In Commissioner Of Income Tax v. Chhabil Das

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941 WP(C).No.24504 OF 2019 PETITIONER: SHINE.M. S/O.MUKUNDHAN.V., PANTHRANDIL CHIRA, AMBALAPUZHA P.O., ALAPPUZHA-688 561. BY ADV. SRI.BASANT BALAJI RESPONDENTS: SRI HARISH K.P- SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSIONON 05.09.2019, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: JUDGMENT The petitioner, who is running an Ayurveda Hospital inthe name and style, J.N. Vaidyasala, on the strength of Ext.P1lease deed dated 27.03.2019, has filed this writ petition underArticle 226 of the Constitution of India, seeking a writ ofcertiorari to quash Ext.P15 notice dated 03.09.2019 issued bythe Secretary of the 2[nd] respondent Grama Panchayat,whereby the petitioner is asked to close down the hospital on05.09.2019 before 5.00 pm (today). The petitioner has alsosought for a declaration that since the petitioner's applicationfor licence has not been rejected by the 3[rd] respondent, within30 days of submission of that application, the petitioner'shospital is having deemed licence. 2.Heard the learned counsel for the petitioner andalso the learned Government Pleader appearing forrespondents 1 and 2. 3.The averments in the writ petition would show thatthe application for trade licence made by the petitioner beforethe 3[rd] respondent, as evidenced by Ext.P2 receipt dated29.03.2019, was rejected based on certain complaints.According to the petitioner, after curing the deficiency basedon which that application for licence was rejected, he made a fresh application for licence on 30.07.2019, as evidenced byExt.P9 receipt. However, the petitioner was issued withExt.P10 communication dated 20.08.2019, whereby it wasinformed that the application for licence cannot be consideredbased on the report submitted by the 4[th] respondent DistrictMedical Officer, and a request has already been made to theGovernment for conducting a higher level enquiry. 4.Ext.P15 notice is appealable before the appropriateauthority, in view of the provisions under Section 276 of theKerala Panchayat Raj Act, 1994. Before the appellateauthority, the petitioner can also seek interim relief. 5.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 has approached 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. 6.InAuthorised Officer, State Bank of approached 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. 6.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 beexercised 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. 7.When an appellate remedy is provided underSection 276 of the Act, against Ext.P15 notice, the petitionercannot invoke the writ jurisdiction under Article 226 of theConstitution of India in order to challenge the said notice, onthe grounds raised in this writ petition. When an appellate remedy is provided under In the result, the challenge made in this writ petition against Ext.P15 notice fails for the aforesaid reason; however,without prejudice to the right of the petitioner to invoke thestatutory remedy under Section 276 of the Kerala PanchayatRaj Act. Sd/- ANIL K. NARENDRAN JUDGE PETITIONER'S EXHIBITS: EXHIBIT P1TRUE COPY OF THE LEASE AGREEMENT DATED27.03.2019 EXECUTED BETWEEN THE PETITIONER AND THE THREE OTHERS.27.03.2019 EXECUTED BETWEEN THE PETITIONER AND THE THREE OTHERS. RESPONDENTS' EXHIBITS:NIL TRUE COPY P.A. TO JUDGE