In Commissioner Of Income Tax v. Chhabil

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY ,THE 08TH DAY OF MARCH 2019 / 17TH PHALGUNA, 1940WP(C).No. 4123 of 2019 PETITIONER : PATRICK DAVIS,AGED 50 YEARSLAPPAKKARAN HOUSE,RAMAKRISHNA IYER ROAD, IRINJALAKUDA-680121,THRISSUR DT. BY ADVS.SRI.K.G.BALASUBRAMANIANSMT.AMBILY (PREMKUMAR) RESPONDENTS: 1IRINJALAKUDA MUNICIPALITY, REPRESENTED BY ITS SECRETARY,IRINJALAKUDA.P.O-680121, THRISSUR DISTRICT. 2THE SECRETARY(AGRICULTURAL OFFICER),LOCAL LEVEL MONITORING COMMITTEE,IRINJALAKUDA VILLAGE/PO -680121,THRISSUR DISTRICT. 3THE TAHSILDAR, MUKUNDAPURAM TALUK,THRISSUR-680001.4STATE OF KERALA, REPRESENTED BY SECRETARY,MINISTRY OFREVENUE, SECRETARIAT,THIRUVANANTHAPURAM-695001. BY ADVS.SRI.K.K.CHANDRAN PILLAI (SR.)SMT.S.AMBILY BY SRI PAUL ABRAHAM VAKKANAL, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, who is stated to be the owner of 15 cents and 15 square links of dry land in Survey No.295/1of Irinjalakkuda Village, has filed this writ petition underArticle 226 of the Constitution of India, seeking a writ ofcertiorari to quash Ext.P5 order dated 20.12.2018 of theSecretary of the 1[st] respondent Municipality and a writ ofmandamus commanding the 1[st] respondent to issuebuilding permit as per BA 855/17-18 (mentioned inExts.P4 and P5) in respect of the property covered byExts.P1 to P3, in Survey No.295/1 of Irinjalakuda Village. 2. On 12.02.2019, when this writ petition came upfor admission, the learned Government Pleader and alsothe learned Standing Counsel for Thrissur Municipalitywere directed to get instructions. 3. Heard the learned counsel for the petitioner, the learned Government Pleader for respondents 2 to 4 andalso the learned Standing Counsel appearing for the 1[st] respondent Municipality. 4. The sole issue that arises for consideration in this writ petition is as to whether Ext.P5 order of the Secretaryof the 1[st] respondent Municipality, whereby the applicationmade by the petitioner for building permit stands rejected,warrants an interference of this Court, in exercise of thewrit jurisdiction under Article 226 of the Constitution ofIndia. 5. The petitioner made an application for building permit in respect of the property referred tohererinbefore, which now stands rejected by Ext.P5 orderdated 20.12.2018 issued by the Secretary of the 1[st]respondent Municipality. The fact that Ext.P5 order of theSecretary of the 1[st] respondent Municipality is appealablebefore the Municipal Council as per the provisions of sub-section (1) of Section 509 of the Kerala Municipality Act, isnot in dispute. 6. In Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603], the Apex Court held that non-entertainment of a writ petition under Article 226 of the Constitution of India when an efficacious alternativeremedy is available is a rule and self imposed limitation. Itis essentially a rule of policy, convenience and discretionrather than a rule of law. Undoubtedly, it is within thediscretion of the High Court to grant relief under Article226 of the Constitution of India, despite the existence ofalternative remedy. However, High Court must notinterfere if there is an adequate efficacious alternativeremedy available to the petitioner and he has approachedthe High Court without availing the same, unless he hasmade out an exceptional case warranting suchinterference or there exists sufficient ground to invoke theextraordinary jurisdiction under Article 226. 7. InAuthorised Officer, State Bank ofTravancore v. Mathew K.C.[(2018) 3 SCC 85], theApex Court reiterated that the discretionary jurisdictionunder Article 226 of the Constitution of India is notabsolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal 7. InAuthorised Officer, State Bank ofTravancore v. Mathew K.C.[(2018) 3 SCC 85], theApex Court reiterated that the discretionary jurisdictionunder Article 226 of the Constitution of India is notabsolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of theConstitution of India ought not to be entertained ifalternative statutory remedies are available, except incases falling within the well defined exceptions asobserved in Chaabil Das Agarwal's case (supra), i.e.,where the statutory authority has not acted in accordancewith the provisions of the enactment in question or indefiance of the fundamental principles of judicialprocedure, or has resorted to invoke the provisions whichare repealed, or when an order has been passed in totalviolation of the principles of natural justice. After referringto the law laid down in Thansingh Nathmal v.Superintendent of Taxes andTitaghur Paper Mills Company Ltd. v. State of Orissa[(1983) 2 SCC 433]the Apex Court held that High Courtwill not entertain a petition under Article 226 of theConstitution if an effective alternative remedy is availableto the aggrieved person or the statute under which the action complained of contains a mechanism for redressal of grievance. Therefore, when a statutory forum is createdby law for redressal of grievances, a writ petition shouldnot be entertained ignoring the statutory dispensation. 