In Commissioner Of Income Tax v. Chhabil Das

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY ,THE 21ST DAY OF MARCH 2019 / 30TH PHALGUNA, 1940 WP(C).No. 8649 of 2019 PETITIONER/S: BINS JACOBAGED 43 YEARSS/O. JACOB,CHETTAYIL HOUSE, KALTHOTTIKARA,KANCHIYAR VILLAGE, KANCHIYAR PANCHAYT, KALTHOTTY P.O., IDUKKI-685 507 BY ADVS.SRI.C.K.PAVITHRANSMT.NEENU PAVITHRAN RESPONDENT/S: 1SECRETARY, KANCHIYAR GRAMA PANCHAYATKANCHIYAR P.O., IDUKKI DISTRICT, PIN-685 511 2KANCHIYAR GRAMAPANCHAYATREPRESENTED BY SECRETARY, KANCHIYAR P.O., IDUKKI DISTRICT, PIN-685 511 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kkj JUDGMENT The petitioner, who is stated to be owner in possession of40 cents of land in the second respondent Grama Panchayat,whohas obtained Ext.P2 building permit dated 08.08.2018issued by the first respondent Secretary of the GramaPanchayat, has filed this writ petition under Article 226 of theConstitution of India seeking a writ of certiorari to quash Ext.P4stop memo dated 25.02.2019 issued by the first respondent,whereby the petitioner has been directed to stop the entireconstruction, on the ground that he had carried outconstruction in deviation of the building plan and withoutkeeping sufficient space, as provided under sub-rule (3) of Rule27 of the Kerala Panchayat Building Rules. 2.Heard the learned counsel for the petitioner. 3.The sole issue that arises for consideration in thiswrit petition is as to whether any interference is warranted onExt.P4 stop memo issued by the first respondent, invoking thewrit jurisdiction of this Court under Article 226 of theConstitution. 4.Section 276 of the Kerala Panchayat Raj Act, 1994 WP(C).No. 8649 of 2019 -:3:- deals with appeal and revision. As per sub-section (4) ofSection 276, an appeal on the notice, order or action of theSecretary under Section 235-I, 325J, 235N, 235W and 235Xshall be filed before the Tribunal Constituted for Local SelfGovernment Institutions under Section 271S, and it may on anapplication by an order, stay the operation of the said notice,order or action taken pending disposal of the appeal. Inaddition to that, sub-rule (1) of Rule 151 of the KeralaPanchayat Buildings Rules, 2011 provides that any personaggrieved by an order passed by the Secretary may submit anappeal to the Tribunal for Local Self Government Institutionsconstituted under section 271S of the Kerala Panchayat RajAct, 1994. As per sub-rule (2) of Rule 151, without prejudice tothe provisions under the Kerala Panchayat Raj Act, an appealmay lie against any order enumerated in clauses (i) to (viii) ofsub-rule (2), which includes stopping erection of building orexecution of work. Therefore, against Ext.P4 stop memo issuedby the first respondent, the petitioner is having a statutoryremedy of appeal before the Tribunal for Local Self GovernmentInstitutions, in view of the aforesaid provisions. WP(C).No. 8649 of 2019 -:4:- 5. In Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603], the Apex Court held that non-entertainment of a writ petition under Article 226 of theConstitution of India when an efficacious alternative remedy isavailable is a rule and self imposed limitation. It is essentially arule of policy, convenience and discretion rather than a rule oflaw. Undoubtedly, it is within the discretion of the High Court togrant relief under Article 226 of the Constitution of India,despite the existence of alternative remedy. However, HighCourt must not interfere if there is an adequate efficaciousalternative remedy available to the petitioner and he hasapproached the High Court without availing the same, unlesshe has made out an exceptional case warranting suchinterference or there exists sufficient ground to invoke theextraordinary jurisdiction under Article 226. 6.In Authorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85] the Apex Court reiteratedthat the discretionary jurisdiction under Article 226 of theConstitution of India is not absolute but has to be exercisedjudiciously in the given facts of a case and in accordance with WP(C).No. 8649 of 2019 -:5:- law. The normal rule is that a writ petition under Article 226 ofthe Constitution of India ought not to be entertained ifalternative statutory remedies are available, except in casesfalling within the well defined exceptions as observed inChaabil Das Agarwal's case (supra), i.e., where thestatutory authority has not acted in accordance with theprovisions of the enactment in question or in defiance of thefundamental principles of judicial procedure, or has resorted toinvoke the provisions which are repealed, or when an order hasbeen passed in total violation of the principles of naturaljustice. 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 Apex Court held that High Court willnot entertain a petition under Article 226 of the Constitution ifan effective alternative remedy is available to the aggrievedperson or the statute under which the action complained ofcontains a mechanism for redressal of grievance. Therefore,when a statutory forum is created by law for redressal ofgrievances, a writ petition should not be entertained ignoring WP(C).No. 8649 of 2019 the statutory dispensation. 