In Commissioner Of Income Tax v. Chhabil Das

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 25TH DAY OF MARCH 2019 / 4TH CHAITHRA, 1941WP(C).No. 21366 of 2018 PETITIONER: SHANMUGADASAN,S/O. CHEKKU, AGED 45 YEARS, THAYYIL HOUSE, MELMURI, MALAPPURAM DISTRICT. BY ADVS.SRI.BABU S. NAIRSMT.SMITHA BABU RESPONDENTS: THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON25.03.2019, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: JUDGMENT The petitioner, who constructed a commercial building ina property comprised in Re-survey No.1026/3 of VazhakkadVillage, after obtaining building permit from the 1[st] respondentGrama Panchayat, which building has already been numberedas 11/175A, has filed this writ petition under Article 226 of theConstitution of India, seeking a writ of certiorari to quashExt.P9 order dated 22.05.2018 of the Secretary of the 1[st]respondent Grama Panchayat; and a writ of mandamuscommanding the respondents not to interfere with the conductof toddy shop in the building owned by the petitioner withbuilding No.11/175A of Vazhakkadu Grama Panchayat. 2.On 28.06.2018, when this writ petition came up foradmission, the learned Government Pleader took notice for the2[nd] respondent. Urgent notice by speed post was ordered tothe 1[st] respondent, returnable within two weeks. This Courtgranted an interim stay of further proceedings pursuant toExt.P9 for a period of one month. The said interim order, whichwas extended from time to time, is still in force. 3.The 1[st] respondent has filed a counter affidavit,opposing the reliefs sought for in this writ petition. In the counter affidavit, the 1[st] respondent has pointed out that,Ext.P9 order is appealable before the Tribunal for Local SelfGovernment Institutions, under sub-section (4) of Section 276 of the Kerala Panchayat Raj Act, 1994 and as such, thepetitioner cannot invoke the writ jurisdiction of this Courtunder Article 226 of the Constitution of India, without availingthe statutory remedy. The 1[st] respondent has also raisedvarious contentions on the merits of the matter. 4.Heard the learned counsel for the petitioner, thelearned counsel for the 1[st] respondent Grama Panchayat andalso the learned Government Pleader appearing for the 2[nd]respondent Deputy Excise Commissioner. 5.The fact that, Ext.P9 order of the Secretary of the1[st] respondent Grama Panchayat is appealable before theTribunal for Local Self Government Institutions under sub-section (4) of Section 276 of the Kerala Panchayat Raj Act isnot in dispute. As per the sub-section (4), the Tribunal hasalso the power to stay the operation of order, during thependency of that appeal. 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 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. 7.InAuthorised Officer, State Bank of 7.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. 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 couched 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 notgenerally 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 move 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. 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. 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 isnow well recognised that where a right or liability is created bya 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 gives a 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. 10.In Pavithran V. State of Kerala (2009 (4) KHC 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. 11.Viewed in the light of the law laid down in thedecisions referred to supra, conclusion is irresistible that thechallenge made in this writ petition against Ext.P9 order of theSecretary of the 1[st] respondent Grama Panchayat, whereby the building number granted to the petitioner’s building has beencancelled, can be challenged before the Tribunal for Local SelfGovernment Institutions, by filing an appeal under sub-section(4) of Section 276 of the Act. In view of the said statutoryremedy available as above, the petitioner cannot challengethat order before this Court, by invoking the writ jurisdictionunder Article 226 of the Constitution of India, on the groundsraised in this writ petition. 12.In such circumstances, the challenge made in thiswrit petition against Ext.P9 order dated 22.05.2018 of theSecretary of the 1[st] respondent Grama Panchayat fails and thiswrit petition filed on 27.06.2018 is accordingly dismissed;however, without prejudice to the right of the petitioner tochallenge Ext.P9 order, by filing an appeal before the Tribunalfor Local Self Government Institutions, invoking the provisionsunder sub-section (4) of Section 276 of the Kerala PanchayatRaj Act. 13.Since the petitioner has filed this writ petition beforethis Court within the time limit specified for filing an appealbefore the Tribunal, if any appeal is filed within two weeks fromthe date of receipt of a certified copy of this judgment, the same shall be entertained by the Tribunal as one filed withinthe statutory time limit, and decide it on merits. If anapplication for stay is made along with that appeal, theTribunal shall consider the same and pass appropriate ordersthereon, with notice to both sides. 13.Since the petitioner has filed this writ petition beforethis Court within the time limit specified for filing an appealbefore the Tribunal, if any appeal is filed within two weeks fromthe date of receipt of a certified copy of this judgment, the same shall be entertained by the Tribunal as one filed withinthe statutory time limit, and decide it on merits. If anapplication for stay is made along with that appeal, theTribunal shall consider the same and pass appropriate ordersthereon, with notice to both sides. So as to enable the petitioner to seek appropriate interimrelief from the Tribunal in the appeal to be filed against Ext.P9order, the interim order granted by this Court in this writpetition shall continue in force for a period of one month. Sd/- ANIL K. NARENDRAN JUDGE APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1TRUE COPY OF THE AGREEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE LICENCEE OF THE TODDY SHOP ONE VIMAL PRASAD DATED, 26-3-2018.INTO BETWEEN THE PETITIONER AND THE LICENCEE OF THE TODDY SHOP ONE VIMAL PRASAD DATED, 26-3-2018. EXHIBIT P2TRUE COPY OF THE LICENCE ISSUED BY THE2ND RESPONCENT TO VIMAL PRASAD TO CONDUCT THE TODDY SHOP.2ND RESPONCENT TO VIMAL PRASAD TO CONDUCT THE TODDY SHOP. EXHIBIT P3TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED, 27-03-2018.2ND RESPONDENT TO THE PETITIONER DATED, 27-03-2018. EXHIBIT P4TRUE COPY OF THE RESOLUTION PASSED BY THE VAZHAKKAD GRAMA PANCHAYATH DATED, 31-3-2017.THE VAZHAKKAD GRAMA PANCHAYATH DATED, 31-3-2017. EXHIBIT P5TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE COURT IN W.P(C) NO. 11446/2018 DATED 13-4-2018.BY THIS HON'BLE COURT IN W.P(C) NO. 11446/2018 DATED 13-4-2018. EXHIBIT P6 TRUE COPY OF THE ORDER PASSED BY THE FIRST RESPONDENT DATED 12-4-2018 AS NO. A2-9936/18 ALONG WITH THE PROCEEDINGSFIRST RESPONDENT DATED 12-4-2018 AS NO. A2-9936/18 ALONG WITH THE PROCEEDINGS EXHIBIT P7TRUE COPY OF THE JUDGMENT DATED, 27-4-2018 IN W.P(C) NO. 14397/2018 OF THIS HON'BLE COURT.2018 IN W.P(C) NO. 14397/2018 OF THIS HON'BLE COURT. EXHIBIT P8TRUE COPY OF THE JUDGMENT DATED, 11-5-2018 IN W.A NO. 945/2018 OF THIS HON'BLE COURT.2018 IN W.A NO. 945/2018 OF THIS HON'BLE COURT. EXHIBIT P9TRUE COPY OF THE ORDER PASSED BY THE FIRST RESPONDENT DATED 22-5-2018 AS NO.A2-9936/18 ALONG WITH THE PROCEEDINGS.FIRST RESPONDENT DATED 22-5-2018 AS NO.A2-9936/18 ALONG WITH THE PROCEEDINGS. 1ST RESPONDENT'S EXHIBITS: TRUE COPY P.A. TO JUDGE