M. Santhosh Kumar v. Corporation of Cochin and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **THURSDAY, THE 11TH DAY OF APRIL 2019 / 21ST CHAITHRA, 1941** ## **WP(C).No. 11051 of 2019** ## **PETITIONER:** **M.SANTHOSH KUMAR, AGED 59 YEARS, ROOM NO. 6, SOUTH OVER BRIDGE SHOPPING COMPLEX, ERNAKULAM, PIN 682 016, RESIDING AT SANGEETHAM, ASHOKA ROAD, KALOOR P.O, ERNAKULAM** **BY ADV. SRI.RAJESH NAIR** ## **RESPONDENTS:** |**1**|**THE CORPORATION OF COCHIN,**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**COCHIN, PIN-682 011.**| |**2**|**THE SECRETARY,**| ||**CORPORATION OF COCHIN,**| ||**COCHIN, PIN-682 011.**| |**3**|**THE REVENUE OFFICER,**| ||**CORPORATION OF COCHIN,**| ||**COCHIN, PIN-682 011.**| |**4**|**THE STANDING COMMITTEE OF FINANCE,**| ||**CORPORATION OF COCHIN,**| ||**REPRESENTED BY ITS CHAIRMAN,**| ||**COCHIN PIN-682 011.**| |**5**|**STATE OF KERALA,**| ||**REPRESENTED BY THE SECRETARY,**| ||**LOCAL ADMINISTRATION DEPARTMENT,**| ||**MINISTRY OF LOCAL ADMINISTRATION,**| ||**SECRETARIAT, THIRUVANANTHAPURAM-695 011.**| ||**BY ADV. SRI.RAAJESH S.SUBRAHMANIAN,SC,**| ||**COCHIN CORPORATION**| **SMT MABLE C.KURIEN,GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 11051 of 2019** -2- ## **JUDGMENT** The petitioner, who is a tenant of shop room No.6 in South Over Bridge Shopping Complex, Ernakulam 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.P3 notice dated 07.03.2018, Ext.P6 notice dated 04.12.2018 and Ext.P9 order dated 11.03.2019 and also Decision No.86 dated 01.03.2019 of the 4[th] respondent Standing Committee of Finance, referred to in Ext.P9. The petitioner has also sought for a writ of mandamus commanding the respondents not to compel and coerce the petitioner to pay the enhanced rent, including the rent enhanced with retrospective effect from 01.04.2017 onwards as per Exts.P3, P6, P9 and Decision No.86 dated 01.03.2019 of the 4[th] respondent and further to restrain the respondents from initiating any revenue recovery proceedings against the petitioner, by any authority under their requisition; commanding the respondents not to evict the petitioner from shop room No.6 in South Over Bridge **WP(C).No. 11051 of 2019** -3- Shopping Complex, having an extent of 960 square feet on the basis that the enhanced rent as shown in Ext.P9 is not paid by the petitioner. The further relief sought for is a declaration that the petitioner is entitled for continued occupation of the room allotted to him by the 1[st] respondent in shop room No.6 in South Over Bridge Shopping Complex, having an extent of 960 square feet on payment of existing rent. ## 2. On 08.04.2019, when this writ petition came up for admission, this Court passed the following order; “One of the grievance of the petitioner is that the petitioner is yet to be served with a copy of the decision of the Standing Committee of Finance dated 01.03.2019 (decision No.86) referred to in Ext.P9 order dated 11.03.2019 of the second respondent, so as to enable him to avail the statutory remedy before the Tribunal for Local Self Government Institutions. 2. The learned Standing Counsel for the Corporation would submit that if an authorised person is sent, a copy of that decision shall be served on the petitioner tomorrow itself. The above submission is recorded.” 3. Heard the learned counsel for the petitioner, the **WP(C).No. 11051 of 2019** -4- learned Standing Counsel for the 1[st] respondent Corporation, representing respondents 1 to 4 and also the learned Government Pleader appearing for the 5[th] respondent. 4. During the course of arguments, it is submitted by the learned counsel for the petitioner that the petitioner has already been issued with a copy of Decision No.86 dated 01.03.2019 of the Standing Committee of Finance, referred to in Ext.P9 order dated 11.03.2019. 