M-STAR HOTELS GURUVAYUR LIMITED LIABILITY PARTNERSHIP v. State of Kerala, Guruvayur Municipality, Guruvayur Devaswom

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **WEDNESDAY, THE 05TH DAY OF AUGUST 2020 / 14TH SRAVANA, 1942** ## **WP(C).No.1767 OF 2020(U)** ## **PETITIONER:** **M-STAR HOTELS GURUVAYUR LIMITED LIABILITY PARTNERSHIP, 20/121, KERALA STATE HOUSING BLDG., CHANGAMPUZHA NAGAR, SOUTH KALAMASSERY, ERNAKULAM, REPRESENTED BY ITS BODY CORPORATE - DESIGNATED PARTNER, G. MOHANAN, AGED 64 YEARS, S/O. K.N. UNNIKRISHNAN NAIR, DHANNYA HOUSE, KANNADI P.O., PALAKKAD 678 701** ## **BY ADV. SRI.RAJIT** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT, LOCAL SELF GOVERNMENT (RD) DEPARTMENT, THIRUVANANTHAPURAM-695001** - **2 THE GURUVAYUR MUNICIPALITY, MUNICIPAL BUILDINGS, GURUVAYUR, CHAVAKKAD TALUK, THRISSUR DISTRICT, REPRESENTED BY IT SECRETARY. 680101** - **3 THE SECRETARY, GURUVAYUR MUNICIPALITY, MUNICIPAL BUILDINGS, GURUVAYUR, CHAVAKKAD TALUK, THRISSUR DISTRICT -680101** - **4 GURUVAYUR DEVASWOM, DEVASWOM BUILDING, GURUVAYUR, CHAVAKKAD TALUK, THRISSUR DISTRICT, REPRESENTED BY THE ADMINISTRATOR – 680 101** **R2-R3 BY ADV. SRI.K.K.CHANDRAN PILLAI (SR.) R2-R3 BY SMT.S.AMBILI, SC, GURUVAYUR MUNICIPALITY R4 BY ADV. SRI.T.K.VIPINDAS R1 BY SMT AMMINIKUTTY K , SR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.1767 of 2020(U) 2 ## **JUDGMENT** The petitioner, a Limited Liability Partnership represented by its Designated Partner, obtained Ext.P1 building permit dated 14.06.2016 issued by the 3[rd] respondent, who is the Secretary of the 2[nd] respondent Municipality, for constructing a hotel building in 08.47 Ares of land comprised in Survey No.99/1-1 of Guruvayur Village, in Ward No.18 of Guruvayur Municipality. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P8 order dated 07.12.2019 of the the 3[rd] respondent, whereby Ext.P2 application made by the petitioner for renewal of Ext.P1 building permit was rejected, pointing out violations of Rules 24(5), 39(1), 39(2), 39(3) and 39(4) of the Kerala Municipality Building Rules, 1999, and also the restriction imposed in Ext.P7 judgment of a Division Bench of this Court in W.P.(C)No.16494 of 2004, whereby no construction is permissible within 100 Mts. from Sree Krishna Temple, Guruvayoor. The petitioner has also sought for a writ of mandamus commanding the 3[rd] respondent to renew Ext.P1 building permit; a writ of mandamus commanding the respondents to either acquire the property of the petitioner in terms of Ext.P7 judgment by paying adequate compensation or drop all further proceedings for acquisition; and a writ of W.P.(C)No.1767 of 2020(U) 3 mandamus commanding the respondents to reimburse the expenses incurred by the petitioner, on account of the delay in renewing Ext.P1 building permit, along with interest at the rate of 12% per annum. 2. On 22.01.2020, when this writ petition came up for admission, the learned Government Pleader took notice for the 1[st] respondent, the learned Standing Counsel for Guruvayoor Municipality took notice for respondents 2 and 3 and the learned Standing Counsel for Guruvayoor Devaswom took notice for the 4[th] respondent. 3. A counter affidavit has been filed by the 4[th] respondent Guruvayoor Devaswom, opposing the reliefs sought for in this writ petition. In the counter affidavit, the question of maintainability of this writ petition is also raised, pointing out the statutory remedy available under Rule 108 of the Kerala Municipality Building Rules, 2019 (which came into force on 08.11.2019) since the petitioner can challenge Ext.P8 order by filing an appeal before the Tribunal for Local Self Government Institutions. Along with the counter affidavit, the 4[th] respondent has produced Ext.R4(a) judgment of a Division Bench of this Court dated 01.07.2003 in O.P.No.9588 of 2003; Ext.R4(b) order of the Apex Court dated 01.07.2003 in S.L.P.(C)No.8110 of 2003; Ext.R4(b) order of a Division Bench of W.P.(C)No.1767 of 2020(U) 4 this Court dated 06.02.2009 in R.P.No.1390 of 1999 and connected matters; and also Ext.R4(e) judgment of a Division Bench of this Court dated 13.01.2020 in W.P.(C)No.34111 of 2019 and connected matter, in order to contend that there is prohibition in undertaking construction within a radius of 100 metres from Sree Krishna Temple, Guruvayur. The document marked as Ext.R4(f) is a copy of Resolution No.27 dated 23.01.2019 of the Managing Committee of Guruvayur Devaswom, whereby the Chief Engineer of Guruvayur Devaswom and the Devaswom Surveyor were authorised to take necessary steps for the acquisition of land within a radius of 100 Mts. from Sree Krishna Temple, Guruvayur, in terms of the judgment of this Court. Based on that decision, Ext.R4(g) request was made before the Devaswom Commissioner; Ext.R4(h) request before the District Collector; and Ext.R4(i) request before the 1[st] respondent State. 