Rajendran N.R. v. Secretary, Nallepilly Grama Panchayath and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY,THE 19TH DAY OF MARCH 2019 / 28TH PHALGUNA, 1940** ## **WP(C).No. 7948 of 2019** ## **PETITIONER:** **RAJENDRAN.N.R., AGED 56 YEARS,S/O. RAMAN, VADAKUMBURATH HOUSE, NELLEPILLY VILLAGE, CHITTOOR,PALAKKAD.** **BY ADVS. SRI.A.G.ADITYA SHENOY SRI.JEFF JOSEPH** ## **RESPONDENTS:** - **1 THE SECRETARY, NALLEPILLY GRAMA PANCHAYATH, NELLEPILLY.P.O., CHITTOOR, PALAKKAD-678 553.** - **2 NALLEPILLY GRAMA PANCHAYATH, NELLEPILLY.P.O., CHITTOOR, PALAKKAD-678 553 REPRESENTED BY ITS SECRETARY.** - **3 PRABHAKARAN, AGED 65 YEARS, S/O. MUTHU, PARAKKALIL HOUSE, THEKKEDESOM VILLAGE, CHITTOOR,PALAKKAD.** - **4 RAJESH, AGED 31 YEARS, S/O. PRABHAKARAN, PARAKKALIL HOUSE, THEKKEDESOM VILLAGE, CHITTOOR,PALAKKAD.** **WP(C).No. 7948 of 2019** -2- **5** **RAMESH, AGED 47 YEARS, S/O. CHENNIMALA CHETTIYAR, THEKKETHARAYIL HOUSE, NALLEPILLY HOUSE, CHITTOOR, PALAKKAD-678 553.** **SRI SYAM J SAM, STANDING COUNSEL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 7948 of 2019** -3- ## **JUDGMENT** The petitioner, who is stated to be the owner of a building bearing No.18/242 of Nallepilly Grama Panchayath, has filed this writ petition under Article 226 of the Constitution of India, challenging Ext.P8 order dated 20.02.2019 of the Secretary of the 1[st] respondent Grama Panchayat, whereby the building number of the said building stands cancelled on the allegation that the petitioner has made certain constructions in that building, without obtaining a building permit. The relief sought for in this writ petition is a writ of certiorari to quash Ext.P8 and, thereby restoring the building number of the petitioner's building in Nallepilly Grama Panchayat. 2. Heard the learned counsel for the petitioner and also the learned Standing Counsel for the 2[nd] respondent Grama Panchayat, representing respondents 1 and 2. Considering the nature of relief proposed to be granted, service of notice on respondents 3 to 5 is dispensed with. 3. The sole issue that arises for consideration in this **WP(C).No. 7948 of 2019** -4- writ petition is as to whether any interference is warranted on Ext.P8 order dated 20.02.2019 issued by the Secretary of the 1[st] Grama Panchayat, whereby the building number issued to the petitioner's building stands cancelled on the ground that he has made certain constructions, without obtaining a building permit. 4. Section 276 of the Kerala Panchayat Raj Act deals with appeal and revision. As per sub-section (4) of Section 276, an appeal on the notice, order or action of the Secretary under Section 235I, 235J, 235N and 235W shall be filed before the Tribunal for Local Self Government Institutions under Section 271S, and it may be on an application by an order, stay the operation of the said notice, order or action taken, pending disposal of the appeal. In addition to this, Rule 151 of the Kerala Panchayat Building Rules, 2011, provides for an appeal by a person aggrieved by an order passed by the Secretary of the Grama Panchayat, as enumerated in clauses (i) to (viii) of sub-rule (2), by filing an appeal before the Tribunal for **WP(C).No. 7948 of 2019** -5- Local Self Government Institutions constituted under Section 271S of the Kerala Panchayat Raj Act. Therefore, if the petitioner is feeling aggrieved by Ext.P8 order dated 20.02.2019 of the 1[st] respondent, it is for him to avail the statutory remedy, invoking the aforesaid provisions. 5. 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 **WP(C).No. 7948 of 2019** -6- ground to invoke the extraordinary jurisdiction under Article 226. 6. 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.** **WP(C).No. 7948 of 2019** -7- **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. 7. 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 **WP(C).No. 7948 of 2019** -8- 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 **WP(C).No. 7948 of 2019** -9- 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. 8. 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 **WP(C).No. 7948 of 2019** -10- 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. 9. 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. 10. Viewed in the light of the law laid down in the decisions referred to _supra_ , conclusion is irresistible that, when a statutory remedy is available under Section 276 of **WP(C).No. 7948 of 2019** -11- the Kerala Panchayat Raj Act and Rule 151 of the Kerala Panchayat Building Rules, 2011 to challenge Ext.P8 order of the 1[st] respondent, the petitioner cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India. In such circumstances, this writ petition filed on 14.03.2019 challenging Ext.P8 order dated 20.02.2019 of the 1[st] respondent is dismissed for the aforesaid reason; however, without prejudice to the right of the petitioner to avail the statutory remedy before the Tribunal for Local Self Government Institutions, by invoking the aforesaid provisions. Sd/- **ANIL K. NARENDRAN JUDGE** **WP(C).No. 7948 of 2019** -12- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 PHOTOGRAPH OF THE BUILDING IN NELLEPILLY GRAMA PANCHAYATH** **EXHIBIT P2 PHOTOGRAPH OF THE BUILDING AFTER DEMOLITION MADE BY THE 3RD AND 4TH RESPONDENT** - **EXHIBIT P3 TRUE COPY OF THE COMMUNICATION BEARING NO.A4-9147/2018 DATED 13.11.2018 ISSUED BY THE 1ST RESPONDENT** - **EXHIBIT P4 PHOTOGRAPH OF THE REPAIRS BEING EFFECTED TO THE PETITIONER'S BUILDING** - **EXHIBIT P5 TRUE COPY OF THE COMMUNICATION BEARING NO.B3-9613/18 DATED 29.11.2018 ISSUED BY THE 1ST RESPONDENT** - **EXHIBIT P6 TRUE COPY OF THE LETTER SUBMITTED BEFORE THE 1ST RESPONDENT DATED 03.12.2018** **EXHIBIT P7 PHOTOGRAPH OF THE COMPLETED BUILDING STRUCTURE OWNED BY THE PETITIONER** **EXHIBIT P8 TRUE COPY OF THE COMMUNICATION BEARING NO.A4-9734/18 DATED 20.02.2019 ISSUED BY THE 1ST RESPONDENT** ## **RESPONDENTS' EXHIBITS: NIL** ## **bpr**