In Commissioner Of Income Tax v. Chhabil Das

PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 13TH DAY OF AUGUST 2019 / 22ND SRAVANA, 1941WP(C).No.21225 OF 2019(C) PETITIONER/S: 1RIYAS.T.A, AGED 27 YEARS S/O. ABDUL RAHIM, THUTHOPILLY HOUSE, VENGOLA P.O, ARACKAPADY, PIN 683556 2NAVAS T.A, AGED 34 YEARS S/O. ABDUL RAHMAN, THUTHOOPILLY HOUSE, VENGOLAP.O, ARACKAPADY, PIN 683556P.O, ARACKAPADY, PIN 683556 3SHAMSUDEEN, AGED 40 YEARSS/O. KASIM, URGANAL HOUSE, VENGOLA P.O, S/O. KASIM, URGANAL HOUSE, VENGOLA P.O, ARACKAPADY, PIN 683556 4SHAMEER, AGED 45 YEARSS/O. ABDUL KHADER, THEKKALAKUDY HOUSE, VENGOLAS/O. ABDUL KHADER, THEKKALAKUDY HOUSE, VENGOLA P.O, ARACKAPADY, PIN 683556 5ALIYAR, AGED 57 YEARSS/O. AHMED, THEKKALAKUDY HOUSE, VENGOLA P.O, ARACKAPADY, PIN 683556S/O. AHMED, THEKKALAKUDY HOUSE, VENGOLA P.O, ARACKAPADY, PIN 683556 BY ADVS.SRI.SAM ISAAC POTHIYILSHRI.VISHNU DASSRI. SRUTHI DAS RESPONDENT/S: 1THE DISTRICT COLLECTORCIVIL STATION, KAKKANAD, ERNAKULAM, PIN 682 030CIVIL STATION, KAKKANAD, ERNAKULAM, PIN 682 030 2THE TAHSILDAR, KUNNATHUNAD TALUK, PERUMBAVOOR, PIN 682 542 3THE CHIEF ENGIRONMENTAL ENGINEER,KERALA STATE POLLUTION CONTROL BOARD, PERUMBAVOOR, PIN 682542KERALA STATE POLLUTION CONTROL BOARD, PERUMBAVOOR, PIN 682542 4THE VILLAGE OFFICER,PATTIMATTOM OFFICE, PATTIMATTOM, PIN 682562PATTIMATTOM OFFICE, PATTIMATTOM, PIN 682562 5KIZHAKKAMBALAM GRAMA PANCHAYATREPRESENTED BY ITS SECRETARY, KIZJAKKAMBALAM PIN 682 562REPRESENTED BY ITS SECRETARY, KIZJAKKAMBALAM PIN 682 562 6STATION HOUSE OFFICER,682 562682 562 KUNNATHUNAD POLICE STATION, PATTIMATTOM, PIN 7PERIYAR LIME INDUSTRIES,7TH WARD, KUMMANODE, KIZHAKKAMBALAM GRAMA PANCHAYAT, KIZHAKKAMBALAM, PIN 682 5627TH WARD, KUMMANODE, KIZHAKKAMBALAM GRAMA PANCHAYAT, KIZHAKKAMBALAM, PIN 682 562 R5 BY SRI.THOMAS GEORGE, SC, KIZHAKKAMBALAM GRAMA PANCHAYATGRAMA PANCHAYAT R7 BY ADV. SRI.SIRAJ KAROLY OTHER PRESENT: SRI MANU RAJ K.J- GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSIONON 13.08.2019, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: W.P.(C). No. 21225 of 2019 JUDGMENT Petitioners, who are stated to be residents near an industrial unit run by the 7[th] respondent, within the jurisdictionof the 5[th] respondent Grama Panchayat, have filed this writpetition under Article 226 of the Constitution of India, seekinga writ of mandamus commanding the 5[th] respondent Panchayatto cancel the licence issued to the 7[th] respondent; and a writ ofmandamus commanding the 3[rd] respondent Pollution ControlBoard to cancel the consent to operate granted to the 7[th]respondent. 2.On 05.08.2019, when this writ petition came up foradmission, the learned Government Pleader took notice onadmission for respondents 1, 2, 4 and 6. The learned StandingCounsel for the Pollution Control Board took notice onadmission for the 3[rd] respondent. The learned Standing Counselfor Kizhakkambalam Grama Panchayat took notice onadmission for the 5[th] respondent. Urgent notice on admissionby special messenger was ordered to the 7[th] respondent. ThisCourt, while issuing notice on admission, has made it clear thatthe maintainability of the writ petition shall be considered withnotice to the 7[th] respondent. W.P.(C). No. 21225 of 2019 3.Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1, 2, 4and 6, the learned Standing Counsel for the 3[rd] respondent, thelearned Standing Counsel for the 5[th] respondent and also thelearned counsel for the 7[th] respondent. W.P.(C). No. 21225 of 2019 3.Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1, 2, 4and 6, the learned Standing Counsel for the 3[rd] respondent, thelearned Standing Counsel for the 5[th] respondent and also thelearned counsel for the 7[th] respondent. 4.The issue that arises for consideration in this writpetition is as to whether the petitioner can seek cancellation oftrade licence issued by the 5[th] respondent Grama Panchayatand the consent to operate issued by the 3[rd] respondentPollution Control Board to the industrial unit of the 7[th]respondent, invoking the writ jurisdiction of this Court underArticle 226 of the Constitution of India, in view of the statutoryremedy available under Section 276 of the Kerala PanchayatRaj Act, 1994 and that under Section 31 of the Air (Preventionand Control of Pollution) Act, 1981 and Section 28 of the Water(Prevention and Control of Pollution) Act, 1974. 5.In Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603], the Apex Court held thatnon-entertainment of a writ petition under Article 226 of theConstitution of India when an efficacious alternative remedy is W.P.(C). No. 21225 of 2019 available is a rule and self imposed limitation. It is essentiallya rule of policy, convenience and discretion rather than a ruleof law. Undoubtedly, it is within the discretion of the HighCourt to grant relief under Article 226 of the Constitution ofIndia, despite the existence of alternative remedy. However,High Court must not interfere if there is an adequateefficacious alternative remedy available to the petitioner andhe has approached the High Court without availing the same,unless he has made out an exceptional case warranting suchinterference or there exists sufficient ground to invoke theextraordinary jurisdiction under Article 226. 6.In Authorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85] the ApexCourt reiterated that the discretionary jurisdiction underArticle 226 of the Constitution of India is not absolute but hasto be exercised 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 as W.P.(C). No. 21225 of 2019 observed in Chaabil Das Agarwal's case (supra), i.e.,where the statutory authority has not acted in accordancewith the provisions of the enactment in question or in defianceof the 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 redressalof grievance. Therefore, when a statutory forum is created bylaw for 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, thejurisdiction of the High Court under Article 226 of the W.P.(C). No. 21225 of 2019 7.InThansingh Nathmal's case (supra)aConstitution Bench ofthe Apex Court held that, thejurisdiction of the High Court under Article 226 of the W.P.(C). No. 21225 of 2019 Constitution is couched in wide terms and the exercise thereofis not subject to any restrictions except the territorialrestrictions which are expressly provided in the Article. Butthe exercise of the jurisdiction is discretionary: it is notexercised merely because it is lawful to do so. The veryamplitude of the jurisdiction demands that it will ordinarily beexercised subject to certain self imposed limitations. Resort tothat jurisdiction is not intended as an alternative remedy forrelief which may be obtained in a suit or other modeprescribed by statute. Ordinarily, the court will not entertain apetition for a writ under Article 226, where the petitioner hasan alternative remedy, which without being unduly onerous,provides an equally efficacious remedy. Again the High Courtdoes not generally enter upon a determination of questionswhich demand an elaborate examination of evidence toestablish the right to enforce for which the writ is claimed. TheHigh Court does not, therefore, act as a court of appealagainst the decision of a court or tribunal, to correct errors offact, and does not by assuming jurisdiction under Article 226trench upon an alternative remedy provided by statute for W.P.