In Commissioner Of Income Tax v. Chhabil

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY ,THE 25TH DAY OF MARCH 2019 / 4TH CHAITHRA, 1941 WP(C).No. 9023 of 2019 PETITIONER : KUNJABDULLA HAJI.PAGED 60 YEARS E.V. HOUSE, EMILY P.O, KALPATTA, WAYANAD DISTRICT BY ADV. DR.GEORGE ABRAHAM RESPONDENTS: SRI MANU RAJ K.J, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, who is stated to be the Proprietor of a quarrying unit in Kalpatta, who has been grantedwith Ext.P1 quarrying permit, Ext.P2 consent andExt.P3 D&O licence, has filed this writ petition underArticle 226 of the Constitution of India, seeking a writof certiorari to quash Exts.P4, P6 notices of the 3[rd]respondent and Ext.P9 order of the 2[nd] respondent andseeking a writ of mandamus commanding respondents4 and 5 not to initiate any revenue recoveryproceedings based on Exts.P6 and P9. 2. Heard the learned counsel for the petitionerand also the learned Government Pleader appearingfor the respondents. 3. The fact that against Ext.P9 order of the 2[nd]respondent Deputy Secretary, who is the AppellateAuthority, in an appeal filed by the petitioner underclause (a) of sub-rule (1) of Rule 98 of the Kerala Minor Mineral Concession Rules, 2015 a second appealwill lie before the Secretary, Industries Departmentunder clause (b) of sub-rule (1) of Rule 98 of the saidRules, is not in dispute. 4. 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 warranting such interference or there exists sufficient ground to invoke the extraordinary jurisdiction underArticle 226. 5. In Authorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85], theApex Court reiterated that the discretionaryjurisdiction under Article 226 of the Constitution ofIndia is not absolute but has to be exercisedjudiciously in the given facts of a case and inaccordance with law. The normal rule is that a writpetition under Article 226 of the Constitution of Indiaought not to be entertained if alternative statutoryremedies are available, except in cases falling withinthe well defined exceptions as observed in ChaabilDas Agarwal's case (supra), i.e., where thestatutory authority has not acted in accordance withthe provisions of the enactment in question or indefiance of the fundamental principles of judicialprocedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed which are repealed, or when an order has been passed in total violation of the principles of natural justice.After referring to the law laid down in ThansinghNathmal v. Superintendent of Taxes and Titaghur Paper Mills Company Ltd.v. State of Orissa [(1983) 2 SCC 433]the ApexCourt held that High Court will not entertain a petitionunder Article 226 of the Constitution if an effectivealternative remedy is available to the aggrieved personor the statute under which the action complained ofcontains a mechanism for redressal of grievance.Therefore, when a statutory forum is created by lawfor redressal of grievances, a writ petition should notbe entertained ignoring the statutory dispensation. 6. 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 territorial restrictions which are expressly provided inthe Article. But the exercise of the jurisdiction isdiscretionary: it is not exercised merely because it islawful to do so. The very amplitude of the jurisdictiondemands that it will ordinarily be exercised subject tocertain self imposed limitations. Resort to thatjurisdiction is not intended as an alternative remedyfor relief which may be obtained in a suit or othermode prescribed by statute. Ordinarily, the court willnot 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 notgenerally enter upon a determination of questionswhich demand an elaborate examination of evidence toestablish the right to enforce for which the writ isclaimed. The High Court does not, therefore, act as acourt of appeal against the decision of a court ortribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtainingrelief. Where it is open to the aggrieved petitioner tomove another tribunal or even itself in anotherjurisdiction for obtaining redress in the mannerprovided by a statute, the High Court normally will notpermit by entertaining a petition under Article 226 ofthe Constitution the machinery created under thestatute to be bypassed, and will leave the partyapplying to it to seek resort to the machinery so setup. 