Joy.C.C. v. The State of Kerala, Mudakuzha Grama Panchayath and Eldho

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 08TH DAY OF MARCH 2019 / 17TH PHALGUNA, 1940** ## **WP(C).No. 6392 of 2019** ## **PETITIONER:** **JOY.C.C.,** **AGED 64 YEARS, S/O.C.P. CHACKO, CHIRACKAL HOUSE, THURUTHY P.O., PRALAYAKAD, PERUMBAVOOR, ERNAKULAM-683545.** **BY ADV. SRI.GIGIMON ISSAC** ## **RESPONDENTS:** |**1**|**THE STATE OF KERALA,**| |---|---| ||**REPRESENTED BY ITS SECRETARY, LOCAL SELF**| ||**GOVERNMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695001.**| |**2**|**MUDAKUZHA GRAMA PANCHAYATH,**| ||**MUDAKUZHA P.O, VENGOOR, PERUMBAVOOR,**| ||**ERNAKULAM-683546.**| |**3**|**ELDHO,**| ||**AGED 45 YEARS, S/O.KURIAKOSE, KARIKKUDI HOUSE,**| ||**THURUTHY P.O, PRALAYAKAD, PERUMBAVOOR,**| ||**ERNAKULAM-683545.**| ||**BY ADV. SRI.R.RANJITH, SC, MUDAKUZHA GRAMA**| ||**PANCHAYAT**| ||**SRI K.P.HARISH-SENIOR GOVERNMENT PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WP(C)6392 OF 2019 ## **JUDGMENT** The petitioner and the 3[rd] respondent are neighbours. Alleging danger to life, the 3[rd] respondent preferred a complaint before the 2[nd] respondent Grama Panchayat to cut and remove the trees standing on the property of the petitioner. Ext.P1 is a copy of the complaint made by the 3[rd] respondent before the 2[nd] respondent Grama Panchayat, on 06.02.2018. The petitioner has also preferred a complaint dated 26.02.2018, which is placed on record as Ext.P2, for removal of truss work made on the sunshade of the residential building of the 3[rd] respondent, which according to the petitioner is overlapping the boundary of his property. After hearing the petitioner and the 3[rd] respondent, the 2[nd] respondent issued Ext.P3 communication dated 10.07.2018, whereby the petitioner has been asked to cut and remove the branches of the trees causing danger to the 3[rd] respondent. As per Ext.P3, the 3[rd] respondent has been asked to remove the GI sheet used for truss work, by reducing the width by 2 feet. 2. According to the petitioner, on receipt of Ext.P3 communication, he has complied with the directions contained therein and informed the same to the 2[nd] respondent, vide WP(C)6392 OF 2019 3 Ext.P4. The grievance of the petitioner is that, after Ext.P4, without any cause of action, at the instance of the 3[rd] respondent, Ext.P5 decision has been taken by the Panchayat Committee on 24.09.2018, whereby the petitioner is asked to cut and remove the trees standing on his property. On receipt of Ext.P5, the petitioner approached the President of the Panchayat. Thereafter, the petitioner received Ext.P6 intimation dated 26.12.2018 of the 2[nd] respondent, whereby he has been asked to attend the Adalath scheduled to be held on 04.01.2019. Later, the petitioner is issued with Ext.P7 showcause notice of the 2[nd] respondent dated 22.02.2019, whereby he has been informed that, based on the decision in the Lok Adalath held on 04.01.2019, both sides were heard on 25.01.2019 and it was decided on 05.02.2019 to cut and remove the trees standing on the petitioner's property, failing which the Panchayat will cut and remove the same. Despite the said decision, the petitioner has not taken any steps in this regard and it is in such circumstance that the petitioner has been issued with Ext.P7 show-cause notice under Section 238 (1)(a) of the Kerala Panchayat Raj Act, whereby he has been asked to show-cause why action shall not be taken. On receipt 4 WP(C)6392 OF 2019 of Ext.P7, the petitioner has submitted Ext.P8 reply and thereafter, moved this writ petition before this Court, seeking the following reliefs; “i. To declare that Ext.P3 order is valid and the surmounting orders passed by Ext.P5 and the latest order mentioned in Ext.P7 are unsustainable in the eye of law. ii. Issue a writ of mandamus or such other writ or order directing the 2[nd] respondent to consider and pass orders on Ext.P8 representation after hearing the petitioner.” 3. On 05.03.2019, when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for the 1[st] respondent and the learned Standing Counsel took notice for the 2[nd] respondent. Notice on admission by special messenger was ordered to the 3[rd] respondent, returnable by 08.03.2019. 4. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for the 1[st] respondent and also the learned Standing Counsel for the 2[nd] respondent Grama Panchayat. Despite service of notice, none appears for the 3[rd] respondent. 5. During the course of arguments, the learned counsel for the petitioner would submit that the petitioner has filed this writ petition since he is yet to be served with a copy 5 WP(C)6392 OF 2019 of the decision taken, vide item No.22(1), in the meeting of the Committee of the 2[nd] respondent Grama Panchayat held on 28.01.2019, referred to in Ext.P7 notice. On receipt of Ext.P7 notice, the petitioner has already submitted Ext.P8 objections. 6. As per sub-section (1) of Section 276 of the Municipalities Act, an appeal shall lie to the Panchayat against the notice issued or order passed or action taken by the President or Secretary in exercise of the powers conferred as per the provisions of this Act, rules, bye-laws or regulations made thereunder except Sections 235I, 235J, 235N, 235W and 235X. As per the proviso to sub-section (1), an appeal or matters connected with tax shall be filed before the standing committee for finance of the Village Panchayat. As per subsection (2) of Section 276, if an application is submitted during the pendency of an appeal filed under sub-section (1) the President may, by order, stay the operation of the notice, order or other action appealed against. Every case in which an order has been passed shall be reported by the President to the Panchayat at its next ordinary meeting with the reasons for making such an order and the Panchayat shall either confirm such order with or without modification or revoke it, failing WP(C)6392 OF 2019 6 which it shall stand cancelled. As per sub-section (3) of Section 276, an appeal filed under sub-section (1) shall be disposed of by the Panchayat or the Standing Committee in the manner as it may deem fit within sixty days of its receipt. As per subsection (4) of Section 276, an appeal on the notice, order or action of the Secretary under Sections 235I, 235J, 235N 235W and 235X shall be filed before the Tribunal constituted for Local Self Government Institutions under Section 271 S, and it may on an application by an order, stay the operation of the said notice, order or action taken pending disposal of the appeal. 