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 18TH DAY OF JUNE 2019 / 28TH JYAISHTA, 1941 WP(C).No.14188 of 2019 PETITIONER: THOMAS STEPHEN,AGED 62 YEARS,T.C. NO. 30/1026-1, CKRRA 170, MOSQUE LANE, PETTAH, THIRUVANANTHAPURAM. BY ADV. SRI.B.KRISHNA MANI RESPONDENTS: 1THE CORPORATION OF THIRUVANANTHAPURAM,THIRUVANANTHAPURAM-695 001. REPRESENTED BY THE SECRETARY.THIRUVANANTHAPURAM-695 001. REPRESENTED BY THE SECRETARY. 2DEVAKI RAJAN,T.C. NO. 30/1026,KAMALAKSHI MANDIRAM, MOSQUE LANE, PETTAH, THIRUVANANTHAPURAM-695 024.T.C. NO. 30/1026,KAMALAKSHI MANDIRAM, MOSQUE LANE, PETTAH, THIRUVANANTHAPURAM-695 024. 3THE DISTRICT COLLECTOR,THIRUVANANTHAPURAM-695 001.THIRUVANANTHAPURAM-695 001. 4THE TAHSILDAR,THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT-695 001.THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT-695 001. BY ADVS. SRI.N.NANDAKUMARA MENON (SR.) SRI.P.RAMAKRISHNANSMT.ASHA K.SHENOYSMT.PREETHI RAMAKRISHNAN (P-212)SMT.ASHA K.SHENOYSMT.PREETHI RAMAKRISHNAN (P-212) SRI.C.ANIL KUMAR SRI.P.K.MANOJKUMAR SRI.PRATAP ABRAHAM VARGHESESRI.T.C.KRISHNASRI.T.C.KRISHNA SRI.K.P.HARISH,SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON18.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, who is stated to be the owner inpossession of 5 cents of property comprised in surveyNo.217/A-4-5 in Vanchiyoor village, ThiruvananthapuramTaluk, covered by Ext.P1 sale deed No.1532/1966 dated27.06.1966 of the Sub Registrar Office, Thiruvananthapuramand Ext.P2 tax receipt dated 10.07.2017, has filed this writpetition under Article 226 of the Constitution of Indiaseeking a writ of certiorari to quash Ext.P7 order dated13.02.2019 of the 1[st] respondent. The petitioner has alsosought for a writ of mandamus commanding respondents 1,2 and 4 to ensure that the 2[nd] respondent constructs theeastern boundary wall in accordance with the measurementsin Ext.P8, which is the title deed of the 2[nd] respondent inrespect of his property, which is lying on the northern side ofthe petitioner's property. 2.On 23.05.2019, when this writ petition came upfor admission, the learned Standing Counsel took notice onadmission for the 1[st] respondent. The learned Government Pleader took notice on admission for respondents 3 and 4.Urgent notice on admission by speed post was ordered tothe 2[nd] respondent, returnable within two weeks. 3.Heard the learned counsel for the petitioner, the learned Standing Counsel for the 1[st] respondent Corporation,Sri.P.Ramakrishnan, the learned counsel for the 2[nd]respondent and also the learned Government Pleaderappearing for respondents 3 and 4. 4.As already noticed, the main relief sought for inthis writ petition is a writ of certiorari to quash Ext.P7 orderdated 13.02.2019 of the 1[st] respondent. The issue that hasto be considered is as to whether any interference iswarranted on Ext.P7 order, in exercise of the writ jurisdictionof this Court under Article 226 of the Constitution of India. 5.The learned Standing Counsel for the 1[st]respondent Municipality and also the learned counsel for the2[nd] respondent would point out that Ext.P7 order isappealable before the Tribunal for Local Self GovernmentInstitutions by filing an appeal under Section 509 of the Kerala Municipality Act, 1994. The said fact is not in seriousdispute. 6.In Commissioner of Income Tax v. Chhabil 4.As already noticed, the main relief sought for inthis writ petition is a writ of certiorari to quash Ext.P7 orderdated 13.02.2019 of the 1[st] respondent. The issue that hasto be considered is as to whether any interference iswarranted on Ext.P7 order, in exercise of the writ jurisdictionof this Court under Article 226 of the Constitution of India. 5.The learned Standing Counsel for the 1[st]respondent Municipality and also the learned counsel for the2[nd] respondent would point out that Ext.P7 order isappealable before the Tribunal for Local Self GovernmentInstitutions by filing an appeal under Section 509 of the Kerala Municipality Act, 1994. The said fact is not in seriousdispute. 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 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 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 ofTravancore v. Mathew K.C.[(2018) 3 SCC 85] the Apex Court 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 statute WP(C).No.14188 of 2019 under 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 statutorydispensation. WP(C).No.14188 of 2019 under 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 statutorydispensation. 