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 15TH DAY OF FEBRUARY 2019 / 26TH MAGHA, 1940WP(C).No. 27198 of 2018 PETITIONER: MULAVOOR URBAN CO-OPERATIVE SOCIETY LTD.NO.E 1068REPRESENTED BY THE PRESIDENT, MULAVOOR.P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT. BY ADV. SRI.GEORGE POONTHOTTAM (SR.) RESPONDENTS: 1THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES,5TH FLOOR, B2 BLOCK, KAKKANAD CIVIL STATION, KAKKANAD, ERNAKULAM-682030.5TH FLOOR, B2 BLOCK, KAKKANAD CIVIL STATION, KAKKANAD, ERNAKULAM-682030. 2THE ASSISTANT REGISTRAR OFCO-OPERATIVE SOCIETIES (GENERAL), MUVATTUPUZHA, ERNAKULAM-686661.CO-OPERATIVE SOCIETIES (GENERAL), MUVATTUPUZHA, ERNAKULAM-686661. 3THE UNIT INSPECTOR,OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), MUVATTUPUZHA, ERNAKULAM-686661. ADDL.4 THE STATE OF KERALA,REPRESENTED BY THE SECRETARY TO GOVERNMENT, CO-OPERATIVE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001. REPRESENTED BY THE SECRETARY TO GOVERNMENT, CO-OPERATIVE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001. ADDL.R4 IS SUO MOTU IMPLEADED AS PER ORDER DATED 15.2.2019 IN WPC.15.2.2019 IN WPC. SMT C.S.SHEEJA, SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.27198 of 2018 :-2-: J U D G M E N T The petitioner, which is an Urban Co-operativeSociety registered under the Kerala Co-operativeSocieties Act, 1969 and the rules made thereunder,has filed this writ petition under Article 226 ofthe Constitution of India, seeking a writ ofcertiorari to quash Ext.P5 order dated 2.8.2018 of1st respondent Joint Registrar. The petitioner hasalso sought for a writ of mandamus directing aninquiry in relation to the inaccurate statement inExt.P5, which were made deliberately for theclosure of the evening branch with a further viewto de-stabilise the functioning of the Society. Thefurther relief sought for is a writ of mandamusdeclaring that the petitioner Society is entitledto continue the evening branch sanctioned as perExt.P3, as it has achieved the desired result byopening the said branch, and also a declaration W.P.(C)No.27198 of 2018 :-3-: that there is no authority enjoyed by the authorities to direct the closure of a branch aftersanctioning and commenced functioning. 2.On 10.8.2018 when this writ petition came up for admission, the learned Senior GovernmentPleader was directed to get instructions as towhether Ext.P5 order passed by the 1st respondentJoint Registrar is one issued with notice to thepetitioner. Thereafter, by order dated 10.8.2018,this Court appointed an Advocate Commissioner toconduct local inspection and submit a report beforethis Court as to the distance between the HeadOffice of the petitioner Society and its twobranches at Nellikkuzhy, including the EveningBranch covered by Ext.P5 order. 3.The report of the Advocate Commissioner isplaced on record. The 1st respondent has filed acounter affidavit, opposing the reliefs sought forin this writ petition. W.P.(C)No.27198 of 2018 4.Heard the learned counsel for thepetitioner and the learned Senior GovernmentPleader appearing for the respondents. 5.The issue that arises for consideration in 3.The report of the Advocate Commissioner isplaced on record. The 1st respondent has filed acounter affidavit, opposing the reliefs sought forin this writ petition. W.P.(C)No.27198 of 2018 4.Heard the learned counsel for thepetitioner and the learned Senior GovernmentPleader appearing for the respondents. 5.The issue that arises for consideration in this writ petition is as to whether anyinterference is warranted on Ext.P5 order dated2.8.2018 of the 1st respondent Joint Registrar,whereby permission for continuance of the eveningbranch of the petitioner Society at Nellikuzhistands declined and the Society is asked to closedown the branch forthwith and report the said fact.In the writ petition, one of the main contentionsraised by the petitioner is that Ext.P5 order isone issued based on incorrect and misleading facts.According to the petitioner, the statement inExt.P5 that the distance between the evening branchand main branch at Canal Palam junction is 800meters, is factually incorrect. The AdvocateCommissioner has filed a report after conducting :-5-: inspection. 6.During the course of arguments, on aspecific query made by this Court, the learnedcounsel for the petitioner would submit that Ext.P5order of the 1st respondent Joint Registrar isappealable before the Government under Section83(i)(j) of the Act. Such an appeal has to be filedwithin a period of 60 days from the date of receiptof that order. 7.In Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603] the Apex Court heldthat non-entertainment of a writ petition underArticle 226 of the Constitution of India when anefficacious alternative remedy is available is arule and self imposed limitation. It is essentiallya rule of policy, convenience and discretion ratherthan a rule of law. Undoubtedly, it is within thediscretion of the High Court to grant relief underArticle 226 of the Constitution of India, despite W.P.