Philip Mathew v. The Corporation of Kochi and Revenue Officer, Corporation of Kochi

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 05TH DAY OF APRIL 2019 / 15TH CHAITHRA, 1941** ## **WP(C).No. 6695 of 2019** ## **PETITIONER:** **PHILIP MATHEW AGED 69 YEARS S/O PHILIP, HOTEL PRESIDENCY, PARAMARA ROAD, ERNAKULAM, KOCHI-18.** **BY ADVS.** **SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN SMT.ALEXY AUGUSTINE** ## **RESPONDENTS:** **1 THE CORPORATION OF KOCHI REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, ERNAKULAM. 2 REVENUE OFFICER, CORPORATION OF KOCHI, ERNAKULAM.** **BY ADV. SRI.V.E.ABDUL GAFOOR,SC,COCHIN CORPORATION** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No. 6695 of 2019 2 ## **JUDGMENT** The petitioner, who is a licensee of the ground floor of a building owned by the 1[st] respondent Corporation on the side of Paramara Road, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 notice dated 15.05.2018 issued by the 2[nd] respondent, who is the Revenue officer of the 1[st] respondent Corporation and a writ of mandamus commanding the respondents to consider Ext.P5 representation dated 28.05.2018 and pass appropriate orders thereon, with notice to the petitioner. 2. On 06.03.2019, when this writ petition came up for admission, learned Standing Counsel for the 1[st] respondent Corporation sought time to get instructions. 3. A statement has been filed on behalf of respondents 1 and 2, opposing the reliefs sought for in this writ petition. In the statement, it has also been stated that the petitioner is occupying 11 rooms, without renewing the agreement and without paying enhanced rent, despite the WP(C).No. 6695 of 2019 3 expiry of the lease agreement on 31.03.2017. 4. Heard the learned counsel for the petitioner and also the learned Standing Counsel for the 1[st] respondent Corporation, representing respondents 1 and 2. 5. The petitioner is a tenant in respect of 11 rooms in the ground floor of Paramara Shopping Complex, on the strength of lease agreements executed with the 1[st] respondent Corporation. The validity of the last lease agreement expired on 31.03.2017. The said fact is not in dispute. As can be seen from the statement filed on behalf of the respondents, despite the issuance of Ext.P4 notice dated 15.05.2018, the petitioner is in occupation of those shop rooms, 11 in number, without payment of the monthly rent, demanded in Ext.P4. 6. If the petitioner was feeling aggrieved by Ext.P4 notice, he could have filed an appeal before the Municipal Council, invoking the provisions under under sub-section (1) of Section 509 of the Kerala Municipality Act 1994, within the time limit stipulated in the statute. As per sub- WP(C).No. 6695 of 2019 4 section (3) of Section 509, pending decision on an appeal under sub-section (1), the Chairperson may, if an application is made, stay the operation of the notice, order or other proceedings on which the appeal is based. 7. 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 WP(C).No. 6695 of 2019 5 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 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 WP(C).No. 6695 of 2019 6 ## **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 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 WP(C).No. 6695 of 2019 7 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 WP(C).No. 6695 of 2019 8 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 WP(C).No. 6695 of 2019 9 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. 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 WP(C).No. 6695 of 2019 10 decisions referred to **supra** , conclusion is irresistible that, the petitioner, having failed to avail the statutory remedy under Section 509 of the Act against Ext.P4 notice dated 15.05.2018 issued by the 2[nd] respondent Revenue Officer, within the time limit specified in the statute cannot now seek interference of this Court on that notice, invoking the writ jurisdiction under Article 226 of the Constitution of India, by attempting to make a fresh cause of action, by submission of Ext.P5 representation dated 28.05.2018. In such circumstances, I find no reason to interfere with Ext.P4 notice issued by the 2[nd] respondent or to direct consideration of Ext.P5 representation. The writ petition fails and the same is accordingly dismissed. **Sd/-** ## **ANIL K.NARENDRAN** **JUDGE** DK WP(C).No. 6695 of 2019 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ALLOTMENT LETTER ISSUED TO THE PETITIONER DATED 1.11.1993.** **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 21.2.04 ISSUED BY THE RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE RECEIPT ISSUED SHOWING PAYMENT OF RENT ON 14.3.18.** - **EXHIBIT P4 TRUE COPY OF THE LETTER DATED 15.5.18 ISSUED BY RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 28.5.18.** - **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 22.12.03 BY GOVERNMENT.** - **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 12.2.19.** ## **RESPONDENTS'S EXHIBITS: NIL** **//TRUE COPY//** **PA TO JUDGE** DK