In Commissioner Of Income Tax v. Chhabil Das

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 30TH DAY OF AUGUST 2019 / 8TH BHADRA, 1941 WP(C).No.23257 OF 2019(F) PETITIONER: REJI THOMAS,AGED 47 YEARS, S/O.YOHANNAN THOMAS, MULAVELIL HOUSE, VENPALA, KUTTOOR, THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN-689 102. BY ADVS.SRI.S.JAYAKRISHNANSRI.S.PARAMESWARA PRASAD RESPONDENTS: 1PAIPPAD GRAMA PANCHAYAT,REPRESENTED BY ITS SECRETARY, NALUKODY P.O., CHANGANACHERRY, KOTTAYAM DISTRICT-686 548.REPRESENTED BY ITS SECRETARY, NALUKODY P.O., CHANGANACHERRY, KOTTAYAM DISTRICT-686 548. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSIONON 30.08.2019, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: JUDGMENT The petitioner, who is running a cold storage by name,'Manna Fresh Cold storage' in room No.250 L of Thoppil Bazarbuilding in Ward No.X of the Paippad Grama Panchayat, on thestrength of an agreement entered into with the owner of thatbuilding, as evidenced by Ext.P1, has filed this writ petitionunder Article 226 of the Constitution of India, seeking a writ ofcertiorari to quash Ext.P5 order dated 22.08.2019 of the 1[st]respondent; and a writ of mandamus commanding therespondents not to stop the functioning of 'Manna Fresh ColdStorage' in room No.250 L, Thoppil Bazar Building, Ward No.Xin Paipad Grama Panchayat. The further relief sought for is awrit of mandamus commanding the 2[nd] respondent to considerand dispose of Ext.P7 appeal, as early as possible, afteraffording an opportunity of being heard. 2.On 27.08.2019, when this writ petition came up foradmission, urgent notice on admission by special messengerwas ordered to respondents 1 and 2, returnable by30.08.2019. The learned Government Pleader took notice onadmission for the 3[rd] respondent. This Court has made it clear that the pendency of this writ petition will not entitle thepetitioner to run the meat stall in question, without any licencefrom the Grama Panchayat. 3.Heard the learned counsel for the petitioner, thelearned counsel for respondents 1 and 2 and also the learnedGovernment Pleader appearing for the 3[rd] respondent. 4.Ext.P5 order, which is under challenge in this writpetition, is one dated 22.08.2019, rejecting Ext.P4 applicationfor trade licence made by the petitioner. The said order isappealable, in view of the provisions under Section 276 of theKerala Panchayat Raj Act, 1994. The petitioner has alreadyfiled Ext.P7 appeal, which is now pending consideration beforethe 2[nd] respondent Panchayat Committee. 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 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 to 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. to 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 of WP(C)23257 OF 2019 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 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.In view of the law laid down in the decisionsreferred to supra, conclusion is irresistible that when statutoryremedy is available under Section 276 of the Kerala PanchayatRaj Act against Ext.P5 order, the petitioner cannot invoke thewrit jurisdiction of this Court under Article 226 of theConstitution of India, in order to challenge that order, on the WP(C)23257 OF 2019 grounds raised in this writ petition. Therefore, the challengemade in this writ petition against Ext.P5 order cannot beentertained for the aforesaid reason. 8.The learned counsel for the petitioner would submitthat the 2[nd] respondent may be directed to consider and takeappropriate decision on Ext.P7 appeal filed against Ext.P5order. 9.The learned Standing Counsel for respondents 2 and3 would submit that the 2[nd] respondent Panchayat Committeeshall take appropriate decision on Ext.P7 appeal, within aperiod of two months from the date of receipt of a certifiedcopy of this judgment. 10.The learned counsel for the petitioner would submitthat the petitioner shall move an interlocutory application forstay in Ext.P7 appeal, which may be directed to be consideredby the President of the Grama Panchayat, in view of theprovisions under sub-section (2) of Section 276 of the KeralaPanchayat Raj Act. 11.Having considered the submissions made by thelearned counsel on both sides, this writ petition is disposed of WP(C)23257 OF 2019 by directing the 2[nd] respondent to consider and passappropriate orders on Ext.P7 appeal filed by the petitioner,strictly in accordance with law, with notice to the petitionerand after affording him an opportunity of being heard, asexpeditiously as possible, at any rate, within a period of twomonths from the date of receipt of a certified copy of thisjudgment . 11.Having considered the submissions made by thelearned counsel on both sides, this writ petition is disposed of WP(C)23257 OF 2019 by directing the 2[nd] respondent to consider and passappropriate orders on Ext.P7 appeal filed by the petitioner,strictly in accordance with law, with notice to the petitionerand after affording him an opportunity of being heard, asexpeditiously as possible, at any rate, within a period of twomonths from the date of receipt of a certified copy of thisjudgment . It would be open to the petitioner to move aninterlocutory application in Ext.P7 appeal, invoking theprovisions under sub-section (2) of Section 276 of the KeralaPanchayat Raj Act. If any such application is filed, thePresident of the Grama Panchayat shall take an appropriatedecision on that application, as expeditiously as possible, atany rate, within a period of two weeks from the date of receiptof a certified copy of this judgment. Sd/- ANIL K. NARENDRAN JUDGE yd WP(C)23257 OF 2019 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1TRUE COPY OF DEED DATED 03.08.2019 EXECUTED BETWEEN SMT.DALIA BEEGAM AND THE PETITIONER. EXHIBIT P2TRUE COPY OF SANITARY CERTIFICATE NO.335/2019/PH NO.181 DATED 07.08.2019ISSUED BY THE 3RD RESPONDENT.NO.335/2019/PH NO.181 DATED 07.08.2019ISSUED BY THE 3RD RESPONDENT. EXHIBIT P3TRUE COPY OF HEALTH CARD ISSUED BY THE3RD RESPONDENT.3RD RESPONDENT. EXHIBIT P4TRUE COPY OF APPLICATION DATED 06.08.2019 FOR LICENCE FOR CONDUCTING THE COLD STORAGE SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.06.08.2019 FOR LICENCE FOR CONDUCTING THE COLD STORAGE SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P5TRUE COPY OF ORDER NO.A6/3419/19 DATED22.08.2019 PASSED BY THE 1ST RESPONDENT.22.08.2019 PASSED BY THE 1ST RESPONDENT. EXHIBIT P6TRUE COPY OF THE PHOTOGRAPH OF THE PETITIONER'S COLD STORAGE.PETITIONER'S COLD STORAGE. EXHIBIT P7TRUE COPY OF APPEAL DATED 26.08.2019 FILED BY THE PETITIONER BEFORE THE 2NDRESPONDENT.FILED BY THE PETITIONER BEFORE THE 2NDRESPONDENT. RESPONDENT'S EXHIBITS: NIL TRUE COPY P.A. TO JUDGE