Joy Abraham v. Erattayar Grama Panchayath and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 22ND DAY OF AUGUST 2019 / 31ST SRAVANA, 1941** ## **WP(C).No.12435 OF 2019(D)** ## **PETITIONER/S:** **JOY ABRAHAM, AGED 49 YEARS S/O.ABRAHAM, KOTTARATHIL HOUSE, VELLAYAMKUDY P.O., KATTAPPANA.** ## **BY ADV. SRI.S.SACHITHANANDA PAI** ## **RESPONDENT/S:** **1 THE ERATTAYAR GRAMA PANCHAYATH, REP. BY ITS SECRETARY, ERTTAYAR P.O., KATTAPPANA - 685 514. 2 ADDL.R2. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001. ADDL.R2 IS SUO MOTU IMPLEADED AS PER ORDER DATED 06.06.2019.** ## **R1 BY ADV. SRI.M.C.JOHN** ## **OTHER PRESENT:** ## **SRI C.M.NAZAR - SPL GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.12435 OF 2019(D)** **2** ## **JUDGMENT** The petitioner who is conducting a fish stall in a shop room bearing door No.7/384 of Erattayar Grama Panchayat has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P3 notice dated 26.03.2019 issued by the Secretary of the first respondent Grama Panchayat, whereby Ext.P2 application made by the petitioner for trade licence stands rejected on the ground that sale of fresh fish can only be conducted at the shopping complex of the Grama Panchayat which has already been auctioned and the said business cannot be conducted at any other place in Erattayar town, from 01.04.2019. 2. On 17.04.2019, when this writ petition came up for admission, this Court issued notice by speed post to the respondents, returnable in three weeks. While listing the matter immediately after vacation, this Court passed an interim order directing the respondent Grama Panchayat not to take coercive action against the petitioner on the basis of Ext.P3 communication dated 26.03.2019. The said interim order which was extended from time to time is still in force. 3. On 06.06.2019, when this writ petition came up for consideration, in view of the contentions raised by the petitioner **WP(C).No.12435 OF 2019(D)** **3** with reference to the amended provisions of Section 233 of the Kerala Panchayath Raj Act, 1994, as amended by the Kerala Investment Promotion and Facilitation Act, 2008, the State of Kerala, represented by the Secretary to Government, Local Self Government Department was _suo-motu_ impleaded as the additional second respondent. The learned counsel for the petitioner was directed to serve a copy of this writ petition to the learned Special Government Pleader for Local Self Government Institutions. 4. A counter affidavit has been filed by the first respondent, opposing the reliefs sought for in this writ petition, along with an interlocutory application to vacate the interim order granted in this case. Paragraph 3 to 6 of the said counter affidavit reads thus; "3. The petitioner has approached this Hon'ble Court, without clean hands. From the very first averment there is flow of incorrect statements through out the writ petition. The averment that the petitioner is running the Fish Stall in the room No.7/387 for the past so many years is absolutely false. The rent deed itself is dated 06.03.2019. The averment that the 'second petitioner' continues the business from 2007 onwards is false and hence denied. There is only one petitioner in the Writ Petition. The license issued to the petitioner admittedly expired on 31.03.2019 and it was not renewed for the **WP(C).No.12435 OF 2019(D)** **4** ## following reasons:- 4. Taking into consideration of the inconveniences caused by the functioning of the fish stalls and meat stalls in the middle of the Erattayar town and the various complaints received an all party meeting of the Vyapari Vyavasayi Associations and the Political parties were convened on 20.06.2018 for considering the shifting of such stalls to the shop rooms under construction in the shopping complex constructed by the Panchayath for the purpose. The Panchayath Committee took a decision in the light of the opinions of the participants in the meeting, to discontinue the fish stalls and the meat stalls now functioning near the Bus Stand and the Town premises and not to permit any fresh stalls to come up in the said premises in future. It was also decided to take urgent steps to complete the construction of the shop rooms in the shopping complex to accommodate the fish and meat stalls and give preference to those who are shifted. For that matter, the three rooms on the Southern portion constructed by the Panchayath near the Taxi Stand can be made available and that the front two rooms can be utilized for fish vending stalls and the rear room can be used for vending meat brought from authorised slaughter houses. A true copy of the decision taken in the meeting held on 18.12.2018 is produced marked as **Exhibit R1(a)** . 5. As decided above, the construction of the shop rooms in the shopping complex was expedited and completed in a time bound manner since it was all the more necessary in the light of the various complaints received from the public, the near by shop owners, the **WP(C).No.12435 OF 2019(D)** **5** Government and Quasi- government institutions against the functioning of the fish stalls in the middle of the town in un hygenic condition. The committee resolved to auction the 3 stalls (2 fish and 1 meat) completed in the shopping complex with effect from 01.04.2019 to 31.03.2020 and to prohibit any fish or meat stall in the town other than the shopping complex. A true copy of the resolution dated 07.01.2019 by the Panchayath Committee is produced maked as **Exhibit R1(b).** 6. As per the decision, the 3 stalls along with other stalls were put to auction for the period from 01.04.2019 to 31.03.2020 on 02.03.2019 after giving public notice and paper publication and also individual notice to the shop owners in the town ship including the petitioner. A true copy of the Auction Notice dated 23.02.2019 published by the Panchayath, is produced marked as **Exhibit R1(c).** A true copy of the Bit Notice dated 12.02.2019 circulated among the traders in the town is produced marked as **Exhibit R1(d).