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 02ND DAY OF AUGUST 2019 / 11TH SRAVANA, 1941WP(C).No.10873 of 2019 PETITIONER: MINIMOLE,AGED 32 YEARS, D/O.ANIRUDHAN, RESIDING AT UDUMBACKAL HOUSE, PURAKKADU MURI, PURAKKADU VILLAGE, ALAPPUZHA DISTRICT-688561. BY ADVS.SMT.P.V.SREELATHASMT.JYOTHI JOSEPH RESPONDENTS: 1THE SUB COLLECTOR,ALAPPUZHA/THE CONVENER, DISTRICT LEVEL MONITORING COMMITTEE, ALAPPUZHA-688001. 2THE SECRETARY, PURAKKAD GRAMA PANCHAYATH,PURAKKAD P.O., ALAPPUZHA, PIN-688561. 3AGRICULTURAL OFFICER,PURAKKAD, AMBALAPPUZHA-688561. ADDL.R4THE DISTRICT COLLECTOR,ALAPPUZHA-688 001. ALAPPUZHA-688 001. IMPLEADED AS ADDITIONAL 4TH RESPONDENT VIDE ORDER DATED 25-07-2019 IN I.A.NO.1/2019.VIDE ORDER DATED 25-07-2019 IN I.A.NO.1/2019. R1, R3 & SRI MANU RAJ K.J., GOVERNMENT PLEADER ADDL.R4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON02.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, who is stated to be the owner inpossession of a property having an extent of 3.24 Arescomprised in Re.survey No.218 in Sub Division No.6 ofPurakkad Village in Ambalapuzha Taluk, has filed this writpetition under Article 226 of the Constitution of India,seeking a writ of certiorari to quash Ext.P3 order dated11.12.2018 issued by the 1[st] respondent; and a writ ofmandamus commanding the respondents to takeappropriate steps in a time bound manner to grantpermission to convert the property having an extent of 3.24Ares comprised in Re.survey No.218 in Sub Division No.6 ofPurakkad Village in Ambalapuzha Taluk, so as to enable thepetitioner to build a residential house for her. 2.On 25.07.2019, when this writ petition came upfor consideration, this Court allowed I.A.No.1 of 2019 filedby the petitioner seeking an order to implead the DistrictCollector, Alappuzha as additional 4[th] respondent andI.A.No.2 of 2019 seeking an order to accept Exts.P5 and P6 as additional documents. The learned Government Pleaderwas directed to get instructions on the additional documentsplaced on record. 3. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing forrespondents 1, 3 and also for the additional 4[th] respondent.Considering the nature of relief proposed to be granted,service of notice on the 2[nd] respondent, who is the Secretaryof Purakkad Grama Panchayat, is dispensed with. 4.The petitioner moved an application seekingpermission to construct the residential building in theproperty having an extent of 3.24 Ares comprised inRe.survey No.218 in Sub Division No.6 of Purakkad Village inAmbalapuzha Taluk and the said application stands rejectedby Ext.P3 order dated 11.12.2018. In the said order, it ismade clear that it is appealable before the additional 4[th]respondent. The document marked as Ext.P2 would showthat the application made by the petitioner for buildingpermit to construct a residential building in the property in question is kept pending before the 2[nd] respondent Secretaryof Purakkad Grama Panchayat, since the property is includedin the data-bank as a 'paddy land' and any construction canbe made only with the orders of the Local Level MonitoringCommittee and the Revenue Divisional Officer. During thependency of this writ petition, the petitioner has movedExt.P5 appeal before the additional 4[th] respondent DistrictCollector. 5.The learned Government Pleader would submitthat the said appeal is pending consideration. The learnedGovernment Pleader would point out that the property inquestion is one purchased by the petitioner in the year2009, as stated in paragraph 2 of the writ petition, i.e., afterthe commencement of the provisions under the KeralaConservation of Paddy Land and Wetland Act, 2008. The learned Government Pleader would submit 6. 5.The learned Government Pleader would submitthat the said appeal is pending consideration. The learnedGovernment Pleader would point out that the property inquestion is one purchased by the petitioner in the year2009, as stated in paragraph 2 of the writ petition, i.e., afterthe commencement of the provisions under the KeralaConservation of Paddy Land and Wetland Act, 2008. The learned Government Pleader would submit 6. In Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603], the Apex Court heldthat non-entertainment of a writ petition under Article 226 ofthe Constitution of India when an efficacious alternative remedy is available is a rule and self imposed limitation. It isessentially a rule of policy, convenience and discretion ratherthan a rule of law. Undoubtedly, it is within the discretion ofthe High Court to grant relief under Article 226 of theConstitution of India, despite the existence of alternativeremedy. However, High Court must not interfere if there is anadequate efficacious alternative remedy available to thepetitioner and he has approached the High Court withoutavailing the same, unless he has made out an exceptionalcase warranting such interference or there exists sufficientground to invoke the extraordinary jurisdiction under Article226. 7.InAuthorised Officer, State Bank of Travancore v. Mathew K.C. [(2018) 3 SCC 85] the ApexCourt reiterated that the discretionary jurisdiction underArticle 226 of the Constitution of India is not absolute but hasto be exercised judiciously in the given facts of a case and inaccordance with law. The normal rule is that a writ petitionunder Article 226 of the Constitution of India ought not to be entertained if alternative statutory remedies are available,except in cases 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 judicial procedure,or has resorted to invoke the provisions which are repealed,or when an order has been passed in total violation of theprinciples of natural justice. After referring to the law laiddown in Thansingh Nathmal v. Superintendent of Taxes and Titaghur Paper Mills CompanyLtd. v. State of Orissa [(1983) 2 SCC 433] the ApexCourt held that High Court will not entertain a petition underArticle 226 of the Constitution if an effective alternativeremedy is available to the aggrieved person or the statuteunder which the action complained of contains a mechanismfor redressal of grievance. Therefore, when a statutory forumis created by law for redressal of grievances, a writ petitionshould not be entertained ignoring the statutory dispensation. 