In Commissioner Of Income Tax v. Chhabildas Agarwal [(2014) 1 Scc 603], The Apex Court Held

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE ANIL K.NARENDRAN TUESDAY, THE 21ST DAY OF MAY 2019 / 31ST VAISAKHA, 1941WP(C).No. 13153 of 2019 PETITIONER: SANTHOSH,AGED 51 YEARS,S/O.PRABHAKARAN, VIYYATH HOUSE, KARUVANNUR, THRISSUR. BY ADV. SRI.K.T.RAVEENDRAN RESPONDENT: THE REGIONAL TRANSPORT AUTHORITY, ERNAKULAM REPRESENTED BY ITS SECRETARY, REGIONAL TRANSPORT OFFICE, KOCHI-682030. SRI.MANURAJ K.J., GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON21.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner is a stage carriage operator on theroute Chottanikkara-Thrissur as Limited Stop OrdinaryService, in respect of his stage carriage bearingregistration No.KL-58/M-670. The petitioner has submittedan application for variation of permit, which was directedto be reconsidered by the respondent Regional TransportAuthority, vide Ext.P2 judgment of the State TransportAppellate Tribunal in MVAA No.199/2018. The petitionerhas filed this writ petition under Article 226 of theConstitution of India seeking a writ of certiorari to quashExt.P1 order dated 19.01.2019 of the respondent RegionalTransport Authority, whereby that application for variationstands rejected. The petitioner has also sought for a writ ofmandamus commanding the respondent to reconsider hisapplication for variation of permit in compliance withExt.P2 judgment of the State Transport Appellate Tribunal,by extending an opportunity to submit a modifiedapplication limiting the distance covered by the variation within 24 kms, in consonance with the 1[st] proviso to sub-section (3) of Section 80 of the Motor Vehicles Act, 1988. 2.On 07.05.2019, when this writ petition came upfor admission, this Court adjourned the matter to21.05.2019. 3.Heard the learned counsel for the petitioner andalso the learned Government Pleader appearing for therespondent. Heard the learned counsel for the petitioner and 4.The main relief sought for in this writ petition isa writ of certiorari to quash Ext.P1 order dated 19.01.2019of the respondent Regional Transport Authority, wherebythe application made by the petitioner for variation of theregular permit in respect of his stage carriage bearingregistration No.KL-58/M-670 stands rejected. Ext.P1 orderof the respondent is appealable before the State TransportAppellate Tribunal under Section 89 of the Motor VehiclesAct. 5.In Commissioner of Income Tax v. ChhabilDas Agarwal [(2014) 1 SCC 603], the Apex Court held that non-entertainment of a writ petition under Article 226of the Constitution of India when an efficacious alternativeremedy is available is a rule and self imposed limitation. Itis essentially a rule of policy, convenience and discretionrather than a rule of law. Undoubtedly, it is within thediscretion of the High Court to grant relief under Article 226of the Constitution of India, despite the existence ofalternative remedy. However, High Court must not interfereif there is an adequate efficacious alternative remedyavailable to the petitioner and he has approached the HighCourt without availing the same, unless he has made out anexceptional case warranting such interference or thereexists sufficient ground to invoke the extraordinaryjurisdiction under Article 226. 6.InAuthorised Officer, State Bank ofTravancore 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 buthas to be exercised judiciously in the given facts of a caseand in accordance with law. The normal rule is that a writ 6.InAuthorised Officer, State Bank ofTravancore 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 buthas to be exercised judiciously in the given facts of a caseand in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution of India oughtnot to be entertained if alternative statutory remedies areavailable, except in cases falling within the well definedexceptions as observed in Chaabil Das Agarwal's case(supra), i.e., where the statutory authority has not actedin accordance with the provisions of the enactment inquestion or in defiance of the fundamental principles ofjudicial procedure, or has resorted to invoke the provisionswhich are repealed, or when an order has been passed intotal violation of the principles of natural justice. Afterreferring to the law laid down in Thansingh Nathmal v.Superintendent of Taxes andTitaghur Paper Mills Company Ltd. v. State of Orissa[(1983) 2 SCC 433] the Apex Court held that High Courtwill not entertain a petition under Article 226 of theConstitution if an effective alternative remedy is available tothe aggrieved person or the statute under which the actioncomplained of contains a mechanism for redressal ofgrievance. Therefore, when a statutory forum is created bylaw for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 7.In Thansingh 