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 11TH DAY OF MARCH 2019 / 20TH PHALGUNA, 1940WP(C).No. 7167 of 2019 PETITIONER: SHAHIN IBRAHIM,AGED 27 YEARS, S/O.IBRAHIM, PUTHIYAVEETTIL (H), FRIEND LANE, MANAMKEDU, THRISSUR ENGINEERING COLLEGE(PO),THRISSUR-680009. BY ADV. SMT.C.K.REMANY RESPONDENT: PANCHAYATH SECRETARY,AVANNUR GRAMA PANCHAYATH, VELAPPAYA.P.O., MEDICAL COLLEGE, THRISSUR-680596. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSIONON 11.03.2019, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: JUDGMENT The petitioner, who is conducting a hotel in a leasedbuilding owned by one Rajesh, after obtaining Ext.P1 D&Olicense issued by the respondent and Ext.P2 registrationcertificate issued under the Food Safety and Standards Act,2006, has filed this writ petition under Article 226 of theConstitution of India, seeking a writ of certiorari (wronglystated as writ of mandamus) to quash Ext.P3 notice dated21.02.2019 issued by the respondent and to stop furtherproceedings based on Ext.P3. 2.Heard the learned counsel for the petitioner. 3.Ext.P3 notice, which is under challenge in this writpetition, is one issued by the respondent, invoking its powersunder Section 235W of the Kerala Panchayat Raj Act. If thepetitioner is feeling aggrieved by Ext.P3, his remedy is toapproach the Tribunal for Local Self Government Institutions,by filing an appeal under sub-section (4) of Section 276 of theKerala Panchayat Raj Act, 1994, which provides that an appealon the notice, order or action of the Secretary under Sections235 I, 235 J, 235 N, 235 W and 235 X shall be filed before theTribunal constituted for Local Self Government Institutions under Section 271 S, and it may on an application by an order,stay the operation of the said notice, order or action takenpending disposal of the appeal. 4.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. 5.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 be 5.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 be exercised 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 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. 6.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 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 trench upon 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. upon 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. 7.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. 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 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 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 tobe equally applicable to enforcement of rights and has beenfollowed by the Apex Court throughout. 8.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. 9.Viewed in the light of the law laid down in thedecisions referred to supra, conclusion is irresistible that, nointerference on Ext.P3 notice under Article 226 of theConstitution of India is warranted in this writ petition in view of the statutory remedy available under sub-section (4) ofSection 276 of the Kerala Panchayat Raj Act and it is for thepetitioner to file an appeal challenging Ext.P3 notice before theTribunal for Local Self Government Institutions. 10.In the result, this writ petition, filed on 08.03.2019,is dismissed for the aforesaid reasons; however, withoutprejudice to the right of the petitioner to challenge Ext.P3notice before the Tribunal for Local Self GovernmentInstitutions, by invoking the statutory remedy. All legal and factual contentions raised in this writ petitionare left open to be raised before the Tribunal at appropriatestages. Sd/- ANIL K. NARENDRAN JUDGE yd APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1TRUE COPY OF THE D & O LICENSE DATED 31.1.2019. EXHIBIT P2TRUE COPY OF THE REGISTRATION CERTIFICATE BY FSSAI FOOD LICENSING & REGISTRATION SYSTEM DATED 15.10.018. EXHIBIT P3TRUE COPY OF THE NOTICE DATED 21.2.2019. RESPONDENTS' EXHIBITS:NIL TRUE COPY P.A. TO JUDGE