Dr. P. KuriaKose and others v The Piravom Municipality and The Secretary, The Piravom Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **FRIDAY, THE 15TH DAY OF MARCH 2019/24TH PHALGUNA, 1940** ## **WP(C).No. 4777 of 2019** ## **PETITIONERS:** |**1**||**DR.P.KURIAKOSE**| |---|---|---| |||**S/O. P.T.PAULOSE,PAZHUKANIYIL HOUSE, PIRAVOM P.O.,**| |||**PIRAVOM**| |**2**||**DR. V.N.CHANDRASEKHARAN,**| |||**S/O. NARAYANA, POORNACHANDRIKA HOUSE, PERUMPALLY**| |||**P.O., MULAMTHURUTHY, ERNAKULAM**| |**3**||**DR.BALU MATHEW,**| |||**S/O. MATHEW, VALADIYIL HOUSE, MAMALASSERY,**| |||**RAMAMANGALAM**| |**4**||**DR.DEEPA**| |||**AGED 1 YEARS**| |||**W/O. MATHEW, VALADIYIL HOUSE, MAMALASSERY,**| |||**RAMAMANGALAM**| |**5**||**CHINNAMMA**| |||**W/O.JOY, NEETTINKARA HOUSE, KAKKAD P.O. PIRAVOM**| |**6**||**SOORAJ MURALEEDHARAN**| |||**S/O. MURALEEDHARAN, MURALI BHAVAN, ELANTHOOR P.O.,**| |||**PATHANAMTHITTA**| |||**BY ADV. SRI.DOMSON J.VATTAKUZHY**| |**RESPONDENTS**<br>**:**||| |**1**||**THE PIRAVOM MUNICIPALITY,**| |||**PIRAVOM P.O., ERNAKULAM DISTRICT, REPRESENTED BY ITS**| |||**SECRETARY**| |**2**||**THE SECRETARY**| |||**THE PIRAVOM MUNICIPALITY, PIRAVOM P.O., ERNAKULAM**| |||**DISTRICT**| |||**BY ADV. SRI.GEORGE SEBASTIAN, SC, PIRAVOM**| |||**MUNICIPALITY**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No. 4777 of 2019 2 ## **JUDGMENT** The petitioners 1 to 4, who are doctors by profession and petitioners 5 and 6, who are running diagnostic laboratories, after obtaining D&O licence from the first respondent Municipality, have filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Exts.P1 to P6 proceedings, dated 13.06.2018 issued by the first respondent, whereby a demand for payment of D&O licence fee is made for the year 2016-17 together with fine and late fee. 2. On 18.02.2019, when this writ petition came up for admission the learned Standing Counsel for the first respondent Municipality, sought time to get instructions. 3. Heard the learned counsel for the petitioners and also the learned Standing Counsel for the first respondent Municipality, representing respondents 1 and 2. 4. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Exts.P1 to P6 orders of the first respondent, whereby a demand has been made for D&O licence fee for the year 2016-17 together with fine and late fee. WP(C).No. 4777 of 2019 3 5. The fact that, going by the provisions under the Kerala Municipality (Issue of licence to Dangerous and Offensive Trades and Factories) Rules, 2011 (hereinafter referred to as 'D&O licence Rules') the petitioners who are running hospitals/medical laboratories, etc., can run those institutions only after obtaining necessary licence, after remitting requisite fee, is not in dispute. Admittedly, the petitioners have not chosen to obtain D&O licence and remit the requisite licence fee for the year 2016-17 and they conducted their institutions, without any such licence. When this was noticed in the audit conducted by the audit wing, the first respondent Municipality has issued Exts.P1 to P6 notices dated 13.06.2018, whereby a demand for the defaulted D&O licence fee together with fine and late fee is made. A perusal of Exts.P1 to P6 notices would make it explicitly clear that on noticing the nonpayment of licence fee for the year 2016-17, the petitioners were issued with individual notices dated 16.01.2018. They submitted their reply and it was only thereafter, that the first respondent Municipality issued Exts.P1 to P6 notices, whereby a demand has been made for defaulted D&O licence fee together with fine and late fee. 6. Admittedly, the petitioners have not complied with the statutory mandate and obtained renewal of D&O licence for the WP(C).No. 4777 of 2019 4 year 2016-17 and it was in such circumstances that the 1[st] respondent has issued Exts.P1 to P6 notices, demanding the defaulted D&O licence fee, together with fine and late fee. If the petitioners were feeling aggrieved by Exts.P1 to P6 notices, they could have very well invoked the statutory remedy of appeal provided under Section 509 of the Kerala Municipality Act, by approaching the appellate authority, within the time limit specified in the Statute. 7. 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. WP(C).No. 4777 of 2019 5 8. 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 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 WP(C).No. 4777 of 2019 6 writ petition should not be entertained ignoring the statutory dispensation. 9. 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 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 WP(C).No. 4777 of 2019 7 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. 10. 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 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 WP(C).No. 4777 of 2019 8 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. 11. 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. 12. Having failed to challenge Exts.P1 to P6 notices at appropriate time, by availing the statutory remedy, the petitioner cannot seek interference on those notices, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, in this writ petition filed on 15.02.2019, much after the issuance of those demand notices. WP(C).No. 4777 of 2019 9 13. Learned counsel for the petitioner would place reliance on Ext.P7 judgment of this Court in W.P.(C)No.30211 of 2018. By the said judgment, this Court ordered that if the amounts demanded towards licence fee, fine and late fee is paid within the time limit specified in that judgment, further proceedings pursuant to that notice shall be dropped. 14. In the instant case, despite the issuance of Exts.P1 to P6 notices dated 13.06.2018, the petitioners have not chosen to make payment whatsoever, in terms of those notices, for the last eight months. The petitioners, who have shown scant regard to the statutory mandate of obtaining D&O licence for running their hospitals/medical laboratories, are not entitled for any indulgence from this Court, at this distance of time. In the result, this writ petition fails and the same is accordingly dismissed. **==> picture [210 x 85] intentionally omitted <==** SD/- ## **ANIL K.NARENDRAN** ## **JUDGE** DCS WP(C).No. 4777 of 2019 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE PROCEEDINGS ISSUED TO THE**| |---|---| ||**1ST PETITIONER BY THE 1ST RESPONDENT DATED**| ||**13.06.2018**| |**EXHIBIT P2**|**TRUE COPY OF THE PROCEEDINGS ISSUED TO THE**| ||**2ND PETITIONER BY THE 1ST RESPONDENT DATED**| ||**13.06.2018**| |**EXHIBIT P3**|**TRUE COPY OF THE PROCEEDINGS ISSUED TO THE**| ||**3RD PETITIONER BY THE 1ST RESPONDENT DATED**| ||**13.06.2018**| |**EXHIBIT P4**|**TRUE COPY OF THE PROCEEDINGS ISSUED TO THE**| ||**4TH PETITIONER BY THE 1ST RESPONDENT DATED**| ||**13.06.2018**| |**EXHIBIT P5**|**TRUE COPY OF THE PROCEEDINGS ISSUED TO THE**| ||**5TH PETITIONER BY THE 1ST RESPONDENT DATED**| ||**13.06.2018**| |**EXHIBIT P6**|**TRUE COPY OF THE PROCEEDINGS ISSUED TO THE**| ||**6TH PETITIONER BY THE 1ST RESPONDENT DATED**| ||**13.06.2018**| |**EXHIBIT P7**|**TRUE COPY OF THE JUDGMENT IN**| ||**W.P(C)NO.30211/2018 OF THIS HON'BLE COURT**|