In Commissioner Of Income Tax v. Chhabil Das

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY ,THE 11TH DAY OF MARCH 2019 / 20TH PHALGUNA, 1940 WP(C).No. 6671 of 2019 PETITIONER/S: 1SIBY P.S.,AGED 37 YEARSAGED 37 YEARS W/O MUHAMMED HARIS, POKKALIPARAMBIL HOUSE, KUMBALAM P.O., ERNAKULAM.P.O., ERNAKULAM. 2DILEEP,AGED 51 YEARSAGED 51 YEARS S/O GOPALAN, KOCHUPARAMBIL, KUMBALAM P.O., ERNAKULAM. 3SANAL KUMAR,S/O VELAPPAN, KALAPPURAKKAL HOUSE, KUMBALAM P.O., ERNAKULAM.S/O VELAPPAN, KALAPPURAKKAL HOUSE, KUMBALAM P.O., ERNAKULAM. 4SEETHA CHAKKRAPANI,AGED 58 YEARSD/O MADHAVAN, THITTETHARAYIL HOUSE, KUMBALAM P.O., ERNAKULAM.AGED 58 YEARSD/O MADHAVAN, THITTETHARAYIL HOUSE, KUMBALAM P.O., ERNAKULAM. BY ADVS.SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN RESPONDENT/S: 1KUMBALAM GRAMA PANCHAYATHKUMBALAM P.O., ERNAKULAM DISTRICT-682506, REPRESENTEDBY ITS SECRETARY.KUMBALAM P.O., ERNAKULAM DISTRICT-682506, REPRESENTEDBY ITS SECRETARY. 2THE SECRETARY,KUMBALAM GRAMA PANCHAYAT, KUMBALAM P.O., ERNAKULAM DISTRICT-682506.KUMBALAM GRAMA PANCHAYAT, KUMBALAM P.O., ERNAKULAM DISTRICT-682506. 3KUMBALAM GRAMA PANCHAYAT COMMITTEE,KUMBALAM GRAMA PANCHAYAT, KUMBALAM P.O., ERNAKULAM DISTRICT-682506,REPRESENTED BY ITS PRESIDENT.KUMBALAM GRAMA PANCHAYAT, KUMBALAM P.O., ERNAKULAM DISTRICT-682506,REPRESENTED BY ITS PRESIDENT. 4RELIANCE JIO INFOCOMM LIMITED, PUKALAKKATTU KARYATTU TOWERS, NEAR YATHRI NIVAS, MAMANGALAM, ERNAKULAM-682014. 5DISTRICT TELECOMM COMMITTEE,REPRESENTED BY DISTRICT COLLECTOR, COLLECTORATE, KAKKANAD, ERNAKULAM-682030. BY ADVS.SRI AJITH GEORGE, STANDING COUNSEL FOR R1 TO R3SRI.HARIKUMAR G. NAIR FOR R4SRI.AKHIL SURESH SRI. MANURAJ K.J. GOVERNMENT PLEADER FOR R5 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT Petitioners 1 to 3, who are residing near the construction site covered by Ext.P1 building permit, dated05.01.2019 issued to the fourth respondent and the fourthpetitioner, who is the ward member of the first respondentGrama Panachayat, have filed this writ petition under Article226 of the Constitution of India seeking a writ of certiorari toquash Ext.P1 building permit; and a declaration that the secondrespondent Secretary of the first respondent Grama Panchayathas issued Ext. P1 building permit in violation of Sub Rule (3)(i)(b) of Rule 12 of the Kerala Panchayat Raj (Issue of License toDangerous and Offensive Trades and Factories) Rules, 1996. 2.On 06.03.2019, when this writ petition came forconsideration, this Court issued urgent notice by specialmessenger to respondents 1 to 4, returnable by a week.Learned Government Pleader took notice on admission for thefifth respondent. 3.Heard learned counsel for petitioners, the learnedStanding Counsel for respondents 1 to 3, the learned counselfor the fourth respondent and also the learned GovernmentPleader appearing for the fifth respondent. 4.The grievance of petitioners is regarding 2.On 06.03.2019, when this writ petition came forconsideration, this Court issued urgent notice by specialmessenger to respondents 1 to 4, returnable by a week.Learned Government Pleader took notice on admission for thefifth respondent. 3.Heard learned counsel for petitioners, the learnedStanding Counsel for respondents 1 to 3, the learned counselfor the fourth respondent and also the learned GovernmentPleader appearing for the fifth respondent. 4.The grievance of petitioners is regarding construction of a mobile tower by the fourth respondenttelecom company, on the strength of Ext.P1 building permitdated 05.01.2019, issued by the second respondent.Admittedly, Ext.P1 building permit is appealable before theTribunal for Local Self Government Institutions, as per theprovisions under sub-section (4) of Section 276 of the KeralaPanchayath Raj Act. Instead of filing such an appeal before theTribunal, petitioners have filed Ext.P5 appeal dated 28.02.2019before the third respondent Panchayath Committee. Onrealising the fact that the third respondent is not the appellateauthority, the petitioners moved this Court by filing this writpetition, on 05.03.2019, seeking various reliefs.telecom company, on the strength of Ext.P1 building permitdated 05.01.2019, issued by the second respondent.Admittedly, Ext.P1 building permit is appealable before theTribunal for Local Self Government Institutions, as per theprovisions under sub-section (4) of Section 276 of the KeralaPanchayath Raj Act. Instead of filing such an appeal before theTribunal, petitioners have filed Ext.P5 appeal dated 28.02.2019before the third respondent Panchayath Committee. Onrealising the fact that the third respondent is not the appellateauthority, the petitioners moved this Court by filing this writpetition, on 05.03.2019, seeking various reliefs. 