In Commissioner Of Income Tax v. The Piravom Municipality

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 15TH DAY OF MARCH 2019/24TH PHALGUNA, 1940WP(C).No. 4777 of 2019 PETITIONERS: 1DR.P.KURIAKOSE S/O. P.T.PAULOSE,PAZHUKANIYIL HOUSE, PIRAVOM P.O., PIRAVOMPIRAVOM 2DR. V.N.CHANDRASEKHARAN, S/O. NARAYANA, POORNACHANDