In Commissioner Of Income Tax v. Chhabil Das

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 25TH DAY OF MAY 2020 / 4TH JYAISHTA, 1942 WP(C).No.2815 OF 2015(B) PETITIONER/S: OTHER PRESENT: SMT K.AMMINIKUTTY-SR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON25.05.2020, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: W.P.(C). No. 2815 of 2015 JUDGMENT The petitioner, who is stated to be the owner of 78.18 Ares of land comprised in Block No,14, Re.Sy.No.435/14,437/1, 438/8 of Thiruvarpu Village, Kottayam Taluk, has filedthis writ petition under Article 226 of the Constitution of Indiaseeking a writ of certiorari to quash Ext.P6 order dated07.03.2014 of the 3[rd] respondent Revenue divisional Officerand Ext.P8 order dated 07.01.2015 of the 2[nd] respondent LandRevenue Commissioner; and a writ of mandamus commandingthe 2[nd] respondent to grant permission to the petitioner todevelop the said land. Going by the averments in the writpetition, the property in Re.Sy.No.438/8 is classified asPurayidam, wherein the property in Re.Sy.No.437/1 and435/14 are classified as Nilam in revenue records. 2.On 29.01.2015, when this writ petition came up foradmission, this Court admitted the matter on file and issuednotice to the respondents. 3.Counter affidavit has been filed by the 2[nd]respondent opposing the reliefs sought for in this writ petition. 4.Heard the learned counsel for the petitioner and W.P.(C). No. 2815 of 2015 also the learned Senior Government Pleader appearing forrespondents. 5.The learned Senior Government Pleader wouldpoint out that against Ext.P8 appellate order dated07.01.2015 of the 2[nd]respondent Land RevenueCommissioner, the petitioner is having a statutory remedy byway of revision, before the Government, under Clause 14 ofthe Kerala Land Utilisation Order, 1967. 6.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 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, W.P.(C). No. 2815 of 2015 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. Mathew K.C.[(2018) 3 SCC 85], the Apex Courtreiterated that the discretionary jurisdiction under Article 226of 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 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 [AIR W.P.(C). No. 2815 of 2015 1964 SC 1419] and Titaghur Paper Mills Company Ltd. v. W.P.(C). No. 2815 of 2015 1964 SC 1419] 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. 8. InThansingh Nathmal's case (supra) aConstitution Bench ofthe Apex Court held that, thejurisdiction of the High Court under Article 226 of theConstitution 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 for W.P.(C). No. 2815 of 2015 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 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 forobtaining 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. 9. In Titaghur Paper Mills' case (supra) a Three- W.P.(C). No. 2815 of 2015 -7- 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 thereis 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 Newspaper Ltd. W.P.(C). No. 2815 of 2015 [1919 AC 368] and has been reaffirmed by the Privy Council "There are three classes of cases in which a liabilitymay be established founded upon statute ..... But thereis 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 Newspaper Ltd. W.P.(C). No. 2815 of 2015 [1919 AC 368] and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. GordonGrant and Co. [1935 AC 532] and Secretary of State v.Mask and Co. . It has also been held tobe equally applicable to enforcement of rights and has beenfollowed by the Apex Court throughout. 10.Viewed in the light of the law laid down in thedecisions referred to supra, conclusion is irresistible that thepetitioner cannot challenge Ext.P8 appellate order of the 2[nd]respondent Land Revenue Commissioner, invoking the writjurisdiction of this Court under Article 226 of the Constitutionof India, on the grounds raised in this writ petition, when astatutory remedy of revision is available under Clause 14 ofthe Kerala Land Utilisation Order, 1967. 11.The learned counsel for the petitioner would submitthat the petitioner shall file a revision petition before the 1[st]respondent, challenging Ext.P8 appellate order of the 2[nd]respondent, within a period of two weeks. 12.Having considered the submissions made by thelearned counsel on both sides, this writ petition is disposed of W.P.(C). No. 2815 of 2015 by relegating the petitioner to avail the statutory remedy ofrevision against Ext.P8 appellate order of the 2[nd] respondent,under Clause 14 of the Kerala Land Utilisation Order. Thepetitioner shall file a revision petition before the 1[st]respondent, within two weeks from the date of receipt of acertified copy of this judgment, which shall be considered bythe 1[st] respondent, strictly in accordance with law andappropriate orders shall be passed, with notice to thepetitioner and after affording her an opportunity of beingheard. The legal and factual contentions raised by the petitionerare left open to be raised before the 1[st] respondent atappropriate stage. das Sd/-ANIL K.NARENDRANJUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1EXHIBIT-P1: TRUE COPY OF THE PETITIONER'S APPLICATION DATED 12.9.2013 SUBMITTED TO 2ND RESPONDENT.PETITIONER'S APPLICATION DATED 12.9.2013 SUBMITTED TO 2ND RESPONDENT. EXHIBIT P2EXHIBIT-P2: TRUE COPY OF THE CERTIFICATE DATED 2.7.2011 ISSUED BY THE VILLAGE OFFICER, THIRUVARPU.CERTIFICATE DATED 2.7.2011 ISSUED BY THE VILLAGE OFFICER, THIRUVARPU. EXHIBIT P3EXHIBIT-P3: TRUE COPY OF THE RELEVANT PAGE OF THE DETAILS PREPARED BY THE DATA BANK.PAGE OF THE DETAILS PREPARED BY THE DATA BANK. EXHIBIT P4EXHIBIT-P4: TRUE COPY OF THE AFFIDAVITS.AFFIDAVITS. EXHIBIT P5EXHIBIT-P5: TRUE COPY OF THE LETTER OFTHE SAID SRI.M.K.SHIBU.THE SAID SRI.M.K.SHIBU. EXHIBIT P6EXHIBIT-P6: TRUE COPY OF THE ORDER DATED 7.3.2014 OF THE 2ND RESPONDENT.DATED 7.3.2014 OF THE 2ND RESPONDENT. EXHIBIT P7EXHIBIT-P7: TRUE COPY OF THE APPEAL DATED 16.6.2014 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.DATED 16.6.2014 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P8EXHIBIT-P8: TRUE COPY OF THE ORDER DATED 7.1.2015 OF THE 2ND RESPONDENT.DATED 7.1.2015 OF THE 2ND RESPONDENT.