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 06TH DAY OF MARCH 2019 / 15TH PHALGUNA, 1940WP(C).No. 5373 of 2019 PETITIONER: SIBY JOSE,AGED 52 YEARS,S/O.,LATE K.S.JOSEPH,RESIDING AT KOCHUPURAYIL HOUSE,VALLICHIRA.P.O, PALA-686574. BY ADV. SMT.LIZA P.CHERIAN RESPONDENT: THE SECRETARY,PALA MUNICIPALITY,PALA-686575. BY ADV.SUJITH MATHEW JOSE, SC, PALA MUNICIPALITY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON06.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, who is in occupation of shop roomNos.G37, G38, G39, F10, F11, F12 and F13 in the MunicipalMarket Complex of the respondent Municipality, has filed thiswrit petition under Article 226 of the Constitution of India,seeking a writ of certiorari to quash Ext.P6 notice dated12.02.2018 issued by the respondent Municipality andseeking a writ of mandamus commanding the respondent toconsider Ext.P5 request dated 22.12.2018 and not tointerfere in any manner the issuance of licences and otherformalities for commencing the restaurant, after completingthe proposed construction. 2.On 22.02.2019, when this writ petition came upfor admission, the learned Standing Counsel for PalaMunicipality sought time to get instructions. 3. Heard the learned counsel for the petitioner and also the learned Standing Counsel for the respondentMunicipality. 4.Going by the averments in the writ petition, the petitioner who is a licencee of certain shop rooms in theMunicipal Market Complex, is constructing canopy in front ofthe shop room No.G39. According to the petitioner, suchconstruction is permitted as per the terms of Ext.P1 licencedeed and that, there is also no violation of any statutoryprovisions. 5.Ext.P6 notice, which is under challenge in this writpetition is appealable before the Municipal Council, in view ofthe provisions under sub-section (1) of Section 509 of theKerala Municipalities Act, 1994. As per sub-section (5) ofSection 509, an appeal has to be filed within thirty days fromthe date of receipt of such order. 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 of -4- the 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 ApexCourt 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., 7.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 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 statuteunder 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 statutory dispensation. 8.InThansingh Nathmal's case (supra)aConstitution Bench ofthe Apex Court held that, thejurisdiction of the High Court under Article 226 of the Constitution 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. Resort tothat jurisdiction is not intended as an alternative remedy forrelief which may be obtained in a suit or other modeprescribed by statute. Ordinarily, the court will not entertain apetition for a writ under Article 226, where the petitioner hasan alternative remedy, which without being unduly onerous,provides an equally efficacious remedy. Again the High Courtdoes not generally enter upon a determination of questionswhich demand an elaborate examination of evidence toestablish the right to enforce for which the writ is claimed.The High Court does not, therefore, act as a court of appealagainst the decision of a court or tribunal, to correct errors offact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute forobtaining relief. Where it is open to the aggrieved petitionerto move another tribunal or even itself in another jurisdictionfor obtaining redress in the manner provided by a statute, theHigh Court normally will not permit by entertaining a petitionunder Article 226 of the Constitution the machinery createdunder the statute to be bypassed, and will leave the partyapplying to it to seek resort to the machinery so set up. 9.In Titaghur Paper Mills' case (supra) a Three-Judge Bench of the Apex Court held that, the Orissa Sales TaxAct, 1947 provides for a complete machinery to challenge anorder of assessment, and the impugned orders of assessmentcan only be challenged by the mode prescribed by the Actand not by a petition under Article 226 of the Constitution. Itis now well recognised that where a right or liability is createdby a statute which gives a special remedy for enforcing it, theremedy provided by that statute only must be availed of. Thisrule was 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: 9.In Titaghur Paper Mills' case (supra) a Three-Judge Bench of the Apex Court held that, the Orissa Sales TaxAct, 1947 provides for a complete machinery to challenge anorder of assessment, and the impugned orders of assessmentcan only be challenged by the mode prescribed by the Actand not by a petition under Article 226 of the Constitution. Itis now well recognised that where a right or liability is createdby a statute which gives a special remedy for enforcing it, theremedy provided by that statute only must be availed of. Thisrule was 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 ..... 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 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 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 is -9- challenged before the appropriate forum, within the prescribed time limit, the said order will become final. 11.Viewed in the light of the law laid down thedecisions referred to supra, no interference is warranted onExt.P6 notice, invoking the writ jurisdiction of this Courtunder Article 226 of the Constitution of India, on thegrounds raised in this writ petition. 12.In view of the statutory remedy available underSection 509 of the Kerala Municipalities Act, 1994, if thepetitioner is feeling aggrieved by Ext.P6 notice dated12.02.2018, it is for him to file an appeal before theMunicipal Council. In such circumstances, without prejudice to the right of the petitioner to challenge Ext.P6 notice dated 12.02.2018before the Municipal Council, by filing an appeal under Section509 of the Kerala Municipalities Act, this writ petition filed on20.02.2019 is dismissed. bpr Sd/- ANIL K. NARENDRAN JUDGE APPENDIX PETITIONER'S EXHIBITS: RESPONDENT'S EXHIBITS:NIL //TRUE COPY//P.A. TO JUDGE