In Commissioner Of Income Tax v. Chhabil Das

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY ,THE 08TH DAY OF MARCH 2019 / 17TH PHALGUNA, 1940 WP(C).No. 6656 of 2019 PETITIONER/S: AHAMMED,S/O.MUHAMMEDAJI,AGED 60 YEARS,KODIYERITHODI HOUSE, PALACHIRAMADU,EDARICODE.P.O,PERUMANNA, MALAPPURAM-676501. BY ADV. SMT.N.DEEPA RESPONDENTS: 1PERUMANNA KLARI GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, PANCHAYATH OFFICE, P.O. KLARI, MALAPPURAM DISTRICT - 676 501 2SECRETARY,PERUMANNA KLARI GRAMA PANCHAYATH,PANCHAYATH OFFICE, P.O.KLARI,MALAPPURAM DISTRICT-676 501.3TAHSILDAR,TALUK OFFICE,TIRUR, MALAPPURAM DISTRICT - 676 101 SRI K.P. HARISH, SENIOR GOVERNMENT PLEADERSRI HARISH R MENON, STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, who is stated to be the owner inpossession of 10 cents of property in Survey No.157 ofPerumanna Village covered by Ext.P1 tax receipt dated13.03.2017 issued by the Village Officer, has filed this writpetition under Article 226 of the Constitution of India, seekinga writ of certiorari to quash Ext.P10 notice dated 05.02.2019issued by the 2[nd] respondent who is the Secretary of the 1[st]respondent Grama Panchayat, whereby, the petitioner hasbeen asked to demolish the building and structures inRe.survey No.158 of the Perumanna Klari Grama Panchayat,within fifteen days of the receipt of the same, failing whichaction will be taken under Section 279 of the Kerala PanchayatRaj Act. The petitioner has also sought for a writ ofmandamus commanding the 2[nd] respondent to produce beforethis Court, the report stated to have been submitted by the 3[rd]respondent Thahsildar, based on which Ext.P10 notice hasbeen issued. 2.On 06.03.2019, when this writ petition came up for admission, the learned Standing Counsel for respondents 1and 2 and also the Senior Government Pleader for the 3[rd]respondent, were directed to get instructions. 3. Heard the learned counsel for the petitioner, learned Standing Counsel for respondents 1 and 2 and alsothe learned Senior Government Pleader appearing for the 3[rd]respondent. 4. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted onExt.P10 notice issued by the 2[nd] respondent, in exercise of thewrit jurisdiction of this Court under Article 226 of theConstitution of India. 5.The fact that Ext.P10 notice issued by the 2[nd]respondent whereby the petitioner has been asked todemolish certain constructions is appealable under theprovisions of sub-section (4) of Section 276 of the KeralaPanchayat Raj Act, 1994 before the Tribunal for Local SelfGovernment Institutions is not in dispute. It is also not indispute that as per sub-section (4) of Section 276, in anappeal filed before the Tribunal, the appellant can file an WP(C).No. 6656 of 2019 4 application for stay of the notice, order or action taken,pending disposal of that appeal.pending disposal of that appeal. 6.In Commissioner of Income Tax v. Chhabil Das 5.The fact that Ext.P10 notice issued by the 2[nd]respondent whereby the petitioner has been asked todemolish certain constructions is appealable under theprovisions of sub-section (4) of Section 276 of the KeralaPanchayat Raj Act, 1994 before the Tribunal for Local SelfGovernment Institutions is not in dispute. It is also not indispute that as per sub-section (4) of Section 276, in anappeal filed before the Tribunal, the appellant can file an WP(C).No. 6656 of 2019 4 application for stay of the notice, order or action taken,pending disposal of that appeal.pending disposal of that appeal. 6.In Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603], the Apex Court held thatnon-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 essentiallya rule of policy, convenience and discretion rather than a ruleof law. Undoubtedly, it is within the discretion of the HighCourt to grant relief under Article 226 of the Constitution ofIndia, despite the existence of alternative remedy. However,High Court must not interfere if there is an adequateefficacious alternative remedy available to the petitioner andhe has approached the High Court without availing the same,unless he has made out an exceptional case warranting suchinterference or there exists sufficient ground to invoke theextraordinary jurisdiction under Article 226. 7.InAuthorised Officer, State Bank ofTravancore v. Mathew K.C.