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 15TH DAY OF MARCH 2019 / 24TH PHALGUNA, 1940WP(C).No. 1285 of 2019 PETITIONER : HAMZA AGED 50 YEARSS/O. MUHAMMED, THACHANGODAN HOUSE, PONMALA P. O., MALPPURAM DISTRICT - 676 528 BY ADV. SRI.U.K.DEVIDAS RESPONDENTS: 1NILAMBUR MUNICIPALITY,NILAMBUR, MALAPPURAM DISTRICT - 679 529. REPRESENTED BY ITS SECRETARYNILAMBUR, MALAPPURAM DISTRICT - 679 529. REPRESENTED BY ITS SECRETARY 2THE SECRETARYNILAMBUR MUNICIPALITY, NILAMBUR, MALAPPURAM DISTRICT - 679 529.NILAMBUR MUNICIPALITY, NILAMBUR, MALAPPURAM DISTRICT - 679 529.3STATE OF KERALA REPRESENTED BY THE SECRETARYLOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001 BY ADV. SRI.GEORGE SEBASTIAN, SC, NILAMBUR MUNICIPALITY BY SRI MANU RAJ K.J , GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, who is stated to be the owner in possession of 0.0091 & 0.0739 hectares of landcomprised in Re-Survey No.50/2-11 & 50/2-10,respectively, of Nilambur Village and Taluk covered byExt.P1 possession certificate, has filed this writ petitionunder Article 226 of the Constitution of India, seeking awrit of certiorari to quash Ext.P3 order dated 01.11.2018issued by the 1[st] respondent, whereby the applicationdated 29.09.2018 made by the petitioner for buildingpermit stands rejected on the ground that the buildingpermit for commercial building could not be allowed dueto the reason that the property is situated in theresidential area as per the approved Town PlanningScheme. The petitioner has also sought for a writ ofmandamus commanding the 1[st] respondent to grant himbuilding permit as per application dated 29.09.2018. 2. On 16.01.2019, when this writ petition came up for admission, the learned Standing Counsel for the 1[st] respondent Municipality was directed to file counteraffidavit. 3. Heard the learned counsel for the petitioner, the learned Standing Counsel for the Nilambur Municipalityrepresenting respondents 1 and 2 and also the learnedGovernment Pleader appearing for respondents 3 and 4. 4. The sole issue that arises for consideration in this writ petition is as to whether any interference iswarranted on Ext.P3 order dated 01.11.2018 of the 1[st]respondent, whereby the application dated 29.09.2018made by the petitioner for building permit standsrejected. The fact that Ext.P3 order, which is underchallenge in this writ petition is appealable under theprovisions of sub-section (6) of Section 509 of the KeralaMunicipality Act, 1994 is not in serious dispute. A readingof the provisions under sub-section (6) of Section 509would make it explicitly clear that the order, whereby theapplication made by the petitioner for building permit stands rejected, can be challenged before the Tribunal byfiling an appeal. As per sub-section (10) of Section 509of the Act, the Tribunal has ample power to grant interimorders in appropriate cases. 5. In Commissioner of Income Tax v. Chhabil stands rejected, can be challenged before the Tribunal byfiling an appeal. As per sub-section (10) of Section 509of the Act, the Tribunal has ample power to grant interimorders in appropriate cases. 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 Article226 of the Constitution of India when an efficaciousalternative remedy is available is a rule and self imposedlimitation. It is essentially a rule of policy, convenienceand discretion rather than a rule of law. Undoubtedly, it iswithin the discretion of the High Court to grant reliefunder Article 226 of the Constitution of India, despite theexistence of alternative remedy. However, High Courtmust not interfere if there is an adequate efficaciousalternative remedy available to the petitioner and he hasapproached the High Court without availing the same,unless he has made out an exceptional case warrantingsuch interference or there exists sufficient ground to invoke the extraordinary jurisdiction under Article 226. 6. InAuthorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85], theApex Court reiterated that the discretionary jurisdictionunder Article 226 of the Constitution of India is notabsolute but has to be exercised judiciously in the givenfacts of a case and in accordance with law. The normalrule is that a writ petition under Article 226 of theConstitution of India ought not to be entertained ifalternative statutory remedies are available, except incases 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 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. Afterreferring 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 Apex Court held thatHigh Court will not entertain a petition under Article 226of the Constitution if an effective alternative remedy isavailable to the aggrieved person or the statute underwhich the action complained of contains a mechanism forredressal of grievance. Therefore, when a statutory forumis created by law for redressal of grievances, a writpetition should not be entertained ignoring the statutorydispensation. 