In Commissioner Of Income Tax v. Chhabil Das

PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 12TH DAY OF MARCH 2019 / 21ST PHALGUNA, 1940WP(C).No. 6383 of 2019 PETITIONERS: 1RAJESH.K.K.,AGED 41 YEARS, S/O.KELAN, KANIYANKANDY HOUSE, KALLACHI.P.O., VADAKARA, KOZHIKODE DISTRICT, RC OWNER OF VEHICLE NO.KL-58-J-5988 2RASAK, AGED 42 YEARS, S/O.AMMAD, KUNIYIL HOUSE, VARIKKOLI, NADAPURAM, KALLACHI.P.O., KOZHIKODEDISTRICT, RC OWNER OF VEHICLE NO.KL-58-E-8510.VARIKKOLI, NADAPURAM, KALLACHI.P.O., KOZHIKODEDISTRICT, RC OWNER OF VEHICLE NO.KL-58-E-8510. 3ASOKAN.K.C.,AGED 54 YEARS, S/O.BALAN, ASHIN NIVAS, CHERUVANCHERY.P.O., PATTIAM GRAMA PANCHAYATH, THALASSERY, KANNUR DISTRICT, PIN-670650.RC OWNER OF VEHICLE NO.KL-58-J-9316. 4RATHEESH.V.P.,AGED 42 YEARS, S/O.ANANDAN, VAYALAPARAMBATH HOUSE, CHERUVANCHERY.P.O, THALASSERY, KANNUR DISTRICT, PIN-670650. RC OWNER OF VEHICLE NO.KL-58-J-6612 5SHAMJITH.T.,AGED 31 YEARS, S/O.CHANDRAN.K.N., AGED 31 YEARS, S/O.CHANDRAN.K.N., KANHIRAKKUNNUMMAL HOUSE, CHERUVANCHERY.P.O, THALASSERY, KANNUR DISTRICT, PIN-670650. RC OWNER OF VEHICLE NO.KL-59-G-7332. 6JITHIN LAL,AGED 28 YEARS, S/O.PADHMANABHAN.K., SNEHATHEERAM, KANHIRAKKUNNU, AGED 28 YEARS, S/O.PADHMANABHAN.K., SNEHATHEERAM, KANHIRAKKUNNU, CHERUVANCHERY.P.O., THALASSERY, KANNUR DISTRICT, PIN-670650.RC OWNER OF VEHICLE NO.KL-58-J-7625. 7SUBEESH.P., AGED 31 YEARS, S/O.SURENDRAN.K.P, PONNATH HOUSE, CHERUVANCHERY.P.O., THALASSERY, KANNUR DISTRICT, PIN-670650. RC OWNER OF VEHICLE NO.KL-58-G-3251. 8SAJITH,AGED 32 YEARS, S/O.BALAN, PUTHALATH THAAZHKUNIYIL HOUSE, KADAVATHUR.P.O., THALASSERY, KANNUR DISTRICT, PIN-670676.RC OWNER OF VEHICLE NO.KL-58-C-3982.AGED 32 YEARS, S/O.BALAN, PUTHALATH THAAZHKUNIYIL HOUSE, KADAVATHUR.P.O., THALASSERY, KANNUR DISTRICT, PIN-670676.RC OWNER OF VEHICLE NO.KL-58-C-3982. 9VINESH.K.,AGED 32 YEARS, S/O.BALAN, KUNNUMAL HOUSE, EASTKATHIRUR.P.O, THALASSERY, KANNUR DISTRICT.RC OWNER OF VEHICLE NO.KL-58-G-6512.AGED 32 YEARS, S/O.BALAN, KUNNUMAL HOUSE, EASTKATHIRUR.P.O, THALASSERY, KANNUR DISTRICT.RC OWNER OF VEHICLE NO.KL-58-G-6512. BY ADVS.SRI.JACKSON JOHNYSRI.MUHAMMED YASIL RESPONDENTS: 1STATE OF KERALA,REPRESENTED BY ITS SECRETARY,INDUSTRIES DEPARTMENT, THIRUVANANTHAPURAM-695001.REPRESENTED BY ITS SECRETARY,INDUSTRIES DEPARTMENT, THIRUVANANTHAPURAM-695001. 2THE DISTRICT COLLECTOR,COLLECTORATE ROAD, KANNUR, PIN-670002.COLLECTORATE ROAD, KANNUR, PIN-670002. 3STATION HOUSE OFFICER,KANNAVAM POLICE STATION, KANNUR DISTRICT-670001.KANNAVAM POLICE STATION, KANNUR DISTRICT-670001. 4VILLAGE OFFICER,CHERUVANCHERY VILLAGE OFFICE, CHERUVANCHERY-670650.CHERUVANCHERY VILLAGE OFFICE, CHERUVANCHERY-670650. 5THE GEOLOGIST,DEPARTMENT OF MINING AND GEOLOGY DISTRICT OFFICE, CIVIL STATION -E BLOCK, KANNUR-670002.DEPARTMENT OF MINING AND GEOLOGY DISTRICT OFFICE, CIVIL STATION -E BLOCK, KANNUR-670002. 6ADDL.R6 - THE DEPUTY SECRETARY TO GOVERNMENT,INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001.INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001. R6 IS SUO MOTU IMPLEADED AS PER ORDER DATED 12.03.2019.12.03.2019. SRI MANURAJ K.J, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioners, who are the registered owners of goodscarriages covered by Exts.P1 to P1(h) certificates ofregistration, have filed this writ petition under Article 226 ofthe Constitution of India, seeking a writ of certiorari to quashExt.P3 common order dated 23.12.2018 of the 2[nd] respondentDistrict Collector, whereby they have been imposed with a fineof Rs.2 lakhs each, under Rule 29 of the Kerala Mineral(Prevention of Illegal Mining, Storage & Transportation) Rules,2015, Rule 108(1) of the Kerala Minor and Mineral ConcessionRules, 2015 and Section 21(2) of the Mines and Minerals(Development and Regulation) Act, 1957. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioners, who are the registered owners of goodscarriages covered by Exts.P1 to P1(h) certificates ofregistration, have filed this writ petition under Article 226 ofthe Constitution of India, seeking a writ of certiorari to quashExt.P3 common order dated 23.12.2018 of the 2[nd] respondentDistrict Collector, whereby they have been imposed with a fineof Rs.2 lakhs each, under Rule 29 of the Kerala Mineral(Prevention of Illegal Mining, Storage & Transportation) Rules,2015, Rule 108(1) of the Kerala Minor and Mineral ConcessionRules, 2015 and Section 21(2) of the Mines and Minerals(Development and Regulation) Act, 1957. 