Sajikumar and Krishnadas v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 02ND DAY OF AUGUST 2019 / 11TH SRAVANA, 1941** ## **WP(C).No.15553 OF 2019(T)** ## **PETITIONER/S:** **1 SAJIKUMAR, AGED 35 YEARS S/O.K.V.KRISHNANKUTTY, KURUPPATH HOUSE, KALLEPPULLY, PALAKKAD - 678 005.** **2 KRISHNADAS, S/O.KELAN, ERAPPAKODE HOUSE, KALLEPPULLY, PALAKKAD - 678 005.** ## **BY ADV. SRI.A.R.GANGADAS** ## **RESPONDENT/S:** - **1 THE STATE OF KERALA, (REPRESENTED BY SECRETARY TO LOCAL SELF GOVERNMENT DEPARTMENT), THE SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 THE DISTRICT COLLECTOR, CIVIL STATION, PALAKKAD - 678 001.** - **3 THE SECRETARY, MARUTHARODE GRAMA PANCHAYATH, PALAKKAD DISTRICT - 678 005.** - **4 M/S.RELIANCE JIOINFOCOMM LIMITED, PUKALAKKATTU KARIYATTU TOWERS, NEAR YATHRI NIVAS, MAMANGALAM, PALARIVATTOM, COCHIN - 682 025, REPRESENTED BY THE STATE HEAD, M/S.RELIANCE JIOINFOCOMM LIMITED, KERALA CIRCLE.** **BY ADVS. SRI.P.R.VENKETESH SRI.G.KEERTHIVAS SRI.G.HARIKUMAR (GOPINATHAN NAIR) SHRI.AKHIL SURESH** **SRI MANU RAJ K.J- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.15553 OF 2019(T)** 2 ## **JUDGMENT** The petitioners who are residents of Kalleppully in Palakkad District, within the jurisdiction of the 3[rd] respondent Grama Panchayat has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 building permit dated 18.01.2010 issued by the 3[rd] respondent, who is the Secretary of the Grama Panchayat. The petitioners are also sought for a writ of mandamus commanding the 2[nd] respondent to pass appropriate orders on Ext.P2 complaint. 2. On 07.06.2019, when the writ petition came for consideration the learned Government Pleader took notice on admission for respondents 1 and 2. Urgent notice on admission by speed post was ordered to respondents 3 and 4, returnable within two weeks. 3. Heard the learned counsel for the petitioner, the learned Government Pleader for respondents 1 and 2, the learned Counsel for the Marutharode Grama Panchayat, representing the 3[rd] respondent, and also the learned counsel **WP(C).No.15553 OF 2019(T)** 3 for the 4[th] respondent. The issue that arises for consideration in this petition is as to whether any interference is warranted on Ext.P1 building permit, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, when the same is applicable before the Tribunal for Local Self Government Institutions in view of the provisions under Section 276 of the Kerala Panchayat Raj Act, 1994 and Rule 151 of the Kerala Panchayat Building Rules, 2011. 4. 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 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 **WP(C).No.15553 OF 2019(T)** 4 he has made out an exceptional case warranting such interference or there exists sufficient ground to invoke the extraordinary jurisdiction under Article 226. 5. 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** **WP(C).No.15553 OF 2019(T)** 5 **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. 6. 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 **WP(C).No.15553 OF 2019(T)** 6 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. 7. In **Titaghur Paper Mills' case (supra)** a Three- **WP(C).No.15553 OF 2019(T)** 7 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 **WP(C).No.15553 OF 2019(T)** 8 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. 8. 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. 9. Viewed in the light of the law laid down in the decisions referred to _supra_ conclusion is irresistible that, if the petitioners are aggrieved by the grant of Ext.P1 building permit to the fourth respondent, it is for them to avail the statutory remedy under Section 276 of the Kerala Panchayat Raj Act, by approaching the Tribunal for Local Self Government Institutions. 9. Following the law laid down in the decisions referred **WP(C).No.15553 OF 2019(T)** 9 above, this Court dismissed W.P.(C).No.8616/2019 filed by one K.Balakrishnan and others against the building permit granted to the 4[th] respondent, in respect of a mobile tower in Kasargod District. The said judgment was held by the Division Bench of this Court in the judgment dated 08.07.2019 in W.A.No. 1192 of 2019. Paragraphs 2 to 5 of the said judgment reads thus: “2. The matter pertains to the building permit dated 14.1.2019 (Ext.P1) granted in favour of the third respondent, by the Mogral Puthur Grama Panchayat, Kasargod for erection of a mobile phone Tower. The aggrieved parties challenged the Ext.P1 building permit, by filing the W.P.(C)8616 of 2019. 3. The learned Judge, however, took note of the applicable judgments on the issue and opined that if the petitioners are aggrieved by the Ext.P1 building permit issued to the third respondent, they must avail the statutory remedy, under Section 276 of the Kerala Panchayat Raj Act, by approaching the Tribunal for Local Self Government Institutions. With this observation, the Writ Petition came to be dismissed by impugned judgment dated 21.3.2019. 4. While accepting the above judgment relegating the aggrieved party to the statutory Tribunal, the learned counsel for the appellant Sri.P.V.Anoop, however, submits that the 2nd prayer in the Writ Petition, seeking disposal of the representation dated 8.3.2019 (Ext P7) addressed to the Secretary of the Mogral Puthur Grama Panchayat, **WP(C).No.15553 OF 2019(T)** 10 should be ordered by the Division Bench since this relief was not considered by the learned Single Judge. 5. In the above context, we are, however, of the view that directing the disposal of the Ext.P7 representation will amount to a direction to review the building permit decision of the Grama Panchayat authorities and such a direction should not be issued when the learned single Judge has relegated the aggrieved party to the statutory Tribunal. As such, the Writ Appeal is found devoid of merit and the same is dismissed.” 10. In such circumstances, if the petitioners are feeling aggrieved by Ext.P1 building permit granted by the 3[rd] respondent, in favour of the 4[th] respondent, it is for them to avail the statutory remedy by invoking the relevant provisions under the Kerala Panchayat Raj Act, 1994 and also the Kerala Panchayat Building Rules, 2011. 11. Further relief sought for in this writ petition is a writ of mandamus commanding the 2[nd] respondent to consider Ext.P2 complaint made by the petitioner dated 11.03.2019. In Ext.P2 complaint the petitioner and others are seeking interference on the construction of mobile tower, in terms of Ext.P1 building permit. The learned counsel could not point out any statutory provisions, which enables the 2nd respondent **WP(C).No.15553 OF 2019(T)** 11 to interfere with Ext.P1 building permit granted by the Grama Panchayat. In the result this writ petition filed on 06.06.2019 fails for the aforesaid reasons; however, without prejudice to the right of the petitioners to challenge Ext.P1 building permit, before the appropriate forum by invoking the statutory remedy. **Sd/-** **ANIL K.NARENDRAN, JUDGE** Dxy 02/08/19 **WP(C).No.15553 OF 2019(T)** 12 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE PANCHAYATH DATED 18/01/2010. EXHIBIT P2 TRUE COPY OF THE COMPLAINT FILED BY THE RESIDENT OF ERAPPUKULAM DATED 11/03/2019 BEFORE THE DISTRICT COLLECTOR.** **EXHIBIT P3 TRUE COPY OF THE ACKNOWLEDGMENT ISSUED BY THE COLLECTORATE DATED 11/03/2019.**