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 19TH DAY OF JULY 2019 / 28TH ASHADHA, 1941 WP(C).No.18145 of 2019 PETITIONER: JOY SCARIA,AGED 57 YEARS, S/O. SCARIA, PULIKKUNNEL, THONNIPPARA HOUSE, POOVATHODU P.O., BHARANANGANAM, KOTTAYAM DISTRICT-686 578. BY ADVS.SRI.BABY THOMASSRI.K.ANIL JOSEPH RESPONDENTS: 1MEENACHIL GRAMA PANCHAYAT, EDAMATTOM P.O., BHARANANGANAM, KOTTAYAM DISTRICT, PIN-686 578, REPRESENTED BY ITS SECRETARY.KOTTAYAM DISTRICT, PIN-686 578, REPRESENTED BY ITS SECRETARY. 2THE TOWN PLANNER,DISTRICT TOWN PLANNERS OFFICE, COLLECTORATE, KOTTAYAM-686 001.DISTRICT TOWN PLANNERS OFFICE, COLLECTORATE, KOTTAYAM-686 001. 3CHIEF TOWN PLANNER,CHIEF TOWN PLANNERS OFFICE, THIRUVANANTHAPURAM-695 003.CHIEF TOWN PLANNERS OFFICE, THIRUVANANTHAPURAM-695 003. 4THE DISTRICT COLLECTOR,COLLECTORATE P.O., KOTTAYAM-686 002.COLLECTORATE P.O., KOTTAYAM-686 002. 5TOM MATHEW,KAROTTUVEETTIL, EDAMATTOM P.O., BHARANANGANAM, KOTTAYAM-686 578.KAROTTUVEETTIL, EDAMATTOM P.O., BHARANANGANAM, KOTTAYAM-686 578. R1BY ADVS.SRI.P.C.HARIDAS R5 SRI.G.S.REGHUNATH R2-R4SRI.MANURAJ K.J.,GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON19.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, who is presently residing at Poovathodu inBharananganam, who had applied for licence to conduct metalcrusher unit and M-sand unit in his property in Block No.42 inRe.survey No.212/6-3 of Poovarani Village in Meenachil Taluk,has filed this writ petition under Article 226 of the Constitutionof India seeking a writ of certiorari to quash Ext.P7 tradelicence issued to the 5[th] respondent for conducting M-sandunit in building No.IV/398A, for the period from 01.04.2019 to31.03.2020. 2.On 08.07.2019, when this writ petition came up foradmission, this Court issued urgent notice on admission byspeed post to respondents 1 and 5, returnable within tendays. The learned Government Pleader took notice onadmission for respondents 2 to 4. The learned GovernmentPleader was directed to get instructions as to whether freshappeals/revision petitions filed along with interlocutoryapplications are being entertained by the Additional Fast TrackCourt-I, Thiruvananthapuram, the court holding additionalcharge of the Tribunal for Local Self Government Institutions. It was made clear that the pendency of this writ petition willnot stand in the way of the petitioner invoking the statutoryremedy against Ext.P7. 3.Heard the learned counsel for the petitioner,Sri.P.C.Haridas, the learned counsel for the 1[st] respondentGrama Panchayat, the learned Government Pleader appearingfor respondents 2 to 4 and also Sri.G.S.Raghunath, thelearned counsel for the 5[th] respondent. 4. The issue that arises for consideration in this writ petition is as to whether any interference is warranted onExt.P7 trade licence issued by the 1[st] respondent GramaPanchayat, in favour of the 5[th] respondent for conducting M-sand unit for the year 2019-20, in exercise of the writjurisdiction of this Court under Article 226 of the Constitutionof India. 5.The fact that Ext.P7 licence issued to the 5[th]respondent can be challenged by availing the statutoryremedy under Section 276 of the Kerala Panchayat Raj Act,1994 by approaching the appropriate forum, is not in dispute.The submission made by the learned counsel for the petitioner is that at present, there is no Presiding Officer in the Tribunalfor Local Government Institutions and as such, the petitioneris not in a position to avail the statutory remedy. 6.Based on the order of this Court dated 08.07.2019, 5.The fact that Ext.P7 licence issued to the 5[th]respondent can be challenged by availing the statutoryremedy under Section 276 of the Kerala Panchayat Raj Act,1994 by approaching the appropriate forum, is not in dispute.The submission made by the learned counsel for the petitioner is that at present, there is no Presiding Officer in the Tribunalfor Local Government Institutions and as such, the petitioneris not in a position to avail the statutory remedy. 6.Based on the order of this Court dated 08.07.2019, the Government Pleader, on instructions, would submit thatAdditional Fast Track Court-I, Thiruvananthapuram, which isholding additional charge of the Tribunal for Local SelfGovernment Institutions is entertaining fresh appeals andrevision petitions filed under the provisions of the KeralaPanchayat Raj Act. 7.The learned counsel for the 1[[st]] respondent GramaPanchayat would point out that by Ext.P7, the Secretary of theGrama Panchayat has only renewed the trade licence grantedto the 5[th] respondent, in exercise of his powers under Section232 of the Kerala Panchayat Raj Act and that it is not apermission for installation, granted under Section 233 of theKerala Panchayat Raj Act. The learned counsel for the 1[[st]] respondent Grama 8.