5. The learned counsel for the petitioner would submit that the petitioner shall invoke the statutory remedy against Ext.P9, by approaching the Tribunal for Local Self Government Institutions, by filing a revision petition under sub-section (8) of Section 509 of the Kerala Municipality Act, 1994. 6. 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 **WP(C).No. 11051 of 2019** -5- 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. 7. 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., **WP(C).No. 11051 of 2019** -6- 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. 8. 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 **WP(C).No. 11051 of 2019** -7- 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 alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner **WP(C).No. 11051 of 2019** -8- 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. 9. 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: "There are three classes of cases in which a liability may be established founded upon statute ..... But **WP(C).No. 11051 of 2019** -9- 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. 10. 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. 11. When the fact that Ext.P9 order passed by the 2[nd] **WP(C).No. 11051 of 2019** -10- respondent is revisable before the Tribunal for Local Self Government Institutions by filing a revision petition under sub-section (8) of Section 509 of the Kerala Municipalities Act is not in dispute, conclusion is irresistible that no interference in exercise of the writ jurisdiction of this Court under Article 226 of the Constitution of India is warranted on that order, on the grounds raised in this writ petition. In such circumstances, the challenge made in this writ petition against Ext.P9 order dated 11.03.2019 of the 2[nd] respondent and other consequential reliefs fails for the aforesaid reason; however, without prejudice to the right of the petitioner to challenge that order and seek appropriate reliefs by filing a revision petition before the Tribunal for Local Self Government Institutions, by invoking the provisions under sub-section (8) of Section 509 of the Act. Sd/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No. 11051 of 2019** -11- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF CERTIFICATE (NO.G/017457/16/MCHG DATED 03-08-2016) ISSUED BY THE CHAIRMAN (SUPERINTENDENT), STANDING DISABILITY ASSESSMENT BOARD, GOVERNMENT MEDICAL COLLEGE, KOTTAYAM EXHIBIT P2 TRUE COPY OF THE CERTIFICATE DATED 2011-2010 ISSUED BY THE MEDICAL BOARD CONSTITUTED BY THE DISTRICT MEDICAL OFFICER, DEPARTMENT OF HEALTH SERVICES, GOVERNMENT OF KERALA. EXHIBIT P3 TRUE COPY OF COMMUNICATION/NOTICE (MOR 3A/9729/06 DATED 07-03-2018) ISSUED BY THE 3RD RESPONDENT EXHIBIT P4 TRUE COPY OF REPRESENTATION DATED 2603-2018 SUBMITTED BY THE PETITIONER BEFORE THE 2ND AND 3RD RESPONDENT. EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 22-06-2018 SUBMITTED BY THE PETITIONER BEFORE THE DEPUTY MOTOR OF THE 1ST RESPONDENT. EXHIBIT P6 TRUE COPY OF NOTICE (NO MOR 3A/0404/2018 DATED 04-12-2018) ISSUED BY THE 3RD RESPONDENT. EXHIBIT P7 TRUE COPY OF APPEAL DATED 21-01-2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. EXHIBIT P8 TRUE COPY OF APPEAL PETITION SUBMITTED BEFORE THE WORSHIPFUL MAYOR OF THE 1ST RESPONDENT ON 21-01-2019. EXHIBIT P9 TRUE COPY OF ORDER (NO. ISO/MOR 3A/39822/79 DATED 11-03-2019) ISSUED BY ADDITIONAL SECRETARY, CORPORATION OF COCHIN.** **WP(C).No. 11051 of 2019** -12- **EXHIBIT P10 TRUE COPY OF THIS APPLICATION FILED UNDER RIGHT TO INFORMATION ACT, BY THE PETITIONER ON 2ND OF APRIL 2019. EXHIBIT P11 TRUE COPY OF RECEIPT NO. 66195 (REF. NO. P10/011470/19 DATED 2ND APRIL 2019 ISSUED BY THE OFFICE OF THE 1ST RESPONDENT. RESPONDENTS' EXHIBITS: NIL**