Joy Scaria v. Meenachil Grama Panchayat and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 19TH DAY OF JULY 2019 / 28TH ASHADHA, 1941** ## **WP(C).No.18145 of 2019** ## **PETITIONER:** **JOY SCARIA, AGED 57 YEARS, S/O. SCARIA, PULIKKUNNEL, THONNIPPARA HOUSE, POOVATHODU P.O., BHARANANGANAM, KOTTAYAM DISTRICT-686 578.** **BY ADVS. SRI.BABY THOMAS SRI.K.ANIL JOSEPH** ## **RESPONDENTS:** - **1 MEENACHIL GRAMA PANCHAYAT, EDAMATTOM P.O., BHARANANGANAM, KOTTAYAM DISTRICT, PIN-686 578, REPRESENTED BY ITS SECRETARY.** - **2 THE TOWN PLANNER, DISTRICT TOWN PLANNERS OFFICE, COLLECTORATE, KOTTAYAM-686 001.** - **3 CHIEF TOWN PLANNER, CHIEF TOWN PLANNERS OFFICE, THIRUVANANTHAPURAM-695 003.** - **4 THE DISTRICT COLLECTOR, COLLECTORATE P.O., KOTTAYAM-686 002.** - **5 TOM MATHEW, KAROTTUVEETTIL, EDAMATTOM P.O., BHARANANGANAM, KOTTAYAM-686 578.** **R1 BY ADVS.SRI.P.C.HARIDAS R5 SRI.G.S.REGHUNATH R2-R4 SRI.MANURAJ K.J.,GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.18145 of 2019** -2- ## **JUDGMENT** The petitioner, who is presently residing at Poovathodu in Bharananganam, who had applied for licence to conduct metal crusher unit and M-sand unit in his property in Block No.42 in Re.survey No.212/6-3 of Poovarani Village in Meenachil Taluk, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P7 trade licence issued to the 5[th] respondent for conducting M-sand unit in building No.IV/398A, for the period from 01.04.2019 to 31.03.2020. 2. On 08.07.2019, when this writ petition came up for admission, this Court issued urgent notice on admission by speed post to respondents 1 and 5, returnable within ten days. The learned Government Pleader took notice on admission for respondents 2 to 4. The learned Government Pleader was directed to get instructions as to whether fresh appeals/revision petitions filed along with interlocutory applications are being entertained by the Additional Fast Track Court-I, Thiruvananthapuram, the court holding additional charge of the Tribunal for Local Self Government Institutions. **WP(C).No.18145 of 2019** -3- It was made clear that the pendency of this writ petition will not stand in the way of the petitioner invoking the statutory remedy against Ext.P7. 3. Heard the learned counsel for the petitioner, Sri.P.C.Haridas, the learned counsel for the 1[st] respondent Grama Panchayat, the learned Government Pleader appearing for respondents 2 to 4 and also Sri.G.S.Raghunath, the learned counsel for the 5[th] respondent. 4. The issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P7 trade licence issued by the 1[st] respondent Grama Panchayat, in favour of the 5[th] respondent for conducting M- sand unit for the year 2019-20, in exercise of the writ jurisdiction of this Court under Article 226 of the Constitution of India. 5. The fact that Ext.P7 licence issued to the 5[th] respondent can be challenged by availing the statutory remedy under Section 276 of the Kerala Panchayat Raj Act, 1994 by approaching the appropriate forum, is not in dispute. The submission made by the learned counsel for the petitioner **WP(C).No.18145 of 2019** -4- is that at present, there is no Presiding Officer in the Tribunal for Local Government Institutions and as such, the petitioner is not in a position to avail the statutory remedy. 6. Based on the order of this Court dated 08.07.2019, the Government Pleader, on instructions, would submit that Additional Fast Track Court-I, Thiruvananthapuram, which is holding additional charge of the Tribunal for Local Self Government Institutions is entertaining fresh appeals and revision petitions filed under the provisions of the Kerala Panchayat Raj Act. 7. The learned counsel for the 1[st] respondent Grama Panchayat would point out that by Ext.P7, the Secretary of the Grama Panchayat has only renewed the trade licence granted to the 5[th] respondent, in exercise of his powers under Section 232 of the Kerala Panchayat Raj Act and that it is not a permission for installation, granted under Section 233 of the Kerala Panchayat Raj Act. 8. 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 **WP(C).No.18145 of 2019** -5- 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. 9. 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 **WP(C).No.18145 of 2019** -6- 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 writ petition should not be entertained ignoring the statutory dispensation. 10. In **Thansingh Nathmal's case (supra)** a Constitution Bench of the Apex Court held that, the **WP(C).No.18145 of 2019** -7- 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 **WP(C).No.18145 of 2019** -8- 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. 11. 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: **WP(C).No.18145 of 2019** -9- "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. 12. 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.18145 of 2019** -10- 13. Viewed in the law laid down in the decisions referred to supra, conclusion is irresistible that when a statutory remedy is available under Section 276 of the Kerala Panchayat Raj Act, the petitioner cannot challenge Ext.P7 trade licence issued in favour of the 5[th] respondent, by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, on the grounds raised in the writ petition. In the result, the writ petition filed on 02.07.2019 is dismissed; however, without prejudice to the right of the petitioner to challenge Ext.P7, by filing a statutory appeal under Section 276 of the Kerala Panchayat Raj Act before appropriate forum. Sd/- **ANIL K. NARENDRAN JUDGE** **WP(C).No.18145 of 2019** -11- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 14.3.2016.** **EXHIBIT P2 TRUE COPY OF THE INTERIM ORDER IN WPC NO.13696/2016. EXHIBIT P3 TRUE COPY OF THE ADDL. COUNTER AFFIDAVIT FILED BY R1 IN WPC NO.22062/2013.** **EXHIBIT P4 TRUE COPY OF THE STATEMENT FILED BY THE R2 IN W.A.NO.2432/15. EXHIBIT P5 TRUE COPY OF THE COMMISSION REPROT FILED BY ADVOCATE COMNMISSIONER IN O.S.NO.297/18.** **EXHIBIT P6 TRUE COPY OF THE PETITION FILED BEFORE THE IST RESPONDENT ON 18.3.2019. EXHIBIT P7 TRUE COPY OF THE LICENCE ISSUED TO THE 3RD RESPONDENT ON 31.3.2019.** **RESPONDENTS' EXHIBITS: NIL**