In Commissioner Of Income Tax v. Chhabil Das

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 21ST DAY OF DECEMBER 2020 / 30TH AGRAHAYANA, 1942WP(C).No.27120 OF 2020(L) PETITIONERS: 1SREEDEVI G.AGED 40 YEARSW/O. GIREESH H., VARADAYAM HOUSE, DISTRICT COURT WARD, THATHAMPALLY P.O., ALAPPUZHA DISTRICT-688013. 2GIRESSH H.AGED 48 YEARSS/O. HARIHARAN, VARADAYAM HOUSE, DISTRICT COURT WARD,THATHAMPALLY P.O., ALAPPUZHA DISTRICT-688013. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENTS: 1AUTHORIZED OFFICER,CANARA BANK, MULLACKAL BRANCH, V.S.V. BUILDINGS, IRON BRIDGE P.O., ALAPPUZHA-688011. 2CHIEF MANAGER,CANARA BANK, MULLACKAL BRANCH, IRON BRIDGE P.O., ALAPPUZHA-688011. R1-R2 BY ADV. SRI.M.GOPIKRISHNAN NAMBIARR1-R2 BY ADV. SRI.K.JOHN MATHAIR1-R2 BY ADV. SRI.JOSON MANAVALANR1-R2 BY ADV. SRI.KURYAN THOMASR1-R2 BY ADV. SRI.PAULOSE C. ABRAHAMR1-R2 BY ADV. SMT.PARVATHY KOTTOL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON21.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioners, who availed overdraft facility from therespondent Bank, have filed this writ petition under Article 226 ofthe Constitution of India, seeking a writ of mandamus commandingthe respondents to keep in abeyance of all further proceedingspursuant to Ext.P3 notice dated 22.10.2020 issued by therespondent Bank under sub-section (4) of Section 13 of theSecuritisation and Reconstruction of Financial Assets andEnforcement of Security Interest Act, 2002, by providing abreathing time to clear the overdues. The petitioners have alsosought for a writ of mandamus commanding the respondents toprovide installment facility for clearing the admitted dues towardsthe respondents. 2.On 07.12.2020, when this writ petition came up foradmission, learned Standing Counsel for the respondent Banksought time to get instructions. 3.A statement has been filed on behalf of the respondents,opposing the reliefs sought for in this writ petition. 4.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 a ruleof policy, convenience and discretion rather than a rule of law.Undoubtedly, it is within the discretion of the High Court to grantrelief under Article 226 of the Constitution of India, despite theexistence of alternative remedy. However, High Court must notinterfere if there is an adequate efficacious alternative remedyavailable to the petitioner and he has approached the High Courtwithout availing the same, unless he has made out an exceptionalcase warranting such interference or there exists sufficient groundto invoke the extraordinary jurisdiction under Article 226. 5. 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 rule isthat a writ petition under Article 226 of the Constitution of Indiaought not to be entertained if alternative statutory remedies areavailable, except in cases falling within the well-defined exceptions 5. 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 rule isthat a writ petition under Article 226 of the Constitution of Indiaought not to be entertained if alternative statutory remedies areavailable, except in cases falling within the well-defined exceptions as observed in Chaabil Das Agarwal, i.e., where the statutoryauthority has not acted in accordance with the provisions of theenactment in question or in defiance of the fundamental principlesof judicial procedure or has resorted to invoke the provisions whichare repealed, or when an order has been passed in total violation ofthe principles of natural justice. After referring to the law laid downin Thansingh Nathmal v. Superintendent of Taxes and Titaghur Paper Mills Company Ltd. v. State ofOrissa [(1983) 2 SCC 433] the Apex Court held that High Courtwill not entertain a petition under Article 226 of the Constitution ifan effective alternative remedy is available to the aggrieved personor the statute under which the action complained of contains amechanism for redressal of grievance. Therefore, when a statutoryforum is created by law for redressal of grievances, a writ petitionshould not be entertained ignoring the statutory dispensation. 6. In Thansingh Nathmal a Constitution Bench of the ApexCourt held that the jurisdiction of the High Court under Article 226of the Constitution is couched in wide terms and the exercisethereof is not subject to any restrictions except the territorialrestrictions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary: it is not exercisedmerely because it is lawful to do so. The very amplitude of thejurisdiction demands that it will ordinarily be exercised subject tocertain self-imposed limitations. Resort to that jurisdiction is notintended as an alternative remedy for relief which may be obtainedin a suit or other mode prescribed by statute. Ordinarily, the courtwill not entertain a petition for a writ under Article 226, where thepetitioner has an alternative remedy, which without being undulyonerous, provides an equally efficacious remedy. Again the HighCourt does not generally enter upon a determination of questionswhich demand an elaborate examination of evidence to establishthe right to enforce for which the writ is claimed. The High Courtdoes not, therefore, act as a court of appeal against the decision ofa court or tribunal, to correct errors of fact, and does not byassuming jurisdiction under Article 226 trench upon an alternativeremedy provided by statute for obtaining relief. Where it is open tothe aggrieved petitioner to move another tribunal or even itself inanother jurisdiction for obtaining redress in the manner provided bya statute, the High Court normally will not permit by entertaining apetition under Article 226 of the Constitution the machinery created under the statute to be bypassed and will leave the party applyingto it to seek resort to the machinery so set up. 7. In Titaghur Paper Mill a Three-Judge Bench of the ApexCourt held that the Orissa Sales Tax Act, 1947 provides for acomplete machinery to challenge an order of assessment, and theimpugned orders of assessment can only be challenged by themode