In Commissioner Of Income Tax v. Chhabil Das

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY ,THE 25TH DAY OF MARCH 2019 / 4TH CHAITHRA, 1941 WP(C).No. 2912 of 2019 PETITIONER/S: MURALICHAND,AGED 29S/O.SARATHCHANDRAN NAIR, RESIDING AT CHANDRAMANGALAM,T.C.NO.7/1385-1, VETTAMUKKU, THIRUVANANTHAPURAM, REPRESENTED BY HIS FATHER AND POWER OF ATTORNEY HOLDER, SRI.SARATHCHANDRAN NAIR, S/O.A.K.JANARDHANAN NAIR, AGED 63, RESIDING AT CHANDRAMANGALAM, T.C.NO.7/1385-1, VETTAMUKKU, THIRUVANANTHAPURAM-695006. BY ADVS.SRI.P.B.KRISHNANSMT.B.ANUSREESRI.MANU VYASAN PETERSRI.P.B.SUBRAMANYANSRI.P.M.NEELAKANDANSRI.SABU GEORGE RESPONDENT/S: 1THIRUVANANTHAPURAM CORPORATIONREPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, THIRUVANANTHAPURAM-695033. 2THE SECRETARYTHIRUVANANTHAPURAM-695033.THIRUVANANTHAPURAM-695033. THIRUVANANTHAURAM CORPORATION, CORPORATION OFFICE, BY ADVS.SRI.N.NANDAKUMARA MENON (SR.)SRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2912 of 2019 2 JUDGMENT The petitioner, who is stated to be the owner inpossession of a land having an extent of 20 cents in SurveyNo. 1221/B-1-1, B-1 and B-4 of Thycaud Village covered byExt.P1 sale deed and Ext.P2 tax receipt has filed this writpetition under Article 226 of the Constitution of India seekinga writ of certiorari to quash Ext.P3 order dated 29.11.2018 ofthe second respondent, whereby the application dated10.04.2018 made by the petitioner for building permit forconstruction of a hotel complex consisting of ground plusseven floors stands rejected on the ground that the areawhere the construction is proposed to be undertaken isincluded in the land to be acquired for commercial use in thedetailed town planning scheme for the road from ThycaudWomen & Children Hospital Junction to Aryasala Junction.The petitioner has also sought for a writ of mandamuscommanding the respondents to grant building permit to thepetitioner. 2.On 31.01.2019, when this writ petition came up foradmission, the learned Standing Counsel for respondentssought time to get instructions. 3.Thereafter, on 21.03.2019, when this writ petition WP(C).No. 2912 of 2019 3 came up for further consideration, the learned Senior Counselfor the first respondent Corporation pointed out that Ext.P3order is appealable before the Tribunal for Local SelfGovernment Institutions. The learned counsel for thepetitioner sought adjournment, and accordingly, the matterwas adjourned. 4.Heard the learned counsel for the petitioner andalso the learned Standing Counsel for respondents 1 and 2. 5.The sole issue that arises for consideration in thiswrit petition is as to whether any interference is warranted onExt.P3 order dated 29.11.2018 of the second respondent,whereby the application made by the petitioner for buildingpermit stands rejected. 6.The fact that, Ext.P3 order of the secondrespondent, whereby the application dated 10.04.2018 madeby the petitioner for building permit stands rejected, isappealable before the Tribunal for the Local Self GovernmentInstitutions, in view of the provisions under sub-section (6) ofSection 509 of the Kerala Municipality Act, 1994 and underRule 160 of the Kerala Municipality Building Rules, 2011 is notin dispute. The fact that, Ext.P3 order of the second 7.In Commissioner of Income Tax v. Chhabil Das 5.The sole issue that arises for consideration in thiswrit petition is as to whether any interference is warranted onExt.P3 order dated 29.11.2018 of the second respondent,whereby the application made by the petitioner for buildingpermit stands rejected. 6.The fact that, Ext.P3 order of the secondrespondent, whereby the application dated 10.04.2018 madeby the petitioner for building permit stands rejected, isappealable before the Tribunal for the Local Self GovernmentInstitutions, in view of the provisions under sub-section (6) ofSection 509 of the Kerala Municipality Act, 1994 and underRule 160 of the Kerala Municipality Building Rules, 2011 is notin dispute. The fact that, Ext.P3 order of the second 7.