7. In Titaghur Paper Mills' case (supra)aThree-Judge Bench of the Apex Court held that, theOrissa Sales Tax Act, 1947 provides for a completemachinery to challenge an order of assessment, andthe impugned orders of assessment can only bechallenged by the mode prescribed by the Act and notby a petition under Article 226 of the Constitution. It isnow well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with greatclarity by Willes, J. in Wolverhampton New Water Works Co. v. Hawkesford [(1859) 6 CBNS 336] at page 356 in the following passage: 7. In Titaghur Paper Mills' case (supra)aThree-Judge Bench of the Apex Court held that, theOrissa Sales Tax Act, 1947 provides for a completemachinery to challenge an order of assessment, andthe impugned orders of assessment can only bechallenged by the mode prescribed by the Act and notby a petition under Article 226 of the Constitution. It isnow well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with greatclarity by Willes, J. in Wolverhampton 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 aliability may be established founded uponstatute ..... But there is a third class, viz., where aliability not existing at common law is created bya statute which at the same time gives a specialand particular remedy for enforcing it ..... theremedy provided by the statute must be followed,and it is not competent to the party to pursue thecourse applicable to cases of the second class.The form given by the statute must be adoptedand adhered to."liability may be established founded uponstatute ..... But there is a third class, viz., where aliability not existing at common law is created bya statute which at the same time gives a specialand particular remedy for enforcing it ..... theremedy provided by the statute must be followed,and it is not competent to the party to pursue thecourse applicable to cases of the second class.The form given by the statute must be adoptedand 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 of State v. Mask and Co. . It has also been held to be equally applicable to enforcement of rights and hasbeen followed by the Apex Court throughout. 8. In Pavithran V. State of Kerala (2009 (4) KHC 4), a Full Bench of this Court held that, wheneveran adverse order is passed against a person, unlessthe same is challenged before the appropriate forum,within the prescribed time limit, the said order willbecome final. 9. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistiblethat the petitioner cannot challenge Ext.P9 order of the2[nd] respondent, invoking the writ jurisdiction of thisCourt under Article 226 of the Constitution of India, inview of the statutory remedy available under clause(b) of sub-rule (1) of Rule 98 of the Kerala MinorMineral Concession Rules, 2015. In such circumstances, this writ petition, filed on 22.03.2019 challenging Ext.P9 order dated 02.02.2019 of the 2[nd] respondent, is dismissed for the aforesaid reason; however, without prejudice to the right of thepetitioner to file a second appeal before the 1[st]respondent Secretary, Industries Department, invokingthe provisions under clause (b) of sub-rule (1) of Rule98 of the Kerala Minor Mineral Concession Rules andpursue the same. All legal and factual contentions raised by the petitioner are left open to be raised before theappropriate authority at appropriate stage. AV/26/3 Sd/- ANIL K.NARENDRAN, JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE QUARRYING PERMIT ISSUED TO THE PETITIONER EXHIBIT P2 TRUE COPY OF THE CONSENT ORDER DATED28/11/2015, ISSUED TO THE PETITIONER28/11/2015, ISSUED TO THE PETITIONER EXHIBIT P3 TRUE COPY OF THE LICENSE ISSUED BY THE KALPATTA MUNCIPALITYTHE KALPATTA MUNCIPALITY EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 27/10/201727/10/2017 EXHIBIT P5 TRUE COPY OF THE REPLY FILED BY THE PETITIONER DATED 15/11/2017PETITIONER DATED 15/11/2017 EXHIBIT P6 TRUE COPY OF THE NOTICE DATED 13/4/201813/4/2018 EXHIBIT P7 All legal and factual contentions raised by the petitioner are left open to be raised before theappropriate authority at appropriate stage. AV/26/3 Sd/- ANIL K.NARENDRAN, JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE QUARRYING PERMIT ISSUED TO THE PETITIONER EXHIBIT P2 TRUE COPY OF THE CONSENT ORDER DATED28/11/2015, ISSUED TO THE PETITIONER28/11/2015, ISSUED TO THE PETITIONER EXHIBIT P3 TRUE COPY OF THE LICENSE ISSUED BY THE KALPATTA MUNCIPALITYTHE KALPATTA MUNCIPALITY EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 27/10/201727/10/2017 EXHIBIT P5 TRUE COPY OF THE REPLY FILED BY THE PETITIONER DATED 15/11/2017PETITIONER DATED 15/11/2017 EXHIBIT P6 TRUE COPY OF THE NOTICE DATED 13/4/201813/4/2018 EXHIBIT P7 TRUE COPY OF THE APPEAL FILED BY THEPETITIONER DATED 3RD MAY, 2018PETITIONER DATED 3RD MAY, 2018 EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN W.P.(C)NO. 20870/18NO. 20870/18 EXHIBIT P9 TRUE COPY OF THE GOVERNMENT ORDER DATED 02/02/2019DATED 02/02/2019