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 21ST DAY OF JUNE 2019 / 31ST JYAISHTA, 1941 WP(C).No.16557 of 2019 PETITIONERS: 1P.K.YOOSAFAGED 57 YEARS S/O. UMMER, MEENA HOUSE, KADALOOR P.O, KOYILANDY, KOZHIKODE DISTRICT, PIN-673529. 2P.K. SAKKEENA,AGED 48 YEARS W/O. P.K. YOOSAF, MEENA HOUSE, KADALOOR P.O, KOYILANDY, KOZHIKODE DISTRICT, PIN-673529. BY ADV. SMT.K.DEEPA (PAYYANUR) RESPONDENTS: 1THE SECRETARY, VADAKARA MUNICIPALITY,VADAKARA P.O, KOZHIKODE DISTRICT, PIN-673101. 2THE CHAIRMAN,VADAKARA MUNICIPALITY, VADAKARA P.O, KOZHIKODE DISTRICT, PIN-673101. SRI T.NAVEEN -STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioners, who are stated to be the owners in possession of property having an extent of 1.10 Ares comprised inRe-survey No.254/1.B2 of Vadakara Municipality, have filed thiswrit petition under Article 226 of the Constitution of India, seekinga writ of certiorari to quash Ext.P5 notice dated 20.08.2016issued by the first respondent, who is the Secretary of theVadakara Municipality and Ext.P7 Mahazar dated 19.03.2019,prepared by the Health Supervisor in the Municipality, as directedby the first respondent. The petitioners have also sought for a writof mandamus commanding the second respondent, who is theChairman of Vadakara Municipality, to consider Ext.P9 Appealfiled under Section 509 of the Kerala Municipality Act, afteraffording them an opportunity of being heard and decide thematter in accordance with law. The further relief sought for is awrit of mandamus commanding the respondents to permit thepetitioners to function their fruits stall till the disposal of Ext.P9appeal. 2.On 18.06.2019, when this writ petition came up foradmission, the learned Standing Counsel for the Municipality sought time to get instructions. 3.Heard the learned counsel for the petitioners and alsothe learned Standing Counsel for the Municipality, representingthe respondents. 4.The sole issue at arises for consideration in this writpetition is as to whether any interference is warranted on Ext.P5notice dated 20.08.2016 issued by the first respondent and alsoExt.P7 mahazar prepared by the Health Supervisor, as directedby the first respondent. The sole issue at arises for consideration in this writ 5.Ext.P5 notice dated 28.08.2016 issued by the firstrespondent was under challenge before the Tribunal for Local SelfGovernment Institutions by filing Appeal No.859 of 2016, invokingthe provisions under Section 509 of the Kerala Municipality Act.The said Appeal ended in dismissed by Ext.P8 order dated21.11.2018 on the ground that such an appeal challenging Ext.P5notice is not one falling under sub-section (6) or sub-section (7) ofSection 509 of the Kerala Municipality Act. In Ext.P8 order theTribunal found that Ext.P5 notice is appealable before theMunicipal Council, under sub-section (1) of Section 509 of thesaid Act. 6.When the petitioners came to know about Ext.P8 order of the Tribunal, they filed Ext.P9 appeal before the MunicipalCouncil, challenging Ext.P5 notice and in that appeal an interimrelief has also been sought for, in order to re-open the shop room,which has already been closed down. Ext.P9 appeal is nowpending consideration before the Municipal Council. The learnedStanding Counsel for the Municipality would submit that Ext.P9appeal filed by the petitioner is now pending consideration beforethe Municipal Council. 6.When the petitioners came to know about Ext.P8 order of the Tribunal, they filed Ext.P9 appeal before the MunicipalCouncil, challenging Ext.P5 notice and in that appeal an interimrelief has also been sought for, in order to re-open the shop room,which has already been closed down. Ext.P9 appeal is nowpending consideration before the Municipal Council. The learnedStanding Counsel for the Municipality would submit that Ext.P9appeal filed by the petitioner is now pending consideration beforethe Municipal Council. 7.When Ext.P5 notice, which is under challenge in thiswrit petition, is appealable before the Municipal Council in view ofthe provisions under sub-section (1) of Section 509 of the KeralaMunicipality Act, the petitioners cannot invoke the writ jurisdictionof this Court under Article 226 of the Constitution of India, inorder to challenge the said order, on the grounds raised in thiswrit petition. Ext.P7 mahazar which is under challenge in this writpetition, is only a consequential action of the Health Supervisor,as per the direction of the first respondent. 