In Commissioner Of Income Tax v. Chhabil Das

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 07TH DAY OF JUNE 2019 / 17TH JYAISHTA, 1941WP(C).No. 15595 of 2019 PETITIONER: SUNIL.M.P,AGED 41 YEARS,S/O.LATE PREBHAKARAN, MECHERY HOUSE, KURIACHIRA P.O., NEGRU NAGAR, THRISSUR. BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL) SRI MANU RAJ K.J - GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner is the registered owner of an autorickshawbearing registration No.KL-08/BS-6557, covered by Ext.P3certificate of registration and Ext.P4 contract carriage permit,whereby he has been permitted to ply the said autorickshaw in all fitroads of Thrissur district, subject to the condition that the saidvehicle shall not park or pick up passengers from and within thecity, with parking place at Marathakkara. The petitioner moved anapplication seeking variation of the conditions of permit in so far asthe parking place is concerned, in order to change the parking placeto Paramekkavu Temple. The said application now stands rejectedby Ext.P5 order dated 11.04.2019 of the 3[rd] respondent. Feelingaggrieved, the petitioner is before this Court in this writ petitionfiled under Article 226 of the Constitution of India, seeking a writ ofcertiorari to quash Ext.P5 order; a writ of mandamus commandingthe 2[nd] respondent to issue permit to the petitioner's autorickshawbearing registration No.KL-08/BS-6557. 2.The learned counsel for the petitioner would placereliance on Ext.P6 order of the State Transport Appellate Tribunal, WP(C).No. 15595 of 2019 3 Ernakulam in MVAA No.408/2012, which is an order passed by theTribunal in an appeal filed under Section 89 of the Motor VehiclesAct, 1988 against the order rejecting the application for variation ofthe conditions of a contract carriage permit of anotherautorickshaw. 3.Heard the learned counsel for the petitioner, the learnedGovernment Pleader appearing for respondents 1 to 3 and also the learned Standing Counsel for the 4[th] respondent Corporation. 4.The sole issue that arises for consideration in this writpetition is as to whether any interference is warranted on Ext.P5order dated 11.04.2019 of the 3[rd] respondent, invoking the writjurisdiction of this Court under Article 226 of the Constitution ofIndia. 5. Admittedly, Ext.P5 order of the 3[rd] respondent is appealable before the State Transport Appellate Tribunal, in view ofthe provisions under Section 89 of the Act. The said fact is not indispute. 6.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 the WP(C).No. 15595 of 2019 4 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. WP(C).No. 15595 of 2019 4 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 reiterated thatthe discretionary jurisdiction under Article 226 of the Constitutionof India is not absolute but has to be exercised judiciously in thegiven facts of a case and in accordance with law. The normal ruleis that a writ petition under Article 226 of the Constitution ofIndia ought not to be entertained if alternative statutoryremedies are available, except in cases falling within the well WP(C).No. 15595 of 2019 5 defined exceptions as observed in Chaabil Das Agarwal's case(supra), i.e., where the statutory authority has not acted inaccordance with the provisions of the enactment in question or indefiance of the fundamental principles of judicial procedure, orhas resorted to invoke the provisions which are repealed, orwhen an order has been passed in total violation of the principlesof natural justice. After referring to the law laid down inThansingh Nathmal v. Superintendent of Taxes and Titaghur Paper Mills Company Ltd. v. State ofOrissa [(1983) 2 SCC 433] the Apex Court held that HighCourt will not entertain a petition under Article 226 of theConstitution if an effective alternative remedy is available to theaggrieved person or the statute under which the actioncomplained of contains a mechanism for redressal of grievance.Therefore, when a statutory forum is created by law for redressalof grievances, a writ petition should not be entertained ignoringthe statutory dispensation. 8.InThansingh Nathmal's case (supra)aConstitution Bench ofthe Apex Court held that, the jurisdictionof the High Court under Article 226 of the Constitution is WP(C).No. 15595 of 2019 6 couched in wide terms and the exercise thereof is not subject toany restrictions except the territorial restrictions which areexpressly provided in the Article. But the exercise of thejurisdiction is discretionary: it is not exercised merely because itis lawful to do so. The very amplitude of the jurisdictiondemands that it will ordinarily be exercised subject to certain selfimposed limitations. Resort to that jurisdiction is not intended asan alternative remedy for relief which may be obtained in a suitor other mode prescribed by statute. Ordinarily, the court willnot entertain a petition for a writ under Article 226, where thepetitioner has an alternative remedy, which without being undulyonerous, provides an equally efficacious remedy. Again the HighCourt does not generally enter upon a determination ofquestions which demand an elaborate examination of evidenceto establish the right to enforce for which the writ is claimed.The High Court does not, therefore, act as a court of appealagainst the decision of a court or tribunal, to correct errors offact, and does not by assuming jurisdiction under Article 226trench upon an alternative remedy provided by statute forobtaining relief. Where it is open to the aggrieved petitioner to WP(C).No. 15595 of 2019 7 WP(C).No. 15595 of 2019 7 move another tribunal or even itself in another jurisdiction forobtaining redress in the manner provided by a statute, the HighCourt normally will not permit by entertaining a petition underArticle 226 of the Constitution the machinery created under thestatute to be bypassed, and will leave the party applying to it toseek 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, the remedyprovided by that statute only must be availed of. This rule wasstated with great clarity by Willes, J. in Wolverhampton NewWater Works Co. v. Hawkesford [(1859) 6 CBNS 336] atpage 356 in the following passage: "There are three classes of cases in which a liability may beestablished founded upon statute ..... But there is a third class, viz., where a liability not existing at common law iscreated by a statute which at the same time gives a specialand particular remedy for enforcing it ..... the remedyprovided by the statute must be followed, and it is notcompetent to the party to pursue the course applicable tocases of the second class. The form given by the statutemust 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 Grant and 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 view of the law laid down in the decisions referred to supra, the petitioner cannot invoke the writ jurisdiction of thisCourt under Article 226 of the Constitution of India, challengingExt.P5 order dated 11.04.2019 of the 3[rd] respondent, on thegrounds raised in this writ petition. In such circumstances, this writ petition filed on 06.06.2019 is dismissed for the aforesaid reason; however, without prejudice to WP(C).No. 15595 of 2019 9 the right of the petitioner to challenge Ext.P5 order by filing astatutory appeal before the State Transport Appellate Tribunal,invoking the provisions under Section 89 of the Motor Vehicles Act,1988. sru Sd/-ANIL K.NARENDRANJUDGE APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE RATION CARD NO.1841068073. EXHIBIT P2 TRUE COPY OF THE OFFER LETTER TO THE PETITIONER ISSUED BY THE 4TH RESPONDENT. EXHIBIT P3TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF THE VEHICLE BEARING REGISTRATION NO.KL 08 BS 6557. EXHIBIT P4TRUE COPY OF THE CONTRACT CARRIAGE PERMITOF THE VEHICLE BEARING REGISTRATION NO.KL08 BS 6557. EXHIBIT P5TRUE COPY OF THE ORDER NO.G 12/3691/19 R DATED 11.04.2019 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN M.V.A.A.NO.408/2012 OF THE STATE TRANSPORT APPELLATE TRIBUNAL, ERNAKULAM DATED 11.12.2012.