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 05TH DAY OF APRIL 2019 / 15TH CHAITHRA, 1941 WP(C).No. 10036 of 2019 PETITIONER: P.V.SOMANAGED 62 YEARSS/O VASU, NIKHIL BHAVANAM, THITTAMEL, CHENGANNUR, ALAPPUZHA DISTRICT. BY ADVS.SRI.K.SHAJKUM.K.SALMA JENNATHSHRI.THAREEQ ANVERSRI.ARUN CHANDSRI.C.IJLALSRI.JOSEPH MARY DASSRI.RENJIT GEORGE RESPONDENTS: 1CHENGANNUR MUNICIPALITYREPRESENTED BY ITS SECRETARY, CHENGANNUR 689 121.2THE SECRETARY,CHENGANNUR MUNICIPALITY, CHENGANNUR 689 121.3THE MUNICIPAL COUNCIL,CHENGANNUR MUNICIPALITY REPRESENTED BY ITS CHAIRMAN, CHANGANNUR 689 121. BY SRI S.HARIKRISHNAN- STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, who is stated to be a licensee ofShop No.21 in the shopping complex of the 1[st]respondent Municipality at Chengannur Private BusStand, has filed this writ petition under Article 226 ofthe Constitution of India, seeking a writ of certiorari toquash Ext.P7 notice dated 19.03.2019 issued by the 2[nd]respondent, who is the Secretary of the 1[st] respondentMunicipality, whereby the petitioner has been directedto remit a sum of Rs.27,282/- towards arrears oflicence fee and a further sum of Rs.1,00,000/- towardsadditional deposit. The petitioner has also sought for awrit of mandamus commanding the respondents not toevict him pursuant to Ext.P7 notice; and to allow himto continue his business in Shop Room No.21 in theshopping complex belonging to ChengannurMunicipality by allowing him to remit the enhanced rent arrears and enhanced advanced deposit in instalments, in the event, this Court is not inclined to quash Ext.P7. 2. On 01.04.2019, when this writ petition came upfor admission, the learned Standing Counsel for theMunicipality sought time to get instructions. 3. Heard the learned counsel for the petitioner andalso the learned Standing Counsel for Municipalityrepresenting respondents 1 to 3. 4. The sole issue that arises for consideration in this writ petition is as to whether any interference iswarranted on Ext.P7 notice dated 19.03.2019 issued bythe 2[nd] respondent, in exercise of the writ jurisdiction ofthis Court under Article 226 of the Constitution ofIndia. 5. The fact that the petitioner, who is stated to bea licensee of Shop Room No.21 in the shoppingcomplex of the 1[st] respondent Municipality, can assailExt.P7 notice, if he is feeling aggrieved by the same, byinvoking the statutory remedy available under sub- section (1) of Section 509 of the Kerala MunicipalityAct, 1994, is not in dispute. It is also not in disputethat as per sub-section (3) of Section 509, pendingdecision on an appeal filed under sub-section (1), theChairperson may, if an application is made, stay theoperation of the notice, order or other proceedings onwhich the appeal is based. 6. In Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603], the Apex Courtheld that non-entertainment of a writ petition underArticle 226 of the Constitution of India when anefficacious alternative remedy is available is a rule andself 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 the HighCourt to grant relief under Article 226 of theConstitution of India, despite the existence ofalternative remedy. However, High Court must notinterfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same,unless he has made out an exceptional case warrantingsuch interference or there exists sufficient ground toinvoke the extraordinary jurisdiction under Article 226. remedy available to the petitioner and he has approached the High Court without availing the same,unless he has made out an exceptional case warrantingsuch interference or there exists sufficient ground toinvoke the extraordinary jurisdiction under Article 226. 7. In Authorised 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 thegiven facts of a case and in accordance with law. Thenormal rule is that a writ petition under Article 226 ofthe Constitution 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 inaccordance with the provisions of the enactment inquestion or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order hasbeen passed in total violation of the principles ofnatural justice. After referring to the law laid down inThansingh Nathmal v. Superintendent of Taxes and Titaghur Paper MillsCompany Ltd. v. State of Orissa [(1983) 2 SCC433]the Apex Court held that High Court will notentertain a petition under Article 226 of theConstitution if an effective alternative remedy isavailable to the aggrieved person or the statute underwhich the action complained of contains a mechanismfor redressal of grievance. Therefore, when a statutoryforum is created by law for redressal of grievances, awrit petition should not be entertained ignoring thestatutory dispensation. 