In Commissioner Of Income Tax v. Chhabil Das

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 08TH DAY OF MARCH 2019 / 17TH PHALGUNA, 1940WP(C).No. 6156 of 2019 PETITIONER: C.K.SULAIMAN,AGED 70 YEARS, S/O KOCHA AHAMED, NOORI INDUSTRIES, ALLAPRA P.O. ORNA, PERUMBAVOOR, ERNAKULAM - 683 542. BY ADV. SRI.PRAVEEN K. JOY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSIONON 08.03.2019, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: JUDGMENT The petitioner, who is the owner of a property having anextent of 30.72 ares in Survey No.189/8-2 in Block No.21 ofVengola Village, has filed this writ petition under Article 226 ofthe Constitution of India, seeking a writ of mandamuscommanding the 2[nd] respondent to take up application forrenewal of consent for his plywood unit and to reconsider thesame in view of Ext.P11 judgment, after setting aside Ext.P10order and to pass appropriate orders on merits, within a timelimit to be fixed by this Court; a writ of certiorari to quashExt.P10 order and declare that the said order is illegal,arbitrary and nonest; and a writ of mandamus commandingrespondents 2 and 3 to consider the application made by thepetitioner on 17.10.2013, vide application dated 24.09.2013,and renew consent for the plywood unit. 2.Heard the learned counsel for the petitioner, thelearned Government Pleader appearing for the 1[st] respondentand also the learned Standing Counsel for the Pollution ControlBoard, representing respondents 2 and 3. 3.The petitioner has filed this writ petition challenging WP(C)6156 OF 2019 Ext.P10 order dated 23.01.2019 of the 2[nd] respondent,whereby the application made for renewal of consent for hisplywood unit stands rejected. The fact that Ext.P10 orderpassed by the 2[nd] respondent is appealable before theappellate authority under Section 28 of the Water Act, 1974and Section 31 of the Air Act, 1981 is not in dispute. 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. WP(C)6156 OF 2019 4 WP(C)6156 OF 2019 4 5.InAuthorised Officer, State Bank ofTravancore 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 is WP(C)6156 OF 2019 available 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 not WP(C)6156 OF 2019 generally 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 trenchupon 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 by WP(C)6156 OF 2019 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 by WP(C)6156 OF 2019 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 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 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 WP(C)6156 OF 2019 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, whenExt.P10 order passed by the 2[nd] respondent is appealablebefore the Appropriate Authority under the provisions ofSection 28 of the Water Act, 1974 and Section 31 of the AirAct, 1981, the petitioner cannot invoke the writ jurisdiction ofthis Court under Article 226 of the Constitution of India,challenging the said order. If Ext.P10 order of the 2[nd]respondent is erroneous, it is for the petitioner to challenge thesame before the Appellate Authority, by availing the staturotyremedy. 10.In the result, this writ petition filed on 27.02.2019is dismissed for the aforesaid reason; however, withoutprejudice to the right of the petitioner to challenge Ext.P10order by filing a statutory appeal before the StatutoryAuthority. WP(C)6156 OF 2019 All legal and factual contentions raised by the petitioner are left open to be raised before the Appellate Authority, atappropriate stage. Sd/- ANIL K. NARENDRAN JUDGE yd PETITIONER'S EXHIBITS: APPENDIX RESPONDENTS' EXHIBITS:NIL TRUE COPYP.A. TO JUDGE