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 28TH DAY OF JUNE 2019 / 7TH ASHADHA, 1941 WP(C).No.17496 of 2019 PETITIONER : ABDUL SALEEM V.P.,AGED 54 YEARSEDAN HOUSE, KOTTOOLY, KUTHIRAVATTOM P.O., KOZHIKODE DISTRICT, PIN - 673 016. BY ADVS.SRI.T.R.HARIKUMARSRI.ADITHYA RAJEEVSRI.ARJUN RAGHAVAN RESPONDENTS: THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, who is stated to be the ManagingPartner of a hotel by name 'Solar Live Restaurant &Fast Food' functioning in Room No.20/651 in thebuilding situated in Re-Sy.No.243/19, Block No.16 ofKuppady Village in Sulthan Bathery Taluk, has filedthis writ petition under Article 226 of the Constitutionof India, seeking a writ of certiorari to quash Ext.P8notice dated 21.06.2019 issued by the 2[nd] respondentSecretary of the 1[st] respondent Municipality, wherebyhe has been informed that since he is conducting thehotel without obtaining or applying for license fromthe 1[st] respondent Municipality, he has to makenecessary application to obtain such license, within aperiod of seven days from the receipt of that noticeand on failure of which, the hotel shall be closed downand the petitioner has to face penal actions. Thepetitioner has also sought for a declaration that the aforesaid hotel has obtained deemed license and canbe permitted to function. 2. On 27.06.2019, when this writ petition came up for admission, the learned Standing Counsel for therespondent Municipality, on instructions, submittedthat the petitioner is yet to make an application forrenewal of trade licence. The learned counsel for thepetitioner sought adjournment and accordingly, thematter is listed today for consideration. 3. Heard the learned counsel for the petitioner and also the learned Standing Counsel appearing forthe Municipality, representing respondents 1 to 3. 4. Today, when the case is taken up forconsideration, the learned counsel for the petitionerwould submit that the petitioner proposes to file anapplication for renewal of trade license by tomorrow(29.06.2019). 5. The sole issue that arises for consideration inthis writ petition is as to whether any interference is warranted on Ext.P8 notice issued by the 2[nd]respondent, in exercise of the writ jurisdiction of thisCourt under Article 226 of the Constitution of India. 6. Having considered the pleadings and materialson record and also the submissions made by thelearned counsel on both sides, this Court finds that, byExt.P8 notice, the petitioner has only been asked tosubmit an application for license to run the hotel,within the time limit specified therein. The petitionerwas also informed that if he is running the hotelwithout obtaining necessary licence, he will have toface the penal consequences. 7. If the petitioner is feeling aggrieved by Ext.P8 notice issued by the 2[nd] respondent, who is theSecretary of the 1[st] respondent Municipality, it is forhim to challenge the same in an appeal filed underSection 509 of the Kerala Municipality Act, 1994before the appropriate forum. If, as a matter of fact,the petitioner is running the hotel without a valid license, he cannot have any grievance on Ext.P8notice. 8. In Commissioner of Income Tax v. Chhabil 7. If the petitioner is feeling aggrieved by Ext.P8 notice issued by the 2[nd] respondent, who is theSecretary of the 1[st] respondent Municipality, it is forhim to challenge the same in an appeal filed underSection 509 of the Kerala Municipality Act, 1994before the appropriate forum. If, as a matter of fact,the petitioner is running the hotel without a valid license, he cannot have any grievance on Ext.P8notice. 8. 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 ofpolicy, convenience and discretion rather than a rule oflaw. Undoubtedly, it is within the discretion of the HighCourt to grant relief under Article 226 of theConstitution of India, despite the existence ofalternative remedy. However, High Court must notinterfere if there is an adequate efficacious alternativeremedy available to the petitioner and he hasapproached the High Court without availing the same,unless he has made out an exceptional casewarranting such interference or there exists sufficientground to invoke the extraordinary jurisdiction under Article 226. 9. In Authorised Officer, State Bank ofTravancore v. Mathew K.C.[(2018) 3 SCC 85], theApex Court reiterated that the discretionaryjurisdiction under Article 226 of the Constitution ofIndia 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 of Indiaought not to be entertained if alternative statutoryremedies are available, except in cases falling withinthe well defined exceptions as observed in ChaabilDas Agarwal's case (supra), i.e., where thestatutory authority has not acted in accordance withthe provisions of the enactment in question or indefiance of the fundamental principles of judicialprocedure, or has resorted to invoke the provisionswhich are repealed, or when an order has been passedin total violation of the principles of natural justice. After referring to the law laid down in Thansingh Nathmal v. Superintendent of Taxes and Titaghur Paper Mills Company Ltd.v. State of Orissa [(1983) 2 SCC 433]the ApexCourt held that High Court will not entertain a petitionunder Article 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 writpetition should not be entertained ignoring thestatutory dispensation. 