In Commissioner Of Income Tax v. Chhabil

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY ,THE 14TH DAY OF MARCH 2019 / 23RD PHALGUNA, 1940WP(C).No. 31488 of 2018 PETITIONER : ABOOBACKER M.AGED 61 YEARSS/O. KUTTIYAPPA, IYKARAPADI, CHERUKAVU AMSOM DESOM, ERNAD TALUK - 676 517, MALAPPURRAM DISTRICT, KERALA BY ADVS.ARUN AJAY SHANKARSRI.JIKKU SEBAN GEORGE RESPONDENTS: 1THE KOZHIKODE MUNICIPAL CORPORATIONCALICUT BEACH, NEAR AKASHAVANI, KOZHIKODE DISTRICT - 673 032, REPRESENTED BY ITS SECRETARY.2THE SECRETARYKOZHIKODE MUNICIPAL CORPORATION, CALICUT BEACH, NEAR AKASHAVANI, KOZHIKODE DISTRICT – 673 032. BY ADV. SRI.G.SANTHOSH KUMAR, SC, KOZHIKODE MUNICIPALCORPORATION THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, who is stated to be the owner in possession of 8.502 Ares of land comprised in Re-SurveyNo.336 of Kozhikode Taluk, vide Sale Deed No.632 of2012 of Chalapuram Sub Registry Office, has filed thiswrit petition under Article 226 of the Constitution ofIndia, seeking a writ of certiorari to quash Ext.P6 orderdated 28.07.2018 of the 2[nd] respondent, whereby theapplication made by the petitioner for building permitstands rejected. The petitioner has also sought for adeclaration that Ext.P6 order passed by the 2[nd]respondent is arbitrary and illegal. The further reliefsought for is a writ of mandamus commanding the 2[nd]respondent to reconsider the application for buildingpermit made by the petitioner, within a time limit to befixed by this Court. 2. On 26.09.2018, when this writ petition came upfor admission, the learned Standing Counsel for the respondent Corporation was directed to get instructions. 3. Heard the learned counsel for the petitioner and also the learned Standing Counsel appearing for therespondents. 4. The issue that arises for consideration in this writ petition is as to whether any interference is warranted onExt.P6 order, whereby the application made by thepetitioner for building permit stands rejected by the 2[nd]respondent, who is the Secretary of the 1[st] respondentCorporation. The fact that Ext.P6 order of the 2[nd]respondent is appealable before the Tribunal for LocalSelf Government Institutions under Section 509 of theMunicipality Act and also under Rule 160 of the KeralaMunicipality Building Rules, is not in dispute. 5. In Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603], the Apex Court heldthat non-entertainment of a writ petition under Article226 of the Constitution of India when an efficaciousalternative remedy is available is a rule and self imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it iswithin the discretion of the High Court to grant reliefunder Article 226 of the Constitution of India, despite theexistence of alternative remedy. However, High Courtmust not interfere if there is an adequate efficaciousalternative remedy available to the petitioner and he hasapproached 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. 6. In Authorised Officer, State Bank of Travancore 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 if alternative statutory remedies are available, except in 6. In Authorised Officer, State Bank of Travancore 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 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 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. Afterreferring to the law laid down in Thansingh Nathmal v.Superintendent of Taxes andTitaghur Paper Mills Company Ltd. v. State ofOrissa [(1983) 2 SCC 433]the Apex Court held thatHigh Court will not entertain a petition under Article 226of the Constitution if an effective alternative remedy isavailable to the aggrieved person or the statute underwhich the action complained of contains a mechanism forredressal of grievance. Therefore, when a statutory forumis created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutorydispensation. 7. 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 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 that jurisdictionis not intended as an alternative remedy for relief whichmay be obtained in a suit or other mode prescribed bystatute. Ordinarily, the court will not entertain a petitionfor a writ under Article 226, where the petitioner has analternative remedy, which without being unduly onerous,provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination ofevidence to establish the right to enforce for which thewrit is claimed. The High Court does not, therefore, actas a court of appeal against the decision of a court ortribunal, to correct errors of fact, and does not byassuming jurisdiction under Article 226 trench upon analternative remedy provided by statute for obtainingrelief. Where it is open to the aggrieved petitioner tomove another tribunal or even itself in anotherjurisdiction for obtaining redress in the manner providedby a statute, the High Court normally will not permit byentertaining 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. 8. 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 challenge an order of assessment, and the impugned orders 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. in 8. 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 challenge an order of assessment, and the impugned orders 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. 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 ..... But thereis a third class, viz., where a liability not existing atcommon law is created by a statute which at the sametime gives a special and particular remedy for enforcingit ..... the remedy provided by the statute must befollowed, and it is not competent to the party to pursuethe course applicable to cases of the second class. Theform given by the statute must be adopted andadhered 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. 9. 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 become final. 10. Viewed in the light of the law laid down in thedecisions referred to supra, conclusion is irresistible thatthe petitioner cannot challenge Ext.P6 order 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 is available under Section 509 of the Kerala Municipality Act or under Rule 160 of the Kerala Municipality BuildingRules by approaching the Tribunal for Local SelfGovernment Institutions. 11. The learned counsel for the petitioner would submit that the petitioner proposes to file a freshapplication for building permit. In such circumstances, this writ petition is dismissed as no interference is warranted on Ext.P6 order for theaforesaid reason; however, without prejudice to the rightof the petitioner, if any, to avail statutory remedy againstthat order. It is made clear that this judgment will notstand in the way of the petitioner filing a fresh applicationfor building permit and the same being considered by therespondents in accordance with law. Sd/- ANIL K.NARENDRAN, JUDGE AV/15/3 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE REGISTERED SALE DEEDNO.632/2012. EXHIBIT P2 A TRUE COPY OF THE POSSESSION CERTIFICATE DATED 13/03/2018. EXHIBIT P3 A TRUE COPY OF THE TAX RECEIPT DATED 24/02/2018. EXHIBIT P4EXHIBIT P5EXHIBIT P6 A TRUE COPY OF THE BUILDING PLAN. A TRUE COPY OF THE BUILDING SKETCH. A TRUE COPY OF THE ORDER OF REJECTIONOF BUILDING PERMIT ISSUED BY THE 2ND RESPONDENT DATED *(04/04/2018) CORRECTED * CORRECTED THE DATE GIVEN IN ITEM 9 OF THE INDEX PORTION AS THE DATE OF REJECTION OF EXT.P6 AS FROM 4.04.2018TO 28.07.2018 AS PER ORDER DTD 31/10/18 IN IA 1/18.