SURENDRAN S/O KUNHIKRISHNAN & SUKUMARAN S/O SREEDEVI v. CHALAVARA GRAMA PANCHAYATH (represented by Secretary) & ORS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **FRIDAY, THE 30TH DAY OF AUGUST 2019 / 8TH BHADRA, 1941** ## **WP(C).No.23406 OF 2019(A)** ## **PETITIONERS:** **1 SURENDRAN S/O. KUNHIKRISHNAN, AGED 45 YEARS, POTTAKKULAM HOUSE, VADAKKUMMURI P.O, CHERPLASSERRY, PALAKKAD PIN 679 503 2 SUKUMARAN, S/O. SREEDEVI, AGED 62 YEARS, SRAMBICKAL HOUSE, KANNIYAMPURAM P.O, OTTAPPALAM, PALAKKAD PIN 679 104** **BY ADV. SRI.M.C.JOHN** ## **RESPONDENTS:** - **1 CHALAVARA GRAMA PANCHAYATH REPRESENTED BY SECRETARY, CHALAVARA P.O, PALAKKAD PIN 679 505** - **2 THE DEPUTY COMMISSIONER OF EXCISE, PALAKKAD DIVISION, CIVIL STATION, PALAKKAD PIN 678 001** - **3 THE CIRCLE INSPECTOR OF EXCISE, OTTAPPALAM, PALAKKAD PIN 679 104** ## **BY ADV. SRI HARISH K.P-SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.23406 OF 2019(A)** **2** ## **JUDGMENT** The first petitioner is the licensee of Toddy Shop No.35/2019-20 (Puliyaanamkunnu) in Group No.I of Cherplassery Excise Range, from the year 2014-15 onwards. The licence is valid upto 31.02.2020. The toddy shop is presently occupied in a residential building with building No.5/1 UA/2019 owned by the second petitioner. The petitioners have filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P2 notice dated 26.08.2019 issued by the Secretary of the first respondent Grama Panchayat, whereby the second petitioner has been directed to close down the toddy shop conducted in that residential building (a building which is provisionally numbered) without obtaining change of occupancy. The petitioner has also sought for a direction restraining the first respondent from taking any further action pursuant to Ext.P2 notice, including closure of the toddy shop (Puliyaanamkunnu) in Group No.I of Cherplassery Excise Range. 2. Heard the learned counsel for the petitioners. 3. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P2 notice dated 26.08.2019 issued by the Secretary of the **WP(C).No.23406 OF 2019(A)** **3** first respondent Grama Panchayat, in exercise of the writ jurisdiction of this Court under Article 226 of the Constitution of India. 4. The fact that Ext.P2 notice is appealable before the appropriate authority, in view of the provisions under Section 276 of the Kerala Panchayath Raj Act, 1994, is not in dispute. It is also not in dispute that the toddy shop is functioning in a residential building, which is provisionally numbered, and without obtaining change of occupancy. 5. 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 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 **WP(C).No.23406 OF 2019(A)** **4** interference or there exists sufficient ground to invoke the extraordinary jurisdiction under Article 226. 6. 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 **WP(C).No.23406 OF 2019(A)** **5** 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. 7. 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 **WP(C).No.23406 OF 2019(A)** **6** 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 statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up. 8. 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 **WP(C).No.23406 OF 2019(A)** **7** 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 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. 9. 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 **WP(C).No.23406 OF 2019(A)** **8** challenged before the appropriate forum, within the prescribed time limit, the said order will become final. 10. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the petitioner cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, in order to challenge Ext.P2 notice dated 26.08.2019 issued by the Secretary of the first respondent Grama Panchayat, on the grounds raised in this writ petition, in view of the statutory remedy available under Section 276 of the Kerala Panchayat Raj Act. 11. In the result, the challenge made in this writ petition against Ext.P2 notice dated 26.08.2019 fails for the aforesaid reason and the writ petition is accordingly dismissed; however, without prejudice to the right of the petitioner to challenge Ext.P2 notice by invoking the statutory remedy under Section 276 of the Kerala Panchayat Raj Act, 1994 before the appropriate forum. 12. The learned counsel for the petitioners would submit that the first respondent has pasted a copy of Ext.P2 notice on the wall of the building. Along with the appeal, the petitioners have to produce the notice issued by the first respondent. Therefore, the Secretary of the first respondent Grama **WP(C).No.23406 OF 2019(A)** **9** Panchayat may be directed to issuse a copy of Ext.P2 notice forthwith. It is for the petitioner to approach the Secretary of the first respondent Grama Panchayat for a copy of Ext.P2 notice, in order to avail the statutory remedy, in which event, the Secretary shall issue a copy of that notice to the petitioners, forthwith. **Sd/-** **ANIL K.NARENDRAN, JUDGE** Skk/300819 **WP(C).No.23406 OF 2019(A)** **10** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE ORDER P5-6329/19 DATED 17-08-2019 ISSUED BY SECOND RESPONDENT** **EXHIBIT P2 TRUE COPY OF THE STOP NOTICE DATED 26-08-2019 ISSUED BY THE SECOND RESPONDENT WITH TYPED COPY** **EXHIBIT P3 TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 13-08-2019 ISSUED BY THE FIRST RESPONDENT** **RESPONDENTS' EXHIBITS:** **NIL**