Muralichand v. Thiruvananthapuram Corporation

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY ,THE 25TH DAY OF MARCH 2019 / 4TH CHAITHRA, 1941** ## **WP(C).No. 2912 of 2019** ## **PETITIONER/S:** **MURALICHAND,AGED 29** **S/O.SARATHCHANDRAN NAIR, RESIDING AT CHANDRAMANGALAM, T.C.NO.7/1385-1, VETTAMUKKU, THIRUVANANTHAPURAM, REPRESENTED BY HIS FATHER AND POWER OF ATTORNEY HOLDER, SRI.SARATHCHANDRAN NAIR, S/O.A.K.JANARDHANAN NAIR, AGED 63, RESIDING AT CHANDRAMANGALAM, T.C.NO.7/1385-1, VETTAMUKKU, THIRUVANANTHAPURAM695006.** **BY ADVS. SRI.P.B.KRISHNAN SMT.B.ANUSREE SRI.MANU VYASAN PETER SRI.P.B.SUBRAMANYAN SRI.P.M.NEELAKANDAN SRI.SABU GEORGE** ## **RESPONDENT/S:** - **1 THIRUVANANTHAPURAM CORPORATION REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, THIRUVANANTHAPURAM-695033.** - **2 THE SECRETARY** **THIRUVANANTHAURAM CORPORATION, CORPORATION OFFICE, THIRUVANANTHAPURAM-695033.** **BY ADVS. SRI.N.NANDAKUMARA MENON (SR.) SRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No. 2912 of 2019 2 ## **JUDGMENT** The petitioner, who is stated to be the owner in possession of a land having an extent of 20 cents in Survey No. 1221/B-1-1, B-1 and B-4 of Thycaud Village covered by Ext.P1 sale deed and Ext.P2 tax receipt has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P3 order dated 29.11.2018 of the second respondent, whereby the application dated 10.04.2018 made by the petitioner for building permit for construction of a hotel complex consisting of ground plus seven floors stands rejected on the ground that the area where the construction is proposed to be undertaken is included in the land to be acquired for commercial use in the detailed town planning scheme for the road from Thycaud Women & Children Hospital Junction to Aryasala Junction. The petitioner has also sought for a writ of mandamus commanding the respondents to grant building permit to the petitioner. 2. On 31.01.2019, when this writ petition came up for admission, the learned Standing Counsel for respondents sought time to get instructions. 3. Thereafter, on 21.03.2019, when this writ petition WP(C).No. 2912 of 2019 3 came up for further consideration, the learned Senior Counsel for the first respondent Corporation pointed out that Ext.P3 order is appealable before the Tribunal for Local Self Government Institutions. The learned counsel for the petitioner sought adjournment, and accordingly, the matter was adjourned. 4. Heard the learned counsel for the petitioner and also the learned Standing Counsel for respondents 1 and 2. 5. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P3 order dated 29.11.2018 of the second respondent, whereby the application made by the petitioner for building permit stands rejected. 6. The fact that, Ext.P3 order of the second respondent, whereby the application dated 10.04.2018 made by the petitioner for building permit stands rejected, is appealable before the Tribunal for the Local Self Government Institutions, in view of the provisions under sub-section (6) of Section 509 of the Kerala Municipality Act, 1994 and under Rule 160 of the Kerala Municipality Building Rules, 2011 is not in dispute. 7. In **Commissioner of Income Tax v. Chhabil Das** WP(C).No. 2912 of 2019 4 **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 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. 8. 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 WP(C).No. 2912 of 2019 5 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. 9. 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 WP(C).No. 2912 of 2019 6 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 to move another tribunal or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court WP(C).No. 2912 of 2019 7 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. 10. 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 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." WP(C).No. 2912 of 2019 8 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. 11. 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. 12. Viewed in the light of the law laid down in the decisions referred to _supra,_ conclusion is irresistible that in view of the statutory remedy available under sub-section (6) of Section 509 of the Kerala Municipality Act and Rule 160 of the Kerala Municipality Building Rules, the petitioner cannot challenge Ext.P3 order, whereby the application for building permit stands rejected, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, on the grounds raised in this writ petition. WP(C).No. 2912 of 2019 9 In such circumstances, this writ petition filed on 30.01.2019 challenging Ext.P3 order dated 29.11.2018 of the second respondent stands rejected for the aforesaid reason; however, without prejudice to the right, if any, of the petitioner to challenge Ext.P3 order by invoking the statutory remedy. **SD/-** **ANIL K.NARENDRAN** **JUDGE** DCS WP(C).No. 2912 of 2019 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 DATED 14-7-2008, TRUE COPY OF THE SALE DEED NO.2646/08 SRO CHALA.** **EXHIBIT P2 DATED 25-4-2017, TRUE COPY OF THE RECEIPT NO.0584090 ISSUED BY THE THYCAUD VILLAGE OFFICER,** **EXHIBIT P3 DATED 29/11/2018, TRUE COPY OF THE ORDER NO.E6/BA/226850/2018 ISSUED BY THE 2ND RESPONDENT.**