In Commissioner Of Income Tax v. Chhabil

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY,THE 19TH DAY OF MARCH 2019 / 28TH PHALGUNA, 1940 WP(C).No. 7948 of 2019 PETITIONER: RAJENDRAN.N.R.,AGED 56 YEARS,S/O. RAMAN, VADAKUMBURATH HOUSE, NELLEPILLY VILLAGE, CHITTOOR,PALAKKAD. BY ADVS.SRI.A.G.ADITYA SHENOYSRI.JEFF JOSEPH RESPONDENTS: 1THE SECRETARY,NALLEPILLY GRAMA PANCHAYATH, NELLEPILLY.P.O., CHITTOOR, PALAKKAD-678 553. 2NALLEPILLY GRAMA PANCHAYATH,NELLEPILLY.P.O., CHITTOOR, PALAKKAD-678 553REPRESENTED BY ITS SECRETARY.3PRABHAKARAN,AGED 65 YEARS, S/O. MUTHU, PARAKKALIL HOUSE, THEKKEDESOM VILLAGE, CHITTOOR,PALAKKAD. 4RAJESH,AGED 31 YEARS, S/O. PRABHAKARAN, PARAKKALIL HOUSE, THEKKEDESOM VILLAGE, CHITTOOR,PALAKKAD. RAMESH,AGED 47 YEARS, S/O. CHENNIMALA CHETTIYAR, THEKKETHARAYIL HOUSE, NALLEPILLY HOUSE, CHITTOOR, PALAKKAD-678 553. SRI SYAM J SAM, STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON19.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, who is stated to be the owner of abuilding bearing No.18/242 of Nallepilly Grama Panchayath,has filed this writ petition under Article 226 of theConstitution of India, challenging Ext.P8 order dated20.02.2019 of the Secretary of the 1[st] respondent GramaPanchayat, whereby the building number of the saidbuilding stands cancelled on the allegation that thepetitioner has made certain constructions in that building,without obtaining a building permit. The relief sought for inthis writ petition is a writ of certiorari to quash Ext.P8 and,thereby restoring the building number of the petitioner'sbuilding in Nallepilly Grama Panchayat. 2.Heard the learned counsel for the petitioner andalso the learned Standing Counsel for the 2[nd] respondentGrama Panchayat, representing respondents 1 and 2.Considering the nature of relief proposed to be granted,service of notice on respondents 3 to 5 is dispensed with. 3.The sole issue that arises for consideration in this writ petition is as to whether any interference is warrantedon Ext.P8 order dated 20.02.2019 issued by the Secretaryof the 1[st] Grama Panchayat, whereby the building numberissued to the petitioner's building stands cancelled on theground that he has made certain constructions, withoutobtaining a building permit. 4.Section 276 of the Kerala Panchayat Raj Actdeals with appeal and revision. As per sub-section (4) ofSection 276, an appeal on the notice, order or action of theSecretary under Section 235I, 235J, 235N and 235W shallbe filed before the Tribunal for Local Self GovernmentInstitutions under Section 271S, and it may be on anapplication by an order, stay the operation of the saidnotice, order or action taken, pending disposal of theappeal. In addition to this, Rule 151 of the KeralaPanchayat Building Rules, 2011, provides for an appeal bya person aggrieved by an order passed by the Secretary ofthe Grama Panchayat, as enumerated in clauses (i) to (viii)of sub-rule (2), by filing an appeal before the Tribunal for Local Self Government Institutions constituted underSection 271S of the Kerala Panchayat Raj Act. Therefore, ifthe petitioner is feeling aggrieved by Ext.P8 order dated20.02.2019 of the 1[st] respondent, it is for him to avail thestatutory remedy, invoking the aforesaid provisions. 5.In Commissioner of Income Tax v. Chhabil Local Self Government Institutions constituted underSection 271S of the Kerala Panchayat Raj Act. Therefore, ifthe petitioner is feeling aggrieved by Ext.P8 order dated20.02.2019 of the 1[st] respondent, it is for him to avail thestatutory remedy, invoking the aforesaid provisions. 5.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 isessentially 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 sufficient ground to invoke the extraordinary jurisdiction under Article226. 6.