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 03RD DAY OF APRIL 2019 / 13TH CHAITHRA, 1941WP(C).No. 10445 of 2019 PETITIONER : SREE GOKULAM CHIT AND FINANCE COMPANY PRIVATE LIMITED,NO.66(OLD NO.356) ARCOT ROAD, KOAMBAKKAM, CHENNAI-24, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, MR.K.N.LENIN, S/O. LATE NARAYANAN, DEPUTY MANAGER, SREE GOKULAM CHIT AND FINANCE COMPANY PVT. LTD, BRANCH OFFICE AT IST FLOOR, CORPORATION COMPLEX,VYTTILLA, COCHIN-19, ERNAKULAM DISTRICT. BY ADVS.SRI.K.S.BABUSMT.BOBBY U. NAIRSMT.DHANUJA M.SSMT.MINU SIBY ROYSMT.N.SUDHASRI.BABU SHANKAR RESPONDENTS: 1CORPORATION OF KOCHICORPORATION OFFICE, PARK AVENUE, P.B.NO.1016, KOCHI-682 011, REPRESENTED BY ITS SECRETARY.2THE REVENUE OFFICERCORPORATION OFFICE, PARK AVENUE, P.B.NO.1016, KOCHI-682 011. 3STATE OF KERALAREPRESENTED BY ADDITIONAL SECRETARY TO LOCAL SELF GOVERNMENT INSTITUTIONS, SECRETARIAT, THIRUVANANTHAPURAM-695 001. BY SRI RAJU SEBASTIAN VADAKKEKARA-STANDING COUNSEL, KOCHI CORPORATION ; BY SRI MANU RAJ K.J-GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, which is stated to be a Company registered under the Companies Act, 1956, which isrunning, Chit and Finance business, occupying RoomNo.2 on the 1[st] Floor in South Block of Vyttila ShoppingComplex of the 1[st] respondent Corporation by paying amonthly licence fee of Rs.24,477/-, has filed this writpetition under Article 226 of the Constitution of India,seeking a writ of mandamus commanding respondents 1and 2 to dispose of Ext.P2; a declaration that theinaction of the respondents is highly illegal,discriminatory and arbitrary; and to award the cost ofthe proceedings to the petitioner. 2. Heard the learned counsel for the petitioner, the learned Standing Counsel for the Corporationrepresenting respondents 1 and 2 and also the learnedGovernment Pleader appearing for the 3[rd] respondent. 3. The pleadings and materials on record wouldshow that the petitioner is the licensee in respect ofshop room No.2 in the South Block of Vyttila Shopping Complex of the 1[st] respondent Corporation, on paymentof monthly licence fee of Rs.24,477/-. On 17.03.2018,the petitioner has been issued with Ext.P1 notice of theCorporation, whereby a demand for licence fee at therate of Rs.51,000/- has been made, with retrospectiveeffect from 01.04.2017, and the petitioner has beendirected to pay a sum of Rs.6,09,982/- towards arrearsof the rent along with a deposit amount of Rs.1,81,542/-and GST. On receipt of Ext.P1 notice, the petitionercaused to issue Ext.P2 lawyer notice dated 10.04.2018,whereby a request has been made for fixing areasonable rate of licence fee and for renewal of thelicence deed with effect from 01.04.2018 onwards. Now,the petitioner is before this Court in this writ petitionseeking consideration of Ext.P2 lawyer notice. 4. Ext.P1 is a notice issued by the 2[nd] respondent,in exercise of powers of the Secretary of the 1[st]respondent Corporation, demanding licence fee at therate of Rs.51,000/- with effect from 01.04.2017, inrespect of the shop room No.2, which is having a plinth area of 1700 sq.feet. As can be seen from Ext.P1, sucha notice has been issued based on the Decision No.20 ofthe Standing Committee for Finance dated 15.03.2017and also Decision No.30 of the Municipal Council dated11.07.2017. If the petitioner was feeling aggrieved bythe demand of licence fee at the enhanced rate, witheffect from 01.04.2017, the petitioner should haveavailed the statutory remedy by approaching theappropriate forum, invoking the provisions under Section509 of the Kerala Municipality Act, 1994, within the timelimit specified in the statute. 4. During the course of arguments, it has come out area of 1700 sq.feet. As can be seen from Ext.P1, sucha notice has been issued based on the Decision No.20 ofthe Standing Committee for Finance dated 15.03.2017and also Decision No.30 of the Municipal Council dated11.07.2017. If the petitioner was feeling aggrieved bythe demand of licence fee at the enhanced rate, witheffect from 01.04.2017, the petitioner should haveavailed the statutory remedy by approaching theappropriate forum, invoking the provisions under Section509 of the Kerala Municipality Act, 1994, within the timelimit specified in the statute. 4. During the course of arguments, it has come out that despite the issuance of Ext.P1 notice dated17.03.2018 demanding licence fee at the enhanced rateof Rs.51,000/-, the petitioner is occupying Room No.2 inthe shopping complex in question by remitting licencefee at the rate of Rs.24,477/-. Despite non-payment oflicence fee at the enhanced rate as per Ext.P1, theCorporation has not chosen to make any coercive stepsagainst the petitioner. 