Vekiteswari v. Corporation of Cochin

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 01ST DAY OF AUGUST 2019 / 10TH SRAVANA, 1941** ## **WP(C).No.20212 OF 2019(B)** ## **PETITIONER/S:** **VEKITESWARI AGED 62 YEARS WIDOW OF LATE KRISHNASWAMI CHETIAR, 8/738, KOOVAPPADAM COCHIN 682 02, ERNAKULAM DISTRICT.** **BY ADVS. SRI.L.RAM MOHAN SRI.M.AUBREY ABRAHAM ISAAC** ## **RESPONDENT/S:** **1 CORPORATION OF COCHIN ZONAL OFFICE MATTANCHERY REPRESENTED BY ITS SECRETARY 682 002. 2 THE SECRETARY CORPORATION OF COCHIN 682 011. 3 THE ASSISTANT HEALTH OFFICER, WING CORPORATION OF COCHIN ZONAL OFFICE MATTANCHERY 682 002. 4 AMMINI AMMA JOHN 8/722 KOOVAPPADAM COCHIN 682 002 ERNAKULAM DISTRICT. BY ADV. SMT.P.Y.SHEHEERA, SC, KOCHI MUNICIPAL CORPORATION** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.20212 OF 2019(B)** 2 ## **JUDGMENT** The petitioner, who is a resident at Koovappadam in Fort Kochi, has filed this writ petition under Article under 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 notice dated 02.07.2019, issued by the 3[rd] respondentAssistant Health Officer; a writ of mandamus commanding the 1[st] respondent, who is the Secretary of the 1[st] respondent Corporation, to pass orders on Ext.P2 application for licence, within a time limit to be prescribed by this Court; and a writ of mandamus commanding the respondents, not to take any action pursuant to Ext.P1 against the petitioner, before considering Ext.P2 application. 2. On 24.07.2019, when this writ petition came up for admission, it was adjourned to 29.07.2019 for further consideration. 3. A counter affidavit has been filed by the 2[nd] respondent, opposing the reliefs sought for in this writ petition. Paragraphs 2 to 4 of the said counter affidavit read thus: “2. It is submitted with great respect that the 4[th] **WP(C).No.20212 OF 2019(B)** 3 respondent in the above case filed a petition dated 25.04.2019 before this respondent corporation alleging that Sri Jayaprakash maintain two cows in unclean environment without the valid license. Hence this respondent corporation deputed 4[th] Circle Health Inspector for inspection, found that, the above said premises is adjacent to the building No.738 in Ward No.8. The petitioner is maintaining the cows in an unhygienic manner and the wastes are being let out in a common canal resulting heavy breeding of mosquitoes making it impossible to reside in that area. It is also found that the entire area is filled with dirty smell resulting in an unhealthy atmosphere. It is also found that there is no measure for the waste disposal and the same is done through public drainage, which cause obstruction to natural flow of rain water and it caused water clogging, mosquitoes and hence the same caused viral deceases to the neighboring people. 3. It is also submitted with great respect that the act of the petitioner and her son are strict in violation of Sections 337, 436 and 444(3) of the Kerala Municipalities Act. Hence this respondent corporation issued Exhibit P1 notice. Section 436 of Kerala Municipalities Act, 1994 prohibits **WP(C).No.20212 OF 2019(B)** 4 keeping of animals in one premises so as to cause nuisance or danger to any person in the neighborhood and according to Section 444(3) Licences for places in which animals are kept- No person shall without or otherwise than in conformity with a licence, use any place for such a purpose" 4. It is also submitted that Section 50(2) of the Municipality Act, empowers the Secretary to delegate any of his power in the manner provided thereunder. As per that certain powers have been delegated to the Health Officers. It would be more unjust and illegal to permit a person, who continues the activity even without a valid licence and make an application. Hence the 3[rd] respondent issued a notice dated 02.07.2019 vide WZH3/660/2019.” 4. Heard the learned counsel for the petitioner and also the learned Standing Counsel for the 1[st] respondentCorporation, representing respondents 1 to 3. Considering the nature of relief proposed to be granted, service of notice on the 4[th] respondent, who is the complainant is dispensed with. 5. The petitioner has filed this writ petition mainly challenging Ext.P1 notice dated 02.07.2019 issued by the 3[rd] **WP(C).No.20212 OF 2019(B)** 5 respondent-Assistant Health Officer. The counter affidavit filed by the 2[nd] respondent would show that the 3[rd] respondent has issued such a notice in exercise of the delegated powers under sub-section (2) of Section 50 of the Kerala Municipality Act, 1994. If the petitioner is feeling aggrieved by Ext.P1 notice, he can invoke the statutory remedy of appeal provided under Section 509 of the Kerala Municipality Act, 1994, by approaching the appropriate forum. 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 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 **WP(C).No.20212 OF 2019(B)** 6 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 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** **WP(C).No.20212 OF 2019(B)** 7 **[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 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 **WP(C).No.20212 OF 2019(B)** 8 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 to it to seek resort to the machinery so set up. **WP(C).No.20212 OF 2019(B)** 9 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." **WP(C).No.20212 OF 2019(B)** 10 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. 10. In such circumstances, no interference under Article 226 of the Constitution of India is warranted on Ext.P1 notice, on the grounds raised in this writ petition. The learned counsel for the petitioner would submit that Ext.P2 application made by the petitioner for licence is now pending consideration before the 2[nd] respondent. 11. The learned Standing Counsel for the Corporation would submit that the 2[nd] respondent shall consider and pass appropriate orders on Ext.P2 application for licence, with notice to the petitioner and also to the 4[th] respondent. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of by **WP(C).No.20212 OF 2019(B)** 11 directing the 2[nd] respondent to consider and pass appropriate order on Ext.P2 application for licence made by the petitioner, with notice to the petitioner and also to the 4[th] respondent, strictly in accordance with law, as expeditiously as possible at any rate within a period of two weeks from the date of receipt of a certified copy of this judgment. **Sd/-** Dxy **ANIL K.NARENDRAN JUDGE** **WP(C).No.20212 OF 2019(B)** 12 ## **APPENDIX** **PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF NOTICE DATED 2/7/19 EXHIBIT P2 TRUE COPY OF LICENSE APPLICATION. EXHIBIT P3 TRUE COPY OF ACKNOWLEDGEMENT.**