4. A statement on behalf of respondents 2 and 3 has been filed by the learned Standing Counsel for Guruvayur Municipality, contending that valid reasons have been stated in Ext.P8 order of the 3[rd] respondent for rejecting Ext.P2 application made by the petitioner for renewal of Ext.P1 building permit. 5. Heard the learned counsel for the petitioner; the learned Senior Government Pleader for the 1[st] respondent State; W.P.(C)No.1767 of 2020(U) 5 the learned Standing Counsel for Guruvayur Municipality, for respondents 2 and 3; and also the learned Standing Counsel for Guruvayur Devaswom, for the 4[th] respondent. 6. In **C.K.Rajan v. State of Kerala [AIR 1994 Kerala 179]** a letter sent by Shri C.K.Rajan alleging gross irregularities, corrupt practices, maladministration and mismanagement in Sree Krishna Temple, Guruvayur was treated as an original petition under Article 226 of the Constitution of India. The Commissioner appointed by the Division Bench (Shri Krishnan Unni, Senior Selection Grade District Judge) submitted Interim Report Nos.1 to 15 and a Final Report. Part I of the Final Report has 20 chapters. Pages 1 to 233 deal with Chapters I to XIX. Chapter XX contains the appendices to Part I (pages 1 to 152). The Final Report makes all the Interim Reports, which are codified as Part II of that report, as part of Part I. In Chapter XV - Picking up the Thread - of Part I, various recommendations have been made on various Interim Reports and the Final Report. They are contained in pages 202 to 205. Further, general recommendations are contained in Para.28 to 30, at page 213, which are to the following effect; "28. Devaswom should construct cheap lodging houses for devotees even if at a distance. The devotees can be taken from the lodging houses to the temple by a chain service W.P.(C)No.1767 of 2020(U) 6 conducted by the Devaswom so that the rush near the temple for lodging houses can be avoided. 29. Devaswom should either acquire all properties within the radius of 100 Mts. from the outer wall of the temple or law must be enacted giving a pre emption right to the Davaswom to purchase those properties whenever owners want to sell them. This is very urgent and necessary for future development and security of the temple. 30. A master plan must be drawn for development of the temple town and its surroundings and a development authority constituted. There must be clear planning and healthy development of the temple town." (underline supplied) In paragraph 57 of the judgment, the Division Bench viewed that the three general observations are necessary for the temple and its preservation and efficient and good administration in the long run. Therefore, the Division Bench held that, recommendations Nos.28, 29 and 30, at page 213 are acceptable and practical effect may be given to those recommendations by the Managing Committee by taking proper steps in that regard. Sub-paras A to T of paragraph 64 of the judgment contains summary of the findings and recommendations (Interim Report Nos.1 to 15 of 1993); and sub-para.U to Z(11) of paragraph 65 of the judgment contains summary of the findings and recommendations (Final Report). Sub-para. Z(6) of paragraph 65 reads thus; W.P.(C)No.1767 of 2020(U) 7 “Z(6). In Part I, Chapter XIII in dealing with politicalisation and administrative dysfunction, the various observations made by the Commissioner extracted by us in Para.55 of the judgment, are laudable, and those matters which do not require any statutory changes shall be given effect to. With regard to those matters which require statutory changes, it is for the appropriate authorities to consider (paragraph 55 of the judgment). The general recommendations contained in Para.28 to 30 at page 213 (page 251 of the judgment) are acceptable and practical effect may be given to those recommendations by taking appropriate steps (paragraph ” 57). (underline supplied) 7. The judgment of the Division Bench in **C.K.Rajan** was under challenge before the Apex Court in Civil Appeal Nos.2148 of 1994 and connected cases. The Apex Court disposed of those Civil Appeals by the judgment dated 14.08.2003 in **Guruvayur Devaswom Managing Committee v. C.K.Rajan [(2003) 7** **SCC 546]** . Before the Apex Court the learned Senior Counsel for the State of Kerala submitted a status report on the action which has already been taken or yet to be taken or not possible to be taken on the recommendations in paragraph 65 of the judgment of the Division Bench in **C.K.Rajan** , which is reproduced in paragraph 81 of the judgment of the Apex Court. The status report on the recommendations in sub-para.z(6) of paragraph 65 of the judgment of the Division Bench in **C.K.Rajan** reads thus; W.P.