Siby P.S. and others v. Kumbalam Grama Panchayat and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY ,THE 11TH DAY OF MARCH 2019 / 20TH PHALGUNA, 1940** ## **WP(C).No. 6671 of 2019** ## **PETITIONER/S:** - **1 SIBY P.S., AGED 37 YEARS W/O MUHAMMED HARIS, POKKALIPARAMBIL HOUSE, KUMBALAM P.O., ERNAKULAM.** - **2 DILEEP, AGED 51 YEARS S/O GOPALAN, KOCHUPARAMBIL, KUMBALAM P.O., ERNAKULAM.** - **3 SANAL KUMAR, S/O VELAPPAN, KALAPPURAKKAL HOUSE, KUMBALAM P.O., ERNAKULAM.** - **4 SEETHA CHAKKRAPANI, AGED 58 YEARS D/O MADHAVAN, THITTETHARAYIL HOUSE, KUMBALAM P.O., ERNAKULAM.** **BY ADVS. SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN** ## **RESPONDENT/S:** - **1 KUMBALAM GRAMA PANCHAYATH KUMBALAM P.O., ERNAKULAM DISTRICT-682506, REPRESENTED BY ITS SECRETARY.** - **2 THE SECRETARY, KUMBALAM GRAMA PANCHAYAT, KUMBALAM P.O., ERNAKULAM DISTRICT-682506.** - **3 KUMBALAM GRAMA PANCHAYAT COMMITTEE, KUMBALAM GRAMA PANCHAYAT, KUMBALAM P.O., ERNAKULAM DISTRICT-682506,REPRESENTED BY ITS PRESIDENT.** WP(C).No. 6671 of 2019 2 **4 RELIANCE JIO INFOCOMM LIMITED, PUKALAKKATTU KARYATTU TOWERS, NEAR YATHRI NIVAS, MAMANGALAM, ERNAKULAM-682014. 5 DISTRICT TELECOMM COMMITTEE, REPRESENTED BY DISTRICT COLLECTOR, COLLECTORATE, KAKKANAD, ERNAKULAM-682030.** **BY ADVS. SRI AJITH GEORGE, STANDING COUNSEL FOR R1 TO R3 SRI.HARIKUMAR G. NAIR FOR R4 SRI.AKHIL SURESH SRI. MANURAJ K.J. GOVERNMENT PLEADER FOR R5** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No. 6671 of 2019 3 ## **JUDGMENT** Petitioners 1 to 3, who are residing near the construction site covered by Ext.P1 building permit, dated 05.01.2019 issued to the fourth respondent and the fourth petitioner, who is the ward member of the first respondent Grama Panachayat, have filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P1 building permit; and a declaration that the second respondent Secretary of the first respondent Grama Panchayat has issued Ext. P1 building permit in violation of Sub Rule (3)(i) (b) of Rule 12 of the Kerala Panchayat Raj (Issue of License to Dangerous and Offensive Trades and Factories) Rules, 1996. 2. On 06.03.2019, when this writ petition came for consideration, this Court issued urgent notice by special messenger to respondents 1 to 4, returnable by a week. Learned Government Pleader took notice on admission for the fifth respondent. 3. Heard learned counsel for petitioners, the learned Standing Counsel for respondents 1 to 3, the learned counsel for the fourth respondent and also the learned Government Pleader appearing for the fifth respondent. 4. The grievance of petitioners is regarding WP(C).No. 6671 of 2019 4 construction of a mobile tower by the fourth respondent telecom company, on the strength of Ext.P1 building permit dated 05.01.2019, issued by the second respondent. Admittedly, Ext.P1 building permit is appealable before the Tribunal for Local Self Government Institutions, as per the provisions under sub-section (4) of Section 276 of the Kerala Panchayath Raj Act. Instead of filing such an appeal before the Tribunal, petitioners have filed Ext.P5 appeal dated 28.02.2019 before the third respondent Panchayath Committee. On realising the fact that the third respondent is not the appellate authority, the petitioners moved this Court by filing this writ petition, on 05.03.2019, seeking various reliefs. 5. When Ext.P1 building permit issued by the second respondent is appealable before the Tribunal for Local Self Government Institutions, in view of the provisions under subsection (4) of Section 276 of the Kerala Panchayath Raj Act, petitioners cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext. P1. 6. 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 WP(C).No. 6671 of 2019 5 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, except in cases falling within the well defined exceptions as observed in **Chaabil Das Agarwal's case (supra)** , i.e., where the WP(C).No. 6671 of 2019 6 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 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 WP(C).No. 6671 of 2019 7 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 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 WP(C).No. 6671 of 2019 8 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 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** WP(C).No. 6671 of 2019 9 **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 no interference is warranted on Ext.P1 building permit, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, on the grounds raised in the writ petition. 12. Having considered the submissions made by learned counsel on both sides, this Court finds that, immediately after coming to know about Ext.P1 building permit, petitioners have moved Ext.P5 appeal before the third respondent Panchayath Committee. Such an appeal is not maintainable before the third respondent Panchayat Committee, in view of the WP(C).No. 6671 of 2019 10 provisions under sub-section (4) of Section 276 of the Kerala Panchayath Raj Act. Therefore, it is for petitioners to challenge Ext. P1 building permit by filing an appeal before the Tribunal for Local Self Government Institutions. 13. Taking note of the filing of Ext.P5 appeal before the third respondent Panchayath Committee on 28.02.2019 and filing of this writ petition before this Court on 05.03.2019, petitioners are permitted to file an appeal along with a stay petition before the Tribunal for Local Self Government Institutions, Thiruvananthapuram, challenging Ext.P1 building permit, within two weeks from the date of receipt of a certified copy of this judgment. 14. If any such appeal is received, within the aforesaid time limit the Tribunal shall consider that appeal on merits treating it as one filed within the time limit specified under subsection (6) of Section 276 of the Kerala Panchayath Raj Act. and pass appropriate orders thereon and in the interlocutory applications, if any filed, strictly in accordance with law. Writ petition is disposed of, accordingly. ## **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** DCS WP(C).No. 6671 of 2019 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE CONSENT FOR CONSTRUCTION OF TOWER ISSUED BY THE 2ND RESPONDENT DATED 5.1.2019** - **EXHIBIT P2 PHOTO SHOWING THE NATURE OF THE CONSTRUCTION IN THE WATER COURSE** - **EXHIBIT P3 TRUE COPY OF THE PETITION DATED 14.2.2019 SUBMITTED BY THE LOCL PEOPLE BEFORE THE DISTRICT COLLECTOR ERNAKAULAM** - **EXHIBIT P4 TRUE COPY OF THE MASS MEMORANDUM DATED 27.2.2019 SUBMITTED BY THE PETITIONERS AND OTHERS BEFORE THE DISTRICT COLLECTOR, ERNAKULAM** - **EXHIBIT P5 TRUE COPY OF THE APPEAL DATED 28.2.2019 FILED BEFORE THE 3RD RESPONDENT** **EXHIBIT P6 TRUE COPY OF THE LETTER DATED 22.2.2019 ISSUED BY THE 2ND RESPONDENT** **EXHIBIT P7 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 9.3.2018 ISSUED BY THE GOVERNMENT GENERAL HOSPITAL, ERNAKULAM**