In Commissioner Of Income Tax v. Corporation Of Cochin Zonal Office Mattanchery

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 01ST DAY OF AUGUST 2019 / 10TH SRAVANA, 1941 WP(C).No.20212 OF 2019(B) PETITIONER/S: VEKITESWARIAGED 62 YEARSWIDOW OF LATE KRISHNASWAMI CHETIAR, 8/738, KOOVAPPADAM COCHIN 682 02, ERNAKULAM DISTRICT. BY ADVS.SRI.L.RAM MOHANSRI.M.AUBREY ABRAHAM ISAAC RESPONDENT/S: THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON01.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, who is a resident at Koovappadam in FortKochi, has filed this writ petition under Article under 226 ofthe Constitution of India, seeking a writ of certiorari to quashExt.P1 notice dated 02.07.2019, issued by the 3[rd] respondent-Assistant Health Officer; a writ of mandamus commanding the1[st] respondent, who is the Secretary of the 1[st] respondentCorporation, to pass orders on Ext.P2 application for licence,within a time limit to be prescribed by this Court; and a writof mandamus commanding the respondents, not to take anyaction pursuant to Ext.P1 against the petitioner, beforeconsidering Ext.P2 application. 2.On 24.07.2019, when this writ petition came up foradmission, it was adjourned to 29.07.2019 for furtherconsideration. 3.A counter affidavit has been filed by the 2[nd]respondent, opposing the reliefs sought for in this writpetition. Paragraphs 2 to 4 of the said counter affidavit readthus: “2.It is submitted with great respect that the 4[th] respondent in the above case filed a petitiondated 25.04.2019 before this respondentcorporation alleging that Sri Jayaprakashmaintain two cows in unclean environmentwithout the valid license. Hence this respondentcorporation deputed 4[th] Circle Health Inspectorfor inspection, found that, the above saidpremises is adjacent to the building No.738 inWard No.8. The petitioner is maintaining the cowsin an unhygienic manner and the wastes are beinglet out in a common canal resulting heavybreeding of mosquitoes making it impossible toreside in that area. It is also found that the entirearea is filled with dirty smell resulting in anunhealthy atmosphere. It is also found that thereis no measure for the waste disposal and the sameis done through public drainage, which causeobstruction to natural flow of rain water and itcaused water clogging, mosquitoes and hence thesame caused viral deceases to the neighboringpeople. 3. It is also submitted with great respect thatthe act of the petitioner and her son are strict inviolation of Sections 337, 436 and 444(3) of theKerala Municipalities Act. Hence this respondentcorporation issued Exhibit P1 notice. Section 436of Kerala Municipalities Act, 1994 prohibits keeping of animals in one premises so as to causenuisance or danger to any person in theneighborhood and according to Section 444(3)Licences for places in which animals are kept- Noperson shall without or otherwise than inconformity with a licence, use any place for sucha purpose" 4.It is also submitted that Section 50(2) of theMunicipality Act, empowers the Secretary todelegate any of his power in the manner providedthereunder. As per that certain powers have beendelegated to the Health Officers. It would bemore unjust and illegal to permit a person, whocontinues the activity even without a valid licenceand make an application. Hence the 3[rd]respondent issued a notice dated 02.07.2019 videWZH3/660/2019.” 4.Heard the learned counsel for the petitioner andalso the learned Standing Counsel for the 1[st] respondent-Corporation, representing respondents 1 to 3. Consideringthe nature of relief proposed to be granted, service of noticeon the 4[th] respondent, who is the complainant is dispensedwith. 5.The petitioner has filed this writ petition mainlychallenging Ext.P1 notice dated 02.07.2019 issued by the 3[rd] 4.Heard the learned counsel for the petitioner andalso the learned Standing Counsel for the 1[st] respondent-Corporation, representing respondents 1 to 3. Consideringthe nature of relief proposed to be granted, service of noticeon the 4[th] respondent, who is the complainant is dispensedwith. 5.The petitioner has filed this writ petition mainlychallenging Ext.P1 notice dated 02.07.2019 issued by the 3[rd] respondent-Assistant Health Officer. The counter affidavit filed by the 2[nd] respondent would show that the 3[rd] respondenthas issued such a notice in exercise of the delegated powersunder sub-section (2) of Section 50 of the Kerala MunicipalityAct, 1994. If the petitioner is feeling aggrieved by Ext.P1notice, he can invoke the statutory remedy of appeal providedunder Section 509 of the Kerala Municipality Act, 1994, byapproaching the appropriate forum. 