. Admittedly, the petitioner is having a statutory remedy to redress the grievance against Ext.P8 and Ext.P10 was filed for that purpose availing the said remedy. The learned counsel for the petitioner submitted that in view of the fact that the action taken by the second respondent under Section 532 of the Municipality Act is without any jurisdiction and authority and that the action on his part had infringed the fundamental rights of the petitioner to carry out lawful trade, he shall not be relegated to pursue with Ext.P10. It is submitted that existence of alternative efficacious remedy shall not be taken to non-suit the petitioner. To sustain and support the said contention, the learned counsel for the petitioner relied on the decision of the Hon'ble Apex Court reported in _**Harbasanlal Sahnia v. Indian Oil Corporation Ltd. (2003) 2 SCC 107.**_ The Hon'ble Apex Court held thereunder that the rule of exclusion of writ jurisdiction by availability of alternative remedy is rule of discretion and not one of compulsion. In short, in appropriate cases, in spite of the availability of the alternative remedy, it will be open for this Court to entertain writ jurisdiction. The learned counsel also relied on the decision of the Hon'ble Apex Court reported in _**S.J.S Business Enterprises (P) Ltd. v. State of Bihar (2004) 7 SCC 166**_ to canvass the position that even when **W.P.(C) NO.2671/2011** 5 alternative remedy of election is available, the petitioner could opt the remedy. 5. Ext.P8 impugned order was passed on 2.12.2010 and admittedly, it was implemented on 9.12.2010. It is about two weeks thereafter that the petitioner had preferred Ext.P10 statutory appeal before the Corporation council. In the meanwhile, he moved the Mayor of the corporation as well through Ext.P11. In short, the position available in this case is that after the receipt of the impugned order, he had suffered its implementation without any demur and he moved the above appeal and petitions only thereafter. Most importantly, he has also chosen to avail the statutory remedy. Ext.P10 statutory appeal is still pending. Thus it is obvious that despite the availability of the remedy to move this Court under article 226 of the Constitution of India, the petitioner had elected to resort to the statutory remedy and moved the appellate authority. Having elected the statutory remedy available to him, I am of the view that the petitioner has to pursue with the same. In view of the facts and circumstances of the case, I am of the view that the petitioner cannot rely on the decision of the Hon'ble Apex Court reported in _**Harbasanlal Sahnia v. Indian Oil Corporation Ltd. (2003) 2 SCC 107**_ to insist this **W.P.(C) NO.2671/2011** 6 Court to exercise the discretionary jurisdiction. However, it is evident that after passing the impugned order on 2.12.2010, the respondents have acted swiftly and closed down the business premises of the petitioner on 9.12.2010. In other words, they have implemented the order in Ext.P8. In such circumstances, the appellate authority should have considered the appeal in expeditious manner and at any rate, there is no reason or justification for delaying a decision of Ext.P10 any further. Taking into account the fact that the petitioner had been running the business on the strength of the licence issued by the Corporation and pursuant to the order impugned, the business premises has been closed down, I have no hesitation to hold that expeditious disposal of Ext.P10 appeal is required. In the circumstances, this Writ Petition is disposed of with a direction to the first respondent to consider and pass orders on Ext.P10 appeal expeditiously, at any rate, within a period of two weeks from the date of receipt of a copy of this judgment. ## **(C.T. RAVIKUMAR, JUDGE)** ## **spc** **W.P.(C) NO.2671/2011** 7 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **W.P.(C) NO.2671/2011** 8