BEERANKUTTY Vs. MUNICIPAL COMMR. MANJERY

JUDGEMENT

(1.) THE petitioners are owners of the property in R.S.No.16/11 having an extent of about 55 cents in Manjeri village.They wanted to put up a building for the purpose of running a lodge.They applied for necessary licence under S.228 of the Kerala Municipalities Act.By Ext.P -1 dated 19th May 1983 the Commissioner rejected the application for licence on the ground that the instant properly may be required for construction of a municipal building and that a decision has been taken to acquire this land under the Land Acquisition Act.The petitioners filed an appeal before the 2nd respondent,Municipal Council.It seems that the 2nd respondent took a decision on 8th July 1983 rejecting the appeal.By Ext.P -3 order of the Commissioner the decision of the Council was communicated to the petitioners.The decision was that on 8th July 1983 the Council decided to dismiss the appeal filed by the petitioners since the property will be required to construct a building for the Municipality.This was followed by Ext.P -4 communication dated 30th December 1982.That was another communication(dated 30th December 1982)informing the same thing.In this O.P.the petitioners seek to quash Exts.P -1,P -3 and P -4 proceedings.On behalf of the 1st respondent a counter affidavit has been filed.It is stated that this O.P.filed to quash Exts.P -1,P -3 and P -4 proceedings,is inordinately delayed,which will disentitle the petitioners to the grant of discretionary relief under Art.226 of the Constitution.It is also stated that under S.364 of the Act the petitioners have got a remedy by filing a revision before the Government.On the merits,it is contended that under S.234(i)of the Kerala Municipalities Act the use of the site for the work would contravene some specified order ;,the order in this case being the decision of the Municipal Council dated 8th July 1983 proposing to construct a building for the Municipal Council,and in that behalf to take proceedings under the Land Acquisition Act.

(2.) I heard counsel for the petitioners,Mr.T.L.Viswanatha Iyer,and counsel for the 1st respondent,Mr.V.M.Nayanar.It is true that the petitioner has got a remedy by way of revision under S.364 of the Act.It is further true that the petitioners have approached this court nearly after six months of the final order,Ext.P -3,conveying the resolution of the Council.Ordinarily,such factors can dissuade this court to exercise the discretionary jurisdiction vested in it under Art.226 of the Constitution.But this is not an invariable rule.It depends upon facts and circumstances in each case.The respondent is a public authority.It is exercising a statutory power.It has to exercise that power bona fide,honestly and in accordance with law.The exercise of power should be founded on statutory authority.If there is a flagrant or patent violation of the provisions of the statute and the statutory authority has acted wholly without jurisdiction and/or unauthorisedly,the plea that the petitioner has got an alternate remedy provided by the statute or that the petition is belated,will not,normally,be countenanced,especially so,when the petition is moved by a person aggrieved ;.In view of the obvious or patent illegality disclosed in Exts.P -1,P -3 and P -4 proceedings,I am inclined to exercise the jurisdiction under Art.226 of the Constitution.I am of opinion that if the petitioner is relegated to the pursuit of statutory remedy by revision,it will involve lengthy proceedings and delay.If the impugned proceedings are allowed to stand,they will perpetuate a patent illegal order which is manifestly unjust.The statutory requisite or condition precedent for the order is not satisfied herein.S.234(i)of the Kerala Municipalities Act is to the following effect: 234.Grounds on which approval of site for,or licence to construct or reconstruct,building,may be refused. - The only grounds on which approval of the site for the construction or reconstruction of building or permission to construct or reconstruct a building may be refused arc the following namely: - (i)that the work or use of the site for the work or any of the particulars comprised in the site plan,ground plan,elevations,sections or specification would contravene some specified provision of any law,or some specified order,rule,declaration or bye law made under any law; The only defence pleaded is that the proposal to construct a building for the Municipal Council,would be covered by 234(i) - Use of the site for the work ;,would contravene some specified order.No specific order was brought to my notice in this connection.So,S.234(i)is not attracted in this case.The statute is emphatic in stating that only in case any one of the six grounds mentioned in the section is present,the permission asked for or the approval asked for can be refused.It means that the approval of the site or the licence to construct shall not be refused on any other ground.It is a well settled principle of construction of statutes,as laid down in the oft quoted decision reported in Taylor v.Taylor(1876(1)Ch.D.126 ).Recently,the Supreme Court of India had occasion to consider the matter in the decision reported as A.R.Antuley v.Ramdas(1984(2)SCC 500 ).At page 523,the court held: - Where a statute requires to do a certain thing in a certain way,the thing must be done in that way or not at all.Other methods of performance are necessarily forbidden. On a plain reading of S.234 of the Act,I have no doubt in my mind that the sole reason stated in Exts.P -1,P -3 and P -4 for refusing the necessary licence applied for by the petitioners under S.228 of the Kerala Municipalities Act is patently unauthorised and unsustainable.The proceedings impugned disclose an error of law on the face of the record.It is also acting in excess of jurisdiction.Exts.P -1,P -3 and P -4 deserve to be annulled.I quash Exts.P -1,P -3 and P -4.

(3.) THE O.P.is allowed.There shall be no order as to costs.