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. 9603 of 2019 PETITIONER : SUNNY YOHANNAN,AGED 59 YEARSS/O. LATE YOHANNAN, MARUTHANATTU PUTHEN VEEDU, BUDHANOOR P.O., VIA PULIYOOR, CHENGANNOR-689121. BY ADVS.SRI.C.S.AJITH PRAKASHSMT.T.N.SREEKALASRI.A.TJOSESRI.FRANKLIN ARACKALSRI.M.B.SOORISRI.PAUL C THOMASSRI.T.K.DEVARAJAN RESPONDENTS: 1THE CHENGANNOR MUNICIPAL COUNCIL,REPRESENTED BY ITS SECRETARY, CHENGANNOR MUNICIPALITY, CHENGANNOR-689121. 2THE SECRETARY, THE CHENGANNOR MUNICIPALITY,CHENGANNOR-689121. BY ADV. SRI.S.HARIKRISHNAN,SC,CHENGANNUR MUNICIPALITY 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 of Shop No.4 in the Municipal Bus Stand Shopping Complexof the 1[st] respondent Municipality, has filed this writpetition under Article 226 of the Constitution of India,seeking a writ of certiorari to quash Ext.P19 notice dated19.03.2019 issued by the 2[nd] respondent, who is theSecretary of the 1[st] respondent Municipality, whereby thepetitioner has been directed to remit a sum ofRs.6,256/- towards arrears of licence fee and a furthersum of Rs.3,40,000/- towards additional securitydeposit, since the security deposit already made by thepetitioner is only for a sum of Rs.35,000/-. Thepetitioner has also sought for a declaration that hecannot be compelled to deposit additional securitydeposit evidenced by Ext.P19, without any genuinereason. The further relief sought for is a writ ofmandamus commanding the 1[st] respondent Municipalityto hand over the key of Shop Room No.4, forthwith, so as to start business, as he desires for his earning, and also directing the 2[nd] respondent to consider the tradelicence application, if any, submitted by the petitionerafter allotting the room, within a time limit to be fixed bythis Court. 2. On 28.03.2019, when this writ petition came upfor admission, the learned counsel for the petitionersought adjournment. The learned Standing Counsel forMunicipality sought time to get instructions. 3. Heard the learned counsel for the petitioner andalso the learned Standing Counsel for the Municipalityrepresenting respondents 1 and 2. 4. The sole issue that arises for consideration in this writ petition is as to whether any interference iswarranted on Ext.P19 notice dated 19.03.2019 issued bythe 2[nd] respondent, in exercise of the writ jurisdiction ofthis Court under Article 226 of the Constitution of India. 5. The fact that the petitioner, who is stated to be alicensee of Shop Room No.4 in the Municipal Bus Stand Shopping Complex of the 1[st] respondent Municipality, can assail Ext.P19 notice, if he is feeling aggrieved by thesame, by invoking the statutory remedy available undersub-section (1) of Section 509 of the Kerala MunicipalityAct, 1994, is not in dispute. It is also not in dispute thatas per sub-section (3) of Section 509, pending decisionon 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 High Courtto grant relief under Article 226 of the Constitution of India, despite the existence of alternative remedy. 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 High Courtto grant relief under Article 226 of the Constitution of India, despite the existence of alternative remedy. 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 anexceptional case warranting such interference or thereexists sufficient ground to invoke the extraordinaryjurisdiction 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 givenfacts of a case and in accordance with law. The normalrule 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 inaccordance with the provisions of the enactment inquestion or in defiance of the fundamental principles ofjudicial procedure, or has resorted to invoke theprovisions which are repealed, or when an order hasbeen passed in total violation of the principles of naturaljustice. 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 the Constitutionif an effective alternative remedy is available to theaggrieved person or the statute under which the actioncomplained of contains a mechanism for redressal ofgrievance. 