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 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 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 entertaina petition for a writ under Article 226, where the petitionerhas an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again theHigh Court does not generally enter upon a determination ofquestions which demand an elaborate examination ofevidence to establish the right to enforce for which the writ isclaimed. The High Court does not, therefore, act as a court ofappeal against the decision of a court or tribunal, to correcterrors of fact, and does not by assuming jurisdiction underArticle 226 trench upon an alternative remedy provided bystatute for obtaining relief. Where it is open to the aggrievedpetitioner to move another tribunal or even itself in anotherjurisdiction for obtaining redress in the manner provided by astatute, the High Court normally will not permit byentertaining a petition under Article 226 of the Constitutionthe machinery created under the statute to be bypassed, andwill leave the party applying to it to seek resort to themachinery 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 to challengean order of assessment, and the impugned orders of In Titaghur Paper Mills' case (supra) a Three- assessment can only be challenged by the mode prescribedby the Act and not by a petition under Article 226 of theConstitution. It is now well recognised that where a right orliability is created by a statute which gives a special remedyfor enforcing it, the remedy provided by that statute onlymust be availed of. This rule was stated with great clarity byWilles, J. in Wolverhampton New Water Works Co. v.Hawkesford [(1859) 6 CBNS 336] at page 356 in thefollowing 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 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 theHouse 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. WP(C).No.14188 of 2019 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. The rule laid down in that passage was approved by theHouse 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. WP(C).No.14188 of 2019 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 ischallenged 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 that nointerference is warranted on Ext.P7 order dated 13.02.2019,in exercise of the writ jurisdiction of this Court under Article226 of the Constitution of India, on the grounds raised inthis writ petition. In such circumstances, the challenge made in this writpetition against Ext.P7 order fails for the aforesaid reason andthe writ petition filed on 28.03.2019 is accordingly dismissed,leaving open the legal and factual contentions raised by the petitioner and without prejudice to the right of the petitionerto challenge Ext.P7 order by filing appeal before the Tribunalfor Local Self Government Institutions. bpr Sd/-ANIL K. NARENDRAN JUDGE APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1TRUE COPY OF THE SALE DEED NO.1532/1966 DATED 27/6/1966.DATED 27/6/1966. EXHIBIT P2TRUE COPY OF THE TAX RECEIPT DATED 10/7/2017.10/7/2017. EXHIBIT P3TRUE COPY OF THE REPRESENTATION BEFORE THE1ST RESPONDENT DATED 7/8/2017.1ST RESPONDENT DATED 7/8/2017. EXHIBIT P4TRUE COPY OF THE STOP MEMO DATED 25/8/2018ISSUED BY THE 1ST RESPONDENT.ISSUED BY THE 1ST RESPONDENT. EXHIBIT P5TRUE COPY OF THE REPRESENTATION BEFORE THEFIRST RESPONDENT DATED 10/9/2018.FIRST RESPONDENT DATED 10/9/2018. EXHIBIT P6TRUE COPY OF THE PROCEEDING DATED 5/10/2018 ISSUED BY THE FIRST RESPONDENT TO THE 2ND RESPONDENT.5/10/2018 ISSUED BY THE FIRST RESPONDENT TO THE 2ND RESPONDENT. EXHIBIT P7TRUE COPY OF THE PROCEEDING DATED 13/2/2019 ISSUED BY THE SECRETARY THIRUVANANTHAPURAM MUNICIPAL CORPORATION.13/2/2019 ISSUED BY THE SECRETARY THIRUVANANTHAPURAM MUNICIPAL CORPORATION. EXHIBIT P8TRUE COPY OF THE TITLE DEED IN FAVOUR OF THE 2ND RESPONDENT DATED 12/12/1986.THE 2ND RESPONDENT DATED 12/12/1986. EXHIBIT P9TRUE COPY OF THE SKETCH SUBMITTED BY THE 2ND RESPONDENT BEFORE THE THIRUVANANTHAPURAM MUNICIPAL CORPORATION.2ND RESPONDENT BEFORE THE THIRUVANANTHAPURAM MUNICIPAL CORPORATION. EXHIBIT P10TRUE COPY OF THE DOCUMENT DATED 15/12/1989EXECUTED BY THE 2ND RESPONDENT.EXECUTED BY THE 2ND RESPONDENT. EXHIBIT P11TRUE COPY OF THE APPLICATION SUBMITTED BEFORE THE PUBLIC INFORMATION OFFICER, THIRUVANANTHAPURAM MUNICIPAL CORPORATION UNDER THE RIGHT TO INFORMATION ACT DATED 23/1/2019.BEFORE THE PUBLIC INFORMATION OFFICER, THIRUVANANTHAPURAM MUNICIPAL CORPORATION UNDER THE RIGHT TO INFORMATION ACT DATED 23/1/2019. EXHIBIT P12TRUE COPY OF THE REPLY DATED 12/2/2019.RESPONDENTS' EXHIBITS:NILRESPONDENTS' EXHIBITS:NIL