Hamza v. Nilambur Municipality and others

## **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. 1285 of 2019** ## **PETITIONER :** **HAMZA AGED 50 YEARS** **S/O. MUHAMMED, THACHANGODAN HOUSE, PONMALA P. O., MALPPURAM DISTRICT - 676 528** ## **BY ADV. SRI.U.K.DEVIDAS** ## **RESPONDENTS:** - **1 NILAMBUR MUNICIPALITY, NILAMBUR, MALAPPURAM DISTRICT - 679 529. REPRESENTED BY ITS SECRETARY** - **2 THE SECRETARY NILAMBUR MUNICIPALITY, NILAMBUR, MALAPPURAM DISTRICT - 679 529.** - **3 STATE OF KERALA REPRESENTED BY THE SECRETARY LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001** - **4 DISTRICT TOWN PLANNER OFFICE OF THE DISTRICT TOWN PLANNER, MALAPPURAM - 679 322 BY ADV. SRI.GEORGE SEBASTIAN, SC, NILAMBUR MUNICIPALITY** **BY SRI MANU RAJ K.J , GOVERNMENT PLEADER** **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. 1285 of 2019** **2** ## **JUDGMENT** The petitioner, who is stated to be the owner in possession of 0.0091 & 0.0739 hectares of land comprised in Re-Survey No.50/2-11 & 50/2-10, respectively, of Nilambur Village and Taluk covered by Ext.P1 possession certificate, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P3 order dated 01.11.2018 issued by the 1[st] respondent, whereby the application dated 29.09.2018 made by the petitioner for building permit stands rejected on the ground that the building permit for commercial building could not be allowed due to the reason that the property is situated in the residential area as per the approved Town Planning Scheme. The petitioner has also sought for a writ of mandamus commanding the 1[st] respondent to grant him building permit as per application dated 29.09.2018. 2. On 16.01.2019, when this writ petition came up **WP(C).No. 1285 of 2019** **3** for admission, the learned Standing Counsel for the 1[st] respondent Municipality was directed to file counter affidavit. 3. Heard the learned counsel for the petitioner, the learned Standing Counsel for the Nilambur Municipality representing respondents 1 and 2 and also the learned Government Pleader appearing for respondents 3 and 4. 4. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P3 order dated 01.11.2018 of the 1[st] respondent, whereby the application dated 29.09.2018 made by the petitioner for building permit stands rejected. The fact that Ext.P3 order, which is under challenge in this writ petition is appealable under the provisions of sub-section (6) of Section 509 of the Kerala Municipality Act, 1994 is not in serious dispute. A reading of the provisions under sub-section (6) of Section 509 would make it explicitly clear that the order, whereby the application made by the petitioner for building permit **WP(C).No. 1285 of 2019** **4** stands rejected, can be challenged before the Tribunal by filing an appeal. As per sub-section (10) of Section 509 of the Act, the Tribunal has ample power to grant interim orders in appropriate cases. 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 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 **WP(C).No. 1285 of 2019** **5** 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 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.**_ **WP(C).No. 1285 of 2019** **6** _**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. 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 **WP(C).No. 1285 of 2019** **7** 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 even itself in another **WP(C).No. 1285 of 2019** **8** 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 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 **WP(C).No. 1285 of 2019** **9** ## 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 **WP(C).No. 1285 of 2019** **10** 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. 10. Having considered the submissions made by the learned counsel on both sides, this Court finds that in view of the statutory remedy of appeal before the Tribunal for Local Self Government Institutions, available under sub-section (6) of Section 509 of the Kerala Municipality Act, the petitioner cannot challenge Ext.P3 order of the 1[st] respondent, whereby his application dated 29.09.2018 for building permit stands rejected, by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. 11. In the result, the challenge made in this writ petition filed on 15.01.2019 against Ext.P3 order of the 1[st] respondent fails for the aforesaid reason and the writ petition is accordingly dismissed; however without prejudice to the right of the petitioner to challenge Ext.P3 order of the 1[st] respondent before the Tribunal for Local **WP(C).No. 1285 of 2019** **11** Self Government Institutions, by filing an appeal. If the petitioner is filing an appeal against Ext.P3, within two weeks from the date of receipt of a certified copy of this judgment, the same shall be entertained by the Tribunal, as one filed within the time limit specified under the statute, and decide the same on merits, with notice to the petitioner and also to the respondent Municipality. All legal and factual contentions raised by the petitioner are left open to be raised before the Tribunal at appropriate stage. **Sd/-** **ANIL K.NARENDRAN, JUDGE** AV/15/3 **WP(C).No. 1285 of 2019** **12** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 12.09.2018 ISSUED BY THE VILLAGE OFFICER, NILAMBUR EXHIBIT P2 TRUE COPY OF THE BASIC TAX RECEIPT DATED 06.09.2018 ISSUED BY THE VILLAGE OFFICER, NILAMBUR** **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 01.11.2018 PASSED BY THE FIRST RESPONDENT** **EXHIBIT P4 TRUE COPY OF THE LOCATION SKETCH PREPARED BY THE VILLAGE OFFICER, NILAMBUR**