prescribed by the Act and not by a petition under Article 226of the Constitution. It is now well recognised that where a right orliability is created by a statute which gives a special remedy forenforcing it, the remedy provided by that statute only must beavailed of. This rule 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: under the statute to be bypassed and will leave the party applyingto it to seek resort to the machinery so set up. 7. In Titaghur Paper Mill a Three-Judge Bench of the ApexCourt held that the Orissa Sales Tax Act, 1947 provides for acomplete machinery to challenge an order of assessment, and theimpugned orders of assessment can only be challenged by themode prescribed by the Act and not by a petition under Article 226of the Constitution. It is now well recognised that where a right orliability is created by a statute which gives a special remedy forenforcing it, the remedy provided by that statute only must beavailed of. This rule 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 liability may beestablished founded upon statute ..... But there is a third class,viz., where a liability not existing at common law is created by astatute which at the same time gives a special and particularremedy for enforcing it ..... the remedy provided by the statutemust be followed, and it is not competent to the party to pursuethe course applicable to cases of the second class. The formgiven by the statute must 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 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. 8. In Balkrishna Ram v. Union of India [(2020) 2 SCC442] one of the issues raised before the Apex Court was whetheran appeal against an order of a single judge of a High Courtdeciding a case related to an Armed Forces personnel pendingbefore the High Court is required to be transferred to the ArmedForces Tribunal or should be heard by the High Court. The ApexCourt held that sub-section (1) of Section 14 of the Armed ForcesTribunal Act, 2007 clearly provides that the Armed Forces Tribunalwill exercise powers of all courts except the Supreme Court or HighCourt exercising jurisdiction under Article 226 and Article 227 ofthe Constitution of India. Section 34 is very carefully worded. Itstates that 'every suit', or 'other proceedings' pending before anycourt including a High Court immediately before the establishment of the Tribunal shall stand transferred on that day to the Tribunal.The Legislature has clearly not vested the Armed Forces Tribunalwith the power and jurisdiction of the High Court to be exercisedunder Article 226 of the Constitution. There can be no manner ofdoubt that the High Court can exercise its writ jurisdiction even inrespect of orders passed by the Armed Forces Tribunal. Since anappeal lies to the Supreme Court against an order of the ArmedForces Tribunal, the High Court may not exercise theirextraordinary writ jurisdiction because there is an efficaciousalternative remedy available but that does not mean that thejurisdiction of the High Court is taken away. In a givencircumstance, the High Court may and can exercise itsextraordinary writ jurisdiction even against the orders of the HighCourt [sic: Armed Forces Tribunal]. 9. In Balkrishna Ram the Apex Court held that the principlethat the High Court should not exercise its extraordinary writjurisdiction when an efficacious alternative remedy is available, is arule of prudence and not a rule of law. The writ courts normallyrefrain from exercising their extraordinary power if the petitionerhas an alternative efficacious remedy. The existence of such 9. In Balkrishna Ram the Apex Court held that the principlethat the High Court should not exercise its extraordinary writjurisdiction when an efficacious alternative remedy is available, is arule of prudence and not a rule of law. The writ courts normallyrefrain from exercising their extraordinary power if the petitionerhas an alternative efficacious remedy. The existence of such remedy however does not mean that the jurisdiction of the HighCourt is ousted. At the same time, it is a well settled principle thatsuch jurisdiction should not be exercised when there is analternative remedy available [Union of India v. T.R. Varma, AIR1957 SC 882]. The rule of alternative remedy is a rule ofdiscretion and not a rule of jurisdiction. Merely because the Courtmay not exercise its discretion, is not a ground to hold that it hasno jurisdiction. There may be cases where the High Court would bejustified in exercising its writ jurisdiction because of some glaringillegality committed by the Armed Forces Tribunal. One must alsoremember that the alternative remedy must be efficacious and incase of a Non-Commissioned Officer (NCO), or a JuniorCommissioned Officer (JCO); to expect such a person to approachthe Supreme Court in every case may not be justified. It isextremely difficult and beyond the monetary reach of an ordinarylitigant to approach the Supreme Court. Therefore, it will be for theHigh Court to decide in the peculiar facts and circumstances of eachcase whether it should exercise its extraordinary writ jurisdiction ornot. There cannot be a blanket ban on the exercise of suchjurisdiction because that would effectively mean that the writ court is denuded of its jurisdiction to entertain such writ petitions which is not the law laid down in L. Chandra Kumar v. Union of India[(1997) 3 SCC 262]. 10.The learned counsel for the petitioners seeks permissionto withdraw the writ petition without prejudice to the right of thepetitioners to avail statutory remedy against Ext.P3 notice issuedunder sub-section (4) of Section 13 of the Securitisation andReconstruction of Financial Assets and Enforcement of SecurityInterest Act, 2002, by approaching the appropriate forum. Recording the aforesaid submission made by the learnedcounsel for the petitioner, this writ petition is dismissed aswithdrawn, without prejudice to the aforesaid right of thepetitioners. JV Sd/- ANIL K.NARENDRAN JUDGE