In Commissioner Of Income Tax v. Chhabil

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 26TH DAY OF JUNE 2019 / 5TH ASHADHA, 1941WP(C).No.17448 of 2019 PETITIONER : SHAJU.A.VARGHESEAGED 49 YEARSS/O. VARGHESE, AYANTHIYIL HOUSE, KARIKULAM POST, RANNI, PATHANAMTHITTA DISTRICT 689 682. BY ADVS.SRI.JAI GEORGESMT.DAISY A.PHILIPOSE RESPONDENTS: 1PANCHAYATH COMMITTEERANNI PAZHAVANGADI GRAMA PANCHAYATH, PATHANAMTHITTA DISTRICT, 689 673, REPRESENTED BY ITS PRESIDENT.2THE SECRETARY,RANNI PAZHAVANGADI GRAMA PANCHAYATH, PATHANAMTHITTA DISTRICT 689 673. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner is stated to be the owner of 14cents of land in Re-survey No.195/16-2 ofPazhavangadi Village, covered by sale deedNo.1970/2013 of Ranni Sub Registry Office, wherein hehas constructed a hotel building having a plinth area of1530.3 Sq.meter, on the strength of building permitdated C3-5129/17 issued by the 2[nd] respondent, who isthe Secretary of Ranni Pazhavangadi Grama Panchayat.The petitioner has filed this writ petition under Article226 of the Constitution of India, seeking a writ ofcertiorari to quash Ext.P3 notice dated 17.05.2019issued by the 2[nd] respondent, whereby he has beeninformed that the Engineer of the Local SelfGovernment Department inspected the site andbuilding and found certain irregularities in theconstruction, as mentioned in Ext.P3, and therefore,the application made by the petitioner for numberingthe building can be considered only after curing those defects. 2. On receipt of Ext.P3 notice, the petitioner preferred Ext.P4 appeal before the PanchayatCommittee, the 1[st] respondent herein, invoking theprovisions under sub-section (1) of Section 276 of theKerala Panchayat Raj Act, 1994. Along with the saidappeal, the petitioner moved an application seekinginterim relief. Now, the grievance of the petitioner isthat though the respondents have acknowledged thereceipt of Ext.P4 appeal on 27.05.2019, vide Ext.P5,the appeal is yet to be placed before the Committee forconsideration. 3. Heard the learned counsel for the petitioner. Considering the nature of relief sought for in this writpetition, service of notice on the respondents isdispensed with. 4. As far as the challenge made in this writ petition against Ext.P3 notice is concerned, in view ofthe statutory remedy available under sub-section (1) of Section 276 of the Kerala Panchayat Raj Act, thepetitioner cannot invoke the writ jurisdiction of thisCourt under Article 226 of the Constitution of India. 5. 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 of policy,convenience and discretion rather than a rule of law.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 case warrantingsuch interference or there exists sufficient ground to invoke the extraordinary jurisdiction under Article 226. 6. The petitioner has already moved Ext.P4 appeal before the 1[st] respondent, challenging Ext.P3 notice,which is now pending consideration. Therefore, it is forthe 1[st] respondent to consider and pass appropriateorders on that appeal, with notice to the petitioner. invoke the extraordinary jurisdiction under Article 226. 6. The petitioner has already moved Ext.P4 appeal before the 1[st] respondent, challenging Ext.P3 notice,which is now pending consideration. Therefore, it is forthe 1[st] respondent to consider and pass appropriateorders on that appeal, with notice to the petitioner. In such circumstances, this writ petition isdisposed of by directing the 1[st] respondent PanchayatCommittee to consider and pass appropriate orders onExt.P4 appeal filed by the petitioner against Ext.P3notice, strictly in accordance with law, with notice tothe petitioner and after affording him an opportunity ofbeing heard, as expeditiously as possible, at any rate,within a period of one month from the date of receipt ofa certified copy of this judgment. The President of the Grama Panchayat, who is the competent authority under sub-section (2) of Section276 of the Kerala Panchayat Raj Act, shall consider theapplication seeking interim relief filed by the petitioner along with Ext.P4 appeal and pass appropriate ordersthereon, within a period of two weeks from the date ofreceipt of a certified copy of this judgment, with noticeto the petitioner and affording him an opportunity ofbeing heard. Sd/- ANIL K.NARENDRAN, JUDGE AV/28/6 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE JUDGMENT DATED 10.5.2019 IN WRIT PETITION (C) NO. 13577/2019 EXHIBIT P2 A TRUE COPY OF THE ACKNOWLEDGEMENT DATED 16.5.2019, ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER EXHIBIT P3 A TRUE COPY OF NOTICE DATED 17.5.2019 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXHIBIT P4 A TRUE COPY OF THE APPEAL FILED BY THE PETITIONER UNDER SECTION 276 (1)OF THE KERALA PANCHAYATH RAJ ACT (1994). EXHIBIT P5A TRUE COPY OF THE ACKNOWLEDGEMENT DATED 27.5.2019 ISSUED TO THE PETITIONER.