Shanmugadasan v. Vazhakkkad Grama Panchayath and Deputy Commissioner of Excise

## **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. 21366 of 2018** ## **PETITIONER:** **SHANMUGADASAN, S/O. CHEKKU, AGED 45 YEARS, THAYYIL HOUSE, MELMURI, MALAPPURAM DISTRICT.** **BY ADVS. SRI.BABU S. NAIR SMT.SMITHA BABU** ## **RESPONDENTS:** **1 THE VAZHAKKAD GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, VAZHAKKAD, MALAPPURAM DISTRICT, PIN-673 640. 2 THE DEPUTY COMMISSIONER OF EXCISE, MALAPPURAM, MALAPPURAM DISTRICT, PIN-676 505. BY ADVS. SRI.N.ANAND SRI.IMAM GRIGORIOS KARAT SRI.N.KRISHNA PRASAD SMT. MABLE C.KURIEN, GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WP(C)21366 OF 2018 ## **JUDGMENT** The petitioner, who constructed a commercial building in a property comprised in Re-survey No.1026/3 of Vazhakkad Village, after obtaining building permit from the 1[st] respondent Grama Panchayat, which building has already been numbered as 11/175A, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P9 order dated 22.05.2018 of the Secretary of the 1[st] respondent Grama Panchayat; and a writ of mandamus commanding the respondents not to interfere with the conduct of toddy shop in the building owned by the petitioner with building No.11/175A of Vazhakkadu Grama Panchayat. 2. On 28.06.2018, when this writ petition came up for admission, the learned Government Pleader took notice for the 2[nd] respondent. Urgent notice by speed post was ordered to the 1[st] respondent, returnable within two weeks. This Court granted an interim stay of further proceedings pursuant to Ext.P9 for a period of one month. The said interim order, which was extended from time to time, is still in force. 3. The 1[st] respondent has filed a counter affidavit, opposing the reliefs sought for in this writ petition. In the 3 WP(C)21366 OF 2018 counter affidavit, the 1[st] respondent has pointed out that, Ext.P9 order is appealable before the Tribunal for Local Self Government Institutions, under sub-section (4) of Section 276 of the Kerala Panchayat Raj Act, 1994 and as such, the petitioner cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, without availing the statutory remedy. The 1[st] respondent has also raised various contentions on the merits of the matter. 4. Heard the learned counsel for the petitioner, the learned counsel for the 1[st] respondent Grama Panchayat and also the learned Government Pleader appearing for the 2[nd] respondent Deputy Excise Commissioner. 5. The fact that, Ext.P9 order of the Secretary of the 1[st] respondent Grama Panchayat is appealable before the Tribunal for Local Self Government Institutions under subsection (4) of Section 276 of the Kerala Panchayat Raj Act is not in dispute. As per the sub-section (4), the Tribunal has also the power to stay the operation of order, during the pendency of that appeal. 6. In **Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603]** , the Apex Court held that non- WP(C)21366 OF 2018 4 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 extraordinary jurisdiction under Article 226. ## 7. 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, 5 WP(C)21366 OF 2018 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 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. 8. 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 6 WP(C)21366 OF 2018 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 relief. Where it is open to the aggrieved petitioner to move WP(C)21366 OF 2018 7 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. 9. 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 8 WP(C)21366 OF 2018 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. 10. 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. 11. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the challenge made in this writ petition against Ext.P9 order of the Secretary of the 1[st] respondent Grama Panchayat, whereby the 9 WP(C)21366 OF 2018 building number granted to the petitioner’s building has been cancelled, can be challenged before the Tribunal for Local Self Government Institutions, by filing an appeal under sub-section (4) of Section 276 of the Act. In view of the said statutory remedy available as above, the petitioner cannot challenge that order before this Court, by invoking the writ jurisdiction under Article 226 of the Constitution of India, on the grounds raised in this writ petition. 12. In such circumstances, the challenge made in this writ petition against Ext.P9 order dated 22.05.2018 of the Secretary of the 1[st] respondent Grama Panchayat fails and this writ petition filed on 27.06.2018 is accordingly dismissed; however, without prejudice to the right of the petitioner to challenge Ext.P9 order, by filing an appeal before the Tribunal for Local Self Government Institutions, invoking the provisions under sub-section (4) of Section 276 of the Kerala Panchayat Raj Act. 13. Since the petitioner has filed this writ petition before this Court within the time limit specified for filing an appeal before the Tribunal, if any appeal is filed within two weeks from the date of receipt of a certified copy of this judgment, the 10 WP(C)21366 OF 2018 same shall be entertained by the Tribunal as one filed within the statutory time limit, and decide it on merits. If an application for stay is made along with that appeal, the Tribunal shall consider the same and pass appropriate orders thereon, with notice to both sides. So as to enable the petitioner to seek appropriate interim relief from the Tribunal in the appeal to be filed against Ext.P9 order, the interim order granted by this Court in this writ petition shall continue in force for a period of one month. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 11 WP(C)21366 OF 2018 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE LICENCEE OF THE TODDY SHOP ONE VIMAL PRASAD DATED, 26-3-2018.** - **EXHIBIT P2 TRUE COPY OF THE LICENCE ISSUED BY THE 2ND RESPONCENT TO VIMAL PRASAD TO CONDUCT THE TODDY SHOP.** - **EXHIBIT P3 TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED, 27-03-2018.** - **EXHIBIT P4 TRUE COPY OF THE RESOLUTION PASSED BY THE VAZHAKKAD GRAMA PANCHAYATH DATED, 31-3-2017.** **EXHIBIT P5 TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE COURT IN W.P(C) NO. 11446/2018 DATED 13-4-2018.** **EXHIBIT P6 TRUE COPY OF THE ORDER PASSED BY THE FIRST RESPONDENT DATED 12-4-2018 AS NO. A2-9936/18 ALONG WITH THE PROCEEDINGS** - **EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED, 27-42018 IN W.P(C) NO. 14397/2018 OF THIS HON'BLE COURT.** **EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED, 11-52018 IN W.A NO. 945/2018 OF THIS HON'BLE COURT.** **EXHIBIT P9 TRUE COPY OF THE ORDER PASSED BY THE FIRST RESPONDENT DATED 22-5-2018 AS NO.A2-9936/18 ALONG WITH THE PROCEEDINGS.** 12 WP(C)21366 OF 2018 ## **1ST RESPONDENT'S EXHIBITS:** **EXHIBIT R(1)(A) TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT. EXHIBIT R(1)(B) TRUE COPY OF THE INSPECTION REPORT DATED 09.10.2018. EXHIBIT R(1)(C) TRUE COPY OF THE UNDERTAKING 16.02.2018 EXECUTED BY THE PETITIONER. EXHIBIT R(1)(D) TRUE COPY OF THE NOTICE DATED 05.04.2018 ISSUED BY THE PANCHAYAT. EXHIBIT R(1)(E) TRUE COPY OF THE ACKNOWLEDGMENT CARD.** **TRUE COPY** **P.A. TO JUDGE**