8. In Thansingh Nathmal's case (supra)aConstitution Bench ofthe Apex Court held that, thejurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except theterritorial restrictions which are expressly provided inthe Article. But the exercise of the jurisdiction isdiscretionary: it is not exercised merely because it islawful to do so. The very amplitude of the jurisdictiondemands that it will ordinarily be exercised subject tocertain self imposed limitations. Resort to thatjurisdiction is not intended as an alternative remedy forrelief which may be obtained in a suit or other modeprescribed by statute. Ordinarily, the court will notentertain a petition for a writ under Article 226, wherethe petitioner has an alternative remedy, which withoutbeing unduly onerous, provides an equally efficaciousremedy. Again the High Court does not generally enterupon a determination of questions which demand anelaborate examination of evidence to establish the rightto enforce for which the writ is claimed. The High Courtdoes not, therefore, act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, 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 statutefor obtaining 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 ofthe Constitution the machinery created under thestatute to be bypassed, and will leave the partyapplying to it to seek resort to the machinery so set up.9. In Titaghur Paper Mills' case (supra)aThree-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 and notby a petition under Article 226 of the Constitution. It isnow well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with greatclarity by Willes, J. in Wolverhampton New WaterWorks Co. v. Hawkesford [(1859) 6 CBNS 336] at page 356 in the following 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 notexisting at common law is created by a statute whichat the same time gives a special and particularremedy for enforcing it ..... the remedy provided bythe statute must be followed, and it is not competentto the party to pursue the course applicable to casesof the second class. The form given by the statutemust be adopted and adhered to."may be established founded upon statute ..... Butthere is a third class, viz., where a liability notexisting at common law is created by a statute whichat the same time gives a special and particularremedy for enforcing it ..... the remedy provided bythe statute must be followed, and it is not competentto the party to pursue the course applicable to casesof the second class. The form given by the statutemust be adopted and adhered to." The rule laid down in that passage was approved by the House of Lords in Neville v. London Express Newspaper Ltd.[1919 AC 368] and has beenreaffirmed by the Privy Council in Attorney Generalof Trinidad and Tobago v. Gordon Grant and Co.[1935 AC 532] and Secretary of State v. Mask and Co. . It has also been held to be equally applicable to enforcement of rights and hasbeen 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, wheneveran adverse order is passed against a person, unless thesame is challenged before the appropriate forum,within the prescribed time limit, the said order willbecome final. 11. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistiblethat the petitioner cannot challenge Ext.P7 notice ofthe Secretary of the 1[st] respondent Municipality,invoking the writ jurisdiction of this Court under Article226 of the Constitution of India, when a statutoryremedy is available under Section 509 of the KeralaMunicipality Act, on the grounds raised in this writpetition. In such circumstances, this writ petition filed on 29.03.2019, is dismissed for the aforesaid reason; however without prejudice to the right of the petitionerto challenge Ext.P7 notice of the 2[nd] respondent byinvoking the statutory remedy available under Section509 of the Municipality Act. AV/5/4 Sd/- ANIL K.NARENDRAN, JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 THE TRUE COPY OF NOTICE NO. R3-4214/13- VOLUME 2 DATED 23.12.2013 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER. EXHIBIT P2 In such circumstances, this writ petition filed on 29.03.2019, is dismissed for the aforesaid reason; however without prejudice to the right of the petitionerto challenge Ext.P7 notice of the 2[nd] respondent byinvoking the statutory remedy available under Section509 of the Municipality Act. AV/5/4 Sd/- ANIL K.NARENDRAN, JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 THE TRUE COPY OF NOTICE NO. R3-4214/13- VOLUME 2 DATED 23.12.2013 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER. EXHIBIT P2 THE TRUE COPY OF NOTICE NO. R3-4214/13-VOL-2 DATED 01.09.2014 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER. EXHIBIT P3 THE TRUE COPY OF JUDGMENT DATED 10.12.2018 IN W.P.(C) NO. 23823/2014OF THIS HON'BLE COURT. EXHIBIT P4 THE TRUE COPY OF NOTICE NO. R3-6677/17 DATED 11.01.2019 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER. EXHIBIT P5 THE TRUE COPY OF RECEIPT ISSUED BY THE OFFICE OF THE FIRST RESPONDENT TO THE PETITIONER. EXHIBIT P6 THE TRUE COPY OF REPRESENTATION DATED 18.01.2019 SUBMITTED BY THE PETITIONER TO THE SECOND RESPONDENT. EXHIBIT P7 THE TRUE COPY OF NOTICE NO. R3-4214/13 VOLUME-3 DATED 19.03.2019 OFTHE SECOND RESPONDENT ISSUED TO THE PETITIONER.