In Commissioner Of Income Tax v. Chhabil Das

IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 01ST DAY OF APRIL 2019 / 11TH CHAITHRA, 1941WP(C).No. 27114 of 2018 PETITIONER: SATHEESH P.KAGED 50 YEARS, S/O.KUMARAN P.K.,SAJI BHAVANAM, KALLIMEL P.O., MAVELIKKARA, THAZHAKKARA,ALAPPUZHA DISTRICT - 690 509. BY ADV. SRI.ARUN MATHEW VADAKKAN RESPONDENTS: 1PALAMEL GRAMA PANCHAYATHREPRESENTED BY ITS SECRETARY,NOORANADU P.O.,ALAPPUZHA DISTRICT - 690 504. 2THE ASSISTANT EXECUTIVE ENGINEERLOCAL SELF GOVERNMENT DEPARTMENT,PALAMEL VILLAGE, ALAPPUZHA - 690 509. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON01.04.2019, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: JUDGMENT The petitioner, who is stated to be the owner in possessionof 11.73 Ares of land in Re.Survey No.381/15/2 and Re.SurveyBlock No.20 of Mavelikkara Taluk, Palamel Village has filed thiswrit petition under Article 226 of the Constitution of India,seeking a writ of certiorari to quash Ext.P8 order dated30.05.2018 issued by the Secretary of the 1[st] respondent GramaPanchayat whereby the application filed by the petitioner seekingpermission to construct a building stands rejected. In Ext.P8order, it has been stated that the place where the petitionerwants to construct the building is a portion of a hilly area lying ata height ranging from 3 meters to 8 meters and as such anyconstruction could be made only after extracting large quantity ofearth, which would cause serious environmental issues. 2.On 09.08.2018, when this writ petition came up foradmission, this Court issued urgent notice by speed post to therespondents returnable in two weeks. 3.Despite service of notice, none appears for W.P.(C)No.27114 of 2018 -3- respondents 1 and 2. 4.Heard learned counsel for the petitioner. 5.The sole issue that arises for consideration in this writpetition is as to whether any interference is warranted on Ext.P8order dated 30.05.2018 issued by the Secretary of the 1[st] GramaPanchayat, whereby an application filed by the petitioner seekingpermission to construct a building stands rejected. 6.Section 276 of the Kerala Panchayat Raj Act deals withappeal and revision. As per sub-section (4) of Section 276, anappeal on the notice, order or action of the Secretary underSection 235I, 235J, 235N and 235W shall be filed before theTribunal for Local Self Government Institutions under Section271S, and it may be on an application by an order, stay theoperation of the said notice, order or action taken, pendingdisposal of the appeal. In addition to this, Rule 151 of the KeralaPanchayat Building Rules, 2011, provides for an appeal by aperson aggrieved by an order passed by the Secretary of theGrama Panchayat, as enumerated in clauses (i) to (viii) of sub-rule (2), by filing an appeal before the Tribunal for Local Self W.P.(C)No.27114 of 2018 -4- Government Institutions constituted under Section 271S of theKerala Panchayat Raj Act. Therefore, if the petitioner is feelingaggrieved by Ext.P8 order dated 30.05.2018 of the 1[st]respondent, he could have availed the statutory remedy, byinvoking the aforesaid provisions, within the prescribed timelimit. 7.In Commissioner of Income Tax v. Chhabil Das W.P.(C)No.27114 of 2018 -4- Government Institutions constituted under Section 271S of theKerala Panchayat Raj Act. Therefore, if the petitioner is feelingaggrieved by Ext.P8 order dated 30.05.2018 of the 1[st]respondent, he could have availed the statutory remedy, byinvoking the aforesaid provisions, within the prescribed timelimit. 7.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 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 alternativeremedy available to the petitioner and he has approached theHigh Court without availing the same, unless he has made out anexceptional case warranting such interference or there exists W.P.(C)No.27114 of 2018 -5- sufficient ground to invoke the extraordinary jurisdiction underArticle 226. 