In Commissioner Of Income Tax v. Chhabil

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY ,THE 24TH DAY OF SEPTEMBER 2018 / 2ND ASWINA, 1940WP(C).No. 40689 of 2017 PETITIONER: ABDUL RAHMAN K AAGED 45 YEARS, S/O.KUNHAMMU,RESIDING AT VALIYA VALAPPIL HOUSE,NR. MARKET ROAD, UDUMA P.O.,KASARAGOD - 671 319. BY ADV. SRI.A.K.ABDUL AZEEZ RESPONDENTS: 5THE PRINCIPALKALANAD HYDROSE JAMA-ATH HIGHER SECONDARY SCHOOL,KALANAD P.O, KASARAGOD -671 317.KALANAD HYDROSE JAMA-ATH HIGHER SECONDARY SCHOOL,KALANAD P.O, KASARAGOD -671 317. BY ADVS. SRI.O.D.SIVADAS SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. OTHER PRESENT: SRI BIMAL K.NATH, SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, who is the registered ownerof a stage carriage bearing Registration No. KL-60/L-2144 on the route Arayikadavu – Kasaragod(via) Kanhangad – Uduma – Vedikunnu – Mangad-Chattanchal has filed this writ petition underArticle 226 of the Constitution of India, seekinga writ of certiorari to quash Ext.P3 order dated07.11.2017 of the 1[st]respondent Regional Transport Authority and a writ of mandamus commanding the 2[nd] respondent Secretary, RegionalTransport Authority not to issue the variation ofregular permit granted to the 3[rd] respondent asper Ext.P3 order till a decision is taken by thisCourt. The petitioner has also sought for otherconsequential reliefs. 2.On 18.12.2017, when this writ petition came up for admission, this Court admitted thematter on file. The learned Senior GovernmentPleader took notice for respondents 1 and 2. The learned Standing Counsel for KSRTC took noticefor the 4[th] respondent and urgent notice by speedpost was ordered to respondents 3 and 5,returnable within three weeks. Based on the submission made on behalf of the 3[rd] respondentthat, no permit has been issued in terms ofExt.P3 order dated 07.11.2017, this Court grantedan interim stay of further proceedings pursuantto Ext.P3 order for a period of one month. Thesaid interim order, which was extended from timeto time, is still in force. 3.A counter affidavit has been filed by the2[nd] respondent and also by the 3[rd] respondentopposing the reliefs sought for in this writpetition. In the counter affidavit it has beencontended that, in view of the statutory remedyavailable under Section 90 of the Motor VehiclesAct, 1988, the petitioner has to approach theState Transport Appellate Tribunal, if he isfeeling aggrieved by Ext.P3 order, and as such, this writ petition cannot be entertained. 4.Heard the learned counsel for the petitioner, the learned Senior Government Pleaderappearing for respondents 1 and 2, the learnedcounsel for the 3[rd] respondent and also the learned Standing Counsel appearing for KSRTCrepresenting the 4[th] respondent. 5.In Commissioner of Income Tax V. Chhabil Das Agarwal [(2014) 1 SCC 603] the Apex Court reiterated that, non-entertainment of a writpetition under Article 226 of the Constitution ofIndia when an efficacious alternative remedy isavailable is a rule of self-imposed limitation.It is essentially a rule of policy, convenienceand discretion rather than a rule of law.Undoubtedly, it is within the discretion of theHigh Court to grant relief under Article 226 ofthe Constitution of India, despite the existenceof alternative remedy. However, High Court mustnot interfere if there is an adequate efficacious alternative remedy available to the petitionerand he has approached the High Court withoutavailing the same, unless he has made out anexceptional case warranting such interference orthere exists sufficient ground to invoke theextraordinary jurisdiction under Article 226. 6.In Pavithran V. State of Kerala (2009 (4) alternative remedy available to the petitionerand he has approached the High Court withoutavailing the same, unless he has made out anexceptional case warranting such interference orthere exists sufficient ground to invoke theextraordinary jurisdiction under Article 226. 6.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 aperson, unless the same is challenged before theappropriate forum, within the prescribed timelimit, the said order will become final. 7.Viewed in the light of the law laid downin the decisions referred to supra, the challengemade in this writ petition against Ext.P3 orderdated 07.11.2017 of the 1[st] respondent cannot beentertained under Article 226 of the Constitutionof India, in view of the statutory remedyavailable under Section 90 of the Motor VehiclesAct. In such circumstances, it is for the petitioner to challenge Ext.P3 order before the State Transport Appellate Tribunal, by filing a revision petition under Section 90 of the Motor Vehicles Act. 8.In the result, this writ petition filed on 15.12.2017 is dismissed, without prejudice to the right of the petitioner to move a revisionpetitionchallengingExt.P3orderdated07.11.2017 of the 1[st] respondent before the State Transport Appellate Tribunal under Section 90 of the Motor Vehicles Act. The interim order granted in this writ petition shall continue to be in force for a period of three weeks from this date so as to enable the petitioner to file revision petition along with interlocutory application before theState Transport Appellate Tribunal against Ext.P3order dated 07.11.2017. Sd/- ANIL K.NARENDRAN, JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF THE STAGE CARRIAGE PERMITVIDE PERMIT NO.P.ST.14/1/1991 HAVING VALIDITY FROM 21.1.2015 TO 20.1.2020 EXHIBIT P2TRUE COPY OF THE TIMINGS ON WHICH THE PETITIONER IS OPERATING HIS SERVICE KL-60-L-2144 EXHIBIT P3TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 7.11.17 VIDE C1/87888/2017 EXHIBIT P4TRUE COPY OF THE OBJECTION FILED BY THE 5TH RESPONDENT DATED 7.11.2017 EXHIBIT P5 TRUE COPY OF THE NOTICE DATED 4.12.2017 ISSUED BY THE 1ST RESPONDENT. RESPONDENTS' EXHIBITS: NIL // TRUE COPY // PA TO JUDGE RR