In Commissioner Of Income Tax v. Chhabil

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 11TH DAY OF APRIL 2019 / 21ST CHAITHRA, 1941 WP(C).No. 11051 of 2019 PETITIONER: M.SANTHOSH KUMAR,AGED 59 YEARS, ROOM NO. 6, SOUTH OVER BRIDGE SHOPPING COMPLEX, ERNAKULAM, PIN 682 016, RESIDING AT SANGEETHAM, ASHOKA ROAD, KALOOR P.O, ERNAKULAM BY ADV. SRI.RAJESH NAIR RESPONDENTS: 1THE CORPORATION OF COCHIN,REPRESENTED BY ITS SECRETARY, COCHIN, PIN-682 011.2THE SECRETARY,CORPORATION OF COCHIN, COCHIN, PIN-682 011.3THE REVENUE OFFICER,CORPORATION OF COCHIN, COCHIN, PIN-682 011.4THE STANDING COMMITTEE OF FINANCE,CORPORATION OF COCHIN, REPRESENTED BY ITS CHAIRMAN, COCHIN PIN-682 011.5STATE OF KERALA,REPRESENTED BY THE SECRETARY, LOCAL ADMINISTRATION DEPARTMENT, MINISTRY OF LOCAL ADMINISTRATION, SECRETARIAT, THIRUVANANTHAPURAM-695 011. BY ADV. SRI.RAAJESH S.SUBRAHMANIAN,SC,COCHIN CORPORATION SMT MABLE C.KURIEN,GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON11.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, who is a tenant of shop room No.6 inSouth Over Bridge Shopping Complex, Ernakulam owned bythe 1[st] respondent Corporation, has filed this writ petitionunder Article 226 of the Constitution of India seeking a writof certiorari to quash Ext.P3 notice dated 07.03.2018, Ext.P6notice dated 04.12.2018 and Ext.P9 order dated 11.03.2019and also Decision No.86 dated 01.03.2019 of the 4[th]respondent Standing Committee of Finance, referred to inExt.P9. The petitioner has also sought for a writ ofmandamus commanding the respondents not to compel andcoerce the petitioner to pay the enhanced rent, including therent enhanced with retrospective effect from 01.04.2017onwards as per Exts.P3, P6, P9 and Decision No.86 dated01.03.2019 of the 4[th] respondent and further to restrain therespondents from initiating any revenue recoveryproceedings against the petitioner, by any authority undertheir requisition; commanding the respondents not to evictthe petitioner from shop room No.6 in South Over Bridge Shopping Complex, having an extent of 960 square feet onthe basis that the enhanced rent as shown in Ext.P9 is notpaid by the petitioner. The further relief sought for is adeclaration that the petitioner is entitled for continuedoccupation of the room allotted to him by the 1[st] respondentin shop room No.6 in South Over Bridge Shopping Complex,having an extent of 960 square feet on payment of existingrent. 2.On 08.04.2019, when this writ petition came up for admission, this Court passed the following order; “One of the grievance of the petitioner is that thepetitioner is yet to be served with a copy of thedecision of the Standing Committee of Finance dated01.03.2019 (decision No.86) referred to in Ext.P9order dated 11.03.2019 of the second respondent, soas to enable him to avail the statutory remedy beforethe Tribunal for Local Self Government Institutions. 2.The learned Standing Counsel for theCorporation would submit that if an authorisedperson is sent, a copy of that decision shall be servedon the petitioner tomorrow itself. The above submission is recorded.” 3.Heard the learned counsel for the petitioner, the learned Standing Counsel for the 1[st] respondent Corporation,representing respondents 1 to 4 and also the learnedGovernment Pleader appearing for the 5[th] respondent. 4.During the course of arguments, it is submitted by the learned counsel for the petitioner that the petitioner hasalready been issued with a copy of Decision No.86 dated01.03.2019 of the Standing Committee of Finance, referredto in Ext.P9 order dated 11.03.2019. 2.The learned Standing Counsel for theCorporation would submit that if an authorisedperson is sent, a copy of that decision shall be servedon the petitioner tomorrow itself. The above submission is recorded.” 3.Heard the learned counsel for the petitioner, the learned Standing Counsel for the 1[st] respondent Corporation,representing respondents 1 to 4 and also the learnedGovernment Pleader appearing for the 5[th] respondent. 