In Commissioner Of Income Tax v. Chhabil Das

IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY,THE 26TH DAY OF MARCH 2019/5TH CHAITHRA, 1941 WP(C).No. 8863 of 2019 PETITIONER: CHITHRANGATHAN,AGED 49 YEARSS/O GANGADHARA PANICKER, RESIDING AT ARYA NIVAS,OANIVAYAL, KALPETTA P.O., WAYANAD. BY ADV. SMT.CELINE JOSEPH SRI PAUL ABRAHAM VAKKANAL, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FORADMISSION ON 26.03.2019, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: JUDGMENT The petitioner, who is running a fish stall in Kalpetta Town on the strength of Ext.P1 D&O licence granted by the 2[nd] respondentfor the year 2018-19 has filed this writ petition under Article 226of the Constitution of India seeking a writ of certiorari (wronglystated as writ of mandamus) to set aside Ext.P7 notice dated12.03.2019 issued by the 2[nd] respondent and a writ of mandamuscommanding respondents 1 and 2 to entertain Ext.P5 requestdated 19.2.2019. The petitioner has also sought for an orderdirecting respondents 1 and 2 to abstain from cancelling the D&Olicence granted to his shop as informed in Ext.P7 notice. 2.Heard learned counsel for the petitioner and also thelearned Government Pleader appearing for the 3[rd] respondent. 3.The sole issue that arises for consideration in this writpetition is as to whether any interference is warranted on Ext.P7notice dated 12.03.2019 issued by the 2[nd] respondent, invokingthe writ jurisdiction of this Court under Article 226 of theConstitution of India. W.P.(C)No.8863/2019 4.By Ext.P7 notice dated 12.09.2018 issued by the 2[nd]respondent, the petitioner has been informed that if he isconducting sale of fish in shop room No.12/256 contrary to theconditions in Ext.P1 D&O licence, the same shall be cancelled andsteps shall be taken to seal the shop. As per Ext.P1 D&O licence,the petitioner has to keep fish in cold storage. 5.If the petitioner is aggrieved by Ext.P7 notice, he can filean appeal before the Municipal Council, in view of the provisionsunder sub-section (1) of Section 509 of the Kerala MunicipalityAct, 1994. As per sub-section (3) of Section 509, pendingdecision on an appeal under sub-section (1), the Chairpersonmay, if an application is made, stay the operation of the notice,order or other proceedings on which the appeal is based. 6.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 of W.P.(C)No.8863/2019 law. 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 existssufficient ground to invoke the extraordinary jurisdiction underArticle 226. 7.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 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 has W.P.(C)No.8863/2019 7.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 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 has W.P.(C)No.8863/2019 not 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.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. 8.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 any W.P.(C)No.8863/2019 restrictions 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 modeprescribed 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 or W.P.(C)No.8863/2019 even 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. W.P.(C)No.8863/2019 even 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. 9.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 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 liabilitymay be established founded upon statute ..... But W.P.(C)No.8863/2019 there is a third class, viz., where a liability not existingat common law is created by a statute which at thesame time gives a special and particular remedy forenforcing it ..... the remedy provided by the statutemust be followed, and it is not competent to the partyto pursue the course applicable to cases of the secondclass. The form given by the statute must be adoptedand adhered to." The rule laid down in that passage was approved by the House of Lords in Neville v. London Express Newspaper Ltd.[1919 AC368] and has been reaffirmed by the Privy Council in AttorneyGeneral of Trinidad and Tobago v. Gordon Grant and Co.[1935 AC 532] and Secretary of State v. Mask and Co. . It has also been held to be equally applicable toenforcement of rights and has been followed by the Apex Courtthroughout. 10.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. W.P.(C)No.8863/2019 11. Viewed in the light of the law laid down in the decisionsreferred to supra, conclusion is irresistible that the petitionercannot challenge Ext.P7 notice issued by the 2[nd] respondent byinvoking the writ jurisdiction of this Court under Article 226 of theConstitution of India, in view of the statutory remedy availableunder Section 509 of the Kerala Municipality Act, on the groundsraised in this writ petition. In the result, this writ petition filed on 20.03.2019 isdismissed for the aforesaid reason; however without prejudice tothe right, if any, of the petitioner to challenge Ext.P7 notice byfiling an appeal under sub-section (1) of Section 509 KeralaMunicipality Act before the Municipal Council. Sd/- ANIL K. NARENDRAN JUDGE dsn W.P.(C)No.8863/2019 APPENDIX PETITIONER'S EXTS: EXHIBIT P1 TRUE COPY OF THE TRADE LICENSE NO.PH 428/X11-286 DATED 9.2.2018 EXHIBIT P2 THE COUNCIL DECISION PERMITTING THE PETITIONER FOR SALE OF FISH IN THE FISHSTALL DATED 1.12.17 EXHIBIT P3 THE CERTIFICATE ISSUED BY THE POLLUTIONCONTROL BOARD DATED 29.6.17 EXHIBIT P4TRUE COPY OF THE PROFESSIONAL TAX RECEIPT ISSUED TO THE 2ND RESPONDENT EXHIBIT P5TRUE COPY OF THE REQUEST DATED 19.2.19 SUBMITTED BEFORE THE MUNICIPALITY EXHIBIT P6LICENCE ISSUED TO ONE MUJEEB S BY MEPPAD GRAMA PANCHAYAT EXHIBIT P7TRUE COPY OF THE NOTICE DATED 12.3.2019 RESPONDENTS' EXTS: NIL