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 theConstitution of India when an efficacious alternative remedy is available 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, despitethe existence of alternative remedy. However, High Court mustnot interfere if there is an adequate efficacious alternative remedyavailable to the petitioner and he has approached the High Courtwithout availing the same, unless he has made out an exceptionalcase warranting such interference or there exists sufficient groundto invoke the extraordinary jurisdiction under Article 226. 9. 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 of Indiaought not to be entertained if alternative statutory remedies areavailable, except in cases falling within the well definedexceptions 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 in defiance of the fundamental principles of judicial procedure, orhas resorted 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 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 will notentertain a petition under Article 226 of the Constitution if aneffective alternative remedy is available to the aggrieved personor the statute under which the action complained of contains amechanism for redressal of grievance. Therefore, when astatutory forum is created by law for redressal of grievances, awrit petition should not be entertained ignoring the statutorydispensation. 10.In Thansingh Nathmal's case (supra) a ConstitutionBench ofthe Apex Court held that, the jurisdiction of the HighCourt under Article 226 of the Constitution is couched in wideterms and the exercise thereof is not subject to any restrictionsexcept the territorial restrictions which are expressly provided inthe Article. But the exercise of the jurisdiction is discretionary: itis not exercised merely because it is lawful to do so. The very 10.In Thansingh Nathmal's case (supra) a ConstitutionBench ofthe Apex Court held that, the jurisdiction of the HighCourt under Article 226 of the Constitution is couched in wideterms and the exercise thereof is not subject to any restrictionsexcept the territorial restrictions which are expressly provided inthe Article. But the exercise of the jurisdiction is discretionary: itis not exercised merely because it is lawful to do so. The very amplitude 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 for reliefwhich may be obtained in a suit or other mode prescribed bystatute. Ordinarily, the court will not entertain a petition for a writunder Article 226, where the petitioner has an alternative remedy,which without being unduly onerous, provides an equallyefficacious remedy. Again the High Court does not generally enterupon a determination of questions which demand an elaborateexamination of evidence to establish the right to enforce for whichthe writ is claimed. The High Court does not, therefore, act as acourt of appeal against the decision of a court or tribunal, tocorrect errors of fact, and does not by assuming jurisdiction underArticle 226 trench upon an alternative remedy provided by statutefor obtaining 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, 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. 11.In Titaghur Paper Mills' case (supra) a Three-JudgeBench of the Apex Court held that, the Orissa Sales Tax Act, 1947provides for a complete machinery to challenge an order ofassessment, and the impugned orders of assessment can only bechallenged by the mode prescribed by the Act and not by apetition under Article 226 of the Constitution. It is now wellrecognised that where a right or liability is created by a statutewhich 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 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 Council in AttorneyGeneral of Trinidad and Tobago v. Gordon Grant and Co.[1935 AC 532] and Secretary of State v. Mask and Co. . It has also been held to be equally applicable toenforcement of rights and has been followed by the Apex Courtthroughout. 