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. 8.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 withlaw. 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 cases falling 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 ignoringthe statutory dispensation. 9.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 subject 9.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 subject to 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 writ underArticle 226, where the petitioner has an alternative remedy,which without being unduly onerous, provides an equallyefficacious remedy. Again the High Court does not generallyenter upon a determination of questions which demand anelaborate examination of evidence to establish the right toenforce for which the writ is claimed. The High Court does not,therefore, act as a court of appeal against the decision of acourt or tribunal, to correct errors of fact, and does not byassuming jurisdiction under Article 226 trench upon analternative remedy provided by statute for obtaining relief.Where it is open to the aggrieved petitioner to move anothertribunal or even itself in another jurisdiction for obtainingredress in the manner provided by a statute, the High Court WP(C).No. 2912 of 2019 7 normally will not permit by entertaining a petition under Article226 of the Constitution the machinery created under thestatute to be bypassed, and will leave the party applying to itto seek resort to the machinery so set up. 10.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. 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 given bythe statute must be adopted and adhered to." WP(C).No. 2912 of 2019 8 The rule laid down in that passage was approved by the Houseof Lords in Neville v. London Express Newspaper Ltd.[1919AC 368] and has been reaffirmed by the Privy Council inAttorney General of Trinidad and Tobago v. Gordon Grantand Co. [1935 AC 532] and Secretary of State v. Mask andCo. . It has also been held to be equallyapplicable to enforcement of rights and has been followed by theApex Court throughout. 11.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 is challengedbefore the appropriate forum, within the prescribed time limit,the said order will become final. WP(C).No. 2912 of 2019 8 The rule laid down in that passage was approved by the Houseof Lords in Neville v. London Express Newspaper Ltd.[1919AC 368] and has been reaffirmed by the Privy Council inAttorney General of Trinidad and Tobago v. Gordon Grantand Co. [1935 AC 532] and Secretary of State v. Mask andCo. . It has also been held to be equallyapplicable to enforcement of rights and has been followed by theApex Court throughout. 11.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 is challengedbefore the appropriate forum, within the prescribed time limit,the said order will become final. 12.Viewed in the light of the law laid down in thedecisions referred to supra, conclusion is irresistible that inview of the statutory remedy available under sub-section (6)of Section 509 of the Kerala Municipality Act and Rule 160 ofthe Kerala Municipality Building Rules, the petitioner cannotchallenge Ext.P3 order, whereby the application for buildingpermit stands rejected, invoking the writ jurisdiction of thisCourt under Article 226 of the Constitution of India, on thegrounds raisedin this writ petition. WP(C).No. 2912 of 2019 9 In such circumstances, this writ petition filed on30.01.2019 challenging Ext.P3 order dated 29.11.2018 of thesecond respondent stands rejected for the aforesaid reason;however, without prejudice to the right, if any, of thepetitioner to challenge Ext.P3 order by invoking the statutoryremedy. SD/- ANIL K.NARENDRAN JUDGE DCS APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 DATED 14-7-2008, TRUE COPY OF THE SALE DEEDNO.2646/08 SRO CHALA. EXHIBIT P2 DATED 25-4-2017, TRUE COPY OF THE RECEIPT NO.0584090 ISSUED BY THE THYCAUD VILLAGE OFFICER, EXHIBIT P3 DATED 29/11/2018, TRUE COPY OF THE ORDER NO.E6/BA/226850/2018 ISSUED BY THE 2ND RESPONDENT.