4.During the course of arguments, it is submitted by the learned counsel for the petitioner that the petitioner hasalready been issued with a copy of Decision No.86 dated01.03.2019 of the Standing Committee of Finance, referredto in Ext.P9 order dated 11.03.2019. 5.The learned counsel for the petitioner wouldsubmit that the petitioner shall invoke the statutory remedyagainst Ext.P9, by approaching the Tribunal for Local SelfGovernment Institutions, by filing a revision petition undersub-section (8) of Section 509 of the Kerala Municipality Act,1994. 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 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. 7.InAuthorised Officer, State Bank of Travancore 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 but hasto be exercised judiciously in the given facts of a case and inaccordance with law. The normal rule is that a writ petitionunder Article 226 of the Constitution of India ought not to beentertained 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 judicial procedure,or has resorted to invoke the provisions which are repealed,or when an order has been passed in total violation of theprinciples of natural justice. After referring to the law laiddown in Thansingh Nathmal v. Superintendent of Taxes and Titaghur Paper Mills CompanyLtd. v. State of Orissa [(1983) 2 SCC 433] the ApexCourt held that High Court will not entertain a petition underArticle 226 of the Constitution if an effective alternativeremedy is available to the aggrieved person or the statuteunder which the action complained of contains a mechanismfor redressal of grievance. Therefore, when a statutory forumis created by law for redressal of grievances, a writ petitionshould not be entertained ignoring the statutory dispensation. 8.InThansingh 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 exercise 8.InThansingh 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 exercise thereof 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 ordinarily beexercised subject to certain self imposed limitations. Resortto that jurisdiction is not intended as an alternative remedyfor relief which may be obtained in a suit or other modeprescribed by statute. Ordinarily, the court will not entertain apetition for a writ under Article 226, where the petitioner hasan alternative remedy, which without being unduly onerous,provides an equally efficacious remedy. Again the High Courtdoes not generally enter upon a determination of questionswhich demand an elaborate examination of evidence toestablish the right to enforce for which the writ is claimed.The High Court does not, therefore, act as a court of appealagainst the decision of a court or tribunal, to correct errors offact, and does not by assuming jurisdiction under Article 226trench upon an alternative remedy provided by statute forobtaining relief. Where it is open to the aggrieved petitioner to move another tribunal or even itself in another jurisdictionfor obtaining redress in the manner provided by a statute,the High Court normally will not permit by entertaining apetition under Article 226 of the Constitution the machinerycreated under the statute to be bypassed, and will leave theparty applying to 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 Sales TaxAct, 1947 provides for a complete machinery to challenge anorder of assessment, and the impugned orders of assessmentcan only be challenged by the mode prescribed by the Actand not by a petition under Article 226 of the Constitution. Itis now well recognised that where a right or liability is createdby a statute which gives a special remedy for enforcing it, theremedy provided by that statute only must be availed of. Thisrule was stated with great clarity by Willes, J. inWolverhampton 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 ..... But