8. In Thansingh Nathmal's case (supra)a Constitution Bench ofthe Apex Court held that, thejurisdiction of the High Court under Article 226 of theConstitution is couched in wide terms and the exercisethereof is not subject to any restrictions except theterritorial restrictions which are expressly provided in theArticle. But the exercise of the jurisdiction is discretionary:it is not exercised merely because it is lawful to do so. Thevery amplitude of the jurisdiction demands that it willordinarily be exercised subject to certain self imposedlimitations. Resort to that jurisdiction is not intended as analternative remedy for relief which may be obtained in asuit or other mode prescribed by statute. Ordinarily, thecourt will not entertain a petition for a writ under Article226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does notgenerally enter upon a determination of questions whichdemand an elaborate examination of evidence to establishthe right to enforce for which the writ is claimed. The HighCourt does not, therefore, act as a court of appeal againstthe decision of a court or tribunal, to correct errors of fact,and does not by assuming jurisdiction under Article 226trench upon an alternative remedy provided by statute forobtaining relief. Where it is open to the aggrievedpetitioner to move another tribunal or even itself inanother jurisdiction for obtaining redress in the mannerprovided by a statute, the High Court normally will notpermit by entertaining a petition under Article 226 of theConstitution the machinery created under the statute tobe bypassed, and will leave the party applying to it toseek resort to the machinery so set up. 9. In Titaghur Paper Mills' case (supra)a Three-Judge Bench of the Apex Court held that, the Orissa Sales Tax Act, 1947 provides for a complete machinery to 9. In Titaghur Paper Mills' case (supra)a Three-Judge Bench of the Apex Court held that, the Orissa Sales Tax Act, 1947 provides for a complete machinery to challenge an order of assessment, and the impugnedorders of assessment can only be challenged by the modeprescribed by the Act and not by a petition under Article226 of the Constitution. It is now well recognised thatwhere a right or liability is created by a statute whichgives a special remedy for enforcing it, the remedyprovided by that statute only must be availed of. This rulewas 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 a liability maybe established founded upon statute ..... But there is athird class, viz., where a liability not existing at commonlaw is created by a statute which at the same time givesa special and particular remedy for enforcing it ..... theremedy provided by the statute must be followed, and itis not competent to the party to pursue the courseapplicable to cases of the second class. The form givenby the statute must be adopted and adhered to." The rule laid down in that passage was approved by the House of Lords inNeville v. London ExpressNewspaper Ltd.[1919 AC 368]and has beenreaffirmed by the Privy Council in Attorney General ofTrinidad and Tobago v. Gordon Grant and Co. [1935AC 532] and Secretary of State v. Mask and Co. . It has also been held to be equallyapplicable to enforcement of rights and has been followedby the Apex Court throughout. 10.In Pavithran V. State of Kerala (2009 (4)KHC 4), a Full Bench of this Court held that, whenever anadverse order is passed against a person, unless the sameis challenged before the appropriate forum, within theprescribed time limit, the said order will become final. 11. Viewed in the light of the law laid down by thisCourt in the decisions referred to supra, conclusion isirresistible that the petitioner cannot challenge Ext.P5order of the Secretary of the 1[st] respondent Municipality,invoking the writ jurisdiction of this Court under Article226 of the Constitution of India, when a statutory remedy is available under Section 509 of the Kerala MunicipalityAct. 12. The learned counsel for the petitioner would submit that immediately after receipt of Ext.P5 orderdated 20.12.2018, the petitioner has moved this writpetition before this Court on 11.02.2019, and therefore,the period of pendency of this writ petition has to beexcluded while computing the time limit prescribed undersub-section (5) of Section 509 of the Act for filing anappeal. 13. In the result, this writ petition is dismissed as no interference is warranted on Ext.P5 order invoking the writjurisdiction of this Court under Article 226 of theConstitution of India, in view of the statutory remedyavailable under sub-section (1) of Section 509 of theMunicipality Act; however without prejudice to the right ofthe petitioner to challenge Ext.P5 order by filing an appealunder sub-section (1) of Section 509 of the KeralaMunicipality Act before the Municipal Council. The period of pendency of this writ petition shall be excluded while computing the time limit prescribed in sub-section (5) ofSection 509 of the Kerala Municipality Act for filing suchappeal. All legal and factual contentions raised by the petitioner are left open to be raised before the appellateauthority, at appropriate stage. Sd/- ANIL K.NARENDRAN, JUDGE AV/11/3 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF MAHAZAR DATED 24.4.2017 ISSUED BY THE SPECIAL VILLAGE OFFICER,IRINJALAKUDA. EXHIBIT P2TRUE COPY OF PROCEEDINGS B2-7389/17/D.DIS DATED 15.7.2017 BEFORE THE RDO,THRISSUR. of pendency of this writ petition shall be excluded while computing the time limit prescribed in sub-section (5) ofSection 509 of the Kerala Municipality Act for filing suchappeal. All legal and factual contentions raised by the petitioner are left open to be raised before the appellateauthority, at appropriate stage. Sd/- ANIL K.NARENDRAN, JUDGE AV/11/3 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF MAHAZAR DATED 24.4.2017 ISSUED BY THE SPECIAL VILLAGE OFFICER,IRINJALAKUDA. EXHIBIT P2TRUE COPY OF PROCEEDINGS B2-7389/17/D.DIS DATED 15.7.2017 BEFORE THE RDO,THRISSUR. EXHIBIT P3TRUE COPY OF CERTIFICATE DATED 9.1.2018 ISSUED BY THE 2ND RESPONDENT.EXHIBIT P4TRUE COPY OF DIRECTION OF THE 1ST RESPONDENT DATED 17.3.2018 ON BA 855/17-18 APPLICATION SUBMITTED BY THEPETITIONER. EXHIBIT P5TRUE COPY OF ORDER NO-BA 855/17-18 DATED 20.12.2018 ISSUEDB BY THE 1ST RESPONDENT.