Neem Care Hospital v. Mattathur Grama Panchayat and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 30TH DAY OF AUGUST 2019 / 8TH BHADRA, 1941** ## **WP(C).No.15479 OF 2019(H)** ## **PETITIONER:** **NEEM CARE HOSPITAL, A PARTNERSHIP FIRM REPRESENTED BY ITS MANAGING PARTNER, DR.EDWIN VARGHESE, S/O.KANJIRATHUMKAL VEETTIL VARGHESE, AGED 34 YEARS, GANDHINAGAR DESOM, KODAKARA VILLAGE, CHALAKUDY TALUK.** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE** ## **RESPONDENTS:** **1 MATTATHUR GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, MATTATHUR P.O., PIN-680 684.** - **2 THE SECRETARY, MATTATHUR GRAMA PANCHAYAT, MATTATHUR P.O., PIN-680 684.** **3 DR.UNNIKRISHNAN, S/O.PULICKAL VEETTIL SUBRAN, MATTATHUR DESOM, CHALAKKUDY TALUK, PIN-680 684.** **R1 BY ADV. SRI.P.PRIJITH R1 BY ADV. SRI.THOMAS P.KURUVILLA R1 BY ADV. SRI.AJAY BEN JOSE R1 BY ADV. SRI.MANJUNATH MENON R1-R2 BY ADV. SRI.M.R.VENUGOPAL R2 BY ADV. SMT.DHANYA P.ASHOKAN R3 BY ADV. SRI.N.L.BITTO** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.15479 OF 2019(H)** -2- ## **JUDGMENT** The petitioner, which is a partnership firm running a 'clinic' in building bearing door No.VI/333 of Mattathur Grama Panchayat in the name and style of 'Sneha Primary Health Centre', has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P8 notice dated 21.05.2019 of the 2[nd] respondent Secretary of the Grama Panchayat. The petitioner has also sought for a writ of mandamus commanding the 2[nd] respondent to consider Ext.P9 reply and dispose of Ext.P8 notice in accordance with the dictum laid down by this Court in **Sudhakaran v. Corporation of Trivandrum [2016 (3) KHC 803]** and after affording him an opportunity of being heard, within a time limit to be fixed by this Court, and till such time keep the closure order in abeyance; and a writ of mandamus commanding the 2[nd] respondent to consider the application for renewal of Ext.P2 registration certificate for which Ext.P4 receipt was issued, within a time limit to be fixed by this Court and after affording the petitioner an **WP(C).No.15479 OF 2019(H)** -3- opportunity of being heard. 2. On 06.06.2019, when this writ petition came up for admission, this Court issued urgent notice on admission by special messenger to the respondents, returnable by 12.06.2019. 3. On 19.06.2019, when this writ petition came up for consideration, this Court passed the following order; “The petitioner has filed Ext.P9 explanation to Ext.P8 show-cause notice, issued by the Panchayat, proposing to stop the functioning of the hospital. Since Ext.P9 explanation has already been filed, it is only appropriate that the Panchayat takes a final decision pursuant to Ext.P8, within a period of one month from today. Any decision, that is taken by the Panchayat shall be with notice to the petitioner. In view of the aforementioned direction no action for closure of the hospital shall be taken for a period of six weeks.” 4. On 18.07.2019, the learned Standing Counsel for respondents 1 and 2 pointed out the pendency of Appeal No.421 of 2019 before the Tribunal for Local Self Government Institutions, which is an appeal filed by the petitioner challenging decision No.10(1) dated 11.06.2019 **WP(C).No.15479 OF 2019(H)** -4- and also the stop memo dated 12.06.2019 issued by the 2[nd] respondent Secretary of Mattathur Grama Panchayat. 5. A counter affidavit has been filed by the 3[rd] respondent, opposing the reliefs sought for in this writ petition. Respondents 1 and 2 have also filed a counter affidavit. The petitioner has filed I.A.No.1 of 2019 seeking an order to accept Exts.P10 to P14 as additional documents. 6. Heard the learned Senior Counsel for the petitioner, the learned Standing Counsel for respondents 1 and 2 and also the learned counsel for the 3[rd] respondent. 7. The issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P8 notice dated 21.05.2019 issued by the 2[nd] respondent Secretary of Mattathur Grama Panchayat, especially when the petitioner has challenged Ext.P10 notice issued by the 2[nd] respondent dated 12.06.2019 before the Tribunal for Local Self Government Institutions and obtained Ext.P11 interim order. 8. As far as the challenge made in this writ petition **WP(C).No.15479 OF 2019(H)** -5- against Ext.P8 notice is concerned, the petitioner is having a statutory remedy of appeal against that said notice, by approaching the appropriate forum, in view of the provisions under Section 276 of the Kerala Panchayat Raj Act. 9. 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 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. 