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 11TH DAY OF MARCH 2019 / 20TH PHALGUNA, 1940 WP(C).No. 6626 of 2019 PETITIONER: MADHUKUMAR,AGED 56 YEARSS/O.LATE KRISHNA PANICKER, GOPALAKRISHNAMANDHIRAM, CHERTHALA,ALAPPUZHA. BY ADV. SRI.B.PRAMOD RESPONDENTS: 1THE DISTRICT COLLECTOR,COLLECTORATE,ALAPPUZHA-688001.COLLECTORATE,ALAPPUZHA-688001. 2REVENUE DIVISIONAL OFFICER,REVENUE DIVISIONAL OFFICE, ALAPPUZHA-688543.REVENUE DIVISIONAL OFFICE, ALAPPUZHA-688543. 3THE VILLAGE OFFICER,VAYALAR EAST VILLAGE, CHERTHALA TALUK-688536.VAYALAR EAST VILLAGE, CHERTHALA TALUK-688536. 4THE AGRICULTURAL OFFICER, AGRICULTURE OFFICE,VAYALAR KRISHI BHAVAN,PIN-688536. OTHER PRESENT: SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, who is stated to be the owner inpossession of 7.68 ares of property comprised in Survey No.250/1-20, 250/1-16, and 45/5 of Vayalar East Village, has filedthis writ petition under Article 226 of the Constitution of India,seeking a writ of certiorari to quash Ext.P7 order, dated22.01.2019 of the 1[st] respondent, District Collector. 2.On 06.03.2019, when this writ petition came forconsideration, the learned Senior Government Pleader pointedout that Ext. P7 order is revisable before the Government, inview of the provisions under Section 28 of the KeralaConservation of Paddy Land and Wet Land Act, 2008. 3.Heard the learned counsel for the petitioner and alsothe learned Senior Government Pleader appearing for therespondents. 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 a rule 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,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. 5.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 casesfalling 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 the 5.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 casesfalling 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 the fundamental principles of judicial procedure, or has resorted toinvoke the provisions which are repealed, or when an order hasbeen 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. 6.InThansingh Nathmal's case (supra)a Constitution 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 jurisdiction demands 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 writ underArticle 226, where the petitioner has an alternative remedy,which without being unduly onerous, provides an equallyefficacious remedy. Again the High Court does not generallyenter upon a determination of questions which demand anelaborate examination of evidence to establish the right toenforce for which the writ is claimed. The High Court does not,therefore, act as a court of appeal against the decision of acourt or tribunal, to correct errors of fact, and does not byassuming jurisdiction under Article 226 trench upon analternative remedy provided by statute for obtaining relief.Where it is open to the aggrieved petitioner to move anothertribunal or even itself in another jurisdiction for obtainingredress in the manner provided by a statute, the High Courtnormally will not permit by entertaining a petition under Article226 of the Constitution the machinery created under thestatute to be bypassed, and will leave the party applying to itto seek resort to the machinery so set up. 7.In Titaghur Paper Mills' case (supra) a Three- 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 is nowwell recognised that where a right or liability is created by astatute 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 may beestablished founded upon statute ..... But there is a third class,viz., where a liability not existing at common law is created bya statute which at the same time gives a special and particularremedy for enforcing it ..... the remedy provided by the statutemust be followed, and it is not competent to the party topursue the course applicable to cases of the second class. Theform given by 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.[1919AC 368] and has been reaffirmed by the Privy Council inAttorney General 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 equallyapplicable to enforcement of rights and has been followed by theApex Court throughout. 8. 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 is challengedbefore the appropriate forum, within the prescribed time limit,the said order will become final. 9.The fact that, Ext.P7 order passed by the 1[[st]]respondent is revisable under Section 28 of the KeralaConservation of Paddy Land and Wet Land Act, 2008, is not indispute. In such circumstances, it is for the petitioner to invokethe statutory remedy available under Section 28, in order tochallenge the said order. The fact that, Ext.P7 order passed by the 1[[st]] 10.In the result, this writ petition filed on 05.03.2019 isdismissed; however without prejudice to the right of thepetitioner to challenge Ext.P7 order by filing a revision beforethe Government, invoking Section 28 of the KeralaConservation of Paddy Land and Wet Land Act, 2008. DCS The legal and factual contentions raised by the petitionerare left open to be raised before the first respondent, atappropriate stage. Sd/- ANIL K. NARENDRAN, JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF THE WILL DATED 17.06.2003 EXECUTED BY THE PETITIONERS FATHER AND MOTHER.EXECUTED BY THE PETITIONERS FATHER AND MOTHER. EXHIBIT P2TRUE COPY OF THE BASIC TAX RECEIPT DATED 15.05.2018.15.05.2018. EXHIBIT P3TRUE COPY 0F THE STOP MEMO DATED 08.10.2016ISSUED BY THE 3RD RESPONDENT.ISSUED BY THE 3RD RESPONDENT. EXHIBIT P4TRUE COPY OF THE NOTICE ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT.PETITIONER BY THE 1ST RESPONDENT. EXHIBIT P5TRUE COPY OF THE OBJECTION/EXPLANATION DATED 16.02.2018 SUBMITTED BY THE PETITIONER.DATED 16.02.2018 SUBMITTED BY THE PETITIONER. EXHIBIT P6TRUE COPY OF THE PHOTOGRAPHS OF THE PANCHAYATH ROAD AND PROPERTY OF THE PETITIONER.PANCHAYATH ROAD AND PROPERTY OF THE PETITIONER. EXHIBIT P7TRUE COPY OF THE ORDER DATED 22.01.2019 PASSED BY THE 1ST RESPONDENT.PASSED BY THE 1ST RESPONDENT.