8.InThansingh Nathmal's case (supra)aConstitution 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 the territorialrestrictions which are expressly provided in the Article. Butthe exercise of the jurisdiction is discretionary: it is notexercised merely because it is lawful to do so. The veryamplitude of the jurisdiction demands that it will ordinarily beexercised subject to certain self imposed limitations. Resortto that jurisdiction is not intended as an alternative remedyfor relief which may be obtained in a suit or other modeprescribed by statute. Ordinarily, the court will not entertaina petition for a writ under Article 226, where the petitionerhas an alternative remedy, which without being undulyonerous, provides an equally efficacious remedy. Again theHigh Court does not generally enter upon a determination ofquestions which demand an elaborate examination of -8- -8- evidence to establish the right to enforce for which the writ isclaimed. The High Court does not, therefore, act as a court ofappeal against the decision of a court or tribunal, to correcterrors of fact, and does not by assuming jurisdiction underArticle 226 trench upon an alternative remedy provided bystatute for obtaining relief. Where it is open to the aggrievedpetitioner to move another tribunal or even itself in anotherjurisdiction for obtaining redress in the manner provided by astatute, the High Court normally will not permit byentertaining a petition under Article 226 of the Constitutionthe machinery created under the statute to be bypassed, andwill leave the party applying to it to seek resort to themachinery so set up. 9.In Titaghur Paper Mills' case (supra) a Three-Judge Bench of the Apex Court held that, the Orissa SalesTax Act, 1947 provides for a complete machinery to challengean order of assessment, and the impugned orders ofassessment can only be challenged by the mode prescribedby the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right orliability is created by a statute which gives a special remedyfor enforcing it, the remedy provided by that statute onlymust be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton 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 liabilitymay be established founded upon statute ..... Butthere is a third class, viz., where a liability not existingat common law is created by a statute which at thesame time gives a special and particular remedy forenforcing it ..... the remedy provided by the statutemust be followed, and it is not competent to the partyto pursue the course applicable to cases of the secondclass. The form given by the statute must be adoptedand adhered to." The rule laid down in that passage was approved by the House of Lords in Neville v. London Express NewspaperLtd.[1919 AC 368] and has been reaffirmed by the PrivyCouncil in Attorney General of Trinidad and Tobago v.Gordon Grant and Co. [1935 AC 532] and Secretary of State v. Mask and Co. . It has alsobeen held to be equally applicable to enforcement of rightsand has been followed by 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 same ischallenged before the appropriate forum, within theprescribed time limit, the said order will become final. 11.In view of the statutory remedy available undersub-section (6) of Section 9 of the Kerala Conservation ofPaddy Land and Wetland Act, the petitioner cannot challengeExt.P3 order, invoking the writ jurisdiction of this Courtunder Article 226 of the Constitution of India, on thegrounds raised in this writ petition. 12.Since the petitioner has already moved an appealbefore the additional 4[th] respondent, as evidenced by Ext.P5,this writ petition is disposed of by directing the additional 4[th]respondent to consider and pass orders on Ext.P5 appealfiled by the petitioner against Ext.P3 order, strictly in accordance with law, with notice to the petitioner and after affording her an opportunity of being heard. It is made clear that this Court has not expressed anything as to the maintainability of Ext.P5 appeal or themerits of the contentions raised therein and it is for theadditional 4[th] respondent to take an appropriate decision,strictly in accordance with law, taking note of the provisionsunder the statute and the law laid down by this Court on thepoint. bpr Sd/- ANIL K. NARENDRAN JUDGE APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE RELEVANT EXTRACT OF RATION CARD. EXHIBIT P2TRUE COPY OF THE INTIMATION BEARING NO.A9-5620/17 DATED 31.10.2017 FROM THE 2ND RESPONDENT. accordance with law, with notice to the petitioner and after affording her an opportunity of being heard. It is made clear that this Court has not expressed anything as to the maintainability of Ext.P5 appeal or themerits of the contentions raised therein and it is for theadditional 4[th] respondent to take an appropriate decision,strictly in accordance with law, taking note of the provisionsunder the statute and the law laid down by this Court on thepoint. bpr Sd/- ANIL K. NARENDRAN JUDGE APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE RELEVANT EXTRACT OF RATION CARD. EXHIBIT P2TRUE COPY OF THE INTIMATION BEARING NO.A9-5620/17 DATED 31.10.2017 FROM THE 2ND RESPONDENT. EXHIBIT P3TRUE COPY OF THE ORDER NO.T.A.(3)/7932/18/L.DIS. DATED 11.12.2018 FROM THE 1ST RESPONDENT. EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED 22.12.2018. EXHIBIT P5TRUE COPY OF THE APPLICATION DATED 10/4/2019 BE FORE THE DISTRICT COLLECTOR, ALAPPUZHA. EXHIBIT P6TRUE COPY OF THE RECEIPT ISSUED FROM THE COLLECTORATE. RESPONDENTS' EXHIBITS:NIL