In Commissioner Of Income Tax v. Chhabil Das

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942WP(C).No.142 OF 2021(P) PETITIONER : KIRANKUMAR,AGED 34 YEARSS/O. KRISHNANKUTTY, VATTEKKATT VALAPPIL HOUSE,P.O, AVANNOOR, THRISSUR DISTRICT, PIN- 680541. BY ADVS.SRI.DINESH MATHEW J.MURICKENSRI.N.R.SANGEETHARAJSRI.VINOD S. PILLAISMT.SREELAKSHMI R.SHRI.MOHAMMED THAYIB N.M. RESPONDENTS: 1STATE OF KERALAREPRESENTED BY THE SECRETARY, INDUSTRIES AND COMMERCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PALAYAM P.O, PIN - 695001.2THE DIRECTOR, DIRECTORATE OF INDUSTRIES AND COMMERCE DEPARTMENT, VIKAS BHAVAN, 3RD FLOOR, UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PALAYAM P.O, THIRUVANANTHAPURAM DISTRICT, PIN - 695033, 3THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, KENATHUPARAMBU, KUNATHURMEDU P.O, PALAKKAD DISTRICT, PIN - 678001. R BY SMT A.C.VIDHYA- GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FORADMISSION ON 05.01.2021, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: WP(C).No.142 OF 2021(P) JUDGMENT The petitioner, who was allotted a plot having an extentof 25 cents in Sy.No.366/2 of Puthussery Central Village, inthe New Industrial Development Area, Kanjikode on thestrength of Ext.P1 allotment letter dated 25.01.2018 issued bythe 3[rd] respondent General Manager, District IndustriesCentre, Palakkad, has filed this writ petition under Article 226of the Constitution of India, seeking a writ of certiorari toquash Ext.P15 proceedings dated 18.12.2020 issued by the 3[rd]respondent, ordering resumption of the said land. Thepetitioner has also sought for a writ of mandamuscommanding the 2[nd] respondent Director of Industries andCommerce to consider Ext.P16 appeal and pass appropriateorders. 2.Heard the learned counsel for the petitioner andalso the learned Government Pleader for the respondents. 3.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 essentially WP(C).No.142 OF 2021(P) a 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. 4.InAuthorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85], the ApexCourt reiterated that the discretionary jurisdiction underArticle 226 of the Constitution of India is not absolute but hasto be exercised 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 accordance WP(C).No.142 OF 2021(P) 4.InAuthorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85], the ApexCourt reiterated that the discretionary jurisdiction underArticle 226 of the Constitution of India is not absolute but hasto be exercised 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 accordance WP(C).No.142 OF 2021(P) with 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 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. 5.Feeling aggrieved by Ext.P15 order of resumption,the petitioner has already moved a statutory appeal beforethe 2[nd] respondent Director of Industries and Commerce,which is pending consideration. In view of the statutoryremedy of appeal available against Ext.P15 order, thepetitioner cannot invoke the writ jurisdiction of this Court WP(C).No.142 OF 2021(P) under Article 226 of the Constitution of India in order tochallenge that order. 6.The learned counsel for the petitioner would submitthat Ext.P16 appeal filed by the petitioner against Ext.P15order is pending consideration before the 2[nd] respondentappellate authority. During the pendency of that appeal, stepsare being taken to implement Ext.P15 order. 7.The learned Government Pleader would submitthat, if Ext.P16 appeal filed by the petitioner is in order andthe same is still pending consideration, the 2[nd] respondentshall consider the same and pass appropriate orders thereon,with notice to the petitioner and after affording him anopportunity of being heard. If any application for interim reliefis filed, that application shall also be considered by the 2[nd]respondent. 