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 definedexceptions 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 tothe law laid down inThansingh Nathmal v. WP(C).No. 7948 of 2019 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. 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 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 will In Thansingh Nathmal's case (supra) a -8- 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 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 will In Thansingh Nathmal's case (supra) a -8- ordinarily 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 notby 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 under Article 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. 8.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 WorksCo. v. Hawkesford [(1859) 6 CBNS 336] at page 356 inthe 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 particular remedy 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 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 of State v. Mask and Co. . It has alsobeen held to be equally applicable to enforcement of rightsand has been followed by the Apex Court throughout. 9.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 sameis challenged before the appropriate forum, within theprescribed time limit, the said order will become final. 10.Viewed in the light of the law laid down in thedecisions referred to supra, conclusion is irresistible that,when a statutory remedy is available under Section 276 of -11- State v. Mask and Co. . It has alsobeen held to be equally applicable to enforcement of rightsand has been followed by the Apex Court throughout. 9.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 sameis challenged before the appropriate forum, within theprescribed time limit, the said order will become final. 10.Viewed in the light of the law laid down in thedecisions referred to supra, conclusion is irresistible that,when a statutory remedy is available under Section 276 of -11- the Kerala Panchayat Raj Act and Rule 151 of the KeralaPanchayat Building Rules, 2011 to challenge Ext.P8 order ofthe 1[st] respondent, the petitioner cannot invoke the writjurisdiction of this Court under Article 226 of theConstitution of India. In such circumstances, this writ petition filed on 14.03.2019 challenging Ext.P8 order dated 20.02.2019 ofthe 1[st] respondent is dismissed for the aforesaid reason;however, without prejudice to the right of the petitioner toavail the statutory remedy before the Tribunal for Local SelfGovernment Institutions, by invoking the aforesaidprovisions. Sd/- ANIL K. NARENDRAN JUDGE APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1PHOTOGRAPH OF THE BUILDING IN NELLEPILLY GRAMA PANCHAYATHNELLEPILLY GRAMA PANCHAYATH EXHIBIT P2PHOTOGRAPH OF THE BUILDING AFTER DEMOLITION MADE BY THE 3RD AND 4TH RESPONDENTDEMOLITION MADE BY THE 3RD AND 4TH RESPONDENT EXHIBIT P3TRUE COPY OF THE COMMUNICATION BEARING NO.A4-9147/2018 DATED 13.11.2018 ISSUED BY THE 1ST RESPONDENTBEARING NO.A4-9147/2018 DATED 13.11.2018 ISSUED BY THE 1ST RESPONDENT EXHIBIT P4PHOTOGRAPH OF THE REPAIRS BEING EFFECTED TO THE PETITIONER'S BUILDINGEFFECTED TO THE PETITIONER'S BUILDING EXHIBIT P5TRUE COPY OF THE COMMUNICATION BEARING NO.B3-9613/18 DATED 29.11.2018 ISSUED BY THE 1ST RESPONDENTBEARING NO.B3-9613/18 DATED 29.11.2018 ISSUED BY THE 1ST RESPONDENT EXHIBIT P6TRUE COPY OF THE LETTER SUBMITTED BEFORE THE 1ST RESPONDENT DATED 03.12.2018BEFORE THE 1ST RESPONDENT DATED 03.12.2018 EXHIBIT P7PHOTOGRAPH OF THE COMPLETED BUILDING STRUCTURE OWNED BY THE PETITIONERSTRUCTURE OWNED BY THE PETITIONER EXHIBIT P8TRUE COPY OF THE COMMUNICATION BEARING NO.A4-9734/18 DATED 20.02.2019 ISSUED BY THE 1ST RESPONDENTBEARING NO.A4-9734/18 DATED 20.02.2019 ISSUED BY THE 1ST RESPONDENT RESPONDENTS' EXHIBITS:NIL bpr