(C)No.27198 of 2018 :-6-: the existence of alternative remedy. However, HighCourt must not interfere if there is an adequateefficacious alternative remedy available to thepetitioner and he has approached the High Courtwithout availing the same, unless he has made outan exceptional case warranting such interference orthere exists sufficient ground to invoke theextraordinary jurisdiction under Article 226. 8.InAuthorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85] the Apex Courtreiteratedthatthediscretionaryjurisdiction under Article 226 of the Constitutionof India is not absolute but has to be exercisedjudiciously in the given facts of a case and inaccordance with law. The normal rule is that a writpetition under Article 226 of the Constitution ofIndia ought not to be entertained if alternativestatutory remedies are available, except in casesfalling within the well defined exceptions as :-7-: observed in Chaabil Das Agarwal's case (supra),i.e., where the statutory authority has not actedin accordance with the provisions of the enactmentin question or in defiance of the fundamentalprinciples of judicial procedure, or has resortedto invoke the provisions which are repealed, orwhen an order has been passed in total violation ofthe principles of natural justice. After referringto the law laid down in Thansingh Nathmal v. Superintendent of Taxes and Titaghur Paper Mills Company Ltd. v. State ofOrissa [(1983) 2 SCC 433] the Apex Court held thatHigh Court will not entertain a petition underArticle 226 of the Constitution if an effectivealternative remedy is available to the aggrievedperson or the statute under which the actioncomplained of contains a mechanism for redressal ofgrievance. Therefore, when a statutory forum iscreated by law for redressal of grievances, a writ :-8-: petition should not be entertained ignoring thestatutory dispensation. Superintendent of Taxes and Titaghur Paper Mills Company Ltd. v. State ofOrissa [(1983) 2 SCC 433] the Apex Court held thatHigh Court will not entertain a petition underArticle 226 of the Constitution if an effectivealternative remedy is available to the aggrievedperson or the statute under which the actioncomplained of contains a mechanism for redressal ofgrievance. Therefore, when a statutory forum iscreated by law for redressal of grievances, a writ :-8-: petition should not be entertained ignoring thestatutory dispensation. 9.In Thansingh Nathmal's case (supra) aConstitution Bench ofthe Apex Court held that, thejurisdiction of the High Court under Article 226 ofthe Constitution is couched in wide terms and theexercise thereof is not subject to any restrictionsexcept the territorial restrictions which areexpressly provided in the Articles. But theexercise of the jurisdiction is discretionary: itis not exercised merely because it is lawful to doso. The very amplitude of the jurisdiction demandsthat it will ordinarily be exercised subject tocertain self imposed limitations. Resort to thatjurisdiction is not intended as an alternativeremedy for relief which may be obtained in a suitor other mode prescribed by statute. Ordinarily,the court will not entertain a petition for a writunder Article 226, where the petitioner has an :-9-: alternative remedy, which without being undulyonerous, provides an equally efficacious remedy.Again the High Court does not generally enter upona determination of questions which demand anelaborate examination of evidence to establish theright to enforce for which the writ is claimed. TheHigh Court does not, therefore, act as a court ofappeal against the decision of a court or tribunal,to correct errors of fact, and does not by assumingjurisdiction under Article 226 trench upon analternative remedy provided by statute forobtaining relief. Where it is open to the aggrievedpetitioner to move another tribunal or even itselfin another jurisdiction for obtaining redress inthe manner provided by a statute, the High Courtnormally will not permit by entertaining a petitionunder Article 226 of the Constitution the machinerycreated under the statute to be bypassed, and willleave the party applying to it to seek resort to :-10-: the machinery so set up. 10. In Titaghur Paper Mills' case (supra) aThree-Judge Bench of the Apex Court held that, theOrissa Sales Tax Act, 1947 provides for a completemachinery to challenge an order of assessment, andthe impugned orders of assessment can only bechallenged by the mode prescribed by the Act andnot by a petition under Article 226 of theConstitution. It is now well recognised that wherea 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 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 aliability may be established founded uponstatute ..... But there is a third class,viz., where a liability not existing at common law is created by a statute which at the sametime gives a special and particular remedy forenforcing it ..... the remedy provided by thestatute must be followed, and it is notcompetent to the party to pursue the courseapplicable 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 in Neville v. London Express Newspaper Ltd.