In Commissioner Of Income Tax v. Chhabil

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY,THE 30TH DAY OF OCTOBER 2018 / 8TH KARTHIKA, 1940 WP(C).No. 35088 of 2018 PETITIONER: P.N. PONNAPPANAGED 55 YEARSS/O.NARAYANAN, 303 PADINJARE ILAYIDATH, CHEMBU.P.O., 4 CHEMBU, VAIKOM, KOTTAYAM DISTRICT. BY ADVS.SRI.P.M.JOSHISMT.SIJI K.PAUL RESPONDENTS: 1THE SECRETARY, ROAD TRANSPORT AUTHORITY (RTA), VAIKOM, PIN-686 641. 2ROAD TRANSPORT AUTHORITY (RTA)KOTTAYAM, PIN-686641.KOTTAYAM, PIN-686641. 3MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD4TH FLOOR, NOEL HOUSE, THRIKKAKARA P.O., KOCHI-682021REPRESENTED BY ITS MANAGER.4TH FLOOR, NOEL HOUSE, THRIKKAKARA P.O., KOCHI-682021REPRESENTED BY ITS MANAGER. SMT C.S.SHEEJA, SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.35088 of 2018 :-2-: J U D G M E N T The petitioner, who is the registered owner ofTata Motor Cab (Taxi) bearing registration No.KL-36/D-1286 which is one covered by hire purchaseagreement with the 3[rd] respondent financier, hasfiled this writ petition under Article 226 of theConstitution of India, seeking a writ of certiorari(wrongly stated as writ of mandamus in relief no.(i) of the writ petition) to set aside Ext.P17order dated 15.10.2018 of the 1[st] respondent, who isthe Secretary of the 2[nd] respondent AdditionalRegistering Authority, Vaikom (wrongly shown asRoad Transport Authority, Vaikom, in the causetitle of the writ petition) and a writ of mandamuscommanding the 1[st] and 2[nd] respondents to allowExt.P7 application and renew Ext.P2 contractcarriage permit of the said vehicle withoutinsisting for the No Objection Certificate from the W.P.(C)No.35088 of 2018 3[rd] respondent financier. The petitioner has also sought for a direction to the 3[rd] respondentfinancier to make good the loss sustained to himat the rate of Rs.15,000/- on account of not plyingthe vehicle for want of permit. 2.Heard the learned counsel for the petitioner and also the learned Senior GovernmentPleader appearing for respondents 1 and 2. 3.Ext.P17 order of the 1[st] respondent is an order appealable before the State TransportAppellate Tribunal, as provided under Section 89 ofthe Motor Vehicles Act, 1988. 4.In Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603] the Apex Court held that non-entertainment of a writ petition underArticle 226 of the Constitution of India when anefficacious alternative remedy is available is arule and self imposed limitation. It is essentially :-4-: a rule of policy, convenience and discretion ratherthan a rule of law. Undoubtedly, it is within thediscretion of the High Court to grant relief underArticle 226 of the Constitution of India, despitethe existence of alternative remedy. However, HighCourt must not interfere if there is an adequateefficacious alternative remedy available to thepetitioner and he has approached the High Courtwithout availing the same, unless he has made outan exceptional case warranting such interference orthere exists sufficient ground to invoke theextraordinary jurisdiction under Article 226.5.InAuthorised Officer, State Bank ofTravancore v. Mathew K.C.[(2018) 3 SCC 85] the ApexCourtreiteratedthatthediscretionaryjurisdiction under Article 226 of the Constitutionof India is not absolute but has to be exercisedjudiciously in the given facts of a case and in :-5-: :-5-: accordance with law. The normal rule is that a writpetition under Article 226 of the Constitution ofIndia ought not to be entertained if alternativestatutory remedies are available, except in casesfalling within the well defined exceptions asobserved in Chaabil Das Agarwal's case (supra),i.e., where the statutory authority has not actedin accordance with the provisions of the enactmentin question or in defiance of the fundamentalprinciples of judicial procedure, or has resortedto invoke the provisions which are repealed, orwhen an order has been passed in total violation ofthe principles of natural justice. After referringto the law laid down in Thansingh Nathmal v.Superintendent of Taxes andTitaghur Paper Mills Company Ltd. v. State ofOrissa [(1983) 2 SCC 433] the Apex Court held thatHigh Court will not entertain a petition under :-6-: Article 226 of the Constitution if an effectivealternative remedy is available to the aggrievedperson or the statute under which the actioncomplained of contains a mechanism for redressal ofgrievance. Therefore, when a statutory forum iscreated by law for redressal of grievances, a writpetition should not be entertained ignoring thestatutory dispensation. 