7. In Thansingh Nathmal's case (supra)a Constitution 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 isdiscretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction 7. In Thansingh Nathmal's case (supra)a Constitution 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 isdiscretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject tocertain self imposed limitations. Resort to that jurisdictionis not intended as an alternative remedy for relief whichmay be obtained in a suit or other mode prescribed bystatute. Ordinarily, the court will not entertain a petitionfor a writ under Article 226, where the petitioner has analternative remedy, which without being unduly onerous,provides an equally efficacious remedy. Again the HighCourt does not generally enter upon a determination ofquestions which demand an elaborate examination ofevidence to establish the right to enforce for which thewrit is claimed. The High Court does not, therefore, actas a court of appeal against the decision of a court ortribunal, to correct errors of fact, and does not byassuming jurisdiction under Article 226 trench upon analternative remedy provided by statute for obtainingrelief. Where it is open to the aggrieved petitioner tomove another tribunal or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit byentertaining a petition under Article 226 of theConstitution the machinery created under the statute tobe bypassed, and will leave the party applying to it toseek 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 impugnedorders of assessment can only be challenged by the modeprescribed by the Act and not by a petition under Article226 of the Constitution. It is now well recognised thatwhere a right or liability is created by a statute whichgives a special remedy for enforcing it, the remedyprovided by that statute only must be availed of. This rulewas 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 thereis a third class, viz., where a liability not existing atcommon law is created by a statute which at the sametime gives a special and particular remedy for enforcingit ..... the remedy provided by the statute must befollowed, and it is not competent to the party to pursuethe course applicable to cases of the second class. Theform given by the statute must be adopted andadhered to." The rule laid down in that passage was approved by the House of Lords inNeville v. London ExpressNewspaper Ltd.[1919 AC 368]and has beenreaffirmed by the Privy Council in Attorney General ofTrinidad and Tobago v. Gordon Grant and Co. [1935AC 532] and Secretary of State v. Mask and Co. . It has also been held to be equallyapplicable to enforcement of rights and has been followedby the Apex Court throughout. 9.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 a person, unless the same is challenged before the appropriate forum, withinthe prescribed time limit, the said order will become final. The rule laid down in that passage was approved by the House of Lords inNeville v. London ExpressNewspaper Ltd.[1919 AC 368]and has beenreaffirmed by the Privy Council in Attorney General ofTrinidad and Tobago v. Gordon Grant and Co. [1935AC 532] and Secretary of State v. Mask and Co. . It has also been held to be equallyapplicable to enforcement of rights and has been followedby the Apex Court throughout. 9.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 a person, unless the same is challenged before the appropriate forum, withinthe prescribed time limit, the said order will become final. 10. Having considered the submissions made by thelearned counsel on both sides, this Court finds that inview of the statutory remedy of appeal before theTribunal for Local Self Government Institutions, availableunder sub-section (6) of Section 509 of the KeralaMunicipality Act, the petitioner cannot challenge Ext.P3order of the 1[st ] respondent, whereby his applicationdated 29.09.2018 for building permit stands rejected, byinvoking the writ jurisdiction of this Court under Article226 of the Constitution of India. 11. In the result, the challenge made in this writ petition filed on 15.01.2019 against Ext.P3 order of the1[st] respondent fails for the aforesaid reason and the writpetition is accordingly dismissed; however withoutprejudice to the right of the petitioner to challenge Ext.P3order of the 1[st] respondent before the Tribunal for Local Self Government Institutions, by filing an appeal. If the petitioner is filing an appeal against Ext.P3, within two weeks from the date of receipt of a certifiedcopy of this judgment, the same shall be entertained bythe Tribunal, as one filed within the time limit specifiedunder the statute, and decide the same on merits, withnotice to the petitioner and also to the respondentMunicipality. All legal and factual contentions raised by the petitioner are left open to be raised before the Tribunal atappropriate stage. Sd/- ANIL K.NARENDRAN, JUDGE AV/15/3 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 12.09.2018 ISSUED BY THE VILLAGE OFFICER, NILAMBUR EXHIBIT P2 TRUE COPY OF THE BASIC TAX RECEIPT DATED 06.09.2018 ISSUED BY THE VILLAGE OFFICER, NILAMBUR EXHIBIT P3TRUE COPY OF THE ORDER DATED 01.11.2018 PASSED BY THE FIRST RESPONDENT EXHIBIT P4 TRUE COPY OF THE LOCATION SKETCH PREPARED BY THE VILLAGE OFFICER, NILAMBUR