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 07TH DAY OF JUNE 2019 / 17TH JYAISHTA, 1941WP(C).No. 15622 of 2019 PETITIONER: SREEJITH.V.M,AGED 36 YEARS,S/O. MOHANAN, VYLOOKARAN HOUSE, KUTTICHIRA ROAD, OLLUKKARA P.O, SOUHRITHA NAGAR, KALATHODE, THRISSUR. BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL) RESPONDENTS: SRI HARISH K.P. - SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner who is the registered owner of an autorickshaw bearing registration No.KL-08/BS-5541, covered by Ext.P3certificate of registration and Ext.P4 contract carriage permit,whereby he has been permitted to ply the said autorickshaw in allfit roads of Thrissur district, subject to the condition that the saidvehicle shall not park or pick up passengers from and within thecity, with parking place at Poochatty Panchayat area. The petitionermoved an application seeking variation of the conditions of permitin so far as the parking place is concerned, in order to change theparking place to Naduvilal, Thrissur. The said application nowstands rejected by Ext.P5 order dated 11.04.2019 of the 3[rd]respondent. Feeling aggrieved, the petitioner is before this Courtin this writ petition filed under Article 226 of the Constitution ofIndia, seeking a writ of certiorari to quash Ext.P5 order; and a writof mandamus commanding the 3[rd] respondent to issue permit tothe petitioner's autorickshaw bearing registration No.KL-08/BS-5541. 2.The learned counsel for the petitioner would place WP(C).No. 15622 of 2019 3 reliance on Ext.P6 order of the State Transport Appellate Tribunal,Ernakulam in MVAA No.408/2012, which is an order passed by theTribunal in an appeal filed under Section 89 of the Motor VehiclesAct, 1988 against the order rejecting the application for variationof the conditions of a contract carriage permit of anotherautorickshaw. 3.Heard the learned counsel for the petitioner, the learnedGovernment Pleader appearing for respondents 1 to 3 and also thelearned Standing Counsel for the 4[th] respondent Corporation. Heard the learned counsel for the petitioner, the learned 4.The sole issue that arises for consideration in this writpetition is as to whether any interference is warranted on Ext.P5order dated 11.04.2019 of the 3[rd] respondent, invoking the writjurisdiction of this Court under Article 226 of the Constitution ofIndia. 5.Admittedly, Ext.P5 order of the 3[rd] respondent is appealable before the State Transport Appellate Tribunal, in view ofthe provisions under Section 89 of the Act. The said Act fact is notin dispute. 6.In Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603], the Apex Court held that WP(C).No. 15622 of 2019 4 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 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. 7. In Authorised Officer, State Bank of Travancore v. 7. In Authorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85] the Apex Court reiterated thatthe discretionary jurisdiction under Article 226 of the Constitutionof India is not absolute but has to be exercised judiciously in thegiven facts of a case and in accordance with law. The normal ruleis that a writ petition under Article 226 of the Constitution of WP(C).No. 15622 of 2019 5 India ought not to be entertained if alternative statutory remediesare available, except in cases falling within the well definedexceptions as observed in Chaabil Das Agarwal's case(supra), i.e., where the statutory authority has not acted inaccordance with the provisions of the enactment in question or indefiance of the fundamental principles of judicial procedure, orhas resorted 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 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 if aneffective alternative remedy is available to the aggrieved personor the statute under which the action complained of contains amechanism for redressal of grievance. Therefore, when astatutory forum is created by law for redressal of grievances, awrit petition should not be entertained ignoring the statutorydispensation. 8.In Thansingh Nathmal's case (supra) a ConstitutionBench ofthe Apex Court held that, the jurisdiction of the HighCourt under Article 226 of the Constitution is couched in wideterms and the exercise thereof is not subject to any restrictionsexcept the territorial restrictions which are expressly provided inthe Article. But the exercise of the jurisdiction is discretionary: itis not exercised 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 for reliefwhich may be obtained in a suit or other mode prescribed bystatute. Ordinarily, the court will not entertain a petition for a writunder Article 226, where the petitioner has an alternative remedy,which without being unduly onerous, provides an equallyefficacious remedy. Again the High Court does not generally enterupon a determination of questions which demand an elaborateexamination of evidence to establish the right to enforce forwhich the writ is claimed. The High Court does not, therefore, actas a court of appeal against the decision of a court or tribunal, to WP(C).No. 15622 of 2019 7 correct errors of fact, and does not by assuming jurisdiction underArticle 226 trench upon an alternative remedy provided by statutefor 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, the HighCourt normally will not permit by entertaining a petition underArticle 226 of the Constitution the machinery created under thestatute to be bypassed, and will leave the party applying to it toseek resort to the machinery so set up. 9.In Titaghur Paper Mills' case (supra) a Three-JudgeBench of the Apex Court held that, the Orissa Sales Tax Act, 1947provides for a complete machinery to challenge an order ofassessment, and the impugned orders of assessment can only bechallenged by the mode prescribed by the Act and not by apetition 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 New WP(C).No. 15622 of 2019 8 9.In Titaghur Paper Mills' case (supra) a Three-JudgeBench of the Apex Court held that, the Orissa Sales Tax Act, 1947provides for a complete machinery to challenge an order ofassessment, and the impugned orders of assessment can only bechallenged by the mode prescribed by the Act and not by apetition 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 New WP(C).No. 15622 of 2019 8 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 gives aspecial and particular remedy for enforcing it ..... theremedy provided by the statute must be followed, and it isnot competent to the party to pursue the course applicableto cases of the second class. The form given by the statutemust 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 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. 10. In view of the law laid down in the decisions referred to supra, the petitioner cannot invoke the writ jurisdiction of thisCourt under Article 226 of the Constitution of India for challenging WP(C).No. 15622 of 2019 9 Ext.P5 order dated 11.04.2019 of the 3[rd] respondent, on thegrounds raised in this writ petition. In such circumstances, this writ petition filed on 06.06.2019 isdismissed for the aforesaid reason; however, without prejudice tothe right of the petitioner to challenge Ext.P5 order by filing astatutory appeal before the State Transport Appellate Tribunal,invoking the provisions under Section 89 of the Motor Vehicles Act,1988. sru Sd/-ANIL K.NARENDRANJUDGE APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1TRUE COPY OF THE RATION CARD NO.1841206242. EXHIBIT P2TRUE COPY OF THE OFFER LETTER TO THE PETITIONER ISSUED BY THE 4TH RESPONDENT. EXHIBIT P3TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF THE VEHICLE BEARING REGISTRTION NO.KL 08 BS 5541. EXHIBIT P4TRUE COPY OF THE CONTRACT CARRIAGE PERMITOF THE VEHICLE BEARING REGISTRATION NO.KL08 BS 5541. EXHIBIT P5TRUE COPY OF THE ORDER NO.G 12/3690/19 R DATED 11.4.2019 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P6TRUE COPY OF THE JUDGMENT IN M.V.A.A.NO.408/2012 OF THE STATE TRANSPORT APPELLATE TRIBUNAL, ERNAKULAM DATED 11.12.2012.