6.In Thansingh Nathmal's case (supra) a Constitution Bench ofthe Apex Court held that, thejurisdiction of the High Court under Article 226 ofthe Constitution is couched in wide terms and theexercise thereof is not subject to any restrictionsexcept the territorial restrictions which areexpressly provided in the Articles. But theexercise of the jurisdiction is discretionary: itis not exercised merely because it is lawful to doso. The very amplitude of the jurisdiction demands W.P.(C)No.35088 of 2018 :-7-: that it will ordinarily be exercised subject tocertain self imposed limitations. Resort to thatjurisdiction is not intended as an alternativeremedy for relief which may be obtained in a suitor other mode prescribed by statute. Ordinarily,the court will not entertain a petition for a writunder Article 226, where the petitioner has analternative remedy, which without being undulyonerous, provides an equally efficacious remedy.Again the High Court does not generally enter upona determination of questions which demand anelaborate examination of evidence to establish theright to enforce for which the writ is claimed. TheHigh Court does not, therefore, act as a court ofappeal against the decision of a court or tribunal,to correct errors of fact, and does not by assumingjurisdiction under Article 226 trench upon analternative remedy provided by statute for W.P.(C)No.35088 of 2018 :-8-: obtaining relief. Where it is open to the aggrievedpetitioner to move another tribunal or even itselfin another jurisdiction for obtaining redress inthe manner provided by a statute, the High Courtnormally will not permit by entertaining a petitionunder Article 226 of the Constitution the machinerycreated under the statute to be bypassed, and willleave the party applying to it to seek resort tothe machinery so set up. 7.In Titaghur Paper Mills' case (supra) a Three-Judge Bench of the Apex Court held that, theOrissa Sales Tax Act, 1947 provides for a completemachinery to challenge an order of assessment, andthe impugned orders of assessment can only bechallenged by the mode prescribed by the Act andnot by a petition under Article 226 of theConstitution. It is now well recognised that wherea right or liability is created by a statute which W.P.(C)No.35088 of 2018 gives a special remedy for enforcing it, the remedyprovided by that statute only must be availed of.This rule was stated with great clarity by Willes,J. inWolverhampton New Water Works Co. v.Hawkesford [(1859) 6 CBNS 336] at page 356 in thefollowing passage: 7.In Titaghur Paper Mills' case (supra) a Three-Judge Bench of the Apex Court held that, theOrissa Sales Tax Act, 1947 provides for a completemachinery to challenge an order of assessment, andthe impugned orders of assessment can only bechallenged by the mode prescribed by the Act andnot by a petition under Article 226 of theConstitution. It is now well recognised that wherea right or liability is created by a statute which W.P.(C)No.35088 of 2018 gives a special remedy for enforcing it, the remedyprovided by that statute only must be availed of.This rule was stated with great clarity by Willes,J. inWolverhampton New Water Works Co. v.Hawkesford [(1859) 6 CBNS 336] at page 356 in thefollowing passage: "There are three classes of cases in which aliability may be established founded uponstatute ..... But there is a third class,viz., where a liability not existing at commonlaw is created by a statute which at the sametime gives a special and particular remedy forenforcing it ..... the remedy provided by thestatute must be followed, and it is notcompetent to the party to pursue the courseapplicable to cases of the second class. Theform given by the statute must be adopted andadhered to."The rule laid down in that passage was approved bythe House of Lords in Neville v. London ExpressNewspaper Ltd.