In Commissioner Of Income Tax v. Chhabil

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY,THE 06TH DAY OF MARCH 2019 / 15TH PHALGUNA, 1940 WP(C).No. 290 of 2019 PETITIONER: DR.SINDHU, AGED 41 YEARS,W/O.SAJEEV, AYNIKKAL HOUSE, KUNDOOR.P.O, THRISSUR DISTRICT-680734. BY ADVS.SRI.ROY CHACKO SRI.K.C.VINCENT RESPONDENTS: 5 THE KUZHOOR GRAMA PANCHAYATREPRESENTED BY ITS SECRETARY, KUZHOOR.P.O-680001. ADDL.R6LAND REVENUE COMMISSIONER,PUBLIC OFFICE BUILDING, VIKAS BHAVAN POST OFFICE,THIRUVANANTHAPURAM, PIN-659 033.PUBLIC OFFICE BUILDING, VIKAS BHAVAN POST OFFICE,THIRUVANANTHAPURAM, PIN-659 033. * IS SUO MOTU IMPLEADED AS PER ORDER DATED 06.03.2019. BY ADV. SRI.S.VIDYASAGAR SRI MANU RAJ K.J,GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON06.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, who is the owner of properties havingan extent of 10.93 Ares and 21.45 Ares respectivelycomprised in survey No.572/1 of Thirumukkulam Village inChalakkudy Taluk in Thrissur District, covered by Ext.P1 taxreceipt, has filed this writ petition under Article 226 of theConstitution of India seeking a writ of certiorari to quashExt.P11 order dated 07.12.2018 issued by the 2[nd]respondent Revenue Divisional Officer; a writ of mandamuscommanding the 2[nd] respondent to grant permission toutilise the subject lands as prayed for in Ext.P3 applicationunder clause 6 of the Kerala Land Utilisation Order, 1967;and commanding the 5[th] respondent to accept and finalisethe building permit application to be filed by the petitioner,ignoring the entry in the revenue records, but in view of thereports in Exts.P5 to P7, subject to the conditions if anydeem fit by this Court. 2.On 07.01.2019, when this writ petition came upfor admission, the same was ordered to be listed along withW.P.(C) No.311 of 2019. 3.Heard the learned counsel for the petitioner, thelearned Government Pleader appearing for respondents 1 to4 and the additional 6[th] respondent, and the learnedStanding Counsel for the 5[th] respondent Grama Panchayath. 4.Ext.P11 order, which is one issued by the 2[nd]respondent dated 07.12.2018 is appealable before theadditional 6[th] respondent Land Revenue Commissioner, byinvoking Clause 11 of the Kerala Land Utilisation Order. Thesaid fact is not in dispute. 5.The learned counsel for the petitioner wouldcontend that the findings in Ext.P11 order are erroneousand in such circumstances, the petitioner has filed this writpetition on 04.01.2019, instead of availing statutory remedyunder Clause 11 of the Kerala Land Utilisation Order. 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 alternativeremedy is available is a rule and self imposed limitation. It isessentially a rule of policy, convenience and discretion rather than 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. than 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 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 acted inaccordance with the provisions of the enactment in questionor in defiance of the fundamental principles of judicialprocedure, or has resorted to invoke the provisions which arerepealed, or when an order has been passed in total violationof the principles of natural justice. After referring to the lawlaid down in Thansingh Nathmal v. Superintendent ofTaxes and Titaghur Paper MillsCompany Ltd. v. State of Orissa [(1983) 2 SCC 433] theApex Court held that High Court will not entertain a petitionunder Article 226 of the Constitution if an effectivealternative remedy is available to the aggrieved person orthe statute under which the action complained of contains amechanism for redressal of grievance. Therefore, when astatutory forum is created by law for redressal of grievances,a writ petition should not be entertained ignoring thestatutory dispensation. 8.InThansingh 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 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 ordinarilybe exercised subject to certain self imposed limitations.Resort to that jurisdiction is not intended as an alternativeremedy for relief which may be obtained in a suit or othermode prescribed by statute. Ordinarily, the court will notentertain a petition for a writ under Article 226, where thepetitioner has an alternative remedy, which without beingunduly onerous, provides an equally efficacious remedy.Again the High Court does not generally enter upon adetermination of questions which demand an elaborateexamination of evidence to establish the right to enforce forwhich the writ is claimed. The High Court does not,therefore, act as a court of appeal against the decision of acourt or tribunal, to correct errors of fact, and does not byassuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief.Where it is open to the aggrieved petitioner to move anothertribunal or even itself in another jurisdiction for obtainingredress in the manner provided by a statute, the High Courtnormally will not permit by entertaining a petition underArticle 226 of the Constitution the machinery created underthe statute to be bypassed, and will leave the party applyingto it to seek resort to the machinery so set up. alternative remedy provided by statute for obtaining relief.Where it is open to the aggrieved petitioner to move anothertribunal or even itself in another jurisdiction for obtainingredress in the manner provided by a statute, the High Courtnormally will not permit by entertaining a petition underArticle 226 of the Constitution the machinery created underthe statute to be bypassed, and will leave the party applyingto it to seek 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 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 Article 226of the Constitution. It is now well recognised that where aright or liability is created by a statute which gives a specialremedy for enforcing it, the remedy provided by that statuteonly must be availed of. This rule was stated with greatclarity by Willes, J. in Wolverhampton New Water WorksCo. 