12.In Pavithran V. State of Kerala (2009 (4) KHC 4),a Full Bench of this Court held that, whenever an adverse order ispassed against a person, unless the same is challenged before theappropriate forum, within the prescribed time limit, the said orderwill become final. 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 in AttorneyGeneral of Trinidad and Tobago v. Gordon Grant and Co.[1935 AC 532] and Secretary of State v. Mask and Co. . It has also been held to be equally applicable toenforcement of rights and has been followed by the Apex Courtthroughout. 12.In Pavithran V. State of Kerala (2009 (4) KHC 4),a Full Bench of this Court held that, whenever an adverse order ispassed against a person, unless the same is challenged before theappropriate forum, within the prescribed time limit, the said orderwill become final. 13.Viewed in the light of the law laid down in the decisionsreferred to supra, the conclusion is irresistible that in view of thestatutory remedy available under Section 509 of the KeralaMunicipality Act, the petitioners cannot invoke the writ jurisdictionof this Court under Article 226 of the Constitution of India, inorder to challenge Ext.P5 notice dated 20.08.2016 issued by thefirst respondent or Ext.P7 mahazar, which is only a consequentialaction taken by the Health Supervisor, on the grounds raised inthis writ petition. It is for the petitioners to pursue Ext.P9 appealfiled before the Municipal Council, in accordance with law. 14.If any application is made by the petitioners for interimrelief in Ext.P9 appeal, the Chairperson of the Municipality shallconsider that request, in accordance with law, and passappropriate orders, within two weeks from the date of receipt of acertified copy of this judgment. It is made clear that this Court has not expressed anything as to the maintainability of Ext.P9 appeal, which is now pendingconsideration before the Municipal Committee. Sd/- ANIL K.NARENDRAN, JUDGE nak APPENDIX PETITIONERS': EXHIBIT P1TRUE COPY OF THE BUILDING TAX RECEIPTS ISSUEDTO THE PETITIONERS BY THE 2ND RESPONDENT FOR PAYMENT OF BUILDING TAX FOR THE SHOP ROOM BEARING NO.19/381 A11(A) FOR THE PERIOD 2015-16.TO THE PETITIONERS BY THE 2ND RESPONDENT FOR PAYMENT OF BUILDING TAX FOR THE SHOP ROOM BEARING NO.19/381 A11(A) FOR THE PERIOD 2015-16. EXHIBIT P2TRUE COPY OF THE LICENSE FEE RECEIPT ISSUED TO THE PETITIONERS BY THE 1ST RESPONDENT ON RECEIPT OF THE LICENSE FEE OF RS.225/- FOR 2014-15.TO THE PETITIONERS BY THE 1ST RESPONDENT ON RECEIPT OF THE LICENSE FEE OF RS.225/- FOR 2014-15. EXHIBIT P3TRUE COPY OF THE APPLICATION DATED 29.02.2016SUBMITTED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT.SUBMITTED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT. EXHIBIT P4THE PHOTOGRAPH OF THE FRUITS STALL. EXHIBIT P5TRUE COPY OF THE NOTICE BEARING NO. H2-24681/15 DATED 20.08.2016 ISSUED TO THE PETITIONERS BY THE 1ST RESPONDENT.24681/15 DATED 20.08.2016 ISSUED TO THE PETITIONERS BY THE 1ST RESPONDENT. EXHIBIT P6TRUE COPY OF THE APPEAL PREFERRED BY THE PETITIONERS BEFORE LEARNED TRIBUNAL FOR LOCALSELF GOVT. INSTITUTIONS, THIRUVANANTHAPURAM.PETITIONERS BEFORE LEARNED TRIBUNAL FOR LOCALSELF GOVT. INSTITUTIONS, THIRUVANANTHAPURAM. EXHIBIT P7TRUE COPY OF THE MAHASSAR PREPARED BY THE HEALTH SUPERVISOR UNDER THE DIRECTION OF THE 1ST RESPONDENT.HEALTH SUPERVISOR UNDER THE DIRECTION OF THE 1ST RESPONDENT. EXHIBIT P8TRUE COPY OF THE ORDER OF APPEAL NO.859/2016 DATED 21.11.2018 OF THE LEARNED TRIBUNAL FOR LOCAL SELF GOVT. INSTITUTIONS, THIRUVANANTHAPURAM.DATED 21.11.2018 OF THE LEARNED TRIBUNAL FOR LOCAL SELF GOVT. INSTITUTIONS, THIRUVANANTHAPURAM. EXHIBIT P9TRUE COPY OF THE MEMORANDUM OF APPEAL FILED UNDER SECTION 506(1) OF THE MUNICIPALITY ACT BEFORE THE 2ND RESPONDENT BY THE PETITIONERS.UNDER SECTION 506(1) OF THE MUNICIPALITY ACT BEFORE THE 2ND RESPONDENT BY THE PETITIONERS. EXHIBIT P9 ATRUE COPY OF THE RECEIPT ISSUED TO THE PETITIONERS ACKNOWLEDGING THE RECEIPT OF APPEAL(INWARD NO.10261/2019) BY THE 2ND RESPONDENTPETITIONERS ACKNOWLEDGING THE RECEIPT OF APPEAL(INWARD NO.10261/2019) BY THE 2ND RESPONDENT //TRUE COPY// P.A. TO JUDGE