(C)No.1767 of 2020(U) 8 Para.65 of the judgment of Action taken/reply the High Court z(6) Recommendation regarding The question regarding politicisation and politicisation is now being administrative dysfunction considered by the Hon'ble (para.55 of the judgment) & Supreme Court in another Civil recommendations regarding Appeal No.6675/99. However, at accommodation facilities to present, persons who are not pilgrims and acquisition of members of any political party land (para 57 of the alone are appointed as members judgment) of the Committee. Regarding the suggestion to make the term of the Managing Committee as four years, the Legislature, after considering the entire matter had decided that the term of nominated members shall be two years only. However, they can be renominated after the period, if the Government desire so. Regarding direction to construct cheap lodging houses for devotees, Devaswom has already initiated action on this. As regards the direction to acquire lands within a radius of 100 Mts. from the outer wall of the temple, action has been initiated for acquisition of land as a phased programme. (underline supplied) On the preliminary issue on maintainability, the Apex Court opined that the question of examining the maintainability of the writ petition as a preliminary issue by the High Court has become W.P.(C)No.1767 of 2020(U) 9 academic. Parties addressed the High Court on the merit of the matter and upon considering the rival submissions, the impugned judgment has been passed. For the reasons stated in the order in C.M.P.No.10669 of 1993 the High Court has proceeded in the matter on merit. The Apex Court found no illegality in it. Furthermore, the appellant and the State took part in the proceedings. The State advisedly did so having regard to the fact that before the question of maintainability of the writ petition could be decided, the enquiry had reached almost a closing point. The Apex Court was not impressed with the submission of the learned Senior Counsel for the State of Kerala that, he while conceding that the Court may proceed with the matter represented before the High Court that the suggestions and observations made by the Commissioner in the said interim reports could be considered by the State. The Apex Court observed that it will only go by the records of the High Court. It will not ordinarily entertain any doubt as regards correctness or otherwise of the proceedings of the High Court, as laid down in **State of Maharashtra v. Ramdas Shrinivas Nayak [(1982) 2** **SCC 463]** . The Apex Court noticed that the conduct of the appellant Guruvayur Devaswom Managing Committee is also not wholly free from blemish. It did not take a firm stand. It passed W.P.(C)No.1767 of 2020(U) 10 different resolutions at different points of time. It evidently prevaricated its stand from stage to stage. Nothing stated in the minutes dated 27.10.1993 run counter to the observations made by the High Court in its order dated 25.8.1993. The High Court itself invited objections to the reports, as would appear from its impugned judgment. The impugned judgment of the High Court shows that the appellant did file its objections in relation to certain reports which have been considered. In paragraph 90 of the judgment, the Apex Court concluded that the State admittedly implemented many of the suggestions of the High Court. They would not be reopened. Some suggestions of the High Court are pending consideration at the hands of the State. They may be considered. The State shall, however, as regard the directions of the High Court which according to it cannot be complied with, pass appropriate orders recording sufficient and cogent reasons therefor as expeditiously as possible and not beyond a period of three months from the date of communication of that order. The High Court, if any proceeding is initiated in relation thereto, may deal therewith in accordance with law. 8. Pursuant to the judgment of the Division Bench of this Court in **C.K.Rajan** , the 1[st] respondent State issued Order No.50211/M1/97/LAD dated 13.12.1997, whereby the 2[nd] W.P.