Mercy Chakochan v. Paingattoor Grama Panchayat and Anoop John

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 18TH DAY OF JUNE 2019 / 28TH JYAISHTA, 1941 WP(C).No.16540 of 2019** **PETITIONER:** **MERCY CHAKOCHAN AGED 49 YEARS W/O. K. P. CHACKOCHAN, KALLARACKAL, PAINGATTOOR P.O., AAYANKARA KARA, KADAVOOR VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.M.TRIPTEN** ## **RESPONDENTS:** |**1**|**PAINGATTOOR GRAMA PANCHAYAT**| |---|---| ||**REPRESENTED BY ITS SECRETARY, PAINGATTOOR,**| ||**MOOVATTUPUZHA, ERNAKULAM DISTRICT - 686 671.**| |**2**|**ANOOP JOHN**| ||**PARUMTHUMPLACKAL, PAINGATTOOR P.O.,**| ||**MOOVATTUPUZHA, ERNAKULAM DISTRICT - 686 671.**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WP(C)16540 OF 2019 ## **JUDGMENT** The petitioner, who is stated to be the owner of a property having an extent of 135½ cents of land comprised in Survey No.809/1/22 of Kadavoor Village, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari (wrongly stated as writ of mandamus) to set aside Ext.P5 notice dated 14.06.2019 issued by the Secretary of the 1[st] respondent Grama Panchayat, whereby he has been asked to remove the obstructions caused to the drainage on the northern boundary of her property, within three days. The petitioner has also sought for an order staying all further proceedings pursuant to Ext.P5 notice. In Ext.P5 notice, it is alleged that the petitioner has closed the drainage on the northern boundary of her property. The said notice is one issued based on the complaint made by the 2[nd] respondent. The grievance of the petitioner is that while issuing Ext.P5 order, she has not been granted sufficient time to approach the Tribunal, challenging the same. 2. Heard the learned counsel for the petitioner. 3. In **Commissioner of Income Tax v. Chhabil Das** 3 WP(C)16540 OF 2019 **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. 4. 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 4 WP(C)16540 OF 2019 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 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. 5. In **Thansingh Nathmal's case (supra)** a Constitution Bench of the Apex Court held that, the jurisdiction 5 WP(C)16540 OF 2019 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 trench upon an alternative remedy provided by statute for obtaining 6 WP(C)16540 OF 2019 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. 6. 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: ## **Wolverhampton New Water Works Co. v. Hawkesford** "There are three classes of cases in which a liability may be established founded upon statute ..... But there is a 7 WP(C)16540 OF 2019 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. 7. 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. 8. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that, no interference on Ext.P5 notice is warranted under Article 226 of 8 WP(C)16540 OF 2019 the Constitution of India, on the grounds raised in this writ petition, in view of the statutory remedy available under Section 276 of the Kerala Panchayat Raj Act. 9. In such circumstances, the challenge made in this writ petition against Ext.P5 notice fails for the aforesaid reason and the writ petition filed on 17.06.2019 is dismissed; however, without prejudice to the right of the petitioner to challenge Ext.P5 notice, by invoking the statutory remedy available under Section 276 of the Kerala Panchayat Raj Act, by approaching the appropriate forum. All legal and factual contentions raised in this writ petition are left open to be raised before the appropriate forum, at appropriate stage. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 9 WP(C)16540 OF 2019 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE PHOTOCOPY OF THE TITLE DEED DATED 6.3.2006 EXECUTED IN FAVOUR OF PETITIONER.** **EXHIBIT P2 TRUE PHOTOCOPY OF THE COMMISSION REPORT IN I.A.NO.1573/2013 IN O.S.NO.221/2013 ON THE FILE OF MUNSIFF'S COURT, MOOVATTUPUZHA.** **EXHIBIT P2 A TRUE PHOTOCOPY OF THE COMMISSION REPORT IN I.A.NO.1321/2013 IN O.S.NO.221/2013 ON THE FILE OF MUNSIFF'S COURT, MOOVATTUPUZHA DATED 28.5.2013.** **EXHIBIT P3 TRUE PHOTOCOPY OF THE JUDGMENT IN O.S.NO.221/2013 OF THE MUNSIFF'S COURT, MOOVATTUPUZHA DATED 15.3.2019.** **EXHIBIT P4 TRUE PHOTOCOY OF THE DECREE IN O.S.NO.221/2013 OF THE MUNSIFF'S COURT, MOOVATTUPUZHA DATED 15.3.2019.** **EXHIBIT P5 TRUE PHOTOCOPY OF THE NOTICE DATED 14.6.2019 ISSUED FROM THE OFFICE OF IST RESPONDENT.** **EXHIBIT P6 TRUE PHOTOCOPY OF THE NOTICE SENT BY REVENUE DIVISIONAL OFFICER TO THE PETITIONER DATED 3.5.2017.** ``` RESPONDENTS EXHIBITS: NIL ``` ``` TRUE COPY ``` ``` PA TO JUDGE ```