10. 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 in 10. 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 in the 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 remedyfor relief which may be obtained in a suit or othermode prescribed by statute. Ordinarily, the court willnot 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 notgenerally enter upon a determination of questionswhich demand an elaborate examination of evidenceto establish the right to enforce for which the writ isclaimed. The High Court does not, therefore, act as acourt of appeal against the decision of a court ortribunal, 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 tomove another tribunal or even itself in anotherjurisdiction for obtaining redress in the mannerprovided by a statute, the High Court normally will notpermit by entertaining a petition under Article 226 ofthe Constitution the machinery created under thestatute to be bypassed, and will leave the partyapplying to it to seek resort to the machinery so setup. 11. 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 and notby a petition under Article 226 of the Constitution. Itis now well recognised that where a right or liability iscreated by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with greatclarity by Willes, J. in Wolverhampton New WaterWorks 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 statutewhich at the same time gives a special andparticular remedy for enforcing it ..... the remedyprovided by the statute must be followed, and it isnot competent to the party to pursue the courseapplicable to cases of the second class. The formgiven by the statute must be adopted and adheredto." 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 beenreaffirmed by the Privy Council in Attorney Generalof Trinidad and Tobago v. Gordon Grant and Co.[1935 AC 532] and Secretary of State v. Maskand Co. . It has also been held to be equally applicable to enforcement of rights and has been followed by the Apex Court throughout. 12.In Pavithran V. State of Kerala (2009(4) KHC 4), a Full Bench of this Court held that,whenever an adverse order is passed against aperson, unless the same is challenged before theappropriate forum, within the prescribed time limit,the said order will become final. 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 beenreaffirmed by the Privy Council in Attorney Generalof Trinidad and Tobago v. Gordon Grant and Co.[1935 AC 532] and Secretary of State v. Maskand Co. . It has also been held to be equally applicable to enforcement of rights and has been followed by the Apex Court throughout. 12.In Pavithran V. State of Kerala (2009(4) KHC 4), a Full Bench of this Court held that,whenever an adverse order is passed against aperson, unless the same is challenged before theappropriate forum, within the prescribed time limit,the said order will become final. 13. Viewed in the light of the law laid down in thedecisions referred to supra, conclusion is irresistiblethat the petitioner cannot challenge Ext.P8 notice ofthe Secretary of the 1[st] respondent Municipality,invoking the writ jurisdiction of this Court underArticle 226 of the Constitution of India, on the groundsraised in this writ petition, when a statutory remedy isavailable under Section 509 of the Kerala MunicipalityAct. In such circumstances, this writ petition filed on26.06.2019, is dismissed for the aforesaid reason; however without prejudice to the right of thepetitioner to challenge Ext.P8 notice of the 2[nd]respondent by invoking the statutory remedy availableunder Section 509 of the Municipality Act, and withoutprejudice to his right to submit an application forrenewal of trade license and pursue that application. AV/28/6 Sd/- ANIL K.NARENDRAN, JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE PARTNERSHIP DEEDDATED 19/03/2019 EXECUTED BETWEEN THE PETITIONER AND MR.ASHRAF K.DATED 19/03/2019 EXECUTED BETWEEN THE PETITIONER AND MR.ASHRAF K. EXHIBIT P2A TRUE COPY OF THE LICENSE DATED 08/11/2017 ISSUED BY THE 2ND RESPONDENT FOR THE YEAR 2017-2018.08/11/2017 ISSUED BY THE 2ND RESPONDENT FOR THE YEAR 2017-2018. EXHIBIT P3A TRUE COPY OF THE CERTIFICATE DATED 27/01/2017 ISSUED BY THE VILLAGE OFFICER, KOOPPADI.DATED 27/01/2017 ISSUED BY THE VILLAGE OFFICER, KOOPPADI. EXHIBIT P4 A TRUE COPY OF THE RECEIPT DATED 14/05/2018 SHOWING REMITTANCE OF THE LICENSE FEES FOR THE YEAR 2018-2019.14/05/2018 SHOWING REMITTANCE OF THE LICENSE FEES FOR THE YEAR 2018-2019. EXHIBIT P5 A TRUE COPY OF THE AGREEMENT DATED 29/06/2018.29/06/2018. EXHIBIT P6 A TRUE COPY OF THE LICENSE DATED 06/05/2019, ISSUED BY THE FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA.06/05/2019, ISSUED BY THE FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA. EXHIBIT P7A TRUE COPY OF THE 'REPORT ON ANALYSIS OF WATER' DATED 22/02/2019.ANALYSIS OF WATER' DATED 22/02/2019. EXHIBIT P8 A TRUE COPY OF THE NOTICE SHOWING ONLY THE DATE AS 21, ISSUED BY THE 2ND RESPONDENT.ONLY THE DATE AS 21, ISSUED BY THE 2ND RESPONDENT.