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, 1940WP(C).No. 24179 of 2018 PETITIONER: PRABHAVATHIAGED 44 YEARSW/O. RAJENDRAKUMAR, RAJAPRABHA,BRAHMADATHAN RAOD, CHERPPULASSERY P.O.,PALAKKAD BY ADV. SRI.I.DINESH MENON RESPONDENTS: 1THE STATE TRANSPORT AUTHORITYTHIRUVANANTHAPURAM-695 014THIRUVANANTHAPURAM-695 014 2THE SECRETARYREGIONAL TRANSPORT AUTHORITY,PALAKKAD-678001REGIONAL TRANSPORT AUTHORITY,PALAKKAD-6780013REGIONAL TRANSPORT AUTHORITYPALAKKAD-678001PALAKKAD-678001 4MARUDAMBIKA NW/O. R.KRISHNAN, THEKKEPAVADY,PAZHAMBALACODE P.O., PALAKKAD, PIN-678001W/O. R.KRISHNAN, THEKKEPAVADY,PAZHAMBALACODE P.O., PALAKKAD, PIN-678001 BY ADV. SRI.STALIN PETER DAVIS SRI. K. P. HARISH, SENIOR GOVERNMENT PLEADER 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 ofstage carriage bearing Registration No.KL-51/G7700 on the route Palakkad-Guruvayur operating asLimited Stop Ordinary Service with a settled setof timings has filed this writ petition underArticle 226 of the Constitution of India, seekinga writ of certiorari to quash Ext.P8 notice dated10.07.2018 of the 2[nd] respondent Secretary of theRegional Transport Authority, Palakkad and a writof mandamus commanding the said respondent toconsider Ext.P10 request relating to the serviceof the 4[th] respondent on the route Palakkad-Guruvayur in respect of her stage carriagebearing Registration No.KL-51/G 7700, operatingas Express Service, for allotment of running timeat the rate of 1.75 minutes per km as providedfor in 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 registration No.KL-50/E-6622 of the 4[th] respondent (Sl.No.2 in Ext.P8) shall be subject to the outcome of this writ petition. List on 24.07.2018. 3.Thereafter, on 06.08.2018, the petitioner filed I.A.No.14483/2018, seeking an order to amend the writ petition by incorporating a challenge against the proceedings of the 2[nd]respondentbearingNo.C3/182/2016Pdated 21.07.2018 and another application namely,I.A.No.14484/2018 seeking an order to stay the operation of the said proceedings dated21.07.2018, pending disposal of the writ petition. 4.Heard the learned counsel for the petitioner, 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 of Ext.P8 notice. During the pendency of this writpetition, the timing conference has already beenconvened. The decision taken in that timingconference is sought to be challenged in this writ petition by way of an amendment. 21.07.2018 and another application namely,I.A.No.14484/2018 seeking an order to stay the operation of the said proceedings dated21.07.2018, pending disposal of the writ petition. 4.Heard the learned counsel for the petitioner, 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 of Ext.P8 notice. During the pendency of this writpetition, the timing conference has already beenconvened. The decision taken in that timingconference is sought to be challenged in this writ 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 her 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 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, convenience and 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 must not 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 stands dismissed as not maintainable without prejudice to the right of the petitioner to challenge proceedingsbearingNo.C3/182/2016Pdated21.07.2018 of the 2[nd] respondent before the State Transport Appellate Tribunal by invoking the statutory remedy under Section 90 of the Act. I.A.Nos.14483/2018 and 14484/2018 will stand closed, without prejudice to the aforesaid rightof the petitioner. All legal and factual contentions raised by the petitioner are left open to be raised before the State Transport Appellate Tribunal at appropriate stage. SD/- ANIL K.NARENDRAN, JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF THE PERMIT KL-51 G 7700 DATED6.9.20166.9.2016 EXHIBIT P2TRUE EXTRACT OF THE TIMINGS OF THE PETITIONER'S SERVICEPETITIONER'S SERVICEEXHIBIT P3TRUE COPY OF THE PROCEEDINGS DATED 29.7.201129.7.2011EXHIBIT P4TRUE COPY OF THE ORDER IN MVARP NO.296/11 DATED 19.11.2016DATED 19.11.2016EXHIBIT P5TRUE COPY OF THE ORDER IN MVARP NO.91/2016DATED 11.1.2017DATED 11.1.2017EXHIBIT P6TRUE COPY OF THE JUDGMENT IN OPC 428-17 DATED 22.2.17DATED 22.2.17EXHIBIT P7TRUE COPY OF THE IN ORDER IN RP 350/17 DATED 18.9.17DATED 18.9.17 EXHIBIT P8TRUE COPY OF THE NOTICE DATED 10.07.2018 EXHIBIT P9TRUE COPY OF THE STA DECISION DATED 21.4.201821.4.2018 EXHIBIT P10 TRUE COPY OF THE REQUEST DATED 17.7.2018 EXHIBIT P11 TRUE COPY OF THE PROCEEDINGS DATED 21.07.2018 (PRODUCED ALONG WITH I.A.NO.14483/18-NOT ACCEPTED). 21.07.2018 (PRODUCED ALONG WITH I.A.NO.14483/18-NOT ACCEPTED). EXHIBIT P8TRUE COPY OF THE NOTICE DATED 10.07.2018 EXHIBIT P9TRUE COPY OF THE STA DECISION DATED 21.4.201821.4.2018 EXHIBIT P10 TRUE COPY OF THE REQUEST DATED 17.7.2018 EXHIBIT P11 TRUE COPY OF THE PROCEEDINGS DATED 21.07.2018 (PRODUCED ALONG WITH I.A.NO.14483/18-NOT ACCEPTED). 21.07.2018 (PRODUCED ALONG WITH I.A.NO.14483/18-NOT ACCEPTED). EXHIBIT P12 TRUE COPY OF THE D3 CIRCULAR DTD 8.11.11EXHIBIT P13 TRUE COPY OF DICTUM IN 1992(1)KLT 733.RESPONDENTS' EXHIBITS: NILEXHIBIT P13 TRUE COPY OF DICTUM IN 1992(1)KLT 733.RESPONDENTS' EXHIBITS: NIL // TRUE COPY // PA TO JUDGERR