Thomas P.O. v. Secretary, Koratty Grama Panchayath; Koratty Grama Panchayath; Koratty Grama Panchayath Committee; Revenue Divisional Officer, Thrissur

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY,THE 08TH DAY OF MARCH 2019 / 17TH PHALGUNA, 1940** # **WP(C).No. 4331 of 2019** ## **PETITIONER:** **THOMAS P.O., AGED 50 YEARS,S/O LATE P.T. OUSETH, PATHIPARAMBAN HOUSE, KORATTY P.O.,-680308, THRISSUR DISTRICT.** **BY ADV. SRI.K.I.TOGI** ## **RESPONDENTS:** |**1**|**SECRETARY, KORATTY GRAMA PANCHAYATH,**| |---|---| ||**PANCHAYATH OFFICE, KORATTY.**| |**2**|**KORATTY GRAMA PANCHAYATH**| ||**REPRESENTED BY ITS SECRETARY,**| ||**PANCHAYATH OFFICE, KORATTY.**| |**3**|**KORATTY GRAMA PANCHAYATH COMMITTEE,**| ||**REPRESENTED BY ITS PRESIDENT,**| ||**PANCHAYATH OFFICE, KORATTY.**| |**4**|**THE REVENUE DIVISION OFFICER,**| ||**THRISSUR.**| ||**BY ADV. SRI.PHILIP T.VARGHESE, SC,**| ||**KORATTY GRAMA PANCHAYATH**| ||**SRI.PAUL ABRAHAM VAKKANAL,GOVERNMENT PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 4331 of 2019** -2- ## **JUDGMENT** The petitioner, who is stated to be a resident in the 2[nd] respondent Grama Panchayath, has filed this writ petition under Article 226 of the Constitution of India, seeking the following relief and the interim relief; “For the reasons stated in the writ petition and accompanying affidavit it is most respectfully and humbly prayed that this Hon'ble Court may be pleaded to direct the respondent No.1 to measure the disputed land by the Taluk Surveyor and take appropriate action.” & “For the reasons stated in the writ petition and accompanying affidavit it is most respectfully & humbly prayed that this Hon'ble Court may be pleased to stay Exhibit P1 notice pending disposal of this writ petition.” 2. On 13.02.2019, when this writ petition came up for admission, the learned Government Pleader as well as the learned Standing Counsel for the Grama Panchayath were directed to get instructions. 3. From the submissions made by the learned counsel for the petitioner, this Court finds that the petitioner **WP(C).No. 4331 of 2019** -3- wants to challenge Ext.P1 notice issued by the 1[st] respondent. However, the petitioner has not sought for a writ of certiorari to quash Ext.P1 notice. In the absence of any challenge against Ext.P1 notice by seeking appropriate reliefs, the petitioner cannot seek stay of operation of Ext.P1 notice, as an interim relief. 4. Ext.P1 notice issued by the 1[st] respondent is appealable before the Panchayath Committee, by invoking the provisions under sub-section (1) of Section 276 of the Kerala Panchayat Raj Act, 1994, which provides that an appeal shall lie to the Panchayat against the notice issued or order passed or action taken by the President or Secretary, in exercise of the powers conferred as per the provisions of the said Act, rules, bye-laws or regulations made thereunder, except Sections 235I, 235J, 235N, 235W and 235X. Sub-section (2) of Section 276 provides for an interlocutory application in an appeal filed under subsection (1). Therefore, if the petitioner is feeling aggrieved by Ext.P1 notice dated 25.01.2019 issued by the 1[st] **WP(C).No. 4331 of 2019** -4- respondent, it is for him to avail statutory remedy under sub-section (1) of Section 276 of the Act, by filing appeal before the 3[rd] respondent Panchayat Committee. 5. 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 extraordinary jurisdiction under Article 226. **WP(C).No. 4331 of 2019** -5- 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** **WP(C).No. 4331 of 2019** -6- **[(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. 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 **WP(C).No. 4331 of 2019** -7- 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 statute to be bypassed, and will leave the party applying **WP(C).No. 4331 of 2019** -8- 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 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 **WP(C).No. 4331 of 2019** -9- 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 challenged before the appropriate forum, within the prescribed time limit, the said order will become final. 10. Viewed in the light of the 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 either to **WP(C).No. 4331 of 2019** -10- challenge Ext.P1 notice or for any incidental reliefs, without challenging Ext.P1 notice issued by the 1[st] respondent by availing the statutory remedy under sub-section (1) of Section 276 of the Kerala Panchayat Raj Act. In the result, the writ petition filed on 12.02.2019 is dismissed for the aforesaid reason; however, without prejudice to the right of the petitioner to challenge Ext.P1 notice by availing the statutory remedy under sub-section (1) of Section 276 of the Kerala Panchayath Raj Act. Sd/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No. 4331 of 2019** -11- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 A TRUE COPY OF THE DEMAND NOTICE DATED 25.1.2019 ISSUED BY THE SECRETARY OF KORATTY GRAMA PANCHAYATH** - **EXHIBIT P2 A TRUE COPY OF THE REGISTERED WILL NO.204/III/2011 OF SRO CHALAKKUDY DATED 22.11.2011 EXECUTED BY THE PETITIONER'S LATE FATHER PATHIPARAMBAN THOMAN OUSEPH** - **EXHIBIT P3 A TRUE COPY OF THE DEATH CERTIFICATE OF PETITIONER'S FATHER SRI.LATE OUSEPH DATED 24.7.2018** - **EXHIBIT P4 A TRUE COPY OF THE REPRESENTATION MADE BY THE PETITIONER TO THE SECRETARY OF KORATTY GRAMA PANCHAYATH DATED 2.2.2019** - **EXHIBIT P5 A TRUE COPY OF THE RECEIPT GIVEN BY THE KORATTY GRAMA PANCHAYATH DATED 2.2.2019** - **EXHIBIT P6 A TRUE COPY OF THE REPRESENTATION DATED 8.2.2015 MADE BYT HE PRESIDENT OF KORATTY GRAMA PANCHAYATH COUNTER SIGNED BY ITS SECRETARY BEFORE LOK ADALATH OF KERALA HIGH COURT LEGAL SERVICE COMMITTEE IN WPC.33867/08 CN WPC.33868/09** **EXHIBIT P7 A TRUE COPY OF THE JUDGMENT DATED 05.06.2018 IN WPC NO.33868/2009.** **RESPONDENTS' EXHIBITS: NIL**