8.Having considered the submissions made by thelearned counsel on both sides, this writ petition is disposed ofby directing the 2[nd] respondent to consider and passappropriate orders on Ext.P16 appeal filed by the petitioneragainst Ext.P15 order dated 18.12.2020 of the 3[rd] respondent,if that appeal is in order and the same is still pending WP(C).No.142 OF 2021(P) consideration, as expeditiously as possible, at any rate, withina period of three months from the date of receipt of a certifiedcopy of this judgment, after affording the petitioner anopportunity of being heard. 9.In case, the petitioner files an application in Ext.P16 appeal seeking interim relief against Ext.P15, withinone week from the date of receipt of a certified copy of thisjudgment, the 2[nd] respondent shall consider the same andpass appropriate orders, within a period of one week from thedate of receipt of such application. Legal and factual contentions raised by the petitioner areleft open to be raised before the 2[nd] respondent, atappropriate stage. AV/5/1 Sd/- ANIL K.NARENDRAN, JUDGE WP(C).No.142 OF 2021(P) APPENDIX PETITIONER'S EXHIBITS: 9.In case, the petitioner files an application in Ext.P16 appeal seeking interim relief against Ext.P15, withinone week from the date of receipt of a certified copy of thisjudgment, the 2[nd] respondent shall consider the same andpass appropriate orders, within a period of one week from thedate of receipt of such application. Legal and factual contentions raised by the petitioner areleft open to be raised before the 2[nd] respondent, atappropriate stage. AV/5/1 Sd/- ANIL K.NARENDRAN, JUDGE WP(C).No.142 OF 2021(P) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1TRUE COPY OF THE ALLOTMENT LETTER ISSUED BY THE 3RD RESPONDENT DATED 25.01.2018.ISSUED BY THE 3RD RESPONDENT DATED 25.01.2018. EXHIBIT P2TRUE COPY OF THE LICENCE CUM LEASE AGREEMENT EXECUTED BETWEEN THE PETITIONER AND THE 3RD RESPONDENT DATED 17.07.2018.AGREEMENT EXECUTED BETWEEN THE PETITIONER AND THE 3RD RESPONDENT DATED 17.07.2018. EXHIBIT P3TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT DATED 28.11.2019.3RD RESPONDENT DATED 28.11.2019. EXHIBIT P4TRUE COPY OF THE REPLY TO EXHIBIT P3 LETTER GIVEN BY THE PETITIONER TO THE 3RD RESPONDENT DATED 04.12.2019.LETTER GIVEN BY THE PETITIONER TO THE 3RD RESPONDENT DATED 04.12.2019. EXHIBIT P5TRUE COPY OF THE GST REGISTRATION CERTIFICATE ISSUED BY THE GOVERNMENT OF INDIA DATED 19.10.2019.CERTIFICATE ISSUED BY THE GOVERNMENT OF INDIA DATED 19.10.2019. EXHIBIT P6TRUE COPY OF THE ELECTRICITY BILL ISSUED FROM THE KERALA STATE ELECTRICITY BOARD DATED 05.05.2020ISSUED FROM THE KERALA STATE ELECTRICITY BOARD DATED 05.05.2020 EXHIBIT P7TRUE COPY OF THE RECEIPT OF PAYMENT OFELECTRICITY CHARGES ISSUED FROM THE KERALA STATE ELECTRICITY BOARD DATED 13.07.2020.ELECTRICITY CHARGES ISSUED FROM THE KERALA STATE ELECTRICITY BOARD DATED 13.07.2020. EXHIBIT P8TRUE COPY OF THE APPLICATION SUBMITTEDBY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 01.07.2020.BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 01.07.2020. EXHIBIT P9TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DATED30.07.2020.3RD RESPONDENT TO THE PETITIONER DATED30.07.2020. EXHIBIT P10TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER TO EXHIBIT P9 LETTER TO THE3RD RESPONDENT DATED 04.08.2020.PETITIONER TO EXHIBIT P9 LETTER TO THE3RD RESPONDENT DATED 04.08.2020. WP(C).No.142 OF 2021(P) EXHIBIT P11 TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DATED07.08.2020. EXHIBIT P12 TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER TO EXHIBIT P11 LETTER TO THE 3RD RESPONDENT DATED 13.08.2020 EXHIBIT P13 TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DATED26.08.2020. EXHIBIT P14 TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER TO EXHIBIT P13 LETTER TO THE 3RD RESPONDENT DATED 19.09.2020. EXHIBIT P15TRUE COPY OF THE ORDER NO.I-3/1086/ 2013 ISSUED BY THE 3RD RESPONDENT DATED 18.12.2020. EXHIBIT P16 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER AGAINST EXHIBIT P15 ORDER BEFORE THE 2ND RESPONDENT DATED 27.12.2020.