5.When Ext.P1 building permit issued by the secondrespondent is appealable before the Tribunal for Local SelfGovernment Institutions, in view of the provisions under sub-section (4) of Section 276 of the Kerala Panchayath Raj Act,petitioners cannot invoke the writ jurisdiction of this Courtunder Article 226 of the Constitution of India seeking a writ ofcertiorari to quash Ext. P1. Government Institutions, in view of the provisions under sub-section (4) of Section 276 of the Kerala Panchayath Raj Act,petitioners cannot invoke the writ jurisdiction of this Courtunder Article 226 of the Constitution of India seeking a writ ofcertiorari to quash Ext. P1. 6.In Commissioner of Income Tax v. Chhabil DasAgarwal [(2014) 1 SCC 603], the Apex Court held that non-entertainment of a writ petition under Article 226 of theentertainment of a writ petition under Article 226 of the Constitution 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 togrant 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. 7.In Authorised Officer, State Bank of Travancore Constitution 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 togrant 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. 7.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 casesfalling within the well defined exceptions as observed inChaabil Das Agarwal's case (supra), i.e., where the statutory 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. 8.InThansingh Nathmal's case (supra)a Constitution 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 the 8.InThansingh Nathmal's case (supra)a Constitution 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 the jurisdiction 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 Courtnormally will not permit by entertaining a petition under Article226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to itto 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 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."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 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." 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 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. 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 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. 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 is challengedbefore the appropriate forum, within the prescribed time limit,the said order will become final. 11.Viewed in the light of the law laid down in thedecisions referred to supra, conclusion is irresistible that nointerference is warranted on Ext.P1 building permit, invokingthe writ jurisdiction of this Court under Article 226 of theConstitution of India, on the grounds raised in the writ petition. 12.Having considered the submissions made by learnedcounsel on both sides, this Court finds that, immediately aftercoming to know about Ext.P1 building permit, petitioners havemoved Ext.P5 appeal before the third respondent PanchayathCommittee. Such an appeal is not maintainable before thethird respondent Panchayat Committee, in view of the provisions under sub-section (4) of Section 276 of the KeralaPanchayath Raj Act. Therefore, it is for petitioners to challengeExt. P1 building permit by filing an appeal before the Tribunalfor Local Self Government Institutions. 13.Taking note of the filing of Ext.P5 appeal before thethird respondent Panchayath Committee on 28.02.2019 andfiling of this writ petition before this Court on 05.03.2019,petitioners are permitted to file an appeal along with a staypetition before the Tribunal for Local Self GovernmentInstitutions, Thiruvananthapuram, challenging Ext.P1 buildingpermit, within two weeks from the date of receipt of a certifiedcopy of this judgment. 14.If any such appeal is received, within the aforesaidtime limit the Tribunal shall consider that appeal on meritstreating it as one filed within the time limit specified under sub-section (6) of Section 276 of the Kerala Panchayath Raj Act.and pass appropriate orders thereon and in the interlocutoryapplications, if any filed, strictly in accordance with law. Writ petition is disposed of, accordingly. Sd/- ANIL K.NARENDRAN, JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF THE CONSENT FOR CONSTRUCTION OF TOWER ISSUED BY THE 2ND RESPONDENT DATED5.1.2019OF TOWER ISSUED BY THE 2ND RESPONDENT DATED5.1.2019 EXHIBIT P2PHOTO SHOWING THE NATURE OF THE CONSTRUCTION IN THE WATER COURSECONSTRUCTION IN THE WATER COURSE EXHIBIT P3TRUE COPY OF THE PETITION DATED 14.2.2019 SUBMITTED BY THE LOCL PEOPLE BEFORE THE DISTRICT COLLECTOR ERNAKAULAMSUBMITTED BY THE LOCL PEOPLE BEFORE THE DISTRICT COLLECTOR ERNAKAULAM EXHIBIT P4TRUE COPY OF THE MASS MEMORANDUM DATED 27.2.2019 SUBMITTED BY THE PETITIONERS AND OTHERS BEFORE THE DISTRICT COLLECTOR, ERNAKULAM27.2.2019 SUBMITTED BY THE PETITIONERS AND OTHERS BEFORE THE DISTRICT COLLECTOR, ERNAKULAM EXHIBIT P5TRUE COPY OF THE APPEAL DATED 28.2.2019 FILED BEFORE THE 3RD RESPONDENTFILED BEFORE THE 3RD RESPONDENT EXHIBIT P6TRUE COPY OF THE LETTER DATED 22.2.2019 ISSUED BY THE 2ND RESPONDENTISSUED BY THE 2ND RESPONDENT EXHIBIT P7TRUE COPY OF THE MEDICAL CERTIFICATE DATED 9.3.2018 ISSUED BY THE GOVERNMENT GENERAL HOSPITAL, ERNAKULAM9.3.2018 ISSUED BY THE GOVERNMENT GENERAL HOSPITAL, ERNAKULAM