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, the jurisdiction 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 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 right to enforce for which the writ is claimed. The High Court to enforce for which the writ is claimed. The High Court does not, therefore, act as a court of appeal against thedecision 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 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 OrissaSales Tax Act, 1947 provides for a complete machineryto challenge an order of assessment, and the impugnedorders of assessment can only be challenged by themode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statutewhich gives a special remedy for enforcing it, the remedyprovided by that statute only must be availed of. Thisrule was 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 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 Newspaper Ltd.[1919 AC 368] and has beenreaffirmed by the Privy Council 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 also been held to beequally applicable to enforcement of rights and has beenfollowed 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, withinthe prescribed time limit, the said order will becomefinal. 11. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible thatthe petitioner cannot challenge Ext.P19 notice of theSecretary of the 1[st] respondent Municipality, invoking thewrit jurisdiction of this Court under Article 226 of theConstitution of India, when a statutory remedy isavailable under Section 509 of the Kerala MunicipalityAct, on the grounds raised in this writ petition. In such circumstances, this writ petition filed on 27.03.2019, is dismissed for the aforesaid reason; however without prejudice to the right of the petitionerto challenge Ext.P19 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 A TRUE COPY OF THE DEED OF LICENSE DATED 30.07.2007.DATED 30.07.2007. EXHIBIT P2 A TRUE COPY OF THE LICENSE DEED DATED08.03.2010.08.03.2010. EXHIBIT P3 A TRUE COPY OF THE CONSENT LETTER DATED 30.09.2011.DATED 30.09.2011. EXHIBIT P4 A TRUE COPY OF THE RECEIPT DATED 29.06.2013.29.06.2013. EXHIBIT P5 A TRUE COPY OF THE ABOVE APPLICATION DATED 11.03.2013.DATED 11.03.2013. EXHIBIT P6 A TRUE COPY OF THE ABOVE NOTICE DATED01.06.2013.01.06.2013. EXHIBIT P7 A TRUE COPY OF THE EXPLANATION DATED 17.06.2013.17.06.2013. EXHIBIT P8 AV/5/4 Sd/- ANIL K.NARENDRAN, JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE DEED OF LICENSE DATED 30.07.2007.DATED 30.07.2007. EXHIBIT P2 A TRUE COPY OF THE LICENSE DEED DATED08.03.2010.08.03.2010. EXHIBIT P3 A TRUE COPY OF THE CONSENT LETTER DATED 30.09.2011.DATED 30.09.2011. EXHIBIT P4 A TRUE COPY OF THE RECEIPT DATED 29.06.2013.29.06.2013. EXHIBIT P5 A TRUE COPY OF THE ABOVE APPLICATION DATED 11.03.2013.DATED 11.03.2013. EXHIBIT P6 A TRUE COPY OF THE ABOVE NOTICE DATED01.06.2013.01.06.2013. EXHIBIT P7 A TRUE COPY OF THE EXPLANATION DATED 17.06.2013.17.06.2013. EXHIBIT P8 A TRUE COPY OF THE AGREEMENT DATED 29.09.2011, EXECUTED BY THE PETITIONER. EXHIBIT P9 A TRUE COPY OF THE DEMAND NOTICE NO.R3-2073/04 DATED 04.10.2014 PRODUCED AS EXT.P16 IN W.P.(C) NO.17098/2013.NO.R3-2073/04 DATED 04.10.2014 PRODUCED AS EXT.P16 IN W.P.(C) NO.17098/2013. EXHIBIT P10 A TRUE COPY OF THE INTERIM ORDER IN IA NO.13736/2014 DATED 23.10.2014.IA NO.13736/2014 DATED 23.10.2014. EXHIBIT P11 A TRUE COPY OF THE REQUEST DATED 10.08.2013, SUBMITTED BY THE PETITIONER BEFORE THE MUNICIPALITY.10.08.2013, SUBMITTED BY THE PETITIONER BEFORE THE MUNICIPALITY. EXHIBIT P12 A TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.4534/2013 (N) DATED 27.07.2017.(C) NO.4534/2013 (N) DATED 27.07.2017. EXHIBIT P13 A TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.17098/2013 DATED 01.11.2018.(C) NO.17098/2013 DATED 01.11.2018. EXHIBIT P14 EXHIBIT P15 EXHIBIT P16 EXHIBIT P17 EXHIBIT P18 EXHIBIT P19 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 18.9.2018. A TRUE COPY OF THE ADDITIONAL REPRESENTATION SUBMITTED BY THE PETITIONER DATED 24.11.2018. A TRUE COPY OF THE DEMAND NOTICE ISSUED TO THE PETITIONER NO.R3-4214/13(VOL.3) DATED 29.01.2019. A TRUE COPY OF THE CASH RECEIPT NO.01-118020104968 DATED 11.02.2019 ISSUED BY THE MUNICIPALITY. A TRUE COPY OF THE INVENTORY LIST PREPARED BY THE MUNICIPAL SECRETARY. A TRUE COPY OF THE NOTICE NO.R3-4214/13 (VOL.3) DATED 19.03.2019 ISSUED BY THE 2ND RESPONDENT.