In Commissioner Of Income Tax v. Chhabil Das

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY ,THE 21ST DAY OF MARCH 2019 / 30TH PHALGUNA, 1940 WP(C).No. 8616 of 2019 PETITIONER/S: 1K.BALAKRISHNANAGED 59 YEARSAGED 59 YEARS S/O. KUNHIRAMAN VYDIAR, PRESIDENT, KANTHIKARE JANAKEEYA VIKASANA SAMITHY, KANTHIKARE, RAMDASNAGAR P.O, KASARAGOD. 2UDAYANANDA K.AGED 50 YEARS, S/O VASUSECRETARY, KANTHIKARE JANAKEEYA VIKASANA SAMITHIKANTHIKARE, RAMDASNAGAR (PO)KASARAGODAGED 50 YEARS, S/O VASUSECRETARY, KANTHIKARE JANAKEEYA VIKASANA SAMITHIKANTHIKARE, RAMDASNAGAR (PO)KASARAGOD BY ADVS.SRI.P.V.ANOOPSRI.K.V.SREERAJSRI.M.P.PRIYESHKUMAR RESPONDENT/S: 1MOGRAL PUTHUR GRAMA PANCHAYATHKASARGOD DISTRICT, PIN-671 124.KASARGOD DISTRICT, PIN-671 124. REPRESENTED BY ITS SECRETARY, RAMDAS NAGAR (P.O), 2THE SECRETARYMOGRAL PUTHUR GRAMA PANCHAYAT, RAMDAS NAGAR P.O, KASARAGOD DISTRICT, PIN-671 124MOGRAL PUTHUR GRAMA PANCHAYAT, RAMDAS NAGAR P.O, KASARAGOD DISTRICT, PIN-671 124 3RELIANCE JIO INFOCOMM LIMITED 32/0/2552-C,P.K. TOWER, 1ST FLOOR, MAMANGALAM, NEAR YATHRI NIVAS, PALARIVATTOM, PALARIVATTOM P.O, ERNAKULAM, PIN -682 025 4REVENUE DIVISIONAL OFFICER,KASARAGOD, PIN-671 001KASARAGOD, PIN-671 001 5DISTRICT COLLECTOR,KASARAGOD, PIN-671 001KASARAGOD, PIN-671 001 WP(C).No. 8616 of 2019 OTHER PRESENT: SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON21.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kkj JUDGMENT The petitioners are residents of Ward No.VIII of MogralPuthur Grama Panchayat in Kasaragod district. They have filedthis Writ Petition under Article 226 of the Constitution of Indiaseeking a writ of certiorari to quash Ext.P1 building permitdated 20.12.2018 issued by the second respondent, theSecretary of the first respondent Grama Panchayat and todirect the second respondent to consider and pass orders onExt.P7 representation, after hearing the petitioners and thethird respondent. 2.The third respondent, which is a telecom companyhas been permitted to construct a mobile tower in Sy.No.299/8and 237/12 (wrongly stated as 237/2012 in the writ petition)in Kudlu Village in Kasaragod taluk. The fact that Ext.P1building permit issued by the second respondent, Secretary ofthe Grama Panchayat is appealable before the Tribunal forLocal Self Government Institutions, as per the provisionscontained in Section 276 of the Kerala Panchayat Raj Act is notin dispute. 3. In Commissioner of Income Tax v. Chhabil Das WP(C).No. 8616 of 2019 -:4:- 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,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. 4.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 of WP(C).No. 8616 of 2019 -:5:- 4.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 of WP(C).No. 8616 of 2019 -:5:- the 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 thefundamental 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. WP(C).No. 8616 of 2019 -:6:- 5.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 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 the WP(C).No. 8616 of 2019 -:7:- decision 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, 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. WP(C).No. 8616 of 2019 -:7:- decision 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, 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. 6.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. in WP(C).No. 8616 of 2019 Wolverhampton 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 liabilitymay be established founded upon statute ..... But thereis a third class, viz., where a liability not existing atcommon law is created by a statute which at the sametime gives a special and particular remedy for enforcingit ..... the remedy provided by the statute must befollowed, and it is not competent to the party to pursuethe course applicable to cases of the second class. Theform given by the statute must be adopted andadhered to." The rule laid down in that passage was approved by the House of Lords in Neville v. London ExpressNewspaper Ltd.[1919 AC 368]and has beenreaffirmed by the Privy Council in Attorney General ofTrinidad and Tobago v. Gordon Grant and Co. [1935AC 532] and Secretary of State v. Mask and Co. . It has also been held to be equallyapplicable to enforcement of rights and has beenfollowed by the Apex 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, WP(C).No. 8616 of 2019 the said order will become final. 7.Viewed in the light of the law laid down in thedecisions referred to supra, conclusion is irresistible that, if thepetitioners are aggrieved by the grant of Ext.P1 building permitto the third respondent, it is for them to avail the statutoryremedy under Section 276 of the Kerala Panchayat Raj Act, byapproaching the Tribunal for Local Self GovernmentInstitutions. In such circumstances, this Writ Petition filed on20.03.2019 is dismissed for the aforesaid reason; however,without prejudice to the right of the petitioners to avail thestatutory remedy against the grant of Ext.P1 building permit tothe third respondent, by approaching the Tribunal for Local SelfGovernment Institutions. Sd/- ANIL K.NARENDRAN JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT NO. SC3-BA (7686)/2019 DATED 20.12.2018 ISSUED BY THE 1ST RESPONDENT PANCHAYAT. EXHIBIT P2TRUE COPY OF THE DETAILS DOWNLOADED FROM SAFE SPACE EMF HEALTH EFFECTS.FROM SAFE SPACE EMF HEALTH EFFECTS. EXHIBIT P3TRUE COPY OF THE REPRESENTATION DATED 07.02.2019 TO THE 4TH RESPONDENT.07.02.2019 TO THE 4TH RESPONDENT. EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 07.02.2019 TO THE 5TH RESPONDENT.07.02.2019 TO THE 5TH RESPONDENT. EXHIBIT P5 Sd/- ANIL K.NARENDRAN JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT NO. SC3-BA (7686)/2019 DATED 20.12.2018 ISSUED BY THE 1ST RESPONDENT PANCHAYAT. EXHIBIT P2TRUE COPY OF THE DETAILS DOWNLOADED FROM SAFE SPACE EMF HEALTH EFFECTS.FROM SAFE SPACE EMF HEALTH EFFECTS. EXHIBIT P3TRUE COPY OF THE REPRESENTATION DATED 07.02.2019 TO THE 4TH RESPONDENT.07.02.2019 TO THE 4TH RESPONDENT. EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 07.02.2019 TO THE 5TH RESPONDENT.07.02.2019 TO THE 5TH RESPONDENT. EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 14.02.2019 SUBMITTED BY THE MEMBER WARD NO. VIII OF MOGRAL PUTHUR GRAMA PANCHAYAT TO THE 2ND RESPONDENT14.02.2019 SUBMITTED BY THE MEMBER WARD NO. VIII OF MOGRAL PUTHUR GRAMA PANCHAYAT TO THE 2ND RESPONDENT EXHIBIT P6TRUE COPY OF THE REPRESENTATION DATED 22.02.2019 SUBMITTED BY THE MEMBER WARD NO. VIII OF MOGRAL PUTHUR GRAMA PANCHAYAT TO THE 5TH RESPONDENT.22.02.2019 SUBMITTED BY THE MEMBER WARD NO. VIII OF MOGRAL PUTHUR GRAMA PANCHAYAT TO THE 5TH RESPONDENT. EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 08.03.201908.03.2019 // true copy // Sd/- PA to Judge