Satheeshan P.G v. Mukkom Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY ,THE 25TH DAY OF MARCH 2019 / 4TH CHAITHRA, 1941** **WP(C).No. 8277 of 2019** ## **PETITIONER/S:** **SATHEESHAN P.G AGED 54 YEARS S/O.GOPALAN, MARAKKAR HAJI COMPLEX, NEAR CARMEL CONVENT, KOZHIKODE RESIDING AT PERUMAN PRAAMBIU, MUKOM .O., KOZHIKODE- 673602.** **BY ADVS. SRI.A.RANJITH NARAYANAN SMT.A.SIMI** ## **RESPONDENT/S:** **1 MUKKOM MUNICIPALITY, MUNICIPAL OFFICE, MUKKOM, KOZHIKODE- 673602, REPRESENTED BY ITS SECRETARY. 2 THE HEALTH INSPECTOR, GR.1, MUKKOM MUNICIPALITY, MUKKOM MUNICIPAL OFFICE, KOZHIKODE- 673602. 3 THE CHAIRMAN, MUKKOM MUNICIPALITY, MUKKOM MUNICIPAL OFFICE, KOZHIKODE- 673602. BY ADVS. SRI.SURESH KUMAR KODOTH SRI.K.P.ANTONY BINU** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** kkj -:2:- WP(C).No. 8277 of 2019 ## **JUDGMENT** The petitioner who is a resident within the first respondent Municipality, who is running an office room, No.7/185 dealing with supply and installation of “Aluva Pukayillatha Aduppu”, which is stated to be a gas-less, smoke and emission free old-style stove, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Exts.P1 and P3 Notices/Stop memos dated 12.10.2018 and 01.03.2019 issued by the 2[nd] respondent and the order dated 19.02.2019 of the 3[rd] respondent, which is referred to in Ext.P3 notice/Stop memo. The petitioner has also sought for a writ of mandamus commanding the first respondent or respondents 1 to 3 jointly or severally to consider and pass orders on Ext.P2 application dated 12.11.2018 made by the petitioner, after setting aside the impugned notices, and a direction to respondents 1 to 3, not to proceed with implementation of Exts.P1 and P3 stop memos dated 12.10.2018 and 01.03.2019 issued by the 2[nd] respondent and the order dated 19.02.2019 issued by the third respondent -:3:- WP(C).No. 8277 of 2019 referred to in Ext.P3, till a decision is taken on Ext.P1 application; and a declaration that the provisions of grant of permit and/or licence under the Kerala Municipality Act, 1994 does not apply to the petitioner's office/business concern. 2. On 19.03.2019, when this writ petition came up for admission, this Court issued urgent notice on admission to respondents 1 to 3 by special messenger, returnable by 23.02.2019. 3. Heard the learned counsel for the petitioner, the learned Standing Counsel for the first respondent Municipality, who represents respondents 1 to 3. 4. The main challenge in this writ petition is against Exts.P1 and P3 notices dated 12.10.2018 and 01.03.2019 issued by the second respondent, who is the Health Inspector of the first respondent Municipality, whereby the petitioner has been informed that he is running an establishment dealing with Aluva Aduppukal, Photostat, etc. without obtaining necessary licence from the Municipality. By Ext.P3, the petitioner has been directed to close down his establishment within twenty four hours. It was also directed that the said fact has to be -:4:- WP(C).No. 8277 of 2019 intimated in writing to the office of the second respondent, failing which the first respondent Municipality would close down and seal the shop room and initiate appropriate proceedings. 5. One of the contentions raised in this writ petition is that Exts.P1 and P3 notices are issued by the second respondent, who is the Health Inspector of the first respondent Municipality, who cannot exercise the powers of the Secretary of the Municipality, who is the authority competent to initiate such action. 6. The aforesaid contention raised by the learned counsel for the petitioner has to be considered, with reference to the provisions under Section 50 of the Municipality Act, 1954. Section 50 of the Municipality Act deals with rights and duties of the Secretary. As per sub-section (1), the Secretary shall attend the meeting of the Council and the meetings of the Standing Committee of a Municipality and may take part in the discussions thereat; as an advisor, but shall not have right to move any resolution or to vote. As per sub-section (2), subject to any direction given or any restriction imposed by the -:5:- WP(C).No. 8277 of 2019 Government or the Municipality, the Secretary may, by order in writing, delegate any of his functions to any officer or employee of the Municipality who shall be bound to carry out such functions. The discharge of the functions so delegated shall be subject to such restrictions, limitations and conditions as may be laid down by the Secretary and shall also be subject to his control and revision. Sub-section (3) states that the officer or employee to whom the power is delegated under sub-section (2) shall have all the rights, privileges and authority of the Secretary with respect to such functions and shall like-wise be subject to all liabilities arising out of the exercise of such powers, privileges or authority. 7. In the context of section 50 of the Municipality Act, this Court in _**Davis C.J. v. Thrissur Corporation**_ **[2012 (1) KHC 362]** has repelled the contention raised by the petitioner therein that the Secretary of the Municipality alone can issue an order to close down the workshop and not by the Health Inspector. After referring to the provisions under, sub-section (2) of section 50 of the Act, this Court has held in paragraph 3 of the judgment as follows:- -:6:- WP(C).No. 8277 of 2019 “3. Going by Section 50(2) of the Act the Secretary of a Municipality is empowered to delegate “any of his functions” to any officer or employee of the Municipality and the officer or employee to whom it is delegated by virtue of Section 50(3) of the Act, shall have all the rights, privileges and authority of the Secretary with respect to such delegated functions and shall like-wise be subject to all liabilities arising out of the exercise of such powers, privileges or authority. In this case, evidently, as per Ext.R1(a) the power under Sections 447 and 448 have also been delegated and, it is in the said circumstances that the respondents refute the contentions of the petitioner raised against Exts. P9 and P11 on the ground of competence. In that context, it is to be noted that the very contention of the petitioner is that the powers exercised while issuing Exts.P9 and P11 are exercisable only by the Secretary of the Municipality, and, therefore the second respondent was competent to issue Exts.P9 and P11. In the light of Sections 50(2) and 50(3) of the Act and Ext.R1(a), the said contention cannot be countenanced. The petitioner did not challenge Ext.R1(a) in this writ petition. What is contemplated under Section 50(2) of the Act is delegation of “any of the functions” and not “all of the functions” by a general order. Since there is no attack against Ext.R1(a), I do not propose to probe into said question.” 