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 19TH DAY OF MARCH 2019 / 28TH PHALGUNA, 1940WP(C).No. 5522 of 2019 PETITIONER: SHAJAHAN AGED 29 YEARSS/O.ASHRAF, VILATHIVAYAL HOUSE, KOLAGAPPARA POST, AMBALAVAYAL VILLAGE, SULTHAN BATHERY TALUK, WAYANAD DISTRICT, PIN - 673 592. BY ADV. SRI.GEORGE VARGHESE KIZHAKKAMBALAM SRI K.P. HARISH , SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.5522/2019 JUDGMENT The petitioner who is stated to the registered owner of atipper lorry bearing Reg.No.KL-73/3816, which was confiscatedunder the provisions of Kerala Conservation of Paddy andWetland Act, 2008 by Ext.P3 proceedings dated 28.06.2017 ofthe 1[st] respondent District Collector, has filed this writ petitionunder Article 226 of the Constitution of India, seeking a writ ofmandamus commanding the 1[st] respondent to release vehiclebearing Registration No.KL-73/3816, as per the terms containedin Ext.P6 Government order. 2. Heard the learned Counsel for the petitioner and also the learned Senior Government Pleader appearing for therespondents. 3.Ext.P3 order dated 28.06.2017 of the 1[st] respondentDistrict Collector confiscating the petitioner's tipper lorry is anorder passed under Section 20 of the Kerala Conservation ofPaddy and Wetland Act, 2008. As per Section 21 of the said Act,any person aggrieved by an order of confiscation under Section20 of the Act, within thirty days from the date of communication W.P.(C)No.5522/2019 of the order, appeal to the District Collector having jurisdictionover the area in which the articles were seized and the DistrictJudge shall, after giving the parties a reasonable opportunity ofthe issuance of such order either confirming or amending theorder against him. 4.In view of the statutory remedy available underSection 21 of the Conservation of Paddy and Wetland Act, 2008,the petitioner cannot invoke the writ jurisdiction of this Courtunder Article 226 of the Constitution of India, either to challengeExt.P3 order or seek any consequential direction, which will ineffect amounts to interference with the order of confiscation. 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 togrant relief under Article 226 of the Constitution of India, despitethe existence of alternative remedy. However, High Court must W.P.(C)No.5522/2019 -4- not 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. W.P.(C)No.5522/2019 -4- not 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. 6.In Authorised Officer, State Bank of Travancorev. 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 ifalternative statutory remedies are available, except in casesfalling within the well defined exceptions as observed in ChaabilDas Agarwal's case (supra), i.e., where the statutoryauthority has not acted in accordance with the provisions of theenactment in question or in defiance of the fundamentalprinciples of judicial procedure, or has resorted to invoke theprovisions which are repealed, or when an order has been passed W.P.(C)No.5522/2019 in total violation of the principles of natural justice. Afterreferring to the law laid down in Thansingh Nathmal v.Superintendent of Taxes and TitaghurPaper Mills Company Ltd. v. State of Orissa [(1983) 2 SCC433] the Apex Court held that High Court will not entertain apetition under Article 226 of the Constitution if an effectivealternative remedy is available to the aggrieved person or thestatute 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. 7.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 anyrestrictions 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 will W.P.(C)No.5522/2019 ordinarily 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 oreven 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 to W.P.(C)No.5522/2019 the machinery so set up. W.P.(C)No.5522/2019 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 is nowwell recognised that where a right or liability is created by astatute which 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] 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 itis not competent to the party to pursue the courseapplicable to cases of the second class. The form given bythe statute must be adopted and adhered to." The rule laid down in that passage was approved by theHouse of Lords inNeville v. London ExpressNewspaper Ltd.[1919 AC 368] and has been reaffirmedby the Privy Council in Attorney General of Trinidad andTobago v. Gordon Grant and Co. [1935 AC 532] andSecretary of State v. Mask and Co. . It has also been held to be equally applicable toenforcement of rights and has been followed by the ApexCourt throughout. 9.In Pavithran V. State of Kerala (2009 (4) KHC 4),a Full Bench of this Court held that, whenever an adverse orderis passed against a person, unless the same is challenged beforethe appropriate forum, within the prescribed time limit, the saidorder will become final. 10. In the instant case, the relief sought for is a writ of mandamus commanding the respondents to release the vehiclecovered by Ext.P3 order of confiscation as per the termscontained in Ext.P6 Government order. 11. As can be seen from Ext.P3 order dated 28.06.2017, the petitioner's vehicle has been confiscated, alleging illegaltransportation of river sand, in violation of the provisions underthe Act. Ext.P6 Government order is in respect of compounding W.P.(C)No.5522/2019 of offences, relating to illegal transportation of sand under theprovisions of Mines and Mineral (Development and Regulation)Act and the Kerala Mines and Minerals (Prevention of illegalMining, storage and Transportation) Rules, 2015 and also KeralaMinor Mineral Concession Rules, 2015. Therefore Ext.P6Government Order has no application in the matter ofconfiscation of petitioner's vehicle. In such circumstances, this writ petition is dismissed as not maintainable, in view of the fact that Ext.P3 order of the 1[st]respondent is an order appealable under Section 21 of theConservation of Paddy and Wetland Act, 2008 before the DistrictCourt; and without prejudice to the right, if any, of the petitionerto challenge the said order before the appropriate authority. sru Sd/- ANIL K.NARENDRAN JUDGE W.P.(C)No.5522/2019 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1TRUE COPY OF CERTIFICATE OF REGISTRATION DATED 27/04/2014 OF THE VEHICLE BEARING REG.NO.KL-73-3816. EXHIBIT P2TRUE COPY OF THE PETITION DATED 5/1/2017 FILED BY THE PETITIONER BEFORETHE FIRST RESPONDENT. EXHIBIT P3TRUE COPY OF ORDER NO.L9-2015/8548/12(1) DATED 28/06/2017 OF THEFIRST RESPONDENT. EXHIBIT P4PHOTOGRAPH SHOWING THE PRESENT CONDITION OF THE VEHICLE BEARING REG.NO.KL-73-3816. EXHIBIT P5PHOTOGRAPH SHOWING THE PRESENT CONDITION OF THE VEHICLE BEARING REG.NO.KL-73-3816. EXHIBIT P6TRUE COPY OF GOVERNMENT ORDER G.O.(MS) NO.51/2017/ID DATED 21/6/2017. RESPONDENT'S EXHIBITS:NIL