In Commissioner Of Income Tax v. Chhabil Das

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 18TH DAY OF JUNE 2019 / 28TH JYAISHTA, 1941 WP(C).No.16540 of 2019 PETITIONER: MERCY CHAKOCHANAGED 49 YEARSW/O. K. P. CHACKOCHAN, KALLARACKAL, PAINGATTOOR P.O., AAYANKARA KARA, KADAVOOR VILLAGE, ERNAKULAM DISTRICT.BY ADV. SRI.M.TRIPTEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, who is stated to be the owner of aproperty having an extent of 135½ cents of land comprised inSurvey No.809/1/22 of Kadavoor Village, has filed this writpetition under Article 226 of the Constitution of India, seekinga writ of certiorari (wrongly stated as writ of mandamus) to setaside Ext.P5 notice dated 14.06.2019 issued by the Secretaryof the 1[st] respondent Grama Panchayat, whereby he has beenasked to remove the obstructions caused to the drainage onthe northern boundary of her property, within three days. Thepetitioner has also sought for an order staying all furtherproceedings pursuant to Ext.P5 notice. In Ext.P5 notice, it isalleged that the petitioner has closed the drainage on thenorthern boundary of her property. The said notice is oneissued based on the complaint made by the 2[nd] respondent.The grievance of the petitioner is that while issuing Ext.P5order, she has not been granted sufficient time to approach theTribunal, challenging the same. 2.Heard the learned counsel for the petitioner. 3.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 Courtto 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. 4.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 be entertained 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 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 ofgrievance. Therefore, when a statutory forum is created by lawfor redressal of grievances, a writ petition should not beentertained ignoring the statutory dispensation. 5.InThansingh Nathmal's case (supra)aConstitution Bench ofthe Apex Court held that, the jurisdiction of 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 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 obtaining WP(C)16540 OF 2019 relief. 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. 6.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 bya statute which gives a special remedy for enforcing it, theremedy provided by that statute only must be availed of. This rule 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 a third 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 Council in 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 tobe equally applicable to enforcement of rights and has beenfollowed by the Apex Court throughout. 7.In Pavithran V. State of Kerala (2009 (4) KHC4), a Full Bench of this Court held that, whenever an adverse order is passed against a person, unless the same ischallenged before the appropriate forum, within the prescribedtime limit, the said order will become final. 8.Viewed in the light of the law laid down in thedecisions referred to supra, conclusion is irresistible that, nointerference on Ext.P5 notice is warranted under Article 226 of in 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 tobe equally applicable to enforcement of rights and has beenfollowed by the Apex Court throughout. 7.In Pavithran V. State of Kerala (2009 (4) KHC4), a Full Bench of this Court held that, whenever an adverse order is passed against a person, unless the same ischallenged before the appropriate forum, within the prescribedtime limit, the said order will become final. 8.Viewed in the light of the law laid down in thedecisions referred to supra, conclusion is irresistible that, nointerference on Ext.P5 notice is warranted under Article 226 of the Constitution of India, on the grounds raised in this writpetition, in view of the statutory remedy available underSection 276 of the Kerala Panchayat Raj Act. 9.In such circumstances, the challenge made in thiswrit petition against Ext.P5 notice fails for the aforesaid reasonand the writ petition filed on 17.06.2019 is dismissed;however, without prejudice to the right of the petitioner tochallenge Ext.P5 notice, by invoking the statutory remedyavailable under Section 276 of the Kerala Panchayat Raj Act,by approaching the appropriate forum. All legal and factual contentions raised in this writ petitionare left open to be raised before the appropriate forum, atappropriate stage. Sd/- ANIL K. NARENDRAN JUDGE yd APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1TRUE PHOTOCOPY OF THE TITLE DEED DATED6.3.2006 EXECUTED IN FAVOUR OF PETITIONER. EXHIBIT P2TRUE PHOTOCOPY OF THE COMMISSION REPORT IN I.A.NO.1573/2013 IN O.S.NO.221/2013 ON THE FILE OF MUNSIFF'S COURT, MOOVATTUPUZHA. EXHIBIT P2 ATRUE PHOTOCOPY OF THE COMMISSION REPORT IN I.A.NO.1321/2013 IN O.S.NO.221/2013 ON THE FILE OF MUNSIFF'S COURT, MOOVATTUPUZHA DATED 28.5.2013.REPORT IN I.A.NO.1321/2013 IN O.S.NO.221/2013 ON THE FILE OF MUNSIFF'S COURT, MOOVATTUPUZHA DATED 28.5.2013. EXHIBIT P3TRUE PHOTOCOPY OF THE JUDGMENT IN O.S.NO.221/2013 OF THE MUNSIFF'S COURT, MOOVATTUPUZHA DATED 15.3.2019.O.S.NO.221/2013 OF THE MUNSIFF'S COURT, MOOVATTUPUZHA DATED 15.3.2019. EXHIBIT P4TRUE PHOTOCOY OF THE DECREE IN O.S.NO.221/2013 OF THE MUNSIFF'S COURT, MOOVATTUPUZHA DATED 15.3.2019.O.S.NO.221/2013 OF THE MUNSIFF'S COURT, MOOVATTUPUZHA DATED 15.3.2019. EXHIBIT P5TRUE PHOTOCOPY OF THE NOTICE DATED 14.6.2019 ISSUED FROM THE OFFICE OF IST RESPONDENT.14.6.2019 ISSUED FROM THE OFFICE OF IST RESPONDENT. EXHIBIT P6TRUE PHOTOCOPY OF THE NOTICE SENT BY REVENUE DIVISIONAL OFFICER TO THE PETITIONER DATED 3.5.2017.REVENUE DIVISIONAL OFFICER TO THE PETITIONER DATED 3.5.2017. RESPONDENTS EXHIBITS: NIL TRUE COPY PA TO JUDGE