(C). No. 21225 of 2019 obtaining relief. Where it is open to the aggrieved petitioner tomove 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. 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 createdby a 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 liabilitymay be established founded upon statute ..... But there W.P.(C). No. 21225 of 2019 is 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 and adheredto." The rule laid down in that passage was approved by the House of Lords in Neville v. London Express NewspaperLtd.[1919 AC 368] and has been reaffirmed by the PrivyCouncil in Attorney General of Trinidad and Tobago v.Gordon Grant and Co. [1935 AC 532] and Secretary ofState v. Mask and Co. . It has alsobeen held to be equally applicable to enforcement of rightsand has been followed by the Apex Court throughout. 9.In Pavithran V. State of Kerala (2009 (4) KHC4), 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 theprescribed time 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 the W.P.(C). No. 21225 of 2019 House of Lords in Neville v. London Express NewspaperLtd.[1919 AC 368] and has been reaffirmed by the PrivyCouncil in Attorney General of Trinidad and Tobago v.Gordon Grant and Co. [1935 AC 532] and Secretary ofState v. Mask and Co. . It has alsobeen held to be equally applicable to enforcement of rightsand has been followed by the Apex Court throughout. 9.In Pavithran V. State of Kerala (2009 (4) KHC4), 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 theprescribed time 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 the W.P.(C). No. 21225 of 2019 petitioner cannot invoke the writ jurisdiction of this Courtunder Article 226 of the Constitution of India for cancellationof trade licence issued by the 5[th] respondent, in view of thestatutory remedy available under Section 276 of the KeralaPanchayat Raj Act, and also the cancellation of consent tooperate granted by the 3[rd] respondent, in view of the statutoryremedy available under Section 31 of the Air (Prevention andControl of Pollution) Act, 1981 and Section 28 of the Water(Prevention and Control of Pollution) Act, 1974. In such circumstances, this writ petition filed on 310.07.2019 is dismissed for the aforesaid reason; however,without prejudice to the right of the petitioner to avail thestatutory remedy against the trade licence granted by the 5[th]respondent Grama Panchayat and the consent to operategranted by the 3[rd] respondent, by invoking the statutoryremedy before the appropriate forums. Sd/- ANIL K.NARENDRANJUDGE W.P.(C). No. 21225 of 2019 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF THE ORDER OF THE POLLUTION CONTROL BOARD ORDER DATED 29-06-2018 EXHIBIT P2 TRUE COPY OF THE RECEIPT OF THE COMPLAINT FILED BY THE 2ND PETITIONER BEARING NO. 675, DATED 30-01-2018 EXHIBIT P3TRUE COPY OF THE RECEIPT OF THE COMPLAINT FILED BY THE 5TH PETITIONER BEARING NO. 677, DATED 30-01-2018 EXHIBIT P4TRUE COPY OF THE REPRESENTATION DATED 25-01-2019 FILED BY THE PETITIONERS BEFORE THE 5TH RESPONDENT GRAMA PANCHAYAT EXHIBIT P5 TRUE COPY OF THE RECEIPT OF THE COMPLAINT FILED BY THE PETITIONERS BEARING N NO. 557, DATED 25-01-2019. EXHIBIT P6TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT DATED 10-04-2019THE PETITIONERS BEFORE THE 1ST RESPONDENT DATED 10-04-2019 EXHIBIT P7 TRUE COPY OF THE RECEIPT OF THE COMPLAINT FILED BY THE PETITIONERS BEARING NO. M2-256407/2019/TDCEKM, DATED 10-04-2019