(C)No.1767 of 2020(U) 11 respondent Municipality was informed that the Government have decided to prohibit large scale construction within 100 metre radius from Guruvayur Sree Krishna Temple. The Managing Committee of the 4[th] respondent Guruvayur Devaswom, vide Resolution No.30 dated 17.02.1998, resolved to take steps to acquire the entire 100 metres of land from the outer wall of Sree Krishna Temple, Guruvayur. Though the 1[st] respondent State decided to limit the extent of acquisition to 10 metres, that was interfered with by a Division Bench of this Court in Ext.R4(a) judgment dated 01.07.2003 in O.P.No.9588 of 2003. The Division Bench held that the action taken by the 1[st] respondent State to acquire land within the radius of 10 metres, instead of 25 metres, is wrong. The Division Bench set aside the impugned orders and directed the Government to take urgent steps to acquire land within the radius of 25 metres from the outer wall of Sree Krishna Temple, Guruvayur, as first step. The special leave petition filed against Ext.R4(a) judgment ended in dismissal by Ext.R4(b) order of the Apex Court dated 12.09.2003. 9. Though in the judgment in **C.K.Rajan** the Division Bench directed acquisition of property within 100 metres from the outer wall of Sree Krishna Temple, Guruvayur, the decision to W.P.(C)No.1767 of 2020(U) 12 acquire 25 metres of land was taken to have acquisition in a phased manner. Guruvayur Devaswom Employees Association preferred W.P.(C).No.16494 of 2004 seeking an order directing the respondents therein to take effective steps to see that no construction is carried out within a radius of 100 metres, as the land is decided to be acquired in a phased manner, and for other consequential reliefs. That writ petition was disposed of by Ext.P7 judgment of a Division Bench of this Court dated 11.06.2008. In Ext.P7 judgment, the Division Bench noticed that in **C.K.Rajan's** case, this Court directed acquisition of land upto 100 metres around Sree Krishna Temple, Guruvayur, i.e., 100 metres from the outer wall of the temple, for the purpose of avoiding congestion and for development of the temple. Though the Government and Devaswom reduced the distance periodically, the matter was concluded by the decision of the Apex Court by recording the submission of the Devaswom Board and the Government that in a phased manner acquisition will be made up to 100 metres in terms of the direction issued by this Court. Even if no time frame is fixed by the Apex Court, obviously it has to be done within a reasonable time. Up to 25 metres has already been acquired. Therefore, it is for the Devaswom to take progressive steps to acquire the land to make it up to 100 metres within a reasonable W.P.(C)No.1767 of 2020(U) 13 time. Since the land is proposed to be acquired up to 100 metres for development of the temple, Municipality should not grant any approval for construction of any building within 100 metres, except temporary constructions. If any construction is approved by the Municipality, then the Municipality will be liable to pay cost to the builder on account of later acquisition or demolition. The Division Bench had made it clear that, the petitioner is free to bring to the notice of this Court any order of the Municipality approving permanent construction within 100 metres of the temple, for passing appropriate orders against the Municipality. 10. Seeking review of Ext.P7 judgment, R.P.No.1390 of 2008 and connected review petitions were filed. Those review petitions along with W.P.(C).No.34465 of 2008 were disposed of by Ext.R4(d) order dated 06.02.2009 leaving freedom to Guruvayur Devaswom to proceed with the acquisition after giving adequate compensation for the land and building owners, but keeping in mind the observations contained in that order. In the said order it was made clear that since the temple pond is outside the temple compound, there is no justification to acquire land beyond 100 metres from the outer wall of the temple pond. Therefore the Division Bench directed Guruvayur Devaswom to limit the acquisition upto 100 metres from the outer wall of the W.P.(C)No.1767 of 2020(U) 14 temple and only after completing acquisition up to this level, the Devaswom should consider acquisition of land up to 100 metres from the outer wall of the temple pond, if further extent of land is required, which is a matter that can be challenged by any party in that area. In Ext.R4(d) order the Division Bench found no ground to interfere with the acquisition up to 100 metres from the outer limit of the temple. However, the Division Bench made it clear that in order to make 100 metres exactly, part acquisition should not be made, leaving the remaining property of the owners unfit or useless for their purpose. 