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. 311 of 2019 PETITIONER: SAJEEVAGED 51 YEARS,S/O.ANTONY, AYNIKKAL HOUSE, KUNDOOR.P.O., THRISSUR DISTRICT-680734. BY ADVS.SRI.ROY CHACKO SRI.K.C.VINCENT SRI.K.C.VINCENT RESPONDENTS: 1STATE OF KERALAREPRESENTED BY SECRETARY,DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM-695001.REPRESENTED BY SECRETARY,DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2THE REVENUE DIVISIONAL OFFICER,IRINGALAKKUDA-680121.IRINGALAKKUDA-680121. 3THE VILLAGE OFFICER,THIRUMUKKULAM VILLAGE, KUZHOOR.P.O-680001.THIRUMUKKULAM VILLAGE, KUZHOOR.P.O-680001. 4THE LOCAL LEVEL MONITORING COMMITTEE,KUZHOOR, REPRESENTED BY THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KUZHOOR, KUZHOOR.P.O-680001.KUZHOOR, REPRESENTED BY THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KUZHOOR, KUZHOOR.P.O-680001. 5THE KUZHOOR GRAMA PANCHAYATREPRESENTED BY ITS SECRETARY, KUZHOOR.P.O-680001.REPRESENTED BY ITS SECRETARY, KUZHOOR.P.O-680001. * 6 LAND 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 ADDL.6TH RESPONDENT AS PER ORDER DATED 06.03.2019.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 property having anextent of 44.11 Ares comprised in survey No.574/1 ofThirumukkulam Village in Chalakkudy Taluk in ThrissurDistrict, covered by Ext.P1 tax receipt, has filed this writpetition under Article 226 of the Constitution of Indiaseeking a writ of certiorari to quash Ext.P11 order dated07.12.2018 issued by the 2[nd]respondent RevenueDivisional Officer; a writ of mandamus commanding the 2[nd]respondent to grant permission to utilise the subject landsas prayed for in Ext.P3 application under clause 6 of theKerala Land Utilisation Order, 1967; and commanding the5[th] respondent to accept and finalise the building permitapplication to be filed by the petitioner, ignoring the entryin the revenue records, but in view of the reports in Exts.P5to P7, subject to the conditions if any deem fit by thisCourt. 2.On 07.01.2019, when this writ petition came upfor admission, the same was ordered to be listed along withW.P.(C) No.290 of 2019. 3. Heard the learned counsel for the petitioner, the learned 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 statutoryremedy under Clause 11 of the Kerala Land UtilisationOrder. The learned counsel for the petitioner would 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 226of the Constitution of India when an efficacious alternativeremedy is available is a rule and self imposed limitation. It is 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 statutoryremedy under Clause 11 of the Kerala Land UtilisationOrder. The learned counsel for the petitioner would 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 226of the Constitution of India when an efficacious alternativeremedy is available is a rule and self imposed limitation. It is essentially a rule of policy, convenience and discretion ratherthan 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 isan adequate 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 defined exceptions 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 whichare repealed, or when an order has been passed in totalviolation of the principles of natural justice. After referring to the law laid down inThansingh Nathmal v.Superintendent of Taxes andTitaghur 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. 8.In Thansingh Nathmal's case (supra) a Constitution Bench ofthe Apex Court held that, the the law laid down inThansingh Nathmal v.Superintendent of Taxes andTitaghur 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. 8.In Thansingh Nathmal's case (supra) a Constitution Bench ofthe Apex Court held that, the jurisdiction 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: itis 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 imposedlimitations. Resort to that jurisdiction is not intended as analternative remedy for relief which may be obtained in a suitor other mode prescribed by statute. Ordinarily, the courtwill not entertain a petition for a writ under Article 226,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 not by assuming jurisdiction under Article 226 trench upon analternative 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 Works Co. 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 Newspaper Co. 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 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. 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 same is challenged before the appropriate forum, within theprescribed 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, inview of the statutory remedy available under Clause 11 ofthe Kerala Land Utilisation Order, the petitioner cannotmaintain a challenge against Ext.P11 order in a writ petitionfiled under 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 ofsuch order. Before the expiry of the said time limit, thepetitioner has moved this Court in this writ petition, on04.01.2019. The learned counsel for the petitioner would 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 226 Having considered the submissions made by the of the Constitution of India, challenging Ext.P11 order ofthe 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 thisjudgment, the additional 6[th] respondent shall consider thesame as one filed within the time limit, (since the petitionerhas challenged 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 andafter affording them an opportunity of being heard. Necessary orders in this regard shall be passed, asexpeditiously as possible, at any rate, within a period oftwo months from the date of receipt of such appeal. bpr Sd/- ANIL K. NARENDRAN JUDGE APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1TRUE COPY OF TAX RECEIPT DATED 12/05/2017.12/05/2017. EXHIBIT P2TRUE COPY OF THE RELEVANT PAGE OF THE DATE BANK DATED NIL.DATE 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 07/04/2017 IN WP(C)NO.37846/2016.07/04/2017 IN WP(C)NO.37846/2016. EXHIBIT P5TRUE COPY OF THE CERTIFICATE DATED 28/04/2017 ISSUED BY THE AGRICULTURAL OFFICER.28/04/2017 ISSUED BY THE AGRICULTURAL OFFICER. Necessary orders in this regard shall be passed, asexpeditiously as possible, at any rate, within a period oftwo months from the date of receipt of such appeal. bpr Sd/- ANIL K. NARENDRAN JUDGE APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1TRUE COPY OF TAX RECEIPT DATED 12/05/2017.12/05/2017. EXHIBIT P2TRUE COPY OF THE RELEVANT PAGE OF THE DATE BANK DATED NIL.DATE 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 07/04/2017 IN WP(C)NO.37846/2016.07/04/2017 IN WP(C)NO.37846/2016. EXHIBIT P5TRUE COPY OF THE CERTIFICATE DATED 28/04/2017 ISSUED BY THE AGRICULTURAL OFFICER.28/04/2017 ISSUED BY THE AGRICULTURAL OFFICER. EXHIBIT P6TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 22/02/20-17 AND KSRSEC REPORT DATED 30/01/2017 FILED BEFORE THIS HON'BLE COURT ON 24/03/2017.AGRICULTURAL OFFICER DATED 22/02/20-17 AND KSRSEC REPORT DATED 30/01/2017 FILED BEFORE THIS HON'BLE COURT ON 24/03/2017. 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 15/11/2017 ISSUED BY THE 2ND RESPONDENT, THE REVENUE DIVISIONAL OFFICER.OFFICER. EXHIBIT P9TRUE COPY OF THE JUDGMENT IN WP(C)NO.39606 OF 2017 DATED 03/08/2018.WP(C)NO.39606 OF 2017 DATED 03/08/2018. EXHIBIT P10TRUE COPY OF THE STATEMENT DATED 05/10/2018 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.05/10/2018 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P11TRUE COPY OF THE PROCEEDINGS OF THE 2NDRESPONDENT DATED 07/12/2018.RESPONDENT DATED 07/12/2018. EXHIBIT P12COPY OF THE PETITION DATED 14.01.2019 SUBMITTED BEFORE THE 2ND RESPONDENT.SUBMITTED BEFORE THE 2ND RESPONDENT.