8.In Authorised Officer, State Bank of Travancorev. 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 if alternativestatutory remedies are available, except in cases falling withinthe well defined exceptions as observed in Chaabil DasAgarwal's case (supra), i.e., where the statutory authority hasnot acted in accordance with the provisions of the enactment inquestion or in defiance of the fundamental principles of judicialprocedure, or has resorted to invoke the provisions which arerepealed, or when an order has been passed in total violation ofthe principles of natural justice. After referring to the law laiddown in Thansingh Nathmal v. Superintendent of Taxes and Titaghur Paper Mills Company Ltd. W.P.(C)No.27114 of 2018 -6- v. State of Orissa [(1983) 2 SCC 433] the Apex Court heldthat High Court will not entertain a petition under Article 226 ofthe Constitution if an effective alternative remedy is available tothe aggrieved person or the statute under which the actioncomplained of contains a mechanism for redressal of grievance.Therefore, when a statutory forum is created by law for redressalof grievances, a writ petition should not be entertained ignoringthe statutory dispensation. 9.InThansingh Nathmal's case (supra)aConstitution Bench ofthe Apex Court held that, the jurisdiction ofthe High Court under Article 226 of the Constitution is couched inwide terms and the exercise thereof is not subject to anyrestrictions except the territorial restrictions which are expresslyprovided in the Article. But the exercise of the jurisdiction isdiscretionary: it is not exercised merely because it is lawful to doso. The very amplitude of the jurisdiction demands that it willordinarily be exercised subject to certain self imposed limitations.Resort to that jurisdiction is not intended as an alternativeremedy for relief which may be obtained in a suit or other mode W.P.(C)No.27114 of 2018 -7- 9.InThansingh Nathmal's case (supra)aConstitution Bench ofthe Apex Court held that, the jurisdiction ofthe High Court under Article 226 of the Constitution is couched inwide terms and the exercise thereof is not subject to anyrestrictions except the territorial restrictions which are expresslyprovided in the Article. But the exercise of the jurisdiction isdiscretionary: it is not exercised merely because it is lawful to doso. The very amplitude of the jurisdiction demands that it willordinarily be exercised subject to certain self imposed limitations.Resort to that jurisdiction is not intended as an alternativeremedy for relief which may be obtained in a suit or other mode W.P.(C)No.27114 of 2018 -7- prescribed by statute. Ordinarily, the court will not entertain apetition for a writ under Article 226, where the petitioner has analternative remedy, which without being unduly onerous,provides an equally efficacious remedy. Again the High Courtdoes not 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 the decisionof a court 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. Whereit is open to the aggrieved petitioner to move another tribunal oreven itself in another jurisdiction for obtaining redress in themanner provided by a statute, the High Court normally will notpermit by entertaining a petition under Article 226 of theConstitution the machinery created under the statute to bebypassed, and will leave the party applying to it to seek resort tothe machinery so set up. 10.In Titaghur Paper Mills' case (supra) a Three- W.P.(C)No.27114 of 2018 -8- 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 assessment canonly be challenged by the mode prescribed by the Act and not bya petition 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 W.P.(C)No.27114 of 2018 -9- 368] and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co.[1935 AC 532] and Secretary of State v. Mask and Co. [AIR 1940 PC 105]. It has also been held to be equally applicable toenforcement of rights and has been followed by the Apex Courtthroughout. 