11. When the 4[th] respondent Guruvayur Devaswom submitted an application for building permit for construction on the western side of the temple for cutting vegetables for the purpose of 'annadhanam' and the same was not considered by the 2[nd] respondent Municipality citing Ext.P7 judgment, stating that there is prohibition of any construction within 100 metres of the temple. The 4[th] respondent filed I.A.No.1 of 2019 in W.P.(C). No.16494 of 2004 seeking clarification and also preferred W.P.(C). No.34111 of 2019. The interlocutory application and the writ petition were disposed of by Ext.R4(e) judgment dated 13.01.2020, by holding that the restriction prohibiting W.P.(C)No.1767 of 2020(U) 15 construction within 100 metres of Sree Krishna Temple, Guruvayur, is evidently in regard to construction by third parties. Therefore, the Division Bench directed the 2[nd] respondent to consider Ext.P3 application made by the 4[th] respondent Devaswom for building permit, in accordance with law, within the time limit specified therein. 12. Any construction in the vicinity of Sree Krishna Temple, Guruvayur, is regulated by the aforesaid orders/judgments of the Apex Court and that of this Court. Therefore, any application for building permit or Ext.P2 application made for renewal of Ext.P1 building permit can be considered by the 2[nd] respondent Municipality only in terms of the directions contained in the aforesaid orders/judgments. The question as to whether the proposed construction by the petitioner is within the prohibited distance or not is a disputed question of fact, which has to be decided by the Tribunal for Local Self Government Institutions, which is a fact finding authority, in an appeal filed under Rule 108 of the Kerala Municipality Building Rules, 2019, and not in a writ petition filed before this Court, invoking the extraordinary jurisdiction under Article 226 of the Constitution of India. W.P.(C)No.1767 of 2020(U) 16 13. 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 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. 14. 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 W.P.(C)No.1767 of 2020(U) 17 as observed in **Chaabil Das Agarwal** , 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. 15. In **Thansingh Nathmal** 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. W.P.(C)No.1767 of 2020(U) 18 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 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 W.P.(C)No.1767 of 2020(U) 19 seek resort to the machinery so set up. 16. In **Titaghur Paper Mill** a Three-Judge 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 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** W.P.(C)No.1767 of 2020(U) 20 **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. 17. In **Balkrishna Ram v. Union of India [(2020) 2 SCC 442]** one of the issues raised before the Apex Court was whether an appeal against an order of a single judge of a High Court deciding a case related to an Armed Forces personnel pending before the High Court is required to be transferred to the Armed Forces Tribunal or should be heard by the High Court. The Apex Court held that sub-section (1) of Section 14 of the Armed Forces Tribunal Act, 2007 clearly provides that the Armed Forces Tribunal will exercise powers of all courts except the Supreme Court or High Court exercising jurisdiction under Article 226 and Article 227 of the Constitution of India. Section 34 is very carefully worded. It states that 'every suit', or 'other proceedings' pending before any court including a High Court immediately before the establishment of the Tribunal shall stand transferred on that day to the Tribunal. The Legislature has clearly not vested the Armed Forces Tribunal with the power and jurisdiction of the High Court to be exercised W.P.(C)No.1767 of 2020(U) 21 under Article 226 of the Constitution. There can be no manner of doubt that the High Court can exercise its writ jurisdiction even in respect of orders passed by the Armed Forces Tribunal. Since an appeal lies to the Supreme Court against an order of the Armed Forces Tribunal, the High Court may not exercise their extraordinary writ jurisdiction because there is an efficacious alternative remedy available but that does not mean that the jurisdiction of the High Court is taken away. In a given circumstance, the High Court may and can exercise its extraordinary writ jurisdiction even against the orders of the High Court [sic: Armed Forces Tribunal]. 