Sunny Yohannan v. The Chengannor Municipal Council and The Secretary, Chengannor Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 05TH DAY OF APRIL 2019 / 15TH CHAITHRA, 1941** ## **WP(C).No. 9603 of 2019** ## **PETITIONER :** **SUNNY YOHANNAN, AGED 59 YEARS S/O. LATE YOHANNAN, MARUTHANATTU PUTHEN VEEDU, BUDHANOOR P.O., VIA PULIYOOR, CHENGANNOR-689121.** **BY ADVS. SRI.C.S.AJITH PRAKASH SMT.T.N.SREEKALA SRI.A.TJOSE SRI.FRANKLIN ARACKAL SRI.M.B.SOORI SRI.PAUL C THOMAS SRI.T.K.DEVARAJAN** ## **RESPONDENTS:** **1 THE CHENGANNOR MUNICIPAL COUNCIL, REPRESENTED BY ITS SECRETARY, CHENGANNOR MUNICIPALITY, CHENGANNOR-689121.** **2 THE SECRETARY, THE CHENGANNOR MUNICIPALITY, CHENGANNOR-689121.** **BY ADV. SRI.S.HARIKRISHNAN,SC,CHENGANNUR MUNICIPALITY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 9603 of 2019** **2** ## **JUDGMENT** The petitioner, who is stated to be a licensee of Shop No.4 in the Municipal Bus Stand Shopping Complex of the 1[st] respondent Municipality, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P19 notice dated 19.03.2019 issued by the 2[nd] respondent, who is the Secretary of the 1[st] respondent Municipality, whereby the petitioner has been directed to remit a sum of Rs.6,256/- towards arrears of licence fee and a further sum of Rs.3,40,000/- towards additional security deposit, since the security deposit already made by the petitioner is only for a sum of Rs.35,000/-. The petitioner has also sought for a declaration that he cannot be compelled to deposit additional security deposit evidenced by Ext.P19, without any genuine reason. The further relief sought for is a writ of mandamus commanding the 1[st] respondent Municipality to hand over the key of Shop Room No.4, forthwith, so **WP(C).No. 9603 of 2019** **3** as to start business, as he desires for his earning, and also directing the 2[nd] respondent to consider the trade licence application, if any, submitted by the petitioner after allotting the room, within a time limit to be fixed by this Court. 2. On 28.03.2019, when this writ petition came up for admission, the learned counsel for the petitioner sought adjournment. The learned Standing Counsel for Municipality sought time to get instructions. 3. Heard the learned counsel for the petitioner and also the learned Standing Counsel for the Municipality representing respondents 1 and 2. 4. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P19 notice dated 19.03.2019 issued by the 2[nd] respondent, in exercise of the writ jurisdiction of this Court under Article 226 of the Constitution of India. 5. The fact that the petitioner, who is stated to be a licensee of Shop Room No.4 in the Municipal Bus Stand **WP(C).No. 9603 of 2019** **4** Shopping Complex of the 1[st] respondent Municipality, can assail Ext.P19 notice, if he is feeling aggrieved by the same, by invoking the statutory remedy available under sub-section (1) of Section 509 of the Kerala Municipality Act, 1994, is not in dispute. It is also not in dispute that 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. 6. 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 **WP(C).No. 9603 of 2019** **5** 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., **WP(C).No. 9603 of 2019** **6** 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 **WP(C).No. 9603 of 2019** **7** 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 elaborate examination of evidence to establish the right **WP(C).No. 9603 of 2019** **8** 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. 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 **WP(C).No. 9603 of 2019** **9** 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 368]**_ and has been reaffirmed by the Privy Council in _**Attorney General of**_ **WP(C).No. 9603 of 2019** **10** _**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 petitioner cannot challenge Ext.P19 notice of the Secretary of the 1[st] respondent Municipality, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, when a statutory remedy is available under Section 509 of the Kerala Municipality Act, on the grounds raised in this writ petition. **WP(C).No. 9603 of 2019** **11** In such circumstances, this writ petition filed on 27.03.2019, is dismissed for the aforesaid reason; however without prejudice to the right of the petitioner to challenge Ext.P19 notice of the 2[nd] respondent by invoking the statutory remedy available under Section 509 of the Municipality Act. **Sd/-** **ANIL K.NARENDRAN, JUDGE** AV/5/4 **WP(C).No. 9603 of 2019** **12** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE DEED OF LICENSE DATED 30.07.2007.** **EXHIBIT P2** **A TRUE COPY OF THE LICENSE DEED DATED 08.03.2010.** **EXHIBIT P3 A TRUE COPY OF THE CONSENT LETTER DATED 30.09.2011.** **EXHIBIT P4 A TRUE COPY OF THE RECEIPT DATED 29.06.2013.** - **EXHIBIT P5 A TRUE COPY OF THE ABOVE APPLICATION DATED 11.03.2013.** **EXHIBIT P6 A TRUE COPY OF THE ABOVE NOTICE DATED 01.06.2013.** **EXHIBIT P7 A TRUE COPY OF THE EXPLANATION DATED 17.06.2013.** **EXHIBIT P8 A TRUE COPY OF THE AGREEMENT DATED 29.09.2011, EXECUTED BY THE PETITIONER.** **EXHIBIT P9 A TRUE COPY OF THE DEMAND NOTICE NO.R3-2073/04 DATED 04.10.2014 PRODUCED AS EXT.P16 IN W.P.(C) NO.17098/2013.** **EXHIBIT P10 A TRUE COPY OF THE INTERIM ORDER IN IA NO.13736/2014 DATED 23.10.2014.** - **EXHIBIT P11 A TRUE COPY OF THE REQUEST DATED 10.08.2013, SUBMITTED BY THE PETITIONER BEFORE THE MUNICIPALITY.** - **EXHIBIT P12 A TRUE COPY OF THE JUDGMENT IN W.P. (C) NO.4534/2013 (N) DATED 27.07.2017.** **EXHIBIT P13 A TRUE COPY OF THE JUDGMENT IN W.P. (C) NO.17098/2013 DATED 01.11.2018.** **WP(C).No. 9603 of 2019** **13** **EXHIBIT P14** **A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 18.9.2018.** **EXHIBIT P15** **A TRUE COPY OF THE ADDITIONAL REPRESENTATION SUBMITTED BY THE PETITIONER DATED 24.11.2018.** **EXHIBIT P16** **A TRUE COPY OF THE DEMAND NOTICE ISSUED TO THE PETITIONER NO.R34214/13(VOL.3) DATED 29.01.2019.** **EXHIBIT P17 A TRUE COPY OF THE CASH RECEIPT NO.01-118020104968 DATED 11.02.2019 ISSUED BY THE MUNICIPALITY.** **EXHIBIT P18 A TRUE COPY OF THE INVENTORY LIST PREPARED BY THE MUNICIPAL SECRETARY. EXHIBIT P19 A TRUE COPY OF THE NOTICE NO.R34214/13 (VOL.3) DATED 19.03.2019 ISSUED BY THE 2ND RESPONDENT.**