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 08TH DAY OF MARCH 2019 / 17TH PHALGUNA, 1940 WP(C).No. 4331 of 2019 PETITIONER: THOMAS P.O.,AGED 50 YEARS,S/O LATE P.T. OUSETH, PATHIPARAMBAN HOUSE, KORATTY P.O.,-680308, THRISSUR DISTRICT. BY ADV. SRI.K.I.TOGI RESPONDENTS: 1SECRETARY, KORATTY GRAMA PANCHAYATH,PANCHAYATH OFFICE, KORATTY.PANCHAYATH OFFICE, KORATTY. 3KORATTY GRAMA PANCHAYATH COMMITTEE,REPRESENTED BY ITS PRESIDENT, PANCHAYATH OFFICE, KORATTY.REPRESENTED BY ITS PRESIDENT, PANCHAYATH OFFICE, KORATTY. BY ADV. SRI.PHILIP T.VARGHESE, SC, KORATTY GRAMA PANCHAYATH SRI.PAUL ABRAHAM VAKKANAL,GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON08.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 4331 of 2019 JUDGMENT The petitioner, who is stated to be a resident in the 2[nd] respondent Grama Panchayath, has filed this writ petitionunder Article 226 of the Constitution of India, seeking thefollowing relief and the interim relief; “For the reasons stated in the writ petition and accompanying affidavit it is most respectfully andhumbly prayed that this Hon'ble Court may bepleaded to direct the respondent No.1 to measurethe disputed land by the Taluk Surveyor and takeappropriate action.” & “For the reasons stated in the writ petition andaccompanying affidavit it is most respectfully &humbly prayed that this Hon'ble Court may bepleased to stay Exhibit P1 notice pending disposal ofthis writ petition.” 2.On 13.02.2019, when this writ petition came up for admission, the learned Government Pleader as well asthe learned Standing Counsel for the Grama Panchayathwere directed to get instructions. 3.From the submissions made by the learnedcounsel for the petitioner, this Court finds that the petitioner From the submissions made by the learned wants to challenge Ext.P1 notice issued by the 1[st]respondent. However, the petitioner has not sought for awrit of certiorari to quash Ext.P1 notice. In the absence ofany challenge against Ext.P1 notice by seeking appropriatereliefs, the petitioner cannot seek stay of operation ofExt.P1 notice, as an interim relief. 4. Ext.P1 notice issued by the 1[st] respondent isappealable before the Panchayath Committee, by invokingthe provisions under sub-section (1) of Section 276 of theKerala Panchayat Raj Act, 1994, which provides that anappeal shall lie to the Panchayat against the notice issuedor order passed or action taken by the President orSecretary, in exercise of the powers conferred as per theprovisions of the said Act, rules, bye-laws or regulationsmade thereunder, except Sections 235I, 235J, 235N, 235Wand 235X. Sub-section (2) of Section 276 provides for aninterlocutory application in an appeal filed under sub-section (1). Therefore, if the petitioner is feeling aggrievedby Ext.P1 notice dated 25.01.2019 issued by the 1[st] respondent, it is for him to avail statutory remedy undersub-section (1) of Section 276 of the Act, by filing appealbefore the 3[rd] respondent Panchayat Committee. 5.In Commissioner of Income Tax v. Chhabil respondent, it is for him to avail statutory remedy undersub-section (1) of Section 276 of the Act, by filing appealbefore the 3[rd] respondent Panchayat Committee. 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 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 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. -5- 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.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 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 ordinarilybe exercised subject to certain self imposed limitations.Resort to that jurisdiction is not intended as an alternative 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 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 ordinarilybe exercised subject to certain self imposed limitations.Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or othermode prescribed by statute. Ordinarily, the court will notentertain a petition for a writ under Article 226, where thepetitioner has an alternative remedy, which without beingunduly onerous, provides an equally efficacious remedy.Again the High Court does not generally enter upon adetermination of questions which demand an elaborateexamination of evidence to establish the right to enforce forwhich the writ is claimed. The High Court does not,therefore, act as a court of appeal against the decision of acourt or tribunal, to correct errors of fact, and does not byassuming 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 applying to 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 particularremedy for enforcing it ..... the remedy provided bythe statute must be followed, and it is not competent to the party to pursue the course applicable to cases of 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 Privy Council 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. 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 laid down in thedecisions referred to supra, conclusion is irresistible that thepetitioner cannot invoke the writ jurisdiction of this Courtunder Article 226 of the Constitution of India either to Council 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. 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 laid down in thedecisions referred to supra, conclusion is irresistible that thepetitioner cannot invoke the writ jurisdiction of this Courtunder Article 226 of the Constitution of India either to challenge Ext.P1 notice or for any incidental reliefs, withoutchallenging Ext.P1 notice issued by the 1[st] respondent byavailing the statutory remedy under sub-section (1) ofSection 276 of the Kerala Panchayat Raj Act. In the result, the writ petition filed on 12.02.2019 isdismissed for the aforesaid reason; however, withoutprejudice to the right of the petitioner to challenge Ext.P1notice by availing the statutory remedy under sub-section(1) of Section 276 of the Kerala Panchayath Raj Act. bpr Sd/- ANIL K. NARENDRAN JUDGE APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1A TRUE COPY OF THE DEMAND NOTICE DATED25.1.2019 ISSUED BY THE SECRETARY OF KORATTY GRAMA PANCHAYATH25.1.2019 ISSUED BY THE SECRETARY OF KORATTY GRAMA PANCHAYATH EXHIBIT P2A TRUE COPY OF THE REGISTERED WILL NO.204/III/2011 OF SRO CHALAKKUDY DATED 22.11.2011 EXECUTED BY THE NO.204/III/2011 OF SRO CHALAKKUDY DATED 22.11.2011 EXECUTED BY THE PETITIONER'S LATE FATHER PATHIPARAMBANTHOMAN OUSEPHTHOMAN OUSEPH EXHIBIT P3A TRUE COPY OF THE DEATH CERTIFICATE OF PETITIONER'S FATHER SRI.LATE OUSEPHDATED 24.7.2018OF PETITIONER'S FATHER SRI.LATE OUSEPHDATED 24.7.2018 EXHIBIT P4A TRUE COPY OF THE REPRESENTATION MADEBY THE PETITIONER TO THE SECRETARY OF KORATTY GRAMA PANCHAYATH DATED 2.2.2019BY THE PETITIONER TO THE SECRETARY OF KORATTY GRAMA PANCHAYATH DATED 2.2.2019 EXHIBIT P5A TRUE COPY OF THE RECEIPT GIVEN BY THE KORATTY GRAMA PANCHAYATH DATED 2.2.2019THE KORATTY GRAMA PANCHAYATH DATED 2.2.2019 EXHIBIT P6A TRUE COPY OF THE REPRESENTATION DATED 8.2.2015 MADE BYT HE PRESIDENT OF KORATTY GRAMA PANCHAYATH COUNTER SIGNED BY ITS SECRETARY BEFORE LOK ADALATH OF KERALA HIGH COURT LEGAL SERVICE COMMITTEE IN WPC.33867/08 CN WPC.33868/09DATED 8.2.2015 MADE BYT HE PRESIDENT OF KORATTY GRAMA PANCHAYATH COUNTER SIGNED BY ITS SECRETARY BEFORE LOK ADALATH OF KERALA HIGH COURT LEGAL SERVICE COMMITTEE IN WPC.33867/08 CN WPC.33868/09 EXHIBIT P7A TRUE COPY OF THE JUDGMENT DATED 05.06.2018 IN WPC NO.33868/2009.05.06.2018 IN WPC NO.33868/2009. RESPONDENTS' EXHIBITS:NIL