2.The petitioners were proceeded against under theaforesaid provisions, on account of seizure of their vehicles bythe 4[th] respondent Village Officer and the 3[rd] respondentStation House Officer, vide Ext.P2 Seizure Mahazar dated30.10.2018, alleging that the said vehicles were used fortransportation of laterite stone from 'Navodaya Kunnu' in Re-survey No.137 of Cheruvanchery Village in Thalassery Taluk.The petitioners have also sought for a writ of mandamuscommanding the 2[nd]respondent to consider Ext.P5representation and to review Ext.P3 order, within a time limit to be specified by this Court, with notice to the petitioners andafter affording them an opportunity of being heard; a writ ofmandamus commanding the respondents to compound theoffences as per Ext.P4 Government Order dated 21.06.2017;and directing the 2[nd] respondent to release the petitioners'vehicles, which are seized as per Ext.P2 Seizure Mahazar. 3.On 01.03.2019, when this writ petition came up foradmission, the learned Government Pleader sought time to getinstructions. 4.Today, when the case is taken up for consideration,the petitioners have produced Ext.P6 appeal filed before theadditional 6[th]respondent against Ext.P3 order dated23.12.2018 of the 2[nd] respondent, by invoking the provisionsunder Rule 98 of the Kerala Mines and Minerals ConcessionRules, 2015. 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 to grant 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.InAuthorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85] the ApexCourt reiterated that the discretionary jurisdiction under Article226 of the Constitution of India is not absolute but has to beexercised 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 accordance withthe provisions of the enactment in question or in defiance ofthe fundamental principles of judicial procedure, or hasresorted to invoke the provisions which are repealed, or when Travancore v. Mathew K.C.[(2018) 3 SCC 85] the ApexCourt reiterated that the discretionary jurisdiction under Article226 of the Constitution of India is not absolute but has to beexercised 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 accordance withthe provisions of the enactment in question or in defiance ofthe fundamental principles of judicial procedure, or hasresorted to invoke the provisions which are repealed, or when an 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 ofgrievance. Therefore, when a statutory forum is created by lawfor redressal of grievances, a writ petition should not beentertained ignoring 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 not intended 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 Courtdoes 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 Tax 8.In Titaghur Paper Mills' case (supra) a Three-Judge Bench of the Apex Court held that, the Orissa Sales Tax Act, 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 bya 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 liability maybe established founded upon statute ..... But there is athird class, viz., where a liability not existing at commonlaw is created by a statute which at the same time givesa special and particular remedy for enforcing it ..... theremedy provided by the statute must be followed, and itis not competent to the party to pursue the courseapplicable to cases of the second class. The form givenby the statute must be adopted and 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 Councilin Attorney General of Trinidad and Tobago v. GordonGrant 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 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 adverseorder is passed against a person, unless the same ischallenged before the appropriate forum, within the prescribedtime limit, the said order will become final. 