P.K. Yoosaf and P.K. Sakkeena v. Secretary, Vadakara Municipality and Chairman, Vadakara Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 21ST DAY OF JUNE 2019 / 31ST JYAISHTA, 1941 WP(C).No.16557 of 2019** ## **PETITIONERS:** **1 P.K.YOOSAF AGED 57 YEARS S/O. UMMER, MEENA HOUSE, KADALOOR P.O, KOYILANDY, KOZHIKODE DISTRICT, PIN-673529. 2 P.K. SAKKEENA, AGED 48 YEARS W/O. P.K. YOOSAF, MEENA HOUSE, KADALOOR P.O, KOYILANDY, KOZHIKODE DISTRICT, PIN-673529. BY ADV. SMT.K.DEEPA (PAYYANUR)** ## **RESPONDENTS:** **1 THE SECRETARY, VADAKARA MUNICIPALITY, VADAKARA P.O, KOZHIKODE DISTRICT, PIN-673101. 2 THE CHAIRMAN, VADAKARA MUNICIPALITY, VADAKARA P.O, KOZHIKODE DISTRICT, PIN-673101.** ## **SRI T.NAVEEN -STANDING COUNSEL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.16557 of 2019** **2** ## **JUDGMENT** The petitioners, who are stated to be the owners in possession of property having an extent of 1.10 Ares comprised in Re-survey No.254/1.B2 of Vadakara Municipality, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P5 notice dated 20.08.2016 issued by the first respondent, who is the Secretary of the Vadakara Municipality and Ext.P7 Mahazar dated 19.03.2019, prepared by the Health Supervisor in the Municipality, as directed by the first respondent. The petitioners have also sought for a writ of mandamus commanding the second respondent, who is the Chairman of Vadakara Municipality, to consider Ext.P9 Appeal filed under Section 509 of the Kerala Municipality Act, after affording them an opportunity of being heard and decide the matter in accordance with law. The further relief sought for is a writ of mandamus commanding the respondents to permit the petitioners to function their fruits stall till the disposal of Ext.P9 appeal. 2. On 18.06.2019, when this writ petition came up for admission, the learned Standing Counsel for the Municipality **WP(C).No.16557 of 2019** **3** sought time to get instructions. 3. Heard the learned counsel for the petitioners and also the learned Standing Counsel for the Municipality, representing the respondents. 4. The sole issue at arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P5 notice dated 20.08.2016 issued by the first respondent and also Ext.P7 mahazar prepared by the Health Supervisor, as directed by the first respondent. 5. Ext.P5 notice dated 28.08.2016 issued by the first respondent was under challenge before the Tribunal for Local Self Government Institutions by filing Appeal No.859 of 2016, invoking the provisions under Section 509 of the Kerala Municipality Act. The said Appeal ended in dismissed by Ext.P8 order dated 21.11.2018 on the ground that such an appeal challenging Ext.P5 notice is not one falling under sub-section (6) or sub-section (7) of Section 509 of the Kerala Municipality Act. In Ext.P8 order the Tribunal found that Ext.P5 notice is appealable before the Municipal Council, under sub-section (1) of Section 509 of the said Act. 6. When the petitioners came to know about Ext.P8 order **WP(C).No.16557 of 2019** **4** of the Tribunal, they filed Ext.P9 appeal before the Municipal Council, challenging Ext.P5 notice and in that appeal an interim relief has also been sought for, in order to re-open the shop room, which has already been closed down. Ext.P9 appeal is now pending consideration before the Municipal Council. The learned Standing Counsel for the Municipality would submit that Ext.P9 appeal filed by the petitioner is now pending consideration before the Municipal Council. 7. When Ext.P5 notice, which is under challenge in this writ petition, is appealable before the Municipal Council in view of the provisions under sub-section (1) of Section 509 of the Kerala Municipality Act, the petitioners cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, in order to challenge the said order, on the grounds raised in this writ petition. Ext.P7 mahazar which is under challenge in this writ petition, is only a consequential action of the Health Supervisor, as per the direction of the first respondent. 8. 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 **WP(C).No.16557 of 2019** **5** 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. 9. 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 **WP(C).No.16557 of 2019** **6** 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. 10. 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 **WP(C).No.16557 of 2019** **7** 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 seek resort to the machinery so set up. **WP(C).No.16557 of 2019** **8** 11. In **Titaghur Paper Mills' case (supra)** 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** **WP(C).No.16557 of 2019** **9** **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. 12. 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. 13. Viewed in the light of the law laid down in the decisions referred to supra, the conclusion is irresistible that in view of the statutory remedy available under Section 509 of the Kerala Municipality Act, the petitioners cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, in order to challenge Ext.P5 notice dated 20.08.2016 issued by the first respondent or Ext.P7 mahazar, which is only a consequential action taken by the Health Supervisor, on the grounds raised in this writ petition. It is for the petitioners to pursue Ext.P9 appeal filed before the Municipal Council, in accordance with law. **WP(C).No.16557 of 2019** **10** 14. If any application is made by the petitioners for interim relief in Ext.P9 appeal, the Chairperson of the Municipality shall consider that request, in accordance with law, and pass appropriate orders, within two weeks from the date of receipt of a certified copy of this judgment. It is made clear that this Court has not expressed anything as to the maintainability of Ext.P9 appeal, which is now pending consideration before the Municipal Committee. ## **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** nak **WP(C).No.16557 of 2019** **11** ## **APPENDIX** ## **PETITIONERS':** **EXHIBIT P1 TRUE COPY OF THE BUILDING TAX RECEIPTS ISSUED TO THE PETITIONERS BY THE 2ND RESPONDENT FOR PAYMENT OF BUILDING TAX FOR THE SHOP ROOM BEARING NO.19/381 A11(A) FOR THE PERIOD 201516.** - **EXHIBIT P2 TRUE COPY OF THE LICENSE FEE RECEIPT ISSUED TO THE PETITIONERS BY THE 1ST RESPONDENT ON RECEIPT OF THE LICENSE FEE OF RS.225/- FOR 2014-15.** - **EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 29.02.2016 SUBMITTED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P4 THE PHOTOGRAPH OF THE FRUITS STALL.** - **EXHIBIT P5 TRUE COPY OF THE NOTICE BEARING NO. H224681/15 DATED 20.08.2016 ISSUED TO THE PETITIONERS BY THE 1ST RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE APPEAL PREFERRED BY THE PETITIONERS BEFORE LEARNED TRIBUNAL FOR LOCAL SELF GOVT. INSTITUTIONS, THIRUVANANTHAPURAM.** - **EXHIBIT P7 TRUE COPY OF THE MAHASSAR PREPARED BY THE HEALTH SUPERVISOR UNDER THE DIRECTION OF THE 1ST RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE ORDER OF APPEAL NO.859/2016 DATED 21.11.2018 OF THE LEARNED TRIBUNAL FOR LOCAL SELF GOVT. INSTITUTIONS, THIRUVANANTHAPURAM.** - **EXHIBIT P9 TRUE COPY OF THE MEMORANDUM OF APPEAL FILED UNDER SECTION 506(1) OF THE MUNICIPALITY ACT BEFORE THE 2ND RESPONDENT BY THE PETITIONERS.** - **EXHIBIT P9 A TRUE COPY OF THE RECEIPT ISSUED TO THE PETITIONERS ACKNOWLEDGING THE RECEIPT OF APPEAL(INWARD NO.10261/2019) BY THE 2ND RESPONDENT** //TRUE COPY// P.A. TO JUDGE