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 exercisethereof is not subject to any restrictions except theterritorial restrictions which are expressly provided in theArticle. But the exercise of the jurisdiction is discretionary:it is not exercised merely because it is lawful to do so. Thevery amplitude of the jurisdiction demands that it willordinarily be exercised subject to certain self imposedlimitations. Resort to that jurisdiction is not intended as analternative remedy for relief which may be obtained in asuit or other mode prescribed by statute. Ordinarily, thecourt will not entertain a petition for a writ under Article226, where the petitioner has an alternative remedy, whichwithout being unduly onerous, provides an equallyefficacious remedy. Again the High Court does not generallyenter upon a determination of questions which demand anelaborate examination of evidence to establish the right to enforce for which the writ is claimed. The High Court doesnot, therefore, act as a court of appeal against the decisionof a court or tribunal, to correct errors of fact, and does notby assuming jurisdiction under Article 226 trench upon analternative remedy provided by statute for obtaining relief.Where it is open to the aggrieved petitioner to moveanother tribunal or even itself in another jurisdiction forobtaining redress in the manner provided by a statute, theHigh Court normally will not permit by entertaining apetition under Article 226 of the Constitution the machinerycreated under the statute to be bypassed, and will leave theparty applying to it to seek resort to the machinery so setup. 8.In Titaghur Paper Mills' case (supra) a Three-Judge Bench of the Apex Court held that, the Orissa SalesTax Act, 1947 provides for a complete machinery tochallenge an order of assessment, and the impugned ordersof assessment can only be challenged by the modeprescribed by the Act and not by a petition under Article226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which givesa special remedy for enforcing it, the remedy provided bythat statute only must be availed of. This rule was statedwith great clarity by Willes, J. in Wolverhampton NewWater Works Co. v. Hawkesford [(1859) 6 CBNS 336] 8.In Titaghur Paper Mills' case (supra) a Three-Judge Bench of the Apex Court held that, the Orissa SalesTax Act, 1947 provides for a complete machinery tochallenge an order of assessment, and the impugned ordersof assessment can only be challenged by the modeprescribed by the Act and not by a petition under Article226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which givesa special remedy for enforcing it, the remedy provided bythat statute only must be availed of. This rule was statedwith 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 liabilitymay be established founded upon statute ..... Butthere is a third class, viz., where a liability notexisting at common law is created by a statutewhich at the same time gives a special andparticular remedy for enforcing it ..... the remedyprovided by the statute must be followed, and it isnot competent to the party to pursue the courseapplicable to cases of the second class. The formgiven by the statute must be adopted and adheredto."may be established founded upon statute ..... Butthere is a third class, viz., where a liability notexisting at common law is created by a statutewhich at the same time gives a special andparticular remedy for enforcing it ..... the remedyprovided by the statute must be followed, and it isnot competent to the party to pursue the courseapplicable to cases of the second class. The formgiven 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 NewspaperLtd.[1919 AC 368] and has been reaffirmed by the PrivyCouncil in Attorney General of Trinidad and Tobago v.Gordon Grant and Co. [1935 AC 532] and Secretary ofState v. Mask and Co. . It has also been held to be equally applicable to enforcement of rightsand has been followed by the Apex Court throughout. 9. In view of the statutory remedy available under Section 89 of the Motor Vehicles Act against Ext.P1 order ofthe respondent Regional Transport Authority, the petitionercannot challenge the said order invoking the writjurisdiction of this Court under Article 226 of theConstitution of India. In the result, this writ petition fails for the aforesaid reason and the same is accordingly dismissed; however,without prejudice to the right of the petitioner to challengeExt.P1 order by invoking the statutory remedy availableunder Section 89 of the Motor Vehicles Act by approachingthe State Transport Appellate Tribunal. bpr Sd/- ANIL K. NARENDRAN JUDGE APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE PROCEEDING OF THE RESPONDENT DATED 19.01.2019 EXHIBIT P2A TRUE COPY OF THE JUDGMENT DATED 22.09.2018 IN MVAA NO.199/2018 RESPONDENT'S EXHIBITS:NIL