there 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 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) KHC4), a Full Bench of this Court held that, whenever anadverse order is passed against a person, unless the same ischallenged before the appropriate forum, within theprescribed time limit, the said order will become final. In Pavithran V. State of Kerala (2009 (4) KHC 11.When the fact that Ext.P9 order passed by the 2[nd] 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) KHC4), a Full Bench of this Court held that, whenever anadverse order is passed against a person, unless the same ischallenged before the appropriate forum, within theprescribed time limit, the said order will become final. In Pavithran V. State of Kerala (2009 (4) KHC 11.When the fact that Ext.P9 order passed by the 2[nd] respondent is revisable before the Tribunal for Local SelfGovernment Institutions by filing a revision petition undersub-section (8) of Section 509 of the Kerala MunicipalitiesAct is not in dispute, conclusion is irresistible that nointerference in exercise of the writ jurisdiction of this Courtunder Article 226 of the Constitution of India is warranted onthat order, on the grounds raised in this writ petition. In such circumstances, the challenge made in this writpetition against Ext.P9 order dated 11.03.2019 of the 2[nd]respondent and other consequential reliefs fails for theaforesaid reason; however, without prejudice to the right ofthe petitioner to challenge that order and seek appropriatereliefs by filing a revision petition before the Tribunal forLocal Self Government Institutions, by invoking theprovisions under sub-section (8) of Section 509 of the Act. bpr Sd/- ANIL K. NARENDRAN JUDGE APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1TRUE COPY OF CERTIFICATE (NO.G/017457/16/MCHG DATED 03-08-2016)ISSUED BY THE CHAIRMAN (NO.G/017457/16/MCHG DATED 03-08-2016)ISSUED BY THE CHAIRMAN (SUPERINTENDENT), STANDING DISABILITY ASSESSMENT BOARD, GOVERNMENT MEDICAL COLLEGE, KOTTAYAMASSESSMENT BOARD, GOVERNMENT MEDICAL COLLEGE, KOTTAYAM EXHIBIT P2TRUE COPY OF THE CERTIFICATE DATED 20-11-2010 ISSUED BY THE MEDICAL BOARD CONSTITUTED BY THE DISTRICT MEDICAL OFFICER, DEPARTMENT OF HEALTH SERVICES, GOVERNMENT OF KERALA.11-2010 ISSUED BY THE MEDICAL BOARD CONSTITUTED BY THE DISTRICT MEDICAL OFFICER, DEPARTMENT OF HEALTH SERVICES, GOVERNMENT OF KERALA. EXHIBIT P3TRUE COPY OF COMMUNICATION/NOTICE (MOR3A/9729/06 DATED 07-03-2018) ISSUED BYTHE 3RD RESPONDENT3A/9729/06 DATED 07-03-2018) ISSUED BYTHE 3RD RESPONDENTEXHIBIT P4TRUE COPY OF REPRESENTATION DATED 26-03-2018 SUBMITTED BY THE PETITIONER BEFORE THE 2ND AND 3RD RESPONDENT.03-2018 SUBMITTED BY THE PETITIONER BEFORE THE 2ND AND 3RD RESPONDENT. EXHIBIT P5TRUE COPY OF THE REPRESENTATION DATED 22-06-2018 SUBMITTED BY THE PETITIONERBEFORE THE DEPUTY MOTOR OF THE 1ST RESPONDENT.22-06-2018 SUBMITTED BY THE PETITIONERBEFORE THE DEPUTY MOTOR OF THE 1ST RESPONDENT. EXHIBIT P6TRUE COPY OF NOTICE (NO MOR 3A/0404/2018 DATED 04-12-2018) ISSUED BY THE 3RD RESPONDENT.3A/0404/2018 DATED 04-12-2018) ISSUED BY THE 3RD RESPONDENT.EXHIBIT P7TRUE COPY OF APPEAL DATED 21-01-2019 SUBMITTED BY THE PETITIONER BEFORE THE4TH RESPONDENT.SUBMITTED BY THE PETITIONER BEFORE THE4TH RESPONDENT. EXHIBIT P8TRUE COPY OF APPEAL PETITION SUBMITTEDBEFORE THE WORSHIPFUL MAYOR OF THE 1STRESPONDENT ON 21-01-2019.BEFORE THE WORSHIPFUL MAYOR OF THE 1STRESPONDENT ON 21-01-2019. EXHIBIT P9TRUE COPY OF ORDER (NO. ISO/MOR 3A/39822/79 DATED 11-03-2019) ISSUED BY ADDITIONAL SECRETARY, CORPORATION OF COCHIN.3A/39822/79 DATED 11-03-2019) ISSUED BY ADDITIONAL SECRETARY, CORPORATION OF COCHIN. EXHIBIT P10TRUE COPY OF THIS APPLICATION FILED UNDER RIGHT TO INFORMATION ACT, BY THEPETITIONER ON 2ND OF APRIL 2019. EXHIBIT P11TRUE COPY OF RECEIPT NO. 66195 (REF. NO. P10/011470/19 DATED 2ND APRIL 2019ISSUED BY THE OFFICE OF THE 1ST RESPONDENT. RESPONDENTS' EXHIBITS:NIL