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." 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 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. 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 sameis challenged before the appropriate forum, within the prescribed time limit, the said order will become final. 11.Viewed in the light of the law laid down in thedecisions referred to supra, conclusion is irresistible, in viewof the statutory remedy available under Clause 11 of theKerala Land Utilisation Order, the petitioner cannot maintaina challenge against Ext.P11 order, in a writ petition filedunder Article 226 of the Constitution of India. 12.The learned counsel for the petitioner wouldsubmit that the time limit for filing appeal under Clause 11of the Kerala Land Utilisation Order against an order of the2[nd] respondent is thirty days from the date of receipt of suchorder. Before the expiry of the said time limit, the petitionerhas already moved this Court in this writ petition, on04.01.2019. 13.Having considered the submissions made by thelearned counsel on both sides, this writ petition is disposedof, holding that, in view of the statutory remedy availableunder Clause 11 of the Kerala Land Utilisation Order, thepetitioner cannot maintain a writ petition under Article 226of the Constitution of India, challenging Ext.P11 order of the Having considered the submissions made by the 2[nd] respondent. Therefore, it is for the petitioner tochallenge Ext.P11 order of the 2[nd] respondent by filing anappeal before the additional 6[th] respondent, invoking theprovisions under Clause 11 of the Kerala Land UtilisationOrder. 13.Having considered the submissions made by thelearned counsel on both sides, this writ petition is disposedof, holding that, in view of the statutory remedy availableunder Clause 11 of the Kerala Land Utilisation Order, thepetitioner cannot maintain a writ petition under Article 226of the Constitution of India, challenging Ext.P11 order of the Having considered the submissions made by the 2[nd] respondent. Therefore, it is for the petitioner tochallenge Ext.P11 order of the 2[nd] respondent by filing anappeal before the additional 6[th] respondent, invoking theprovisions under Clause 11 of the Kerala Land UtilisationOrder. 14.If any such appeal is preferred within two weeksfrom the date of receipt of a certified copy of this judgment,the additional 6[th] respondent shall consider the same as onefiled within the time limit, (since the petitioner haschallenged the said order by filing this writ petition on04.01.2019) and pass appropriate orders thereon, withnotice to the petitioner and also the 5[th] respondent and afteraffording them an opportunity of being heard. Necessary orders in this regard shall be passed, asexpeditiously as possible, at any rate, within a period of twomonths from the date of receipt of such appeal. Sd/- ANIL K. NARENDRAN JUDGE bpr APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1TRUE COPY OF TAX RECEIPT DT 12/05/2017.12/05/2017. EXHIBIT P2TRUE COPY OF THE RELEVANT PAGE OF THE DATE BANK DATED NILDATE BANK DATED NIL EXHIBIT P3TRUE COPY OF THE APPLICATION UNDER CLAUSE 6 OF KLU ORDER DATED 17/11/2016.CLAUSE 6 OF KLU ORDER DATED 17/11/2016. EXHIBIT P4TRUE COPY OF THE JUDGMENT DATED 28/11/2016 IN WP(C)37939 OF 2016.28/11/2016 IN WP(C)37939 OF 2016. EXHIBIT P5TRUE COPY OF THE REPORT DATED 06/03/2017 SUBMITTED BY THE 06/03/2017 SUBMITTED BY THE AGRICULTURAL OFFICER ALONG WITH THE REPORT RECEIVED FROM THE KSRSEC DATED 30/01/2017.REPORT RECEIVED FROM THE KSRSEC DATED 30/01/2017. EXHIBIT P6TRUE COPY OF THE REPORT OF THE AGRI.OFFICER DATED 21/05/2017.AGRI.OFFICER DATED 21/05/2017. EXHIBIT P7TRUE COPY OF THE REPORT OF THE TAHSILDAR DATED 26/09/2017.TAHSILDAR DATED 26/09/2017. EXHIBIT P8TRUE COPY OF THE PROCEEDINGS DATED 15/11/2017 ISSUED BY THE 2ND RESPONDENT, THE REVENUE DIVISIONAL OFFICER.15/11/2017 ISSUED BY THE 2ND RESPONDENT, THE REVENUE DIVISIONAL OFFICER. EXHIBIT P9TRUE COPY OF THE JUDGMENT IN WP(C)NO.39649 OF 2018 DATED 03/08/2018.WP(C)NO.39649 OF 2018 DATED 03/08/2018. EXHIBIT P10TRUE COPY OF THE STATEMENT SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 05/10/2018.BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 05/10/2018. EXHIBIT P11TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 07/12/2018.2ND RESPONDENT DATED 07/12/2018. EXHIBIT P12COPY OF THE PETITION DATED 14.01.2019 SUBMITTED BEFORE THE 2ND RESPONDENT.SUBMITTED BEFORE THE 2ND RESPONDENT.