[(2018) 3 SCC 85] the ApexCourt reiterated that the discretionary jurisdiction under WP(C).No. 6656 of 2019 5 Article 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 in defianceof the fundamental principles of judicial procedure, or hasresorted to invoke the provisions which are repealed, or whenan order has been passed in total violation of the principles ofnatural justice. After referring to the law laid down inThansingh Nathmal v. Superintendent of Taxes and Titaghur Paper Mills Company Ltd. v.State of Orissa [(1983) 2 SCC 433] the Apex Court heldthat High Court will not entertain a petition under Article 226of the Constitution if an effective alternative remedy isavailable to the aggrieved person or the statute under whichthe action complained of contains a mechanism for redressal WP(C).No. 6656 of 2019 6 of grievance. Therefore, when a statutory forum is created bylaw for redressal of grievances, a writ petition should not beentertained ignoring the statutory dispensation. WP(C).No. 6656 of 2019 6 of grievance. Therefore, when a statutory forum is created bylaw for redressal of grievances, a writ petition should not beentertained 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 theConstitution is couched in wide terms and the exercise thereofis 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 questions WP(C).No. 6656 of 2019 7 which 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 226trench upon an alternative remedy provided by statute forobtaining relief. Where it is open to the aggrieved petitioner tomove another 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. 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 Act andnot by a petition under Article 226 of the Constitution. It isnow well recognised that where a right or liability is created WP(C).No. 6656 of 2019 8 by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. Thisrule 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 the House of Lords in Neville v. London Express Newspaper Ltd.[1919 AC 368] and has been reaffirmed by the PrivyCouncil in Attorney General of Trinidad and Tobago v.Gordon Grant and Co. [1935 AC 532] and Secretary ofState v. Mask and Co. . It has alsobeen held to be equally applicable to enforcement of rightsand has been followed by the Apex Court throughout. WP(C).No. 6656 of 2019 9 10.In Pavithran V. State of Kerala (2009 (4) KHC4), a Full Bench of this Court held that, whenever an adverseorder is passed against a person, unless the same ischallenged before the appropriate forum, within theprescribed time limit, the said order will become final. 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 PrivyCouncil in Attorney General of Trinidad and Tobago v.Gordon Grant and Co. [1935 AC 532] and Secretary ofState v. Mask and Co. . It has alsobeen held to be equally applicable to enforcement of rightsand has been followed by the Apex Court throughout. WP(C).No. 6656 of 2019 9 10.In Pavithran V. State of Kerala (2009 (4) KHC4), a Full Bench of this Court held that, whenever an adverseorder is passed against a person, unless the same ischallenged before the appropriate forum, within theprescribed time limit, the said order will become final. 11.In the light of the law laid down in the decisionsreferred to supra, conclusion is irresistible that no interferenceunder Article 226 of the Constitution of India is warranted onExt.P10 notice issued by the by the 2[nd] respondent, in view ofthe statutory remedy available under sub-section (4) ofSection 276 of the Kerala Panchayat Raj Act. 12.Learned Counsel for the petitioner would submitthat the petitioner received Ext.P10 notice of the 2[nd]respondent only on 03.03.2019 and immediately thereafter hemoved this writ petition before this Court on 05.03.2019. 13.In the result, in view of the statutory remedyavailable under sub-section (4) of Section 276 of the KeralaPanchayat Raj Act, this writ petition filed on 05.03.2019,challenging Ext.P10 notice issued by the 2[nd] respondent isdismissed, since the petitioner has not made out a case WP(C).No. 6656 of 2019 10 warranting interference on Ext.P10, invoking the writjurisdiction under Article 226 of the Constitution of India;however without prejudice to the right of the petitioner tochallenge Ext.P10 by filing an appeal before the Tribunal forLocal Self Government Institutions, under sub-section (4) ofSection 276 of the Act. The legal and factual contentions raised by the petitionerare left open to be raised before the Tribunal, at appropriatestage. sru