18. In **Balkrishna Ram** the Apex Court held that the principle that the High Court should not exercise its extraordinary writ jurisdiction when an efficacious alternative remedy is available, is a rule of prudence and not a rule of law. The writ courts normally refrain from exercising their extraordinary power if the petitioner has an alternative efficacious remedy. The existence of such remedy however does not mean that the jurisdiction of the High Court is ousted. At the same time, it is a well settled principle that such jurisdiction should not be exercised when there is an alternative remedy available **[Union of India v. T.R. Varma, AIR 1957 SC 882]** . The rule of alternative remedy W.P.(C)No.1767 of 2020(U) 22 is a rule of discretion and not a rule of jurisdiction. Merely because the Court may not exercise its discretion, is not a ground to hold that it has no jurisdiction. There may be cases where the High Court would be justified in exercising its writ jurisdiction because of some glaring illegality committed by the Armed Forces Tribunal. One must also remember that the alternative remedy must be efficacious and in case of a Non-Commissioned Officer (NCO), or a Junior Commissioned Officer (JCO); to expect such a person to approach the Supreme Court in every case may not be justified. It is extremely difficult and beyond the monetary reach of an ordinary litigant to approach the Supreme Court. Therefore, it will be for the High Court to decide in the peculiar facts and circumstances of each case whether it should exercise its extraordinary writ jurisdiction or not. There cannot be a blanket ban on the exercise of such jurisdiction because that would effectively mean that the writ court is denuded of its jurisdiction to entertain such writ petitions which is not the law laid down in **L. Chandra Kumar v. Union of India [(1997) 3 SCC 262]** . 19. In view of the law laid down in the decisions referred to supra, conclusion is irresistible that the petitioner, if feeling aggrieved, has to challenge Ext.P8 order by invoking the statutory remedy available under Rule 108 of the Kerala Municipality W.P.(C)No.1767 of 2020(U) 23 Building Rules, 2019 by approaching the Tribunal for Local Self Government Institutions. In such circumstances, this writ petition filed on 21.01.2015 is disposed of by relegating the petitioner to avail the statutory remedy against Ext.P8 order, by approaching the Tribunal for Local Self Government Institutions. **Sd/-** ## **ANIL K.NARENDRAN** JV **JUDGE** W.P.(C)No.1767 of 2020(U) 24 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE BUILDING PERMIT NO.E2-BA(22608)/2016 DATED 14/06/2016** - **EXHIBIT P2 A TRUE COPY OF THE RENEWAL APPLICATION SUBMITTED BY THE PETITIONER** - **EXHIBIT P3 A TRUE COPY OF THE RECEIPT ISSUED BY THE 3RD RESPONDENT DATED 25.04.2019.** - **EXHIBIT P4 A TRUE COPY OF THE ABOVE ORDER DATED 27.07.2019 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER OF THE 2ND RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE KERALA GAZETTE NOTIFICATION NO.2218 DATED 24/11/2011 ALONG WITH ITS ENGLISH TRANSLATION.** - **EXHIBIT P6 A TRUE COPY OF THE ABOVE JUDGMENT DATED 03.10.2019 IN W.P.C. NO.25190/2019 OF THIS HON'BLE COURT.** - **EXHIBIT P7 A TRUE COPY OF THE JUDGMENT DATED 11.06.2008 PASSED BY THIS HON'BLE COURT IN W.P.C. NO.16494/2008.** - **EXHIBIT P8 A TRUE COPY OF THE ORDER NO.E2.B.A150/15-16 DATED 07.12.2019 PASSED BY THE 4TH RESPONDENT ALONG WITH ITS ENGLISH TRANSLATION.** ## **RESPONDENTS' EXHIBITS:** - **EXHIBIT R4(A) A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 01.07.2003 IN O.P.NO.9588/2003** - **EXHIBIT R4(B) A TRUE COPY OF THE JUDGMENT OF HTE HON'BLE SUPREME COURT OF INDIA DATED 01.07.2003 IN S.L.P.(C)NO.8110/2003** **EXHIBIT R4(C) A TRUE COPY OF THE MEMORANDUM OF WRIT PETITION IN WP(C) 16494/2004 ON THE** W.P.(C)No.1767 of 2020(U) 25 **FILES OF THIS HON'BLE COURT WITHOUT EXHIBITS** **EXHIBIT R4(D) A TRUE COPY OF THE COMMON ORDER DATED 06.02.2009 IN R.P.NOS.1390/09, 1387/09, 1389/09, 1391/09 AND 166/09 ON THE FILES OF THIS HON'BLE COURT IN WP(C) 16494/2004 DATED 11.06.2008** **EXHIBIT R4(E) A TRUE COPY OF THE COMMON ORDER DATED 13.01.2020 IN IA NO.1/2019 IN WP(C0 16494/2004 AND WP(C) 34111/2019** **EXHIBIT R4(F) TRUE COPY OF THE RESOLUTION NO.27 DATED 23.01.2019 OF THE GDMC** **EXHIBIT R4(G) A TRUE COPY OF THE APPLICATION DATED 16.02.2019 SUBMITTED BEFORE THE GURUVAYUR DEVASWOM COMMISSIONER** **EXHIBIT R4(H) A TRUE COPY OF THE APPLICATION DATED 16.02.2019 SUBMITTED BEFORE THE DISTRICT COLLECTOR, THRISSUR** **EXHIBIT R4(I) A TRUE COPY OF THE APPLICATION DATED 23.07.2019 SUBMITTED BEFORE THE GURUVAYUR DEVASWOM COMMISSIONER**