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 Constitution 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. 9. 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 resortedto invoke the provisions which are repealed, or when an orderhas been 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. 10.InThansingh Nathmal's case (supra)aConstitution Bench ofthe Apex Court held that, the -7- 10.InThansingh Nathmal's case (supra)aConstitution Bench ofthe Apex Court held that, the -7- jurisdiction of the High Court under Article 226 of theConstitution is couched in wide terms and the exercise thereofis not subject to any restrictions except the territorialrestrictions which are expressly provided in the Article. Butthe exercise of the jurisdiction is discretionary: it is notexercised merely because it is lawful to do so. The veryamplitude of the jurisdiction demands that it will ordinarily beexercised subject to certain self imposed limitations. Resort tothat jurisdiction is not intended as an alternative remedy forrelief which may be obtained in a suit or other modeprescribed by statute. Ordinarily, the court will not entertain apetition for a writ under Article 226, where the petitioner hasan alternative remedy, which without being unduly onerous,provides an equally efficacious remedy. Again the High Courtdoes not generally enter upon a determination of questionswhich demand an elaborate examination of evidence toestablish 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 226 trench upon an alternative remedy provided by statute forobtaining relief. Where it is open to the aggrieved petitioner tomove another 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. 11.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 createdby a 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 liabilitymay be established founded upon statute ..... Butthere is a third class, viz., where a liability not existingat common law is created by a statute which at thesame time gives a special and particular remedy forenforcing it ..... the remedy provided by the statutemust be followed, and it is not competent to the partyto pursue the course applicable to cases of the secondclass. The form given by the statute must be adoptedand 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 PrivyCouncil in Attorney General of Trinidad and Tobago v.Gordon Grant and Co. [1935 AC 532] and Secretary ofState v. Mask and Co. . It has also beenheld to be equally applicable to enforcement of rights and hasbeen followed by the Apex Court throughout. 12.InPavithran 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 ischallenged before the appropriate forum, within theprescribed time limit, the said order will become final. -10- 13. Viewed in the law laid down in the decisions 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 PrivyCouncil in Attorney General of Trinidad and Tobago v.Gordon Grant and Co. [1935 AC 532] and Secretary ofState v. Mask and Co. . It has also beenheld to be equally applicable to enforcement of rights and hasbeen followed by the Apex Court throughout. 12.InPavithran 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 ischallenged before the appropriate forum, within theprescribed time limit, the said order will become final. -10- 13. Viewed in the law laid down in the decisions referred to supra, conclusion is irresistible that when astatutory remedy is available under Section 276 of the KeralaPanchayat Raj Act, the petitioner cannot challenge Ext.P7trade licence issued in favour of the 5[th] respondent, byinvoking the writ jurisdiction of this Court under Article 226 ofthe Constitution of India, on the grounds raised in the writpetition. In the result, the writ petition filed on 02.07.2019 is dismissed; however, without prejudice to the right of thepetitioner to challenge Ext.P7, by filing a statutory appealunder Section 276 of the Kerala Panchayat Raj Act beforeappropriate forum. Sd/- ANIL K. NARENDRAN JUDGE APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1TRUE COPY OF THE ORDER DATED 14.3.2016.14.3.2016. EXHIBIT P2 TRUE COPY OF THE INTERIM ORDER IN WPC NO.13696/2016.NO.13696/2016. EXHIBIT P3TRUE COPY OF THE ADDL. COUNTER AFFIDAVIT FILED BY R1 IN WPC NO.22062/2013.AFFIDAVIT FILED BY R1 IN WPC NO.22062/2013. EXHIBIT P4TRUE COPY OF THE STATEMENT FILED BY THE R2 IN W.A.NO.2432/15.THE R2 IN W.A.NO.2432/15. EXHIBIT P5TRUE COPY OF THE COMMISSION REPROT FILED BY ADVOCATE COMNMISSIONER IN O.S.NO.297/18.FILED BY ADVOCATE COMNMISSIONER IN O.S.NO.297/18. EXHIBIT P6TRUE COPY OF THE PETITION FILED BEFORETHE IST RESPONDENT ON 18.3.2019.THE IST RESPONDENT ON 18.3.2019. EXHIBIT P7TRUE COPY OF THE LICENCE ISSUED TO THE3RD RESPONDENT ON 31.3.2019.3RD RESPONDENT ON 31.3.2019. RESPONDENTS' EXHIBITS:NIL