10. In **Authorised Officer, State Bank of** **WP(C).No.15479 OF 2019(H)** -6- **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., 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 **WP(C).No.15479 OF 2019(H)** -7- 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. 11. 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 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, **WP(C).No.15479 OF 2019(H)** -8- 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 seek resort to the machinery so set up. 12. 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 **WP(C).No.15479 OF 2019(H)** -9- 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 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 **WP(C).No.15479 OF 2019(H)** -10- been held to be equally applicable to enforcement of rights and has been followed by the Apex Court throughout. 13. 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. 14. In view 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.P8 notice dated 21.05.2019 issued by the 2[nd] respondent Secretary of Mattathur Grama Panchayat, on the grounds raised in this writ petition, in view of the statutory remedy available under Section 276 of the Kerala Panchayat Raj Act. 15. The legal and factual contentions raised by the petitioner, respondents 1 and 2 and also the 3[rd] respondent are left open to be raised before the appropriate forum, at appropriate stage. **WP(C).No.15479 OF 2019(H)** -11- In the result, this writ petition filed on 30.05.2019 is dismissed for the aforesaid reason; however, without prejudice to the right of the petitioner to avail the statutory remedy against Ext.P8 notice. Sd/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No.15479 OF 2019(H)** -12- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF LEASE DEED NO.1773 OF 2018 DATED 11/12/2018 EXECUTED BETWEEN 3RD RESPONDENT AND PETITIONER REPRESENTED BY ITS THEN MANAGING PARTNER, MR.WASIM RAJA.** **EXHIBIT P2 TRUE COPY OF REGISTRATION CERTIFICATE DATED 28/03/2019.** - **EXHIBIT P3 TRUE COPY OF INTEGRATED CONSENT TO OPERATE DATED 19/03/2016 ISSUED IN THE NAME OF SNEHA PRIMARY HEALTH CENTRE BY THE KERALA STATE POLLUTION CONTROL BOARD.** - **EXHIBIT P4 TRUE COPY OF RECEIPT DATED 11/04/2019 ISSUED BY THE 2ND RESPONDENT FOR RENEWAL OF EXHIBIT P2 REGISTRATION.** - **EXHIBIT P5 TRUE COPY OF PLAINT AS O.S.NO.162 OF 2019 FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, CHALAKKUDY.** - **EXHIBIT P6 TRUE COPY OF ORDER OF INJUNCTION IN I.A.NO.777 OF 2019 IN O.S.NO.162 OF 2019 DATED 25/03/2019 OF MUNSIFF'S COURT, CHALAKKUDY.** - **EXHIBIT P7 TRUE COPY OF REPRESENTATION DATED 16/05/2019 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 2ND RESPONDENT OBTAINED UNDER RIGHT TO INFORMATION ACT.** **EXHIBIT P8 TRUE COPY OF NOTICE DATED 21/05/2019 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P9 TRUE COPY OF REPLY TO EXHIBIT P8 DATED 27/05/2019 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **WP(C).No.15479 OF 2019(H)** -13- **EXHIBIT P10 TRUE COPY OF NOTICE DATED 12/6/2019 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** **EXHIBIT P11 TRUE COPY OF ORDER DATED 19/6/2019 IN I.A 922/2019 IN APPEAL NO.421/2019 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS.** - **EXHIBIT P12 TRUE COPY OF LICENSE DATED 6/6/2019 ISSUED BY THE ASSISTANT DRUG CONTROLLER AND LICENSING AUTHORITY, THRISSUR ISSUED TO THE PETITIONER.** - **EXHIBIT P13 TRUE COPY OF LICENSE DATED 27/5/2019 FOR OPERATION OF E-RAY ISSUED BY THE DEPARTMENT OF ATOMIC ENERGY REGULATORY BOARD RADIOLOGICAL SAFETY DIVISION TO THE PETITIONER.** - **EXHIBIT P14 TRUE COPY OF ACKNOWLEDGMENT DATED 16/7/2019 ISSUED BY INDIAN MEDICAL ASSOCIATION GOES ECO FRIENDLY, THIRUVANANTHAPURAM FOR RECEIPT OF AFFILIATION.** - **RESPONDENTS' EXHIBITS:** **EXHIBIT R1(A) A TRUE COPY OF APPLICATION DATED 10/04/2019 SUBMITTED BY THE PETITIONER. EXHIBIT R1(B) A TRUE COPY OF COMPLAINT DATED 25/04/2019 RECEIVED BY THIS RESPONDENT.** - **EXHIBIT R1(C) A TRUE COPY OF THE COMPLAINT DATED 30/04/2019 RECEIVED BY THIS RESPONDENT FROM THE REPRESENTATIVES OF DIFFERENT POLITICAL PARTIES.** **EXHIBIT R1(D) A TRUE COPY OF THE INSPECTION REPORT DATED 10/06/2019.** **EXHIBIT R1(E) A TRUE COPY OF THE DECISION NO.10/1 DATED 11/06/2019. EXHIBIT R1(F) A TRUE COPY OF THE APPEAL DATED 15/06/2019 FILED BEFORE THE MATTATHUR PANCHAYAT COMMITTEE.** **WP(C).No.15479 OF 2019(H)** -14- |**EXHIBIT R3(A)**|**A TRUE COPY OF THE LETTER ISSUED BY THE**| |---|---| ||**MATTATHUR GRAMA PANCHAYATH DATED**| ||**25/05/2019.**| |**EXHIBIT R3(B)**|**A TRUE COPY OF THE LETTER ISSUED BY THE**| ||**MATTATHUR GRAMA PANCHAYATH DATED**| ||**11/06/2019.**| |**EXHIBIT R3(C)**|**A TRUE COPY OF THE LETTER ISSUED BY THE**| ||**PANCHAYATH DATED 06/05/2019.**|