[1919 AC 368] and has been reaffirmed "There are three classes of cases in which aliability may be established founded uponstatute ..... But there is a third class,viz., where a liability not existing at common law is created by a statute which at the sametime gives a special and particular remedy forenforcing it ..... the remedy provided by thestatute must be followed, and it is notcompetent to the party to pursue the courseapplicable 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 in Neville v. London Express Newspaper Ltd.[1919 AC 368] and has been reaffirmed 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 beenfollowed by the Apex Court throughout. 11.The learned counsel for the petitionerwould submit that the petitioner shall file anappeal before the State, challenging Ext.P5 orderdated 2.8.2018 of the 1strespondent Joint :-12-: Registrar, invoking the provisions under Section83(i)(j) of the Act. Learned counsel would alsosubmit that along with the said appeal, thepetitioner shall also move an application forinterim relief and that the interim order grantedby this Court may be continued till an order is passed by the Government in that interlocutoryapplication. 12.Learned Senior Government Pleader would submit that if any such appeal is received withinthe time limit to be specified by this Court, itshall be considered by the appropriate authoritywith notice to the petitioner and after affordingthe petitioner an opportunity of being heard. Having considered the submissions made by thelearned counsel on both sides, this writ petitionis disposed of with the following directions; (i) Within two weeks from the date of receiptof a certified copy of this judgment, the W.P.(C)No.27198 of 2018 :-13-: petitioner shall file an appeal against Ext.P5order before the Government, invoking Section83(i)(j) of the Kerala Co-operative SocietiesAct. Along with the said appeal, the petitionershall also move an application for the interimrelief. (ii) If such an appeal, along with applicationfor interim relief is received by theadditional 4threspondent State, the saidrespondent shall consider the interlocutoryapplication filed by the petitioner and passappropriate orders thereon within a period oftwo weeks. Till such orders are passed, the interim ordergranted by this Court on 10.8.2018 shall continueto be in force. It is made clear that the observations, if any,contained in this judgment touching the merits ofthe claim made by the petitioner, are made for thelimited purpose of disposal of this writ petitionand the additional 4th respondent State shallconsider the appeal and also the interlocutoryapplication for the interim relief, untrammelled by W.P.(C)No.27198 of 2018 any of such observations. All legal and factual contentions raised by the petitioner are left open to be raised before the 1strespondent at appropriate stage. All pending interlocutory applications areclosed. Sd/- ANIL K.NARENDRAN JUDGE ami/ W.P.(C)No.27198 of 2018 :-15-: APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ORDER NO.HM 8508/12 KDIS. DATED 30.11.2012 PASSED BY THE JOINT REGISTRAR. EXHIBIT P2TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER SOCIETY WITH ALL THE DOCUMENTS ATTACHED THEREWITH. EXHIBIT P3TRUE COPY OF THE ORDER NO.HM 9466/14/K.DIS. DATED 12.5.2015 PASSED BYTHE JOINT REGISTRAR. EXHIBIT P4TRUE COPY OF THE RESOLUTION DATED 10.11.2016 WITH ENCLOSURES.10.11.2016 WITH ENCLOSURES. EXHIBIT P5 TRUE COPY OF THE COMMUNICATION NO.HM/8074/16/K.DIS. DATED 2.8.2018 ISSUED BY THE JOINT REGISTRAR. petitioner are left open to be raised before the 1strespondent at appropriate stage. All pending interlocutory applications areclosed. Sd/- ANIL K.NARENDRAN JUDGE ami/ W.P.(C)No.27198 of 2018 :-15-: APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ORDER NO.HM 8508/12 KDIS. DATED 30.11.2012 PASSED BY THE JOINT REGISTRAR. EXHIBIT P2TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER SOCIETY WITH ALL THE DOCUMENTS ATTACHED THEREWITH. EXHIBIT P3TRUE COPY OF THE ORDER NO.HM 9466/14/K.DIS. DATED 12.5.2015 PASSED BYTHE JOINT REGISTRAR. EXHIBIT P4TRUE COPY OF THE RESOLUTION DATED 10.11.2016 WITH ENCLOSURES.10.11.2016 WITH ENCLOSURES. EXHIBIT P5 TRUE COPY OF THE COMMUNICATION NO.HM/8074/16/K.DIS. DATED 2.8.2018 ISSUED BY THE JOINT REGISTRAR. EXHIBIT P6TRUE COPY OF THE CHALAN EVIDENCING THE REMITTANCE OF THE AMOUNT.REMITTANCE OF THE AMOUNT. RESPONDENTS' EXHIBITS: EXHIBIT R1(a)A TRUE COPY OF THE CIRCULAR NO.30/2014 DATED 21.6.2014.DATED 21.6.2014. EXHIBIT R1(b)A TRUE COPY OF THE REPORT NO.1502/16 DATED 19.12.2016.