5. 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 ofIndia, 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. 6. InAuthorised Officer, State Bank ofTravancore v. Mathew K.C.[(2018) 3 SCC 85], theApex Court reiterated that the discretionary jurisdiction under 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 Constitution if an effective alternative remedy is available to the aggrieved 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. if an effective alternative remedy is available to the aggrieved 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. 7. 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 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 not entertain a petition for a writ under Article 226, where the 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 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. 8. In Titaghur Paper Mills' case (supra)a Three-Judge Bench of the Apex Court held that, the Orissa Sales Tax Act, 1947 provides for a completemachinery to challenge an order of assessment, and theimpugned orders of assessment can only be challengedby the mode prescribed by the Act and not by a petitionunder Article 226 of the Constitution. It is now wellrecognised that where a right or liability is created by astatute which gives a special remedy for enforcing it, theremedy provided by that statute only must be availed of.This rule 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 ExpressNewspaper Ltd.[1919 AC 368] and has beenreaffirmed by the Privy Council in Attorney General ofTrinidad and Tobago v. Gordon Grant and Co.[1935 AC 532] and Secretary of State v. Mask andCo. . It has also been held to beequally applicable to enforcement of rights and has beenfollowed by the Apex Court throughout. 9. In Pavithran V. State of Kerala (2009 (4) The rule laid down in that passage was approved by the House of Lords in Neville 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.[1935 AC 532] and Secretary of State v. Mask andCo. . It has also been held to beequally applicable to enforcement of rights and has beenfollowed by 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 becomefinal. 10. In the absence of a challenge made by thepetitioner against the demand of licence fee at theenhanced rate, by availing the statutory remedy underSection 509 of the Kerala Municipality Act, 1994 byapproaching the appropriate forum, within the time limit specified in the statute, the petitioner cannot seek interference on that demand by consideration of Ext.P2,which is only a lawyer notice. 11.In Santosh Kumar v. Central Warehousing Corporation [(1986) 2 SCC 343] the Apex Court heldthat what may not be done under the provisions of theAct may not be permitted to be done by invoking thejurisdiction of the High Court under Article 226 of theConstitution of India. Article 226 is not meant to avoidor circumvent the process of the law and the provisionsof the Statute. Having considered the submissions made by the learned counsel on both sides, this Court finds thatdespite the receipt of Ext.P1 notice, the petitioner hasnot chosen to avail statutory remedy against thedemand for enhanced licence fee, by approaching theappellate authority under Section 509 of the KeralaMunicipality Act. The said notice is also not underchallenge in this writ petition. Even if it is underchallenge, no interference is warranted in view of the statutory remedy available under Section 509 of theMunicipalities Act. Having failed to challenge Ext.P1 atappropriate time, the petitioner cannot now seekinterference on Ext.P1 notice, by consideration of Ext.P2. In such circumstances, this writ petition fails andthe same is accordingly dismissed. No order as to costs. AV/4/4 Sd/- ANIL K.NARENDRAN, JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 THE TRUE PHOTOSTAT COPY OF THE NOTICEDATED 17.3.2018 ISSUED BY THE CORPORATION OF KOCHI, THROUGH ITS REVENUE OFFICER TO THE PETITIONER. EXHIBIT P2 THE TRUE PHOTOSTAT COPY OF THE REPLY NOTICE ISSUED BY THE PETITIONER TO THE CORPORATION OF KOCHI. EXHIBIT P2 A THE TRUE PHOTOSTAT COPY OF RECEIPT OFACKNOWLEDGMENT OF EXHIBHIT P2 BY THE IST RESPONDENT. EXHIBIT P2 B THE TRUE PHOTOSTAT COPY OF RECEIPT OFACKNOWLEDGMENT OF EXHIBIT P2 BY THE 2ND RESPONDENT. EXHIBIT P3 THE TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED 21.12.2018 IN WPC NO.42393/2018.