In Commissioner Of Income Tax v. Chhabil Das

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 18TH DAY OF JUNE 2019 / 28TH JYAISHTA, 1941 WP(C).No.16523 of 2019 PETITIONER: MARY, AGED 59 YEARS, W/o.DEAVASSY, MENACHERY HOUSE, OLARIKKARA, PULLAZHI P.O., THRISSUR DISTRICT - 680 012 BY ADVS.SRI.K.A.MOHAMED HARISSMT.K.A.MUMTAZ RESPONDENTS: 1THE REGIONAL TRANSPORT AUTHORITY,OFFICE OF THE REGIONAL TRANSPORT AUTHORITY, CIVIL STATION, AYYANTHOLE, THRISSUR DISTRICT -680 003, REPRESENTED BY ITS SECRETARY.OFFICE OF THE REGIONAL TRANSPORT AUTHORITY, CIVIL STATION, AYYANTHOLE, THRISSUR DISTRICT -680 003, REPRESENTED BY ITS SECRETARY. 2THE SECRETARY,REGIONAL TRANSPORT AUTHORITY, OFFICE OF THE REGIONAL TRANSPORT AUTHORITY, CIVIL STATION, AYYANTHOLE, THRISSUR DISTRICT - 680 003REGIONAL TRANSPORT AUTHORITY, OFFICE OF THE REGIONAL TRANSPORT AUTHORITY, CIVIL STATION, AYYANTHOLE, THRISSUR DISTRICT - 680 003 3THE DISTRICT COLLECTOR,CHAIRMAN, THE REGIONAL TRANSPORT AUTHORITY, CIVIL STATION, AYYANTHOLE, THRISSUR - 680 003CHAIRMAN, THE REGIONAL TRANSPORT AUTHORITY, CIVIL STATION, AYYANTHOLE, THRISSUR - 680 003 4STATE OF KERALA,REP. BY THE SECRETARY TO GOVERNMENT, MOTOR VEHICLES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001REP. BY THE SECRETARY TO GOVERNMENT, MOTOR VEHICLES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001 5THRISSUR CORPORATION,MUNICIPAL OFFICE ROAD, KURUPPAM, THEKKINKADU MAIDAN, THRISSUR DISTRICT - 680 001MUNICIPAL OFFICE ROAD, KURUPPAM, THEKKINKADU MAIDAN, THRISSUR DISTRICT - 680 001 BY ADV. SRI. SANTHOSH P.PODUVAL, SC, THRISSUR CORPORATION SRI MANU RAJ K.J- GOVERNMENT PLEADERTHIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSIONON 18.06.2019, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: WP(C)16523 OF 2019 JUDGMENT The petitioner, who is the registered owner of anautorickshaw bearing registration No.KL-08/AX-4175 coveredby a contract carriage permit, has filed this writ petition underArticle 226 of the Constitution of India, seeking a writ ofcertiorari to quash Ext.P4 order dated 31.01.2019 issued bythe 1[st] respondent. The petitioner has also sought for otherconsequential reliefs. 2.Heard the learned counsel for the petitioner, thelearned Government Pleader appearing for respondents 1 to 4and also the learned Standing Counsel for the 3[rd] respondentCorporation. 3.The petitioner has moved an application before the1[st] respondent, seeking variation of the conditions of thecontract carriage permit, in order to change the parking placefrom Chettupuzha to Ayyanthole. W.P.(C) No.12486 of 2018,which was filed by the petitioner herein, seeking an order toconsider that application by the 1[st] respondent, was disposedof by Ext.P2 judgment dated 10.07.2018 with the followingdirections; “(i)Within one week from the date of receipt of a certified copy of this judgment, the petitioner shallresubmit Ext.p1 application before the Secretary of the 1[st]respondent Regional Transport Authority, and remit therequisite fee. (ii)If the application submitted by the petitioner is inorder, the 1[st] respondent shall consider the same and passappropriate orders thereon, strictly in accordance withlaw,with notice to the petitioner and also to the Secretaryof the 3[rd] respondent Corporation. (iii)Decision in this regard shall be taken, asexpeditiously as possible, at any rate, within a period of sixweeks thereafter.” 4. Pursuant to the directions contained in that judgment, the 1[st] respondent Regional Transport Authority has considered and rejected that application made by thepetitioner, stating various reasons, as discernible from Ext.P4order. The said order issued by the 1[st] respondent is appealablebefore the State Transport Appellate Tribunal, in view of theprovisions under Section 89 of the Motor Vehicles Act, 1988.The said fact is not in dispute. 5.In Commissioner of Income Tax v. Chhabil Das (iii)Decision in this regard shall be taken, asexpeditiously as possible, at any rate, within a period of sixweeks thereafter.” 4. Pursuant to the directions contained in that judgment, the 1[st] respondent Regional Transport Authority has considered and rejected that application made by thepetitioner, stating various reasons, as discernible from Ext.P4order. The said order issued by the 1[st] respondent is appealablebefore the State Transport Appellate Tribunal, in view of theprovisions under Section 89 of the Motor Vehicles Act, 1988.The said fact is not in dispute. 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 is WP(C)16523 OF 2019 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 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. 6.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 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.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 are WP(C)16523 OF 2019 7.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 are WP(C)16523 OF 2019 expressly 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 moveanother tribunal or even itself in another jurisdiction forobtaining redress in the manner provided by a statute, the WP(C)16523 OF 2019 High 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. 8.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 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 course applicable 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. 9.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. 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. 9.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. 10.Viewed in the light of the law laid down in thedecisions referred to supra, conclusion is irresistible that, if thepetitioner is feeling aggrieved by Ext.P4 order, he has toapproach the Tribunal by filing an appeal under Section 89 ofthe Motor Vehicles Act. 11.In such circumstances, the challenge made in this WP(C)16523 OF 2019 writ petition against Ext.P4 order cannot be entertained inexercise of the writ jurisdiction of this Court under Article 226of the Constitution of India, on the grounds raised in this writpetition. 12.In the result, the challenge made in this writpetition against Ext.P4 fails for the aforesaid reasons and thewrit petition filed on 17.06.2019 is accordingly dismissed;however without prejudice to the right of the petitioner tochallenge Ext.P4 order, by filing an appeal before the StateTransport Appellate Tribunal. All legal and factual contentions raised in this writ petitionare left open to be raised before the Tribunal, at appropriatestage. Sd/- ANIL K. NARENDRAN JUDGE yd PETITIONER'S EXHIBITS: APPENDIX EXHIBIT P1TRUE COPY OF THE APPLICATION SUBMITTEDBY THE PETITIONER DATED 14.02.2018 FORTHE VARIATION OF THE CONDITIONS IN THEPERMIT EXHIBIT P2TRUE COPY OF THE JUDGMENT OF THIS COURT IN WPC NO. 12486 OF 2018 DATED 10.07.2018 EXHIBIT P3TRUE COPY OF THE APPLICATION RE-SUBMITTED BY THE PETITIONER DATED 17.07.2018 FOR THE VARIATION OF THE CONDITIONS IN THE PERMIT BEFORE THE 1ST RESPONDENT EXHIBIT P4TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 31.01.2019, SIGNED ON 24.03.2019 RESPONDENT'S EXHIBITS:NIL TRUE COPY P.A. TO JUDGE