In Commissioner Of Income Tax v. Chhabil Das

IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 30TH DAY OF AUGUST 2019 / 8TH BHADRA, 1941 WP(C).No.23406 OF 2019(A) PETITIONERS: RESPONDENTS: THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON30.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The first petitioner is the licensee of Toddy ShopNo.35/2019-20 (Puliyaanamkunnu) in Group No.I ofCherplassery Excise Range, from the year 2014-15 onwards.The licence is valid upto 31.02.2020. The toddy shop ispresently occupied in a residential building with building No.5/1UA/2019 owned by the second petitioner. The petitioners havefiled this writ petition under Article 226 of the Constitution ofIndia seeking a writ of certiorari to quash Ext.P2 notice dated26.08.2019 issued by the Secretary of the first respondentGrama Panchayat, whereby the second petitioner has beendirected to close down the toddy shop conducted in thatresidential building (a building which is provisionally numbered)without obtaining change of occupancy. The petitioner has alsosought for a direction restraining the first respondent fromtaking any further action pursuant to Ext.P2 notice, includingclosure of the toddy shop (Puliyaanamkunnu) in Group No.I ofCherplassery Excise Range. 2.Heard the learned counsel for the petitioners. 3.The sole issue that arises for consideration in thiswrit petition is as to whether any interference is warranted onExt.P2 notice dated 26.08.2019 issued by the Secretary of the first respondent Grama Panchayat, in exercise of the writjurisdiction of this Court under Article 226 of the Constitution ofIndia. 4. The fact that Ext.P2 notice is appealable before the appropriate authority, in view of the provisions under Section276 of the Kerala Panchayath Raj Act, 1994, is not in dispute. Itis also not in dispute that the toddy shop is functioning in aresidential building, which is provisionally numbered, andwithout obtaining change of occupancy. 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 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 such interference or there exists sufficient ground to invoke theextraordinary jurisdiction under Article 226. 6.In Authorised Officer, State Bank of Travancore interference 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 Courtreiterated that the discretionary jurisdiction under Article 226of 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 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 226 of 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 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 not generally 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 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, the 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 isnow well recognised that where a right or liability is created bya 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 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 gives aspecial 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 given bythe statute must be adopted and adhered to."be 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 gives aspecial 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 given bythe 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. 9. In Pavithran V. State of Kerala (2009 (4) KHC 4), a Full Bench of this Court held that, whenever anadverse order is passed against a person, unless the same is challenged before the appropriate forum, within theprescribed 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 writ jurisdiction of this Court underArticle 226 of the Constitution of India, in order to challengeExt.P2 notice dated 26.08.2019 issued by the Secretary of thefirst respondent Grama Panchayat, on the grounds raised in thiswrit petition, in view of the statutory remedy available underSection 276 of the Kerala Panchayat Raj Act. 11.In the result, the challenge made in this writ petitionagainst Ext.P2 notice dated 26.08.2019 fails for the aforesaidreason and the writ petition is accordingly dismissed; however,without prejudice to the right of the petitioner to challengeExt.P2 notice by invoking the statutory remedy under Section276 of the Kerala Panchayat Raj Act, 1994 before theappropriate forum. In the result, the challenge made in this writ petition 12.The learned counsel for the petitioners would submitthat the first respondent has pasted a copy of Ext.P2 notice onthe wall of the building. Along with the appeal, the petitionershave to produce the notice issued by the first respondent.Therefore, the Secretary of the first respondent Grama Panchayat may be directed to issuse a copy of Ext.P2 noticeforthwith. It is for the petitioner to approach the Secretary of the first respondent Grama Panchayat for a copy of Ext.P2 notice, inorder to avail the statutory remedy, in which event, theSecretary shall issue a copy of that notice to the petitioners,forthwith. Sd/- ANIL K.NARENDRAN, JUDGE Skk/300819 APPENDIX PETITIONERS' EXHIBITS: In the result, the challenge made in this writ petition 12.The learned counsel for the petitioners would submitthat the first respondent has pasted a copy of Ext.P2 notice onthe wall of the building. Along with the appeal, the petitionershave to produce the notice issued by the first respondent.Therefore, the Secretary of the first respondent Grama Panchayat may be directed to issuse a copy of Ext.P2 noticeforthwith. It is for the petitioner to approach the Secretary of the first respondent Grama Panchayat for a copy of Ext.P2 notice, inorder to avail the statutory remedy, in which event, theSecretary shall issue a copy of that notice to the petitioners,forthwith. Sd/- ANIL K.NARENDRAN, JUDGE Skk/300819 APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ORDER P5-6329/19 DATED 17-08-2019 ISSUED BY SECOND RESPONDENT EXHIBIT P2TRUE COPY OF THE STOP NOTICE DATED 26-08-2019 ISSUED BY THE SECOND RESPONDENT WITH TYPED COPY EXHIBIT P3 TRUE COPY OF THE PROPERTY TAX RECEIPT DATED13-08-2019 ISSUED BY THE FIRST RESPONDENT RESPONDENTS' EXHIBITS: NIL