Sd/- ANIL K.NARENDRANJUDGE WP(C).No. 6656 of 2019 11 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF THE LAND TAX RECEIPT ISSUED BY THE VILLAGE OFFICER,PERUMANNA DATED 13.03.2017ISSUED BY THE VILLAGE OFFICER,PERUMANNA DATED 13.03.2017 EXHIBIT P2TRUE COPY OF THE JUDGMENT IN W.P(C)NO.31107/2014,DATED 21.11.2014.W.P(C)NO.31107/2014,DATED 21.11.2014. EXHIBIT P3TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE TALUK SURVEYOR,TIRUR,DATED 05.12.2014.SUBMITTED BEFORE THE TALUK SURVEYOR,TIRUR,DATED 05.12.2014. EXHIBIT P4TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 30.12.2016.THE 1ST RESPONDENT DATED 30.12.2016. EXHIBIT P5TRUE COPY OF THE PROVISIONAL ORDER ISSUED BY THE 1ST RESPONDENT DATED 30.12.2016.ISSUED BY THE 1ST RESPONDENT DATED 30.12.2016. EXHIBIT P6TRUE COPY OF THE REPLY DATED 06.01.2017.06.01.2017. EXHIBIT P7TRUE COPY OF THE INTIMATIN DATED 08.03.2017 ISSUED BY THE 2ND RESPONDENT.08.03.2017 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P8TRUE COPY OF THE ORDER NO.E2-4829/2016 DATED 08.03.2017 ISSUED BYTHE 2ND RESPONDENT.4829/2016 DATED 08.03.2017 ISSUED BYTHE 2ND RESPONDENT. EXHIBIT P9TRUE COPY OF THE JUDGMENT IN W.P(C)N0.11532/2017,DATED 31.10.2018.W.P(C)N0.11532/2017,DATED 31.10.2018. EXHIBIT P10TRUE COPY OF THE NOTICE DATED 05.02.2019 SENT BY THE 2ND RESPONDENT.05.02.2019 SENT BY THE 2ND RESPONDENT. EXHIBIT P11TRUE COPY OF THE NOTICE DATED 30.11.2018 ISSUED BY THE 3RD RESPONDENT30.11.2018 ISSUED BY THE 3RD RESPONDENT EXHIBIT P12TRUE COPY OF THE NOTICE DATED 10.12.2018 ISSUED BY THE 3RD 10.12.2018 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P13TRUE COPY OF THE TAX RECEIPT,BUILDING NO.V/287,ISSUED BY THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019.THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019. EXHIBIT P13(a)TRUE COPY OF THE TAX EXHIBIT P9TRUE COPY OF THE JUDGMENT IN W.P(C)N0.11532/2017,DATED 31.10.2018.W.P(C)N0.11532/2017,DATED 31.10.2018. EXHIBIT P10TRUE COPY OF THE NOTICE DATED 05.02.2019 SENT BY THE 2ND RESPONDENT.05.02.2019 SENT BY THE 2ND RESPONDENT. EXHIBIT P11TRUE COPY OF THE NOTICE DATED 30.11.2018 ISSUED BY THE 3RD RESPONDENT30.11.2018 ISSUED BY THE 3RD RESPONDENT EXHIBIT P12TRUE COPY OF THE NOTICE DATED 10.12.2018 ISSUED BY THE 3RD 10.12.2018 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P13TRUE COPY OF THE TAX RECEIPT,BUILDING NO.V/287,ISSUED BY THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019.THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019. EXHIBIT P13(a)TRUE COPY OF THE TAX RECEIPT,BUILDING NO.V/288,ISSUED BY THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019.THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019. EXHIBIT P13(b)TRUE COPY OF THE TAX RECEIPT,BUILDING NO.V/289,ISSUED BY THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019.THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019. EXHIBIT P13(c)TRUE COPY OF THE TAX RECEIPT,BUILDING NO.V/290,ISSUED BY THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019.THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019. EXHIBIT P13(d)TRUE COPY OF THE TAX RECEIPT,BUILDING NO.V/291,ISSUED BY THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019.THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019. EXHIBIT P13(e)TRUE COPY OF THE TAX RECEIPT,BUILDING NO.V/292,ISSUED BY THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019.THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019. EXHIBIT P13(f)TRUE COPY OF THE TAX RECEIPT,BUILDING NO.V/293,ISSUED BY THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019.THE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019. EXHIBIT P13(g)TRUE COPY OF THE TAX RECEIPT,BUILDING NO.V/293A,ISSUED BYTHE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019.RECEIPT,BUILDING NO.V/293A,ISSUED BYTHE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019. EXHIBIT P13(h) TRUE COPY OF THE TAX RECEIPT,BUILDING NO.V/293B,ISSUED BYTHE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019.RECEIPT,BUILDING NO.V/293B,ISSUED BYTHE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019. EXHIBIT P13(j) EXHIBIT P13(k) BUILDING NO.V/293C,ISSUED BY THE 2NDRESPONDENT PANCHAYATH,DATED 29.01.2019. TRUE COPY OF THE TAX RECEIPT,BUILDING NO.V/293D,ISSUED BYTHE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019. TRUE COPY OF THE TAX RECEIPT,BUILDING NO.V/293E,ISSUED BYTHE 2ND RESPONDENT PANCHAYATH,DATED 29.01.2019.