Shalija @ Sainabha P.H. and Shamsudheen v. Thodupuzha Municipality and Secretary, Thodupuzha Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY ,THE 29TH DAY OF MARCH 2019 / 8TH CHAITHRA, 1941 WP(C).No. 8697 of 2019** ## **PETITIONER/S:** **1 SHALIJA @ SAINABHA P.H. AGED 42 YEARS W/O. SHAMSUDHEEN, RESIDING AT VANIYAPURAYIL HOUSE, VENGALLOOR.P.O., THODUPUZHA, PIN - 685 608** **2 SHAMSUDHEEN AGED 56 YEARS S/O. KASSIM RAWTHER, RESIDING AT VENIYAPURAYIL HOUSE, VENGALLOOR.P.O., THODUPUZHA, PIN - 685 608** **BY ADV. SRI.MATHEW KURIAKOSE** ## **RESPONDENT/S:** |**1**|**THODUPUZHA MUNICIPALITY**| |---|---| ||**REPRESENTED BY ITS SECRETARY, THODUPUZHA.P.O., PIN -**| ||**679 335**| |**2**|**THE SECRETARY**| ||**THODUPUZHA MUNICIPALITY, THODUPUZHA.P.O., PIN - 679**| ||**335**| ||**BY ADV. SRI.UNNIKRISHNAN V.ALAPPATT, SC, THODUPUZHA**| ||**MUNICIPALITY**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No. 8697 of 2019 2 ## **JUDGMENT** The second petitioner is the husband of the first petitioner. The first petitioner is stated to be the owner of 1.62 Ares of property in Survey No.2/8/2 of Kumaramangalam Village, Thodupuzha Taluk with an old two storied commercial building covered by Ext.P1 sale deed. The petitioners have filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari quashing Ext.P10 order dated 19.02.2019 and Ext.P11 order dated 21.02.2019 issued by the second respondent Secretary of the first respondent Municipality; a writ of mandamus commanding respondent No.2 to effect correction of the mistake in records of the first respondent Municipality as regards the nature of occupancy of building No.I/671 as 'commercial' instead of 'residential'; and a writ of mandamus commanding respondent No.2 to process Ext.P8 application submitted by the second petitioner for D&O license to run restaurant in Building No.1/671 and to pass orders, as expeditiously as possible, and within a time limit fixed by this Court. 2. On 21.03.2019, when this writ petition came up for admission, the learned Standing Counsel for the first WP(C).No. 8697 of 2019 3 respondent Municipality, sought time to get instructions. 3. Heard the learned counsel for petitioners and also the learned Standing Counsel for the first respondent Municipality, representing respondents 1 and 2. 4. The petitioners filed Ext.P8 application for D&O license for running a restaurant in building No. I/671. Ext.P9 application, which according to petitioners, is for correction of mistake in the Municipal records regarding the nature of occupancy of building No.I/671. On receipt of Ext.P8 application, the second respondent issued Ext.P10 communication dated 19.02.2019, whereby the petitioners are informed that Ext.P8 application for D&O license in respect of building No.I/167 could not be processed. Thereafter, the petitioners were issued with Ext.P11 communication dated 21.02.2019 whereby, they are informed about the outcome of Ext.P9 application. It is feeling aggrieved by those orders that the petitioners are before this Court by filing this writ petition. 5. The learned Standing Counsel for the Municipality representing respondents 1 and 2 would point out that, if the petitioners are feeling aggrieved by Exts.P10 and P11, they can invoke the statutory remedy under sub-section (1) of WP(C).No. 8697 of 2019 4 Section 509 of the Kerala Municipality Act, 1994 by filing appeal before the Municipal Council. 6. The availability of statutory remedy against Exts. P10 and P11 is not in dispute. However, the learned counsel for petitioners would contend that since the reasoning of the second respondent in Exts.P10 and P11 are erroneous, interference of this Court, invoking the writ jurisdiction under Article 226 of the Constitution of India is warranted. 7. 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 ground to invoke the WP(C).No. 8697 of 2019 5 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. 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 WP(C).No. 8697 of 2019 6 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 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 WP(C).No. 8697 of 2019 7 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 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 WP(C).No. 8697 of 2019 8 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 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. WP(C).No. 8697 of 2019 9 12. Viewed in the light of the law laid down in the decisions referred to _supra,_ conclusion is irresistible that no interference under Article 226 of the Constitution of India is warranted on Exts.P10 and P11, in view of the statutory remedy available under sub-section (1) of Section 509 of the Kerala Municipality Act on the grounds raised in this writ petition. In such circumstances, the challenge made in this writ petition against Exts.P10 and P11 fails for the aforesaid reason and this writ petition filed on 20.03.2019 is dismissed; however, without prejudice to the right of the petitioners to avail statutory remedy against Exts.P10 and P11 by filing an appeal before the Municipal Council, invoking the provision under sub-section (1) of Section 509 of the Kerala Municipality Act, 1994. ## **SD/-** ## **ANIL K.NARENDRAN** ## **JUDGE** DCS WP(C).No. 8697 of 2019 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.3559 OF 1993 OF S.R.O. THODUPUZHA EXHIBIT P2 TRUE COPY OF THE LICENSE DATED 16.07.2004 ISSUED TO MR. V.K. NASEER BY THE 1ST RESPONDENT MUNICIPALITY EXHIBIT P3 TRUE COPY OF THE PROFESSIONAL TAX RECEIPT DATED 03.08.2017 ISSUED BY THE 1ST RESPONDENT MUNICIPALITY EXHIBIT P4 TRUE COPY OF THE PROFESSIONAL TAX RECEIPT DATED 12.01.2018 ISSUED BY THE 1ST RESPONDENT MUNICIPALITY EXHIBIT P5 TRUE COPY OF THE REGISTRATION CERTIFICATE DATED 23.06.2003 ISSUED BY THE ASSISTANT LABOUR OFFICER, THODUPUZHA. EXHIBIT P6 TRUE COPY OF THE CONSENT DATED 22.12.2018 FROM THE KERALA STATE POLLUTION CONTROL BOARD. EXHIBIT P7 TRUE COPY OF THE APPLICATION SUBMITTED BY THE SECOND PETITIONER BEFORE THE SECOND RESPONDENT TO OBTAIN D&O LICENSE. EXHIBIT P8 TRUE COPY OF THE APPLICATION SUBMITTED ONLINE BY THE SECOND PETITIONER TO THE SECOND RESPONDENT TO OBTAIN D&O LICENSE EXHIBIT P9 TRUE COPY OF THE APPLICATION DATED 31.01.2019 SUBMITTED BY THE 1ST PETITIONER TO THE SECOND RESPONDENT EXHIBIT P10 TRUE COPY OF THE ORDER CUM COMMUNICATION DATED 19.02.2019 ISSUED BY THE SECOND RESPONDENT TO THE SECOND PETITIONER EXHIBIT P11 TRUE COPY OF THE ORDER CUM COMMUNICATION DATED 21.02.2019 ISSUED BY THE SECOND RESPONDENT TO THE 1ST PETITIONER EXHIBIT P12 PHOTOGRAPHS SHOWING THE BUILDING OF THE 1ST PETITIONER**