In Commissioner Of Income Tax v. Chhabil

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY,THE 26TH DAY OF SEPTEMBER 2018 / 4TH ASWINA, 1940 WP(C).No. 24191 of 2018 PETITIONER: SUNIL KUMARAGED 39 YEARSS/O MADHAVAN NAIR, PUTHENVEEDU, CHERPPULASSERY P.O.,PALAKKAD. BY ADV. SRI.I.DINESH MENON RESPONDENTS: THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON26.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner who is a stage carriageoperator holding Ext.P1 permit in respect of stage carriage bearing Registration No.KL-51/A-8100 on the route Meenakshipuram-Guruvayuroperating as Limited Stop Ordinary Service with a settled set of timings has filed this writpetition under Article 226 of the Constitution ofIndia, seeking a writ of certiorari to quash Ext.P8 notice dated 10.07.2018 of the 2[nd]respondent Secretary of the Regional Transport Authority, Palakkad and a writ of mandamus commanding the said respondent to considerExt.P10 request relating to the service of the 4[th]respondent on the route Palakkad-Guruvayur inrespect of her stage carriage bearingRegistration No.KL-51/A-8100, operating as Express Service, for allotment of running time atthe rate of 1.75 minutes per km as provided forin Ext.P9 circular dated 21.04.2018, in the timing conference which is scheduled to be held on 21.07.2018. 2.On 20.07.2018, while issuing notice onadmission to the 4[th] respondent, this Court passedthe following order: The learned Senior GovernmentPleader takes notice on admission forrespondents 1 to 3. Issue urgent noticeon admission by special messenger tothe 4[th]respondent returnable by24.07.2018. 2.The learned Senior GovernmentPleader, on instructions, from the 2[nd]respondent Secretary of the RegionalTransport Authority would submit thatthe petitioner can participate in thetiming conference scheduled to conveneon 21.07.2018 and raise his objections,if any. 3.The learned Senior GovernmentPleader to file statement/counteraffidavit. 4.Any decision taken in thetiming conference scheduled to be heldon 21.07.2018 pursuant to Ext.P8notice, in so far as it relates to thestage carriage bearing registrationNo.KL-50/E-6622 of the 4[th] respondent (Sl.No.2 in Ext.P8) shall be subject tothe outcome of this writ petition.Liston 24.07.2018. 3.Thereafter, on 06.08.2018, the petitioner filed I.A.No.14478/2018, seeking an order to amend the writ petition by incorporating a challenge against the proceedings of the 2[nd]respondent bearingNo.C3/182/2016Pdated 21.07.2018 and another application namely,I.A.No.14479/2018 seeking an order to stay theoperation of the said proceedings dated21.07.2018, pending disposal of this writ petition. 4.Heard the learned counsel for thepetitioner, the learned Senior Government Pleaderappearing for respondents 1 to 3 and the learnedCounsel for the 4[th] respondent. 5.The relief sought for in this writ petition is confined to the timing conferencescheduled to be held on 21.07.2018, in terms ofExt.P8 notice. During the pendency of this writ petition, the timing conference has already been convened. The decision taken in that timingconference is sought to be challenged in thiswrit petition by way of an amendment. 6.The fact that the aforesaid proceedingsdated 21.07.2018 of the 2[nd]respondent isrevisable under Section 90 of the Motor VehiclesAct, 1988 is not in dispute. If the petitioneris feeling aggrieved by the said proceedings ofthe 2[nd] respondent, it is for him to invoke thestatutory remedy available under Section 90 ofthe Act. 7.In Commissioner of Income Tax V. Chhabil Das Agarwal [(2014) 1 SCC 603] the Apex Court reiterated that, non-entertainment of a writ petition, the timing conference has already been convened. The decision taken in that timingconference is sought to be challenged in thiswrit petition by way of an amendment. 6.The fact that the aforesaid proceedingsdated 21.07.2018 of the 2[nd]respondent isrevisable under Section 90 of the Motor VehiclesAct, 1988 is not in dispute. If the petitioneris feeling aggrieved by the said proceedings ofthe 2[nd] respondent, it is for him to invoke thestatutory remedy available under Section 90 ofthe Act. 7.In Commissioner of Income Tax V. Chhabil Das Agarwal [(2014) 1 SCC 603] the Apex Court reiterated that, non-entertainment of a writ petition 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 efficaciousalternative 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. 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. In the result, this writ petition standsdismissed as not maintainable without prejudiceto the right of the petitioner to challenge proceedings bearingNo.C3/182/2016Pdated21.07.2018 of the 2[nd] respondent before the StateTransport Appellate Tribunal by invoking the statutory remedy under Section 90 of the Act. I.A.Nos. 14478/2018 and 14479/2018 filed by the petitioner will stand closed withoutprejudice to the aforesaid right of thepetitioner. All legal and factual contentions raised by the petitioner are left open to be raised beforethe State Transport Appellate Tribunal at appropriate stage. Sd/- ANIL K.NARENDRAN, JUDGE PETITIONER'S EXHIBITS:EXHIBIT P1:EXHIBIT P1: TRUE COPY OF THE PERMIT OF KL-51A 8100DATED 10.6.2015.DATED 10.6.2015. EXHIBIT P2:TRUE COPY OF THE PROCEEDINGS DATED 30.10.2000.30.10.2000.EXHIBIT P3:TRUE COPY OF THE PROCEEDINGS DATED 29.7.2011.29.7.2011. EXHIBIT P4:TRUE COPY OF THE ORDER IN MVARP NO.296/11 DATED 19.11.2016.NO.296/11 DATED 19.11.2016.EXHIBIT P5:TRUE COPY OF THE ORDER IN MVARP NO.91/2016 DATED 11.1.2017.NO.91/2016 DATED 11.1.2017.EXHIBIT P6:TRUE COPY OF THE JUDGMENT IN OPC 428-17 DATED 22.2.17.17 DATED 22.2.17. EXHIBIT P7:TRUE COPY OF THE ORDER IN RP 350/17 DATED 18.9.17.DATED 18.9.17. EXHIBIT P8:TRUE COPY OF THE NOTICE DATED 10.7.2018.10.7.2018. EXHIBIT P9:TRUE COPY OF THE STA DECISION DATED 21.4.2018.21.4.2018. EXHIBIT P10: TRUE COPY OF THE REQUEST DATED 17.7.2018. RESPONDENTS' EXHIBITS: NIL RR