7. As per sub-section (5) of Section 276 of the Kerala Panchayat Raj Act, an appeal on any notice issued, order passed, or action taken by the Panchayat or Standing Committee on any appeal shall lie to the Tribunal constituted under section 271S, provided that such appeal or revision shall be confined only on the following subjects and relating to other subjects as may be prescribed for the purpose, namely:- (a) Assessment, demand and collection of taxes or fees or cess; (b) Grant of permission and licences for trades, factories, markets and other establishments. As per sub-section (6) of Section 276, an appeal or revision shall be filed within thirty days from the date of notice or order or action taken and such appeal or revision, 7 WP(C)6392 OF 2019 as the case may be, shall be disposed of within sixty days from the date of receipt of such appeal or revision. As per subsection (7) of Section 276, no appeal or revision shall be filed against the assessment of tax unless the tax demanded in the demand notice has been paid. As per sub-section (8) of Section 276, notwithstanding anything contained in this section, all appeals and revisions filed before any authority and not disposed of, before the date on which the Tribunal came into force, shall be handed over by such Authority to the Tribunal. 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 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 WP(C)6392 OF 2019 8 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 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** 9 WP(C)6392 OF 2019 **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 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. WP(C)6392 OF 2019 10 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 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 11 WP(C)6392 OF 2019 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 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 12 WP(C)6392 OF 2019 be equally applicable to enforcement of rights and has been followed by the Apex Court throughout. 12. Therefore, if the petitioner is feeling aggrieved by Ext.P7 notice dated 22.02.2019 issued by the Secretary of the 2[nd] respondent Grama Panchayat, whereby proceedings under Section 238 of the Kerala Panchayat Raj Act has been initiated against the petitioner, it is for him to avail the statutory remedy under Section 276 of the said Act before the appropriate authority. One of the grievances of the petitioner is that he is yet to be served with a copy of the decision of the Panchayat Committee referred to in Ext.P7 (decision No.22(1) in the meeting held on 28.01.2019). It is for the Secretary of the 2[nd] respondent Grama Panchayat to issue a copy of that decision within one week from the date of receipt of a certified copy of this judgment and the petitioner has to work out his remedy against that decision by approaching the appropriate forum. In such circumstance, the challenge made in this writ petition against Ext.P7 notice dated 22.02.2019 issued by the Secretary of the 2[nd] respondent Grama Panchayat is rejected for the aforesaid reason and the writ petition is accordingly WP(C)6392 OF 2019 13 dismissed; however, without prejudice to the right of the petitioner to avail statutory remedy against that notice, by invoking the provisions under Section 276 of the Act, or by pursuing Ext.P8 objections submitted before the Secretary of the Grama Panchayat. On receipt of a copy of the decision of the Panchayat Committee (Item No.22(1) in the meeting held on 28.01.2019), it is for the petitioner to work out his remedy against the same and also the earlier decision dated 24.09.2018, referred to in Ext.P5, by approaching the appropriate forum. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 14 WP(C)6392 OF 2019 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE COMPLAINT PREFERRED BY THE 3RD RESPONDENT BEFORE THE 2ND RESPONDENT PANCHAYATH DATED 06.02.2018.** - **EXHIBIT P2 TRUE COPY OF THE COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT PANCHAYATH DATED 26.02.2018.** **EXHIBIT P3 TRUE COPY OF THE COMMUNICATION DATED 10/07/2018 GIVEN BY THE 2ND RESPONDENT PANCHAYATH WITH RESPECT TO THE DECISION ON EXHIBIT P1 AND P2 COMPLAINTS.** - **EXHIBIT P4 TRUE COPY OF THE INTIMATION LETTER REGARDING COMPLIANCE OF EXHIBIT P3 ORDER, SEND BY THE PETITIONER TO THE 2ND RESPONDENT PANCHAYATH DATED 16.07.2018.** - **EXHIBIT P5 TRUE COPY OF THE DECISION TAKEN BY THE 2ND RESPONDENT PANCHAYATH COMMITTEE ON 24/09/2018 WITH THE COVERING LETTER DATED 28.09.2018.** - **EXHIBIT P6 TRUE COPY OF THE INTIMATION RECEIVED BY THE PETITIONER FOR ATTENDING THE ADALATH CONDUCTED BY THE TALUK LEGAL SERVICE COMMITTEE DATED 26/12/2018.** - **EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DATED 22.02.2019 ISSUED BY THE 2ND RESPONDENT PANCHAYATH TO COMPLY THE COMMITTEE DECISION NO.22(1) TAKEN ON 28.01.2019.** - **EXHIBIT P8 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT PANCHAYATH ON 25.02.2019.** ## **RESPONDENTS' EXHIBITS:NIL** ## **TRUE COPY** ## **P.A. TO JUDGE**