6.In Commissioner of Income Tax v. Chhabil DasAgarwal [(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 remedyis available is a rule and self imposed limitation. It isessentially a rule of policy, convenience and discretion ratherthan a rule of law. Undoubtedly, it is within the discretion ofthe High Court to grant relief under Article 226 of theConstitution of India, despite the existence of alternativeremedy. However, High Court must not interfere if there is anadequate efficacious alternative remedy available to thepetitioner and he has approached the High Court without availing the same, unless he has made out an exceptional case warranting such interference or there exists sufficient groundto invoke the extraordinary jurisdiction under Article 226.7.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 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 accordancewith the provisions of the enactment in question or indefiance of the fundamental principles of judicial procedure,or has resorted to invoke the provisions which are repealed,or when an order has been passed in total violation of theprinciples of natural justice. After referring to the law laiddown in Thansingh Nathmal v. Superintendent of Taxes and Titaghur Paper Mills CompanyLtd. v. State of Orissa [(1983) 2 SCC 433] the Apex Courtheld that High Court will not entertain a petition underArticle 226 of the Constitution if an effective alternativeremedy is available to the aggrieved person or the statuteunder which the action complained of contains a mechanismfor redressal of grievance. Therefore, when a statutory forumis created by law for redressal of grievances, a writ petitionshould not be entertained 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 exercisethereof is 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 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 exercisethereof is 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 relief which may be obtained in a suit or other modeprescribed by statute. Ordinarily, the court will not entertaina petition for a writ under Article 226, where the petitionerhas an alternative remedy, which without being undulyonerous, provides an equally efficacious remedy. Again theHigh Court does not generally enter upon a determination ofquestions which demand an elaborate examination ofevidence to establish the right to enforce for which the writ isclaimed. The High Court does not, therefore, act as a court ofappeal against the decision of a court or tribunal, to correcterrors of fact, and does not by assuming jurisdiction underArticle 226 trench upon an alternative remedy provided bystatute for obtaining relief. Where it is open to the aggrievedpetitioner to move another tribunal or even itself in anotherjurisdiction for obtaining redress in the manner provided by astatute, the High Court normally will not permit byentertaining a petition under Article 226 of the Constitutionthe machinery created under the statute to be bypassed, andwill leave the party applying to it to seek resort to themachinery so set up. 9.In Titaghur Paper Mills' case (supra) a Three-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 ..... 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 beenheld to be equally applicable to enforcement of rights and hasbeen followed by the Apex Court throughout. 10.In such circumstances, no interference underArticle 226 of the Constitution of India is warranted on Ext.P1notice, on the grounds raised in this writ petition. Thelearned counsel for the petitioner would submit that Ext.P2application made by the petitioner for licence is now pendingconsideration before the 2[nd] respondent. 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 beenheld to be equally applicable to enforcement of rights and hasbeen followed by the Apex Court throughout. 10.In such circumstances, no interference underArticle 226 of the Constitution of India is warranted on Ext.P1notice, on the grounds raised in this writ petition. Thelearned counsel for the petitioner would submit that Ext.P2application made by the petitioner for licence is now pendingconsideration before the 2[nd] respondent. 11.The learned Standing Counsel for the Corporationwould submit that the 2[nd] respondent shall consider and passappropriate orders on Ext.P2 application for licence, withnotice to the petitioner and also to the 4[th] respondent. Having considered the submissions made by the learnedcounsel on both sides, this writ petition is disposed of by directing the 2[nd] respondent to consider and pass appropriateorder on Ext.P2 application for licence made by the petitioner,with notice to the petitioner and also to the 4[th] respondent,strictly in accordance with law, as expeditiously as possible atany rate within a period of two weeks from the date of receiptof a certified copy of this judgment. Dxy Sd/- ANIL K.NARENDRAN JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF NOTICE DATED 2/7/19EXHIBIT P2TRUE COPY OF LICENSE APPLICATION.EXHIBIT P3TRUE COPY OF ACKNOWLEDGEMENT.