8. During the course of arguments, the learned Standing Counsel for the first respondent Municipality would point out that the Secretary of the Municipality has already issued an order dated 27.10.2017, whereby the powers have -:7:- WP(C).No. 8277 of 2019 been delegated to the second respondent Health Inspector. 9. Having considered the submissions made by the learned counsel on both sides, this Court finds that, the contentions raised by the petitioner that Exts.P1 and P3 notices issued by the second respondent, who is the Health Inspector of the first respondent Municipality, is without any authority of law can only be repelled and I do so. 10. The next issue that arises for consideration in this writ petition is as to whether the petitioner can invoke the jurisdiction of this Court under Article 226 of the Constitution of India challenging Exts.P1 and P3 notices issued by the second respondent. As per sub-section (1) of section 509 of the Kerala Municipality Act, an appeal may be preferred to the Council against any notice issued or any order passed or any action taken by the Chairperson or the Secretary under any of the provisions of the said Act, other than Sections 390, 391, 395, 406 and 408 or the rules or bye-laws or the regulations thereof. As per sub-section (2) of section 509, an appeal against any notice or order of the Secretary on the levy of tax, -:8:- WP(C).No. 8277 of 2019 may be preferred to Standing Committee for Finance, in the case of Town Panchayat and to the Standing Committee for appeals on taxation in the case of Municipal Corporation. As per sub-section (3) of section 509, pending decision on an appeal filed 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. 11. A reading of the provisions under Section 509 of the Municipality Act make it explicitly clear that an appellate remedy is provided before the Municipal Council against a notice or order issued by the Secretary of the Municipality, in relation to the matters specified therein. As per sub-section (3) of Section 509, the Chairperson is empowered to stay the operation of a notice, order or other proceedings against which the appeal is filed. ## 12. 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 -:9:- WP(C).No. 8277 of 2019 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. 13. 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 -:10:- WP(C).No. 8277 of 2019 **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. 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. 14. 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 ## -:11:- WP(C).No. 8277 of 2019 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 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 ## -:12:- WP(C).No. 8277 of 2019 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. 15. 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 -:13:- WP(C).No. 8277 of 2019 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 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. 16. 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. 17. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that in view of the statutory remedy provided under Section 509 of the Kerala Municipality Act, the petitioner cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of -:14:- WP(C).No. 8277 of 2019 India, challenging Exts.P1 and P3 notices, on the grounds raised in this writ petition. Moreover, the petitioner has not chosen to implead Smt. Jalaja, who filed a complaint dated 04.10.2018 against the petitioner, as borne out from Exts. P1 and P3 notices. It is for him to avail the statutory remedy under sub-section (1) of Section 509 of the Municipality Act, by filing an appeal before the Municipal Council. 18. In such circumstances, the challenge made in this writ petition against Exts.P1 and P3 notices fails for the aforesaid reason and the writ petition is accordingly dismissed, however without prejudice to the right of the petitioner to challenge Ext.P3 notice by filing an appeal before the Municipal Council, by invoking the provisions under sub-section (1) of section 509 of the Kerala Municipality Act, with Smt. Jalaja, the complainant referred to in Exts.P1 and P3 notices as a respondent. 19. It is for the first respondent to furnish a copy of the order of the Chairperson dated 19.02.2019 referred to in Ext.P3 notice to the petitioner within a period of two weeks of -:15:- WP(C).No. 8277 of 2019 the date of receipt of a certified copy of this judgment. On receipt of that order, it is for the petitioner to work out his remedy against that order before the appropriate forum. All legal and factual contentions raised by the petitioner are left open to be raised before the appropriate authority, at appropriate stage. Sd/- ## **ANIL K.NARENDRAN** **JUDGE** kkj -:16:- WP(C).No. 8277 of 2019 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE NOTICE/STOP MEMO NO.H1-40692/18 DATED 12.10.2018 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE LETTER DATED 12.11.2018 ISSUED BY THE PETITIONER TO THE 1ST AND 2ND RESPONDENTS ALONG WITH THE RECEIPT DATED 12.11.2018.** **EXHIBIT P3 TRUE COPY OF THE NOTICE/STOP MEMO NO.H1-40692/18 DATED 01.03.2019 ISSUED BY THE 2ND RESPONDENT.** **// true copy // Sd/PA to Judge**