Thomas Stephen v. The Corporation of Thiruvananthapuram & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **TUESDAY, THE 18TH DAY OF JUNE 2019 / 28TH JYAISHTA, 1941** ## **WP(C).No.14188 of 2019** ## **PETITIONER:** **THOMAS STEPHEN, AGED 62 YEARS, T.C. NO. 30/1026-1, CKRRA 170, MOSQUE LANE, PETTAH, THIRUVANANTHAPURAM.** **BY ADV. SRI.B.KRISHNA MANI** ## **RESPONDENTS:** - **1 THE CORPORATION OF THIRUVANANTHAPURAM, THIRUVANANTHAPURAM-695 001. REPRESENTED BY THE SECRETARY.** - **2 DEVAKI RAJAN, T.C. NO. 30/1026,KAMALAKSHI MANDIRAM, MOSQUE LANE, PETTAH, THIRUVANANTHAPURAM-695 024.** - **3 THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM-695 001.** - **4 THE TAHSILDAR, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT-695 001.** **BY ADVS.** **SRI.N.NANDAKUMARA MENON (SR.) SRI.P.RAMAKRISHNAN SMT.ASHA K.SHENOY SMT.PREETHI RAMAKRISHNAN (P-212) SRI.C.ANIL KUMAR SRI.P.K.MANOJKUMAR SRI.PRATAP ABRAHAM VARGHESE SRI.T.C.KRISHNA** ## **SRI.K.P.HARISH,SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.14188 of 2019** -2- ## **JUDGMENT** The petitioner, who is stated to be the owner in possession of 5 cents of property comprised in survey No.217/A-4-5 in Vanchiyoor village, Thiruvananthapuram Taluk, covered by Ext.P1 sale deed No.1532/1966 dated 27.06.1966 of the Sub Registrar Office, Thiruvananthapuram and Ext.P2 tax receipt dated 10.07.2017, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P7 order dated 13.02.2019 of the 1[st] respondent. The petitioner has also sought for a writ of mandamus commanding respondents 1, 2 and 4 to ensure that the 2[nd] respondent constructs the eastern boundary wall in accordance with the measurements in Ext.P8, which is the title deed of the 2[nd] respondent in respect of his property, which is lying on the northern side of the petitioner's property. 2. On 23.05.2019, when this writ petition came up for admission, the learned Standing Counsel took notice on admission for the 1[st] respondent. The learned Government **WP(C).No.14188 of 2019** -3- Pleader took notice on admission for respondents 3 and 4. Urgent notice on admission by speed post was ordered to the 2[nd] respondent, returnable within two weeks. 3. Heard the learned counsel for the petitioner, the learned Standing Counsel for the 1[st] respondent Corporation, Sri.P.Ramakrishnan, the learned counsel for the 2[nd] respondent and also the learned Government Pleader appearing for respondents 3 and 4. 4. As already noticed, the main relief sought for in this writ petition is a writ of certiorari to quash Ext.P7 order dated 13.02.2019 of the 1[st] respondent. The issue that has to be considered is as to whether any interference is warranted on Ext.P7 order, in exercise of the writ jurisdiction of this Court under Article 226 of the Constitution of India. 5. The learned Standing Counsel for the 1[st] respondent Municipality and also the learned counsel for the 2[nd] respondent would point out that Ext.P7 order is appealable before the Tribunal for Local Self Government Institutions by filing an appeal under Section 509 of the **WP(C).No.14188 of 2019** -4- Kerala Municipality Act, 1994. The said fact is not in serious dispute. 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 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 **WP(C).No.14188 of 2019** -5- 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 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute **WP(C).No.14188 of 2019** -6- 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 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 **WP(C).No.14188 of 2019** -7- 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 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 **WP(C).No.14188 of 2019** -8- 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 AC 368]** and has been reaffirmed by the Privy Council in **Attorney General of Trinidad and Tobago v.** **WP(C).No.14188 of 2019** -9- **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.P7 order dated 13.02.2019, in exercise of the writ jurisdiction of this Court under Article 226 of the Constitution of India, on the grounds raised in this writ petition. In such circumstances, the challenge made in this writ petition against Ext.P7 order fails for the aforesaid reason and the writ petition filed on 28.03.2019 is accordingly dismissed, leaving open the legal and factual contentions raised by the **WP(C).No.14188 of 2019** -10- petitioner and without prejudice to the right of the petitioner to challenge Ext.P7 order by filing appeal before the Tribunal for Local Self Government Institutions. Sd/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No.14188 of 2019** -11- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.1532/1966 DATED 27/6/1966.** **EXHIBIT P2 TRUE COPY OF THE TAX RECEIPT DATED 10/7/2017.** **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION BEFORE THE 1ST RESPONDENT DATED 7/8/2017.** **EXHIBIT P4 TRUE COPY OF THE STOP MEMO DATED 25/8/2018 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION BEFORE THE FIRST RESPONDENT DATED 10/9/2018.** - **EXHIBIT P6 TRUE COPY OF THE PROCEEDING DATED 5/10/2018 ISSUED BY THE FIRST RESPONDENT TO THE 2ND RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE PROCEEDING DATED 13/2/2019 ISSUED BY THE SECRETARY THIRUVANANTHAPURAM MUNICIPAL CORPORATION.** - **EXHIBIT P8 TRUE COPY OF THE TITLE DEED IN FAVOUR OF THE 2ND RESPONDENT DATED 12/12/1986.** - **EXHIBIT P9 TRUE COPY OF THE SKETCH SUBMITTED BY THE 2ND RESPONDENT BEFORE THE THIRUVANANTHAPURAM MUNICIPAL CORPORATION.** - **EXHIBIT P10 TRUE COPY OF THE DOCUMENT DATED 15/12/1989 EXECUTED BY THE 2ND RESPONDENT.** - **EXHIBIT P11 TRUE COPY OF THE APPLICATION SUBMITTED BEFORE THE PUBLIC INFORMATION OFFICER, THIRUVANANTHAPURAM MUNICIPAL CORPORATION UNDER THE RIGHT TO INFORMATION ACT DATED 23/1/2019.** - **EXHIBIT P12 TRUE COPY OF THE REPLY DATED 12/2/2019.** **RESPONDENTS' EXHIBITS: NIL**