7.InThansingh Nathmal's case (supra)aConstitution Bench ofthe Apex Court held that, the jurisdictionof the High Court under Article 226 of the Constitution iscouched in wide terms and the exercise thereof is not subjectto any restrictions except the territorial restrictions which areexpressly provided in the Article. But the exercise of thejurisdiction is discretionary: it is not exercised merely becauseit is lawful to do so. The very amplitude of the jurisdictiondemands that it will ordinarily be exercised subject to certainself imposed limitations. Resort to that jurisdiction is notintended as an alternative remedy for relief which may beobtained in a suit or other mode prescribed by statute.Ordinarily, the court will not entertain a petition for a writunder Article 226, where the petitioner has an alternativeremedy, which without being unduly onerous, provides anequally efficacious remedy. Again the High Court does notgenerally enter upon a determination of questions whichdemand an elaborate examination of evidence to establish theright to enforce for which the writ is claimed. The High Court WP(C).No. 8649 of 2019 -:7:- does not, therefore, act as a court of appeal against thedecision of a court or tribunal, to correct errors of fact, anddoes not by assuming jurisdiction under Article 226 trenchupon an alternative remedy provided by statute for obtainingrelief. Where it is open to the aggrieved petitioner to moveanother tribunal or even itself in another jurisdiction forobtaining 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. WP(C).No. 8649 of 2019 -:7:- does not, therefore, act as a court of appeal against thedecision of a court or tribunal, to correct errors of fact, anddoes not by assuming jurisdiction under Article 226 trenchupon an alternative remedy provided by statute for obtainingrelief. Where it is open to the aggrieved petitioner to moveanother tribunal or even itself in another jurisdiction forobtaining 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. 8.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 Act andnot by a petition under Article 226 of the Constitution. It is nowwell recognised that where a right or liability is created by astatute which gives a special remedy for enforcing it, theremedy provided by that statute only must be availed of. This WP(C).No. 8649 of 2019 rule was stated with great clarity 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 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 theHouse of Lords in Neville 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 beenfollowed 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 adverseorder is passed against a person, unless the same is challengedorder is passed against a person, unless the same is challenged WP(C).No. 8649 of 2019 before the appropriate forum, within the prescribed time limit,the said order will become final. 10.Viewed in the light of the law laid down in thedecisions referred to supra, conclusion is irresistible that thepetitioner cannot invoke the jurisdiction of this Court underArticle 226 of the Constitution of India, in order to challengeExt.P4 stop memo dated 25.02.2019 issued by the firstrespondent, on the grounds raised in this writ petition, in viewof the statutory remedy of appeal before the Tribunal for LocalSelf Government Institutions available under Section 276 of theKerala Panchayat Raj Act and Rule 151 of the Kerala PanchayatBuilding Rules. In such circumstances, this writ petition filed on 20.03.2019 is dismissed for the aforesaid reason; however,without prejudice to the right of the petitioner to avail statutoryremedy against Ext.P4 stop memo by filing an appeal beforethe Tribunal for Self Government Institutions. Sd/- ANIL K.NARENDRAN JUDGE kkj APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF INTIMATION DATED 19.09.18SANCTIONING THE LOAN FROM THE CO-OPERATIVE BANK EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT NO.V2/BA 192649/2018 DATED 08.08.18 ALONG WITH TE APPROVED PLAN EXHIBIT P3 TRUE COPY OF THE PHOTOGRAPH OF THE BUILDING UNDER CONSTRUCTION EXHIBIT P4 In such circumstances, this writ petition filed on 20.03.2019 is dismissed for the aforesaid reason; however,without prejudice to the right of the petitioner to avail statutoryremedy against Ext.P4 stop memo by filing an appeal beforethe Tribunal for Self Government Institutions. Sd/- ANIL K.NARENDRAN JUDGE kkj APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF INTIMATION DATED 19.09.18SANCTIONING THE LOAN FROM THE CO-OPERATIVE BANK EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT NO.V2/BA 192649/2018 DATED 08.08.18 ALONG WITH TE APPROVED PLAN EXHIBIT P3 TRUE COPY OF THE PHOTOGRAPH OF THE BUILDING UNDER CONSTRUCTION EXHIBIT P4 TRUE COPY OF THE STOP MEMO NO.A3-377/19 DATED 25.02.2019 EXHIBIT P5 TRUE COPY OF THE PETITION DATED 07.03.2019 // true copy // Sd/- PA to Judge