** The Auction was held as per the notification and the petitioner's representative (Sales man) Sri.Thomas Chandy participated in the auction by depositing the earnest money. How ever he did not bid the auction and the amounts deposited towards earnest money were received back. True copy of the Sale Diary dated 02.03.2019 is produced marked as **Exhibit R1(e)** The petitioner had promised that he will be shifting after Easter holidays. Contrary to his promise, the petitioner after keeping the stall closed during the Holy Week, to make it appear that he is preparing for shifting, suddenly on Saturday ie 20.04.2019, a day before Easter, opened the fish stall and **WP(C).No.12435 OF 2019(D)** **6** started the sale on the strength of the interim order obtained during Vacation by suppressing material facts. The impugned notice is dated 26.03.2019 and it was served on the petitioner on the same day by hand. The averment that he received the notice only late is absolutely false and is made only to justify his not moving before vacation. He kept the notice in pocket, to approach this Hon'ble Court during Vacation.” 5. The petitioner has also filed a reply affidavit. 6. Heard the learned counsel for the petitioner, the learned Standing Counsel for the first respondent Grama Panchayat and also the learned Special Government Pleader for the additional second respondent. 7. As already noticed, by Ext.P3 communication dated 26.03.2019, the application for trade licence made by the petitioner to conduct business of fresh fish in the shop room in question stands rejected for the reason that such business can only be conducted in the shopping complex of the Panchayat from 01.04.2019 and not in any other place in Erattayar town. The submission made by the learned counsel for the petitioner is that such a restriction imposed by the first respondent is legally unsustainable. 8. Ext.P3 order, whereby Ext.P2 application for trade licence made by the petitioner stands rejected for the aforesaid **WP(C).No.12435 OF 2019(D)** **7** reason is appealable before the Tribunal for Local Self Government Institutions, in view of the provisions under Section 276 of the Kerala Panchayat Raj Act, 1994. The said fact is not in dispute. When the rejection of the application for trade licence made by the petitioner is for the aforesaid reason, it is for him to avail the statutory remedy under Section 276 of the Act, if he is feeling aggrieved by Ext.P3 order. 9. 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 invoke the extraordinary jurisdiction under Article 226. **WP(C).No.12435 OF 2019(D)** **8** ## 10. 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 **WP(C).No.12435 OF 2019(D)** **9** 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. 11. 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 **WP(C).No.12435 OF 2019(D)** **10** 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 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. 12. 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 **WP(C).No.12435 OF 2019(D)** **11** ## **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. 13. 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. **WP(C).No.12435 OF 2019(D)** **12** 14. Viewed in the light of the law laid down in the decisions referred to _supra_ , conclusion is irresistible that when a statutory remedy of appeal is provided under Section 276 of the Kerala Panchayat Raj Act, for challenging Ext.P3 order, before the Tribunal for Local Self Government Institutions, the petitioner cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, in order to challenge that order, on the grounds raised in this writ petition. 15. The learned Standing Counsel for the first respondent Grama Panchayat would submit that on the strength of the interim order granted by this Court the petitioner is conducting fish stall, without any trade licence. 16. The learned counsel for the petitioner would submit that the petitioner may be granted a breathing time to avail the statutory remedy before the Tribunal for Local Self Government Institutions. Having considered the submissions made by the learned counsel on both sides, this writ petition is dismissed, repelling the challenge made against Ext.P3 order, for the aforesaid reason; however, without prejudice to the right of the petitioner to challenge that order by invoking the statutory remedy by filing appeal before the Tribunal for Local Self Government **WP(C).No.12435 OF 2019(D)** **13** Institutions, invoking the provisions under Section 276 of the Kerala Panchayat Raj Act. In order to enable the petitioner to move the Tribunal, it is ordered that the interim order granted in this writ petition shall continue to be in force for a period of three weeks from the date of receipt of a certified copy of this judgment. **Sd/-** ## **ANIL K.NARENDRAN** **JUDGE** Skk/240819 **WP(C).No.12435 OF 2019(D)** **14** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE D & O LICENSE DATED 02/04/2018 OF THE 1ST RESPONDENT.** - **EXHIBIT P2 TRUE COPY OF THE APPLICATION OF THE PETITIONER.** - **EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 26/03/2019 OF THE RESPONDENT.** - **EXHIBIT P4 COPY OF THE LICENSE ISSUED BY THE RESPONDENT DATED 22-8-2016** - **EXHIBIT P5 COPY OF THE CONSENT ISSUED BY ENVIRONMENTAL ENGINEER, POLLUTION CONTROL BOARD DATED 14.05.2019.** - **EXHIBIT P6 PHOTOGRAPH OF THE SHOP OF THE PETITIONER. EXHIBIT P7 REPRESENTATION SUBMITTED TO THE RESPONDENT DATED NIL.** **RESPONDENTS' EXHIBITS:** - **EXHIBIT R1(a) TRUE COPY OF THE DECISION DATED 18.12.2018 OF PANCHAYATH COMMITTEE** **EXHIBIT R1(b) TRUE COPY OF THE RESOLUTION DATED 07.01.2019 OF THE PANCHAYATH COMMITTEE EXHIBIT R1(c) TRUE COPY OF THE AUCTION NOTICE DATED 23.02.2019 PUBLISHED BY THE PANCHAYATH EXHIBIT R1(d) TRUE COPY OF THE BIT NOTICE DATED 12.02.2019 CIRCULATED BY PANCHAYATH EXHIBIT R1(e) TRUE COPY OF THE SALE DIARY DATED 02.03.2019 EXHIBIT R1(f) TRUE COPY OF THE LETTER DATED 15.05.2019 FROM THE MEDICAL OFFICER WITH REPORT**