10.In the instant case, Ext.P3 order passed by the 2[nd]respondent is appealable before the additional 6[th] respondentunder Rule 98(1)(a) of the Kerala Minor and MineralConcession Rules, 2015. When such a statutory remedy isavailable under the Rule 98(1)(a), the petitioners cannotchallenge Ext.P3 order before this Court, by invoking the writjurisdiction under Article 226 of the Constitution of India. 11.The learned counsel for the petitioners would submitthat the petitioners have filed this writ petition before thisCourt on 28.02.2019, challenging Ext.P3 order and now, onnoticing the fact that the said order has to be challenged byfiling a statutory appeal under Rule 98 of the Kerala Mines andMinerals Concession Rules, 2015, they have filed Ext.P6appeal, which may be directed to be considered by theadditional 6[th] respondent. 12.The learned Government Pleader would submit that,if Ext.P6 appeal filed by the petitioners is in order and thepetitioners have remitted the requisite fee, the additional 6[th]respondent shall consider that appeal and pass appropriateorders, with notice to the petitioners and after affording theman opportunity of being heard. 13.Having considered the submissions made by thelearned counsel on both sides, this writ petition is disposed ofby directing the additional 6[th] respondent to consider and passappropriate orders on Ext.P6 appeal filed by the petitionersagainst Ext.P3 order (if the same is in order and the petitionershave remitted the requisite fee), with notice to the petitionersand after affording them an opportunity of being heard.Necessary orders in this regard shall be passed, asexpeditiously as possible, at any rate, within a period of twomonths from the date of receipt of a certified copy of thisjudgment. The legal and factual contentions raised by the petitionersare left open to be raised before the additional 6[th] respondentat appropriate stages. Sd/- ANIL K. NARENDRAN JUDGE APPENDIX PETITIONERS' EXHIBITS: The legal and factual contentions raised by the petitionersare left open to be raised before the additional 6[th] respondentat appropriate stages. Sd/- ANIL K. NARENDRAN JUDGE APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1A TRUE COPY REGISTRATION CERTIFICATE OF VEHICLE KL-58-J-5988 OF PETITIONER NO.1OF VEHICLE KL-58-J-5988 OF PETITIONER NO.1 EXHIBIT P1 AA TRUE COPY REGISTRATION CERTIFICATE OF VEHICLE KL-58-E-8510 OF PETITIONER NO.2OF VEHICLE KL-58-E-8510 OF PETITIONER NO.2 EXHIBIT P1 BA TRUE COPY REGISTRATION CERTIFICATE OF VEHICLE KL-58-J-9316 OF PETITIONER NO.3OF VEHICLE KL-58-J-9316 OF PETITIONER NO.3 EXHIBIT P1 CA TRUE COPY REGISTRATION CERTIFICATE OF VEHICLE KL-58-J-6612 OF PETITIONER NO.4OF VEHICLE KL-58-J-6612 OF PETITIONER NO.4 EXHIBIT P1 DA TRUE COPY REGISTRATION CERTIFICATE VEHICLE KL-59-G-7332 OF PETITIONER NO.5VEHICLE KL-59-G-7332 OF PETITIONER NO.5 EXHIBIT P1 EA TRUE COPY REGISTRATION CERTIFICATE OF VEHICLE KL-58-J-7625 OF PETITIONER NO.6.OF VEHICLE KL-58-J-7625 OF PETITIONER NO.6. EXHIBIT P1 FA TRUE COPY REGISTRATION CERTIFICATE OF VEHICLE KL-58-G-3251 OF PETITIONER NO.7.OF VEHICLE KL-58-G-3251 OF PETITIONER NO.7. EXHIBIT P1 GA TRUE COPY REGISTRATION CERTIFICATE OF VEHICLE KL-58-C-3982 OF PETITIONER NO.8OF VEHICLE KL-58-C-3982 OF PETITIONER NO.8 EXHIBIT P1 HA TRUE COPY REGISTRATION CERTIFICATE OF VEHICLE KL-58-G-6512 OF PETITIONER NO.9OF VEHICLE KL-58-G-6512 OF PETITIONER NO.9 EXHIBIT P2A TRUE COPY OF THE SEIZURE MAHAZAR PREPARED BY THE 4TH RESPONDENT DATED 30/10/2018.PREPARED BY THE 4TH RESPONDENT DATED 30/10/2018. EXHIBIT P3A TRUE COPY OF THE COMMON ORDER DATED 23/12/2018 ISSUED BY THE 2ND RESPONDENT.23/12/2018 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4A TRUE COPY OF THE G.O.(MS)NO.51/2017/ID DATED 21/06/2017 ISSUED BY THE 1ST RESPONDENT.EXHIBIT P5A TRUE COPY OF THE REPRESENTATION DATED 15/01/2019 SUBMITTED BEFORE THE 2ND RESPONDENT.EXHIBIT P6A TRUE COPY OF THE APPEAL MEMORANDUM AND AN INTERIM APPLICATION FILED BEFORE THE DEPUTY SECRETARY AND INDUSTRIES DEPARTMENT, GOVERNMENT OF KERALA. EXHIBIT P7A TRUE COPY OF THE POSTAL RECEIPTS ADDRESSED TO THE DEPUTY SECRETARY INDUSTRIES DEPARTMENT. RESPONDENTS' EXHIBITS:NIL TRUE COPY P.A. TO JUDGE