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 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942 W.P.(C) No.3192 OF 2021(Y) PETITIONER: K.H.MOUAMMED ASHRAFF,AGED 72 YEARS,RESIDING AT PUTHEN PURACKAL, ERUVA,KAYAMKULAM,ALAPPUZHA DISTRICT, PROPRIETOR QUILON METAL INDUSTRIES, MUNDAKKAL DEVELOPMENT PLOT NO.36, KOLLAM DISTRICT. BY ADVS.SRI.R.RAJASEKHARAN PILLAISMT.SABINA JAYAN RESPONDENTS: 1THE STATE OF KERALAREPRESENTED BY ITS SPECIAL SECRETARY, INDUSTRIES DEVELOPMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM-695 001.2DIRECTOR OF INDUSTRIES AND COMMERCE,DIRECTORATE OF INDUSTRIES COMMERCE,VIKAS BHAVAN.P.O, THIRUVANANTHAPURAM, KERALA-695 033.3THE GENERAL MANAGER,DISTRICT INDUSTRIES CENTRE,ASRAMAM, KOLLAM-691 002.4THE TALUK INDUSTRIES OFFICER,ASRAMAM, KOLLAM-691 002. R1-R4SMT.VIDHYA A.C., GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON09.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.3192 OF 2021(Y) -2- JUDGMENT The petitioner, who is running an industrial unit in plot No.36of Mundakkal Industrial Development Area, has filed this writpetition under Article 226 of the Constitution of India, seeking awrit of certiorari to quash Ext.P5 order dated 22.01.2021 issuedby the 3[rd] respondent General Manager, District Industries Centre,Kollam, whereby the land of that industrial unit is ordered to beresumed for the reasons stated therein. The petitioner has alsosought for a writ of mandamus commanding the 1[st] respondentState to consider Ext.P6 appeal dated 01.02.2021 and passappropriate orders, after hearing the petitioner. 2.Heard the learned counsel for the petitioner and alsothe learned Government Pleader appearing for the respondents. 3.The document placed on record as Ext.P6 is an appealfiled by the petitioner before the 1[st] respondent State, againstExt.P5 order dated 22.01.2021 of the 3[rd] respondent. 4.The learned Government Pleader would point out Rule24 of the Government Land (Allotment and Assignment forIndustrial Purposes) Rules, 2020, which provides that the allottee,if aggrieved by the decision of General Manager, may file appeal,before the Director of Industries and Commerce, within thirty days W.P.(C) No.3192 OF 2021(Y) -3- on receipt of a copy of resumption order and the Director shall dispose of the appeal within thirty days. 5.The learned Government Pleader would submit thatExt.P6 appeal filed before the 1[st] respondent will be transmittedforthwith to the 2[nd] respondent Director of Industries andCommerce, who is the appellate authority and thereafter, the saidrespondent will consider the same and pass appropriate ordersthereon, with notice to the petitioner and after affording him anopportunity of being heard. 6.The learned counsel for the petitioner would point outthat as there is threat of dispossession based on Ext.P5 order,immediate interference of the 2[nd] respondent appellate authority ishighly essential. 7.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 law.Undoubtedly, it is within the discretion of the High Court to grantrelief under Article 226 of the Constitution of India, despite the W.P.(C) No.3192 OF 2021(Y) -4- existence 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. 8.In Authorised Officer, State Bank of Travancore v. W.P.(C) No.3192 OF 2021(Y) -4- existence 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. 8.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 ruleis that 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 exceptionsas observed in Chaabil Das Agarwal's case (supra), i.e., wherethe statutory authority has not acted in accordance with theprovisions of the enactment in question or in defiance of thefundamental principles of judicial procedure, or has resorted toinvoke the provisions which are repealed, or when an order hasbeen passed in total violation of the principles of natural justice.After referring to the law laid down in Thansingh Nathmal v. W.P.(C) No.3192 OF 2021(Y) -5- 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. 9.In view of the law laid down in the decisions referred tosupra, when there is a statutory remedy of appeal provided underRule 24 of the Government Land (Allotment and Assignment forIndustrial Purposes) Rules, before the 2[nd] respondent, thepetitioner cannot invoke the writ jurisdiction of this Court underArticle 226 of the Constitution of India in order to challengeExt.P5 order. 10.Feeling aggrieved by Ext.P5 order, the petitioner hasalready filed Ext.P6 appeal before the 1[st] respondent. The 2[nd]respondent is the appellate authority as per Rule 24 of theGovernment Land (Allotment and Assignment for Industrial W.P.(C) No.3192 OF 2021(Y) -6- Purposes) Rules. In such circumstances, this writ petition is disposed of with the following directions; i) The 1[st] respondent shall forthwith transmit Ext.P6 appealfiled by the petitioner against Ext.P5 order dated 22.01.2021of the 3[rd] respondent to the 2[nd] respondent Director ofIndustries and Commerce. ii) Thereafter, the 2[nd] respondent Director of Industries andCommerce shall consider that appeal and take anappropriate decision thereon, with notice to the petitionerand after affording him an opportunity of being heard. iii) The petitioner shall file an application for stay ofoperation of Ext.P5 order before the 2[nd] respondent, alongwith a certified copy of this judgment, which shall beconsidered by the said respondent, with notice to thepetitioner and take a decision thereon, within a period of oneweek. iv) Status quo as on today shall be maintained for a periodof 10 days from this date, so as to enable the petitioner toapproach the 2[nd] respondent with an application for stay ofoperation of Ext.P5 order. bpr Sd/- ANIL K. NARENDRAN JUDGE -7- APPENDIX PETITIONER'S EXHIBITS: RESPONDENTS' EXHIBITS: NIL