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. 6695 of 2019 PETITIONER: PHILIP MATHEWAGED 69 YEARSS/O PHILIP, HOTEL PRESIDENCY, PARAMARA ROAD, ERNAKULAM, KOCHI-18. BY ADVS.SRI.GEORGE CHERIAN (SR.)SMT.K.S.SANTHISMT.LATHA SUSAN CHERIANSMT.ALEXY AUGUSTINE RESPONDENTS: 1THE CORPORATION OF KOCHIREPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, ERNAKULAM.2REVENUE OFFICER,CORPORATION OF KOCHI, ERNAKULAM. BY ADV. SRI.V.E.ABDUL GAFOOR,SC,COCHIN CORPORATION 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 a licensee of the ground floor of a building owned by the 1[st] respondent Corporation on theside of Paramara Road, has filed this writ petition underArticle 226 of the Constitution of India, seeking a writ ofcertiorari to quash Ext.P4 notice dated 15.05.2018 issuedby the 2[nd] respondent, who is the Revenue officer of the 1[st]respondent Corporation and a writ of mandamuscommanding the respondents to consider Ext.P5representation dated 28.05.2018 and pass appropriateorders thereon, with notice to the petitioner. 2.On 06.03.2019, when this writ petition came up for admission, learned Standing Counsel for the 1[st]respondent Corporation sought time to get instructions. 3.A statement has been filed on behalf ofrespondents 1 and 2, opposing the reliefs sought for in thiswrit petition. In the statement, it has also been stated thatthe petitioner is occupying 11 rooms, without renewing theagreement and without paying enhanced rent, despite the expiry of the lease agreement on 31.03.2017. 4.Heard the learned counsel for the petitioner andalso the learned Standing Counsel for the 1[st] respondentCorporation, representing respondents 1 and 2. 5.The petitioner is a tenant in respect of 11 roomsin the ground floor of Paramara Shopping Complex, on thestrength of lease agreements executed with the 1[st]respondent Corporation. The validity of the last leaseagreement expired on 31.03.2017. The said fact is not indispute. As can be seen from the statement filed on behalfof the respondents, despite the issuance of Ext.P4 noticedated 15.05.2018, the petitioner is in occupation of thoseshop rooms, 11 in number, without payment of the monthlyrent, demanded in Ext.P4. 6.If the petitioner was feeling aggrieved by Ext.P4notice, he could have filed an appeal before the MunicipalCouncil, invoking the provisions under under sub-section(1) of Section 509 of the Kerala Municipality Act 1994,within the time limit stipulated in the statute. As per sub- section (3) of Section 509, pending decision on an appeal under sub-section (1), the Chairperson may, if anapplication is made, stay the operation of the notice, orderor other proceedings on which the appeal is based. 7. 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 226of 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 Article 226of the Constitution of India, despite the existence ofalternative remedy. However, High Court must not interfereif there is an adequate efficacious alternative remedyavailable to the petitioner and he has approached the HighCourt without availing the same, unless he has made out anexceptional case warranting such interference or thereexists sufficient ground to invoke the extraordinary jurisdiction under Article 226. jurisdiction under Article 226. 8.InAuthorised Officer, State Bank ofTravancore 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 buthas to be exercised judiciously in the given facts of a caseand in accordance with law. The normal rule is that a writpetition under Article 226 of the Constitution of India oughtnot to be entertained if alternative statutory remedies areavailable, except in cases falling within the well definedexceptions as observed in Chaabil Das Agarwal's case(supra), i.e., where the statutory authority has not actedin accordance with the provisions of the enactment inquestion or in defiance of the fundamental principles ofjudicial procedure, or has resorted to invoke the provisionswhich are repealed, or when an order has been passed intotal violation of the principles of natural justice. Afterreferring to the law laid down in Thansingh Nathmal v.Superintendent of Taxes and Titaghur 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 available tothe aggrieved person or the statute under which the actioncomplained of contains a mechanism for redressal ofgrievance. Therefore, when a statutory forum is created bylaw for redressal of grievances, a writ petition should not beentertained ignoring the statutory dispensation.will not entertain a petition under Article 226 of theConstitution if an effective alternative remedy is available tothe aggrieved person or the statute under which the actioncomplained of contains a mechanism for redressal ofgrievance. Therefore, when a statutory forum is created bylaw for redressal of grievances, a writ petition should not beentertained ignoring the statutory dispensation. 