SHAJU.A.VARGHESE V. PANCHAYATH COMMITTEE

WP(C)/17448/2019

AI Insights

The case revolves around a writ petition filed by Shaju A. Varghese, challenging a notice (Ext.P3) issued by the Secretary of Ranni Pazhavangadi Grama Panchayat, which cited irregularities in the construction of a hotel building owned by the petitioner. The petitioner had previously obtained a building permit for the construction. Following the issuance of the notice, the petitioner filed an appeal (Ext.P4) with the Panchayat Committee, which was acknowledged but not yet considered. The petitioner sought a writ of certiorari under Article 226 of the Constitution of India to quash the notice, arguing that the delay in considering his appeal was unjust. The court, however, found that there was an adequate alternative remedy available through the Panchayat Committee and thus directed the Committee to expedite the consideration of the appeal.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 726780 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 26-06-2019
• Assessment Year: misc
• Other Referred Cases: Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603]
• Laws Referred To: Article 226 of the Constitution of India, Kerala Panchayat Raj Act, 1994
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Assessee Lawyers: JAI GEORGE; DAISY PHILIPOSE
• Keywords: Building Permit; Interim relief; Writ petition; Construction Irregularities; Panchayat Committee
• Section: 276

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 26TH DAY OF JUNE 2019 / 5TH ASHADHA, 1941 WP(C).No.17448 of 2019 PETITIONER : SHAJU.A.VARGHESE AGED 49 YEARS S/O. VARGHESE, AYANTHIYIL HOUSE, KARIKULAM POST, RANNI, PATHANAMTHITTA DISTRICT 689 682. BY ADVS. SRI.JAI GEORGE SMT.DAISY A.PHILIPOSE RESPONDENTS: 1 PANCHAYATH COMMITTEE RANNI PAZHAVANGADI GRAMA PANCHAYATH, PATHANAMTHITTA DISTRICT, 689 673, REPRESENTED BY ITS PRESIDENT. 2 THE SECRETARY, RANNI PAZHAVANGADI GRAMA PANCHAYATH, PATHANAMTHITTA DISTRICT 689 673. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.17448 of 2019 2 JUDGMENT The petitioner is stated to be the owner of 14 cents of land in Re-survey No.195/16-2 of Pazhavangadi Village, covered by sale deed No.1970/2013 of Ranni Sub Registry Office, wherein he has constructed a hotel building having a plinth area of 1530.3 Sq.meter, on the strength of building permit dated C3-5129/17 issued by the 2nd respondent, who is the Secretary of Ranni Pazhavangadi Grama Panchayat. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P3 notice dated 17.05.2019 issued by the 2nd respondent, whereby he has been informed that the Engineer of the Local Self Government Department inspected the site and building and found certain irregularities in the construction, as mentioned in Ext.P3, and therefore, the application made by the petitioner for numbering the building can be considered only after curing those WP(C).No.17448 of 2019 3 defects. 2. On receipt of Ext.P3 notice, the petitioner preferred Ext.P4 appeal before the Panchayat Committee, the 1st respondent herein, invoking the provisions under sub-section (1) of Section 276 of the Kerala Panchayat Raj Act, 1994. Along with the said appeal, the petitioner moved an application seeking interim relief. Now, the grievance of the petitioner is that though the respondents have acknowledged the receipt of Ext.P4 appeal on 27.05.2019, vide Ext.P5, the appeal is yet to be placed before the Committee for consideration. 3. Heard the learned counsel for the petitioner. Considering the nature of relief sought for in this writ petition, service of notice on the respondents is dispensed with. 4. As far as the challenge made in this writ petition against Ext.P3 notice is concerned, in view of the statutory remedy available under sub-section (1) of WP(C).No.17448 of 2019 4 Section 276 of the Kerala Panchayat Raj Act, the petitioner cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India. 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 WP(C).No.17448 of 2019 5 invoke the extraordinary jurisdiction under Article 226. 6. The petitioner has already moved Ext.P4 appeal before the 1st respondent, challenging Ext.P3 notice, which is now pending consideration. Therefore, it is for the 1st respondent to consider and pass appropriate orders on that appeal, with notice to the petitioner. In such circumstances, this writ petition is disposed of by directing the 1st respondent Panchayat Committee to consider and pass appropriate orders on Ext.P4 appeal filed by the petitioner against Ext.P3 notice, strictly in accordance with law, with notice to the petitioner and after affording him an opportunity of being heard, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. The President of the Grama Panchayat, who is the competent authority under sub-section (2) of Section 276 of the Kerala Panchayat Raj Act, shall consider the application seeking interim relief filed by the petitioner WP(C).No.17448 of 2019 6 along with Ext.P4 appeal and pass appropriate orders thereon, within a period of two weeks from the date of receipt of a certified copy of this judgment, with notice to the petitioner and affording him an opportunity of being heard. Sd/- ANIL K.NARENDRAN, JUDGE AV/28/6 WP(C).No.17448 of 2019 7 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE JUDGMENT DATED 10.5.2019 IN WRIT PETITION (C) NO. 13577/2019 EXHIBIT P2 A TRUE COPY OF THE ACKNOWLEDGEMENT DATED 16.5.2019, ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER EXHIBIT P3 A TRUE COPY OF NOTICE DATED 17.5.2019 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXHIBIT P4 A TRUE COPY OF THE APPEAL FILED BY THE PETITIONER UNDER SECTION 276 (1) OF THE KERALA PANCHAYATH RAJ ACT (1994). EXHIBIT P5 A TRUE COPY OF THE ACKNOWLEDGEMENT DATED 27.5.2019 ISSUED TO THE PETITIONER. "