K.N. GOPINATHA SHARMA v. Corporation of Kochi and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 21ST DAY OF JUNE 2019 / 31ST JYAISHTA, 1941 WP(C).No.12439 of 2019** ## **PETITIONER:** **K.N.GOPINATHA SHARMA, AGED 71 YEARS,S/O NARAYAN UNNI, ROOM NO 4, VYTTILA (SOUTH BLOCK) SHOPPING COMPLEX, VYTTILA, RESIDING AT GOKULAM, UDAYA JUNCTION, KURIYAKKAD P.O. THIRUVANKULAM, KOCHI-682 035.** ## **BY ADV. SRI.S.SUJIN** ## **RESPONDENTS:** - **1 CORPORATION OF KOCHI, CORPORATION OFFICE, PARK AVENUE, P.B. NO 1016, KOCHI-681 011 REPRESENTED BY ITS SECRETARY.** - **2 THE REVENUE OFFICER, CORPORATION OF KOCHI, CORPORATION OFFICE, PARK AVENUE, P.B. NO 1016,KOCHI-682 011.** - **3 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIURVANANTHAPURAM -695 001.** - **R1&R2 BY ADV. SRI.K.P.JUSTINE(KARIPAT),STANDING COUNSEL, COCHIN CORPORATION** - **R3 SRI MANU RAJ K.J.,GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.12439 of 2019** -2- ## **JUDGMENT** The petitioner, who is stated to be the licencee in occupation of shop No.4 in Vyttila South Block shopping complex at Ponnurunni, which is owned by the 1[st] respondent Corporation, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P1 demand notice dated 04.12.2018 issued by the 2[nd] respondent Revenue Officer of the 1[st] respondent Corporation, whereby the petitioner has been informed that the room rent in respect of the aforesaid shop room is revised as Rs.6,510/- with effect from 01.04.2017, as against Rs.6,000/- per month and a consequential demand for Rs.86,938/- has been made. On receipt of Ext.P1 demand notice, the petitioner submitted Ext.P2 objection dated 04.01.2019 and thereafter, approached this Court in W.P.(C) No.2334 of 2019. The said writ petition was disposed of by Ext.P3 judgment dated 25.01.2019, whereby the Secretary of the 1[st] respondent Corporation was directed to finalise the issue, taking into **WP(C).No.12439 of 2019** -3- account Ext.P2 objection raised by the petitioner, within one month from the date of receipt of a certified copy of that judgment. The Secretary of the Corporation thereafter issued Ext.P4 order dated 22.03.2019 holding that no change is required in the quantification of rent fixed for the petitioner's shop room. Feeling aggrieved, the petitioner is before this Court in this writ petition, under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 demand notice dated 04.12.2018 and Ext.P4 order dated 22.03.2019. The petitioner has also sought for a writ of mandamus commanding the respondents not to revise the rent without considering his objection and hearing him. 2. On 17.04.2019, when this writ petition came up for admission, the learned Standing Counsel for the Corporation sought time to get instructions. This Court has made it clear that, the pendency of this writ petition will not stand in the way of the petitioner preferring any appeal before the statutory authorities. **WP(C).No.12439 of 2019** -4- 3. Today, when this case is taken up for consideration, it is submitted by the learned Standing Counsel for the Corporation that a counter affidavit of the 1[st] respondent is being filed. 4. Heard the learned counsel for the petitioner, the learned Standing Counsel for the 1[st] respondent Corporation, representing respondents 1 and 2 and also the learned Government Pleader appearing for the 3[rd] respondent. 5. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Exts.P1 and P2, in exercise of the writ jurisdiction of this Court under Article 226 of the Constitution of India. 6. The petitioner was issued with Ext.P1 demand notice dated 04.12.2018, whereby he was informed regarding revision of room rent with effect from 01.04.2017. The petitioner submitted Ext.P2 objection. After considering the same, the Secretary of the 1[st] **WP(C).No.12439 of 2019** -5- respondent Corporation issued Ext.P4 order, wherein a total demand for Rs.1,12,436/- has been made. 7. Section 509 of the Kerala Municipality Act, 1994 deals with appeal and revision. As per sub-section (1) of Section 509 of the Act, an appeal may be preferred to the Council against any notice issued or any order passed or action taken by the Chairperson or the Secretary under any of the provisions of the said Act other than Sections 390, 391, 395, 406 and 408 or the rules or bye-laws or regulations made thereunder. Therefore, if the petitioner is feeling aggrieved by Ext.P4 order, he can challenge the same before the Municipal Council by filing an appeal under sub-section (1) of Section 509 of the Act. The said fact is not in dispute. 8. 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 **WP(C).No.12439 of 2019** -6- 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 falling within the well defined exceptions as observed in **Chaabil Das Agarwal's case** **WP(C).No.12439 of 2019** -7- **(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 jurisdiction of the High Court under Article 226 of the **WP(C).No.12439 of 2019** -8- 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 **WP(C).No.12439 of 2019** -9- 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** **WP(C).No.12439 of 2019** -10- ## **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. 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 **WP(C).No.12439 of 2019** -11- is challenged before the appropriate forum, within the prescribed time limit, the said order will become final. 13. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the petitioner cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, challenging Ext.P4 order issued by the Secretary of the 1[st] respondent Corporation, on the grounds raised in this writ petition, in view of the statutory remedy available under Section 509 of the Kerala Municipality Act. 14. In the result, this writ petition filed on 16.04.2019 is dismissed for the aforesaid reason; however, without prejudice to the right of the petitioner to challenge Ext.P4 order by filing a statutory appeal before the Municipal Council of the 1[st] respondent Corporation. The legal and factual contentions raised by the petitioner are left open to be raised before the appropriate forum, at appropriate stage. ## Sd/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No.12439 of 2019** -12- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF DEMAND NOTICE DATED 4.12.2018 ISSUED BY THE RESPONDENTS TO THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE OBJECTION DATED 4.1.2019 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS OFFICE. EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 25.1.2019 IN WPC NO 2334/2019. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 22.3.2019 ISSUED BY THE RESPONDENT CORPORATION.** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R1(a) TRUE COPY OF THE JUDGMENT DATED 25.01.2019 IN WPC NO.2334 OF 2019.**