11.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 beforethe appropriate forum, within the prescribed time limit, the saidorder 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 W.P.(C)No.27114 of 2018 -9- 368] and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co.[1935 AC 532] and Secretary of State v. Mask and Co. [AIR 1940 PC 105]. It has also been held to be equally applicable toenforcement of rights and has been followed by the Apex Courtthroughout. 11.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 beforethe appropriate forum, within the prescribed time limit, the saidorder will become final. 12. Viewed in the light of the law laid down in the decisionsreferred to supra, conclusion is irresistible that, when a statutoryremedy is available under Section 276 of the Kerala PanchayatRaj Act and Rule 151 of the Kerala Panchayat Building Rules,2011 to challenge Ext.P8 order of the 1[st] respondent, thepetitioner cannot invoke the writ jurisdiction of this Court underArticle 226 of the Constitution of India, on the grounds raised inthis writ petition. W.P.(C)No.27114 of 2018 -10- 13.In such circumstances, this writ petition filed on08.08.2018 challenging Ext.P8 order dated 30.05.2018 of the 1[st]respondent is dismissed for the aforesaid reason; however,without prejudice to the right, if any, of the petitioner to avail thestatutory remedy before the Tribunal for Local Self GovernmentInstitutions, by invoking the aforesaid provisions. dsn Sd/- ANIL K. NARENDRAN JUDGE APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1.TRUE COPY OF THE POSSESSION CERTIFICATE ISSUEDBY PALAMEL VILLAGE OFFICE DATED 16.04.2018.BY PALAMEL VILLAGE OFFICE DATED 16.04.2018. EXHIBIT P2.TRUE COPY OF TAX RECEIPT ISSUED BY PALAMEL VILLAGE OFFICE DATED 10.04.2018.VILLAGE OFFICE DATED 10.04.2018. EXHIBIT P3.TRUE COPY OF THE LOCATION SKETCH DATED 23.04.2018 SIGNED BY VILLAGE OFFICER, PALAMEL.23.04.2018 SIGNED BY VILLAGE OFFICER, PALAMEL. EXHIBIT P4.TRUE COPY OF THE SITE PLAN AND LOCATION PLAN PREPARED FOR THE PETITIONER DATED NIL SUBMITTED ALONG WITH THE DEVELOPMENT APPLICATION.PREPARED FOR THE PETITIONER DATED NIL SUBMITTED ALONG WITH THE DEVELOPMENT APPLICATION. EXHIBIT P5.TRUE COPY OF THE PROPOSED RESIDENTIAL BUILDINGPLAN PREPARED FOR THE PETITIONER DATED NIL SUBMITTED ALONG WITH THE DEVELOPMENT APPLICATION.PLAN PREPARED FOR THE PETITIONER DATED NIL SUBMITTED ALONG WITH THE DEVELOPMENT APPLICATION. EXHIBIT P6.TRUE COPY OF THE PROPOSED LAND DEVELOPMENT PLAN FOR RESIDENTIAL BUILDING PREPARED FOR THEPETITIONER DATED NIL SUBMITTED ALONG WITH THE DEVELOPMENT APPLICATION.PLAN FOR RESIDENTIAL BUILDING PREPARED FOR THEPETITIONER DATED NIL SUBMITTED ALONG WITH THE DEVELOPMENT APPLICATION. EXHIBIT P7.TRUE COPY OF THE TAX RECEIPT ISSUED BY PALAMELVILLAGE OFFICE DATED 04.07.2017 IN RESPECT OF ADJACENT LAND.VILLAGE OFFICE DATED 04.07.2017 IN RESPECT OF ADJACENT LAND. EXHIBIT P8.TRUE COPY OF THE REJECTION LETTER DATED 30.05.2018 ISSUED BY SECRETARY, PALAMEL GRAMA PANCHAYATH, TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY PALAMEL VILLAGE OFFICE DATED 16.04.2018.30.05.2018 ISSUED BY SECRETARY, PALAMEL GRAMA PANCHAYATH, TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY PALAMEL VILLAGE OFFICE DATED 16.04.2018. EXHIBIT P9.PHOTOCOPY OF PHOTOGRAPHS OF THE PETITIONER'S PROPERTY TO SHOW THE LIE AND NATURE.PROPERTY TO SHOW THE LIE AND NATURE. EXHIBIT P10. PHOTOCOPY OF PHOTOGRAPHS OF THE PETITIONER'S PROPERTY TO SHOW THE LIE AND NATURE.PROPERTY TO SHOW THE LIE AND NATURE. W.P.(C)No.27114 of 2018 -12- EXHIBIT P11. PHOTOCOPY OF PHOTOGRAPHS OF THE PETITIONER'S PROPERTY TO SHOW THE LIE AND NATURE.PROPERTY TO SHOW THE LIE AND NATURE. EXHIBTI P12. PHOTOCOPY OF PHOTOGRAPHS OF THE PETITIONER'S PROPERTY TO SHOW THE LIE AND NATURE.PROPERTY TO SHOW THE LIE AND NATURE. RESPONDENTS' EXTS: NIL