[1919 AC 368] and has been reaffirmedby the Privy Council in Attorney General of W.P.(C)No.35088 of 2018 :-10-: 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 equallyapplicable to enforcement of rights and has beenfollowed by the Apex Court throughout. 8.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.9.Having considered the submissions made bythe learned counsel on both sides, this Court findsthat in view of the statutory remedy availableunder Section 89 of the Motor Vehicles Act, thepetitioner cannot challenge Ext.P17 order byinvoking the writ jurisdiction of this Court underArticle 226 of the Constitution of India. :-11-: In such circumstances, this writ petition filedon 25.10.2018 stands dismissed, however, withoutprejudice to the right of the petitioner tochallenge Ext.P17 order by filing an appeal underSection 89 of the Motor Vehicles Act before theState Transport Appellate Tribunal. All legal and factual contentions raised by thepetitioner are left open to be raised before theTribunal at appropriate stage. Sd/- ANIL K.NARENDRAN JUDGEami/30.10.18 APPENDIXTHE TRUE COPY CERTIFICATE OF REGISTRATION OF VEHICLE BEARING REGISTRATION NO.KL-36D-1286. PETITIONER'S EXHIBITS:EXHIBIT P1 EXHIBIT P2 THE TRUE COPY OF THE PERMIT NO.P.CO 36/958/2013 DATED 19.7.2013 ISSUED BY IST RESPONDENT TO THE PETITIONER. W.P.(C)No.35088 of 2018 :-12-: EXHIBIT P3THE TRUE COPY OF ROAD TAX RECEIPT ISSUEDTO THE PETITIONER FROM THE 2ND RESPONDENT.TO THE PETITIONER FROM THE 2ND RESPONDENT. EXHIBIT P4THE TRUE COPY OF INSURANCE POLICY SCHEDULE CUM CERTIFICATE DATED 2.7.2017 FROM THE NEW INDIA ASSURANCE CO. LTD.SCHEDULE CUM CERTIFICATE DATED 2.7.2017 FROM THE NEW INDIA ASSURANCE CO. LTD. EXHIBIT P5THE TRUE COPY OF CERTIFICATE OF FITNESS ON 19.6.2018 ISSUED TO THE VEHICLE BEARING No.KL-36-D-1286.ON 19.6.2018 ISSUED TO THE VEHICLE BEARING No.KL-36-D-1286. EXHIBIT P6THE TRUE COPY OF THE POLLUTION UNDER CONTROL CERTIFICATE DATED 19.6.2018 ISSUED TO THE VEHICLE BEARING No.KL-36-D-1286.CONTROL CERTIFICATE DATED 19.6.2018 ISSUED TO THE VEHICLE BEARING No.KL-36-D-1286. EXHIBIT P7THE TRUE COPY OF THE APPLICATION DATED 3.7.2018 FOR RENEWAL OF PERMIT.3.7.2018 FOR RENEWAL OF PERMIT. EXHIBIT P4THE TRUE COPY OF INSURANCE POLICY SCHEDULE CUM CERTIFICATE DATED 2.7.2017 FROM THE NEW INDIA ASSURANCE CO. LTD.SCHEDULE CUM CERTIFICATE DATED 2.7.2017 FROM THE NEW INDIA ASSURANCE CO. LTD. EXHIBIT P5THE TRUE COPY OF CERTIFICATE OF FITNESS ON 19.6.2018 ISSUED TO THE VEHICLE BEARING No.KL-36-D-1286.ON 19.6.2018 ISSUED TO THE VEHICLE BEARING No.KL-36-D-1286. EXHIBIT P6THE TRUE COPY OF THE POLLUTION UNDER CONTROL CERTIFICATE DATED 19.6.2018 ISSUED TO THE VEHICLE BEARING No.KL-36-D-1286.CONTROL CERTIFICATE DATED 19.6.2018 ISSUED TO THE VEHICLE BEARING No.KL-36-D-1286. EXHIBIT P7THE TRUE COPY OF THE APPLICATION DATED 3.7.2018 FOR RENEWAL OF PERMIT.3.7.2018 FOR RENEWAL OF PERMIT. EXHIBIT P8THE TRUE COPY OF REQUEST LETTER DATED 6.7.2018 SENT TO THE 3RD RESPONDENT.6.7.2018 SENT TO THE 3RD RESPONDENT. EXHIBIT P9THE TRUE COPY OF THE POSTAL RECEIPT DATED 6.7.18.DATED 6.7.18. EXHIBIT P10THE TRUE COPY OF THE TRACK CONSIGNMENT REPORT OBTAINED ON 20.7.18 RESPONDENT.REPORT OBTAINED ON 20.7.18 RESPONDENT. EXHIBIT P11THE TRUE COPY OF THE DECLARATION DATED 16.7.2018 FILED BY PETITIONER BEFORE THEIST RESPONDENT.16.7.2018 FILED BY PETITIONER BEFORE THEIST RESPONDENT. EXHIBIT P12THE TRUE COPY OF THE JUDGMENT IN WPC NO.24197 OF 2018.NO.24197 OF 2018. EXHIBIT P13THE TRUE COPY OF THE LETTER NIL DATED, FROM THE KOTTAYAM BRANCH OF THE FINANCIER.FROM THE KOTTAYAM BRANCH OF THE FINANCIER. W.P.(C)No.35088 of 2018 :-13-: EXHIBIT P14 THE TRUE COPY OF THE ENVELOP IN WHICH EXHIBIT-P13 LETTER WAS SERVED TO THE PETITIONER. EXHIBIT P15 THE TRUE COPY OF THE ORDER IN O.P(C) NO.966/2017. EXHIBIT P16 THE TRUE COPY OF THE RECEIPT DATED 29.8.2018. EXHIBIT P17 THE TRUE COPY OF THE ORDER DATED 15.10.2018. //TRUE COPY// ami/ P.A.TO JUDGE