9.In Thansingh 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 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 imposedjurisdiction 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 imposed In Thansingh Nathmal's case (supra) a In Thansingh Nathmal's case (supra) a limitations. 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, whichwithout being unduly onerous, provides an equallyefficacious remedy. Again the High Court does not generallyenter upon a determination of questions which demand anelaborate examination of evidence to establish the right toenforce for which the writ is claimed. The High Court doesnot, therefore, act as a court of appeal against the decisionof a court or tribunal, to correct errors of fact, and does notby assuming jurisdiction under Article 226 trench upon analternative remedy provided by statute for obtaining relief.Where it is open to the aggrieved petitioner to moveanother tribunal or even itself in another jurisdiction forobtaining redress in the manner provided by a statute, theHigh Court normally will not permit by entertaining apetition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave theparty applying to it to seek resort to the machinery so setup. 10.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 tochallenge an order of assessment, and the impugned ordersof 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 which givesa special remedy for enforcing it, the remedy provided bythat statute only must be availed of. This rule was statedwith great clarity by Willes, J. in Wolverhampton NewWater Works Co. v. Hawkesford [(1859) 6 CBNS 336]at page 356 in the following passage: "There are three classes of cases in which aliability may be established founded uponstatute ..... But there is a third class, viz., wherea liability not existing at common law is created by a statute which at the same time gives aspecial and particular remedy for enforcing it .....the remedy provided by the statute must befollowed, and it is not competent to the party topursue the course applicable to cases of thesecond class. The form given by the statute mustbe 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 been reaffirmed by the PrivyCouncil in Attorney General of Trinidad and Tobago v.Gordon Grant and Co. [1935 AC 532] and Secretary ofState v. Mask and Co. . It has alsobeen held to be equally applicable to enforcement of rightsand has been followed by the Apex Court throughout. 11.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 theprescribed time limit, the said order will become final. 12.Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that,the petitioner, having failed to avail the statutory remedyunder Section 509 of the Act against Ext.P4 notice dated15.05.2018 issued by the 2[nd] respondent Revenue Officer,within the time limit specified in the statute cannot nowseek interference of this Court on that notice, invoking thewrit jurisdiction under Article 226 of the Constitution ofIndia, by attempting to make a fresh cause of action, bysubmission of Ext.P5 representation dated 28.05.2018. In such circumstances, I find no reason to interferewith Ext.P4 notice issued by the 2[nd] respondent or to directconsideration of Ext.P5 representation. The writ petitionfails and the same is accordingly dismissed. Sd/-ANIL K.NARENDRAN JUDGE decisions referred to supra, conclusion is irresistible that,the petitioner, having failed to avail the statutory remedyunder Section 509 of the Act against Ext.P4 notice dated15.05.2018 issued by the 2[nd] respondent Revenue Officer,within the time limit specified in the statute cannot nowseek interference of this Court on that notice, invoking thewrit jurisdiction under Article 226 of the Constitution ofIndia, by attempting to make a fresh cause of action, bysubmission of Ext.P5 representation dated 28.05.2018. In such circumstances, I find no reason to interferewith Ext.P4 notice issued by the 2[nd] respondent or to directconsideration of Ext.P5 representation. The writ petitionfails and the same is accordingly dismissed. Sd/-ANIL K.NARENDRAN JUDGE APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1TRUE COPY OF THE ALLOTMENT LETTER ISSUED TO THE PETITIONER DATED 1.11.1993. EXHIBIT P2TRUE COPY OF THE ORDER DATED 21.2.04 ISSUED BY THE RESPONDENT.ISSUED BY THE RESPONDENT.EXHIBIT P3TRUE COPY OF THE RECEIPT ISSUED SHOWINGPAYMENT OF RENT ON 14.3.18.PAYMENT OF RENT ON 14.3.18. EXHIBIT P4TRUE COPY OF THE LETTER DATED 15.5.18 ISSUED BY RESPONDENT.ISSUED BY RESPONDENT. EXHIBIT P5TRUE COPY OF THE REPRESENTATION DATED 28.5.18.28.5.18. EXHIBIT P6TRUE COPY OF THE ORDER DATED 22.12.03 BY GOVERNMENT.BY GOVERNMENT. EXHIBIT P7TRUE COPY OF THE ORDER DATED 12.2.19. RESPONDENTS'S EXHIBITS: NIL //TRUE COPY// DK PA TO JUDGE