In Commissioner Of Income Tax v. Chhabil

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 20TH DAY OF JUNE 2019 / 30TH JYAISHTA, 1941WP(C).No.16843 of 2019 PETITIONER : ALICE JOSEAGED 70 YEARSW/O.LATE C.J.JOSE, HOUSE WIFE, CHAKKALAKKAL HOUSE, CHERTHALA P.O., ALAPPUZHA-688 524 BY ADVS.SRI.T.JAYAKRISHNANSRI.R.KRISHNAKUMAR (CHERTHALA) RESPONDENTS: 2THE SECRETARY,CHERTHALA MUNICIPALITY,MUNICIPAL OFFICE, CHERTHALA-688 524 BY SRI JOBY CYRIAC- STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, who is stated to be the owner of shop room bearing Building No.23/181 situates atMuttom Bazar within the 1[st] respondent Municipality,has filed this writ petition under Article 226 of theConstitution of India, seeking a writ of certiorari toquash Ext.P1 provisional order dated 03.12.2018issued by the 2[nd] respondent, who is the Secretary ofthe said Municipality, in exercise of his powers undersub-section (1) and (2) of Section 406 of the KeralaMunicipality Act, 1994, whereby the petitioner hasbeen directed to demolish certain constructions madein the aforesaid building, without obtaining necessarybuilding permit; and Ext.P7 order dated 15.05.2019issued by the 2[nd] respondent, whereby Ext.P1 orderstands confirmed. The petitioner has also sought for adeclaration that 'alteration' as defined in KeralaMunicipal Building Rules will not take within its ambit achange of a portion of 'brick wall' to 'glass wall plus shutter' when no new opening is created. The further relief sought for is a writ of mandamus commandingthe respondents to take decision in the application forregularisation, as shown in Ext.P2 plan submitted bythe petitioner, before taking any further action inExt.P7. 2. Heard the learned counsel for the petitionerand also the learned Standing Counsel appearing forthe Municipality, representing respondents 1 and 2. 3. The sole issue that arises for consideration inthis writ petition is as to whether any interference iswarranted on Ext.P1 provisional order and Ext.P7 finalorder issued by the 2[nd] respondent, in exercise of thewrit jurisdiction of this Court under Article 226 of theConstitution of India. 4. The fact that Ext.P7 final order issued by the2[nd] respondent, whereby the petitioner has beendirected to remove the alleged unauthorisedconstruction, is an order appealable before the Tribunal for Local Self Government Institutions, in view of the provisions under Section 509 of the Kerala MunicipalityAct is not in dispute. 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 casewarranting such interference or there exists sufficient ground to invoke the extraordinary jurisdiction underArticle 226. 6. In Authorised Officer, State Bank of ground to invoke the extraordinary jurisdiction underArticle 226. 6. In Authorised 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 thegiven facts of a case and in accordance with law. Thenormal rule is that a writ petition under Article 226 ofthe Constitution 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 inaccordance with the provisions of the enactment inquestion or in defiance of the fundamental principles ofjudicial procedure, or has resorted to invoke theprovisions which are repealed, or when an order hasbeen passed in total violation of the principles of natural justice. After referring to the law laid down in Thansingh Nathmal v. Superintendent of Taxes and Titaghur Paper MillsCompany Ltd. v. State of Orissa [(1983) 2 SCC433]the Apex Court held that High Court will notentertain a petition under Article 226 of theConstitution if an effective alternative remedy isavailable to the aggrieved person or the statute underwhich the action complained of contains a mechanismfor redressal of grievance. Therefore, when a statutoryforum is created by law for redressal of grievances, awrit petition should not be entertained ignoring thestatutory dispensation. 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 the 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 byassuming 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. 8. 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 iscreated by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only 8. 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 iscreated 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 WaterWorks Co. v. Hawkesford [(1859) 6 CBNS 336] atpage 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 notexisting at common law is created by a statutewhich at the same time gives a special andparticular remedy for enforcing it ..... the remedyprovided by the statute must be followed, and it isnot competent to the party to pursue the courseapplicable to cases of the second class. The formgiven by the statute must be adopted and adheredto." The rule laid down in that passage was approved by the House of Lords in Neville v. London ExpressNewspaper Ltd.[1919 AC 368] and has beenreaffirmed by the Privy Council in Attorney Generalof Trinidad and Tobago v. Gordon Grant and Co.[1935 AC 532] and Secretary of State v. Maskand Co. . It has also been held to be equally applicable to enforcement of rights and has been followed by 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 appropriateforum, within the prescribed time limit, the said orderwill become final. 10. Viewed in the light of the law laid down in thedecisions referred to supra, conclusion is irresistiblethat the petitioner cannot challenge Exts.P1 and P7orders of the Secretary of the 1[st] respondentMunicipality, invoking the writ jurisdiction of this Courtunder Article 226 of the Constitution of India, on thegrounds raised in this writ petition, when a statutoryremedy is available under Section 509 of the KeralaMunicipality Act. In such circumstances, this writ petition filed on19.06.2019, is dismissed for the aforesaid reason; however without prejudice to the right of the petitioner to challenge Exts.P1 and P7 orders of the 2[nd]respondent by invoking the statutory remedy availableunder Section 509 of the Municipality Act. AV/20/6 Sd/- ANIL K.NARENDRAN, JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 THE TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 3.12.2018 EXHIBIT P2A TRUE COPY OF PLAN SUBMITTED BY THEPETITIONER TO THE 1ST RESPONDENT MUNICIPALITY ALONG WITH APPLICATION FOR REGULARISATIONPETITIONER TO THE 1ST RESPONDENT MUNICIPALITY ALONG WITH APPLICATION FOR REGULARISATION EXHIBIT P3A TRUE COPY OF PLAINT IN O.S.NO.157/2019 I THE FILES OF MUNSIFFS COURT,CHERTHALA DTD 29.3.2019O.S.NO.157/2019 I THE FILES OF MUNSIFFS COURT,CHERTHALA DTD 29.3.2019 EXHIBIT P4A TRUE COPY OF UNDATED COMMISSIONER'S REPORT OBTAINED IN EXHIBIT P3COMMISSIONER'S REPORT OBTAINED IN EXHIBIT P3 EXHIBIT P5A TRUE COPY OF NOTICE DATED 20.4.2019 ISSUED BY THE RED 2ND RESPONDENT TO THE PETITIONER20.4.2019 ISSUED BY THE RED 2ND RESPONDENT TO THE PETITIONER EXHIBIT P6A TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENTSUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P7A TRUE COPY OF PROCEEDINGS DATED 15.5.2019 ISSUED BY THE 2ND RESPONDENT15.5.2019 ISSUED BY THE 2ND RESPONDENT