Satheesh P.K v. Palamel Grama Panchayath and The Assistant Executive Engineer, Local Self Government Department, Palamel Village

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 01ST DAY OF APRIL 2019 / 11TH CHAITHRA, 1941** **WP(C).No. 27114 of 2018** ## **PETITIONER:** **SATHEESH P.K AGED 50 YEARS, S/O.KUMARAN P.K., SAJI BHAVANAM, KALLIMEL P.O., MAVELIKKARA, THAZHAKKARA, ALAPPUZHA DISTRICT - 690 509.** ## **BY ADV. SRI.ARUN MATHEW VADAKKAN** ## **RESPONDENTS:** |**1**|**PALAMEL GRAMA PANCHAYATH**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**NOORANADU P.O.,ALAPPUZHA DISTRICT - 690 504.**| |**2**|**THE ASSISTANT EXECUTIVE ENGINEER**| ||**LOCAL SELF GOVERNMENT DEPARTMENT,PALAMEL**| ||**VILLAGE, ALAPPUZHA - 690 509.**| |**THIS WRIT**|**PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON**| |**01.04.2019, **|**THE COURT ON THE SAME DAY DELIVERED THE**| |**FOLLOWING:**|| W.P.(C)No.27114 of 2018 -2- ## **JUDGMENT** The petitioner, who is stated to be the owner in possession of 11.73 Ares of land in Re.Survey No.381/15/2 and Re.Survey Block No.20 of Mavelikkara Taluk, Palamel Village has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P8 order dated 30.05.2018 issued by the Secretary of the 1[st] respondent Grama Panchayat whereby the application filed by the petitioner seeking permission to construct a building stands rejected. In Ext.P8 order, it has been stated that the place where the petitioner wants to construct the building is a portion of a hilly area lying at a height ranging from 3 meters to 8 meters and as such any construction could be made only after extracting large quantity of earth, which would cause serious environmental issues. 2. On 09.08.2018, when this writ petition came up for admission, this Court issued urgent notice by speed post to the respondents returnable in two weeks. 3. Despite service of notice, none appears for W.P.(C)No.27114 of 2018 -3- respondents 1 and 2. 4. Heard learned counsel for the petitioner. 5. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P8 order dated 30.05.2018 issued by the Secretary of the 1[st] Grama Panchayat, whereby an application filed by the petitioner seeking permission to construct a building stands rejected. 6. 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 subrule (2), by filing an appeal before the Tribunal for Local Self W.P.(C)No.27114 of 2018 -4- Government Institutions constituted under Section 271S of the Kerala Panchayat Raj Act. Therefore, if the petitioner is feeling aggrieved by Ext.P8 order dated 30.05.2018 of the 1[st] respondent, he could have availed the statutory remedy, by invoking the aforesaid provisions, within the prescribed time limit. ## 7. 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 he has made out an exceptional case warranting such interference or there exists W.P.(C)No.27114 of 2018 -5- sufficient ground to invoke the extraordinary 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 **Titaghur Paper Mills Company Ltd.** W.P.(C)No.27114 of 2018 -6- **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 limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode W.P.(C)No.27114 of 2018 -7- 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. 10. In **Titaghur Paper Mills' case (supra)** a Three- W.P.(C)No.27114 of 2018 -8- 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** W.P.(C)No.27114 of 2018 -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. 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 decisions referred to _supra_ , conclusion is irresistible that, when a statutory remedy is available under Section 276 of 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, on the grounds raised in this writ petition. W.P.(C)No.27114 of 2018 -10- 13. In such circumstances, this writ petition filed on 08.08.2018 challenging Ext.P8 order dated 30.05.2018 of the 1[st] respondent is dismissed for the aforesaid reason; however, without prejudice to the right, if any, 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** dsn W.P.(C)No.27114 of 2018 -11- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1. TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY PALAMEL VILLAGE OFFICE DATED 16.04.2018.** - **EXHIBIT P2. TRUE COPY OF TAX RECEIPT ISSUED BY PALAMEL VILLAGE OFFICE DATED 10.04.2018.** **EXHIBIT P3. TRUE COPY OF THE LOCATION SKETCH DATED 23.04.2018 SIGNED BY VILLAGE OFFICER, PALAMEL.** - **EXHIBIT P4. TRUE COPY OF THE SITE PLAN AND LOCATION PLAN PREPARED FOR THE PETITIONER DATED NIL SUBMITTED ALONG WITH THE DEVELOPMENT APPLICATION.** - **EXHIBIT P5. TRUE COPY OF THE PROPOSED RESIDENTIAL BUILDING PLAN PREPARED FOR THE PETITIONER DATED NIL SUBMITTED ALONG WITH THE DEVELOPMENT APPLICATION.** - **EXHIBIT P6. TRUE COPY OF THE PROPOSED LAND DEVELOPMENT PLAN FOR RESIDENTIAL BUILDING PREPARED FOR THE PETITIONER DATED NIL SUBMITTED ALONG WITH THE DEVELOPMENT APPLICATION.** - **EXHIBIT P7. TRUE COPY OF THE TAX RECEIPT ISSUED BY PALAMEL VILLAGE OFFICE DATED 04.07.2017 IN RESPECT OF ADJACENT LAND.** - **EXHIBIT P8. TRUE COPY OF THE REJECTION LETTER DATED 30.05.2018 ISSUED BY SECRETARY, PALAMEL GRAMA PANCHAYATH, TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY PALAMEL VILLAGE OFFICE DATED 16.04.2018.** **EXHIBIT P9. PHOTOCOPY OF PHOTOGRAPHS OF THE PETITIONER'S PROPERTY TO SHOW THE LIE AND NATURE. EXHIBIT P10. PHOTOCOPY OF PHOTOGRAPHS OF THE PETITIONER'S PROPERTY TO SHOW THE LIE AND NATURE.** W.P.(C)No.27114 of 2018 -12- **EXHIBIT P11. PHOTOCOPY OF PHOTOGRAPHS OF THE PETITIONER'S PROPERTY TO SHOW THE LIE AND NATURE.** **EXHIBTI P12. PHOTOCOPY OF PHOTOGRAPHS OF THE PETITIONER'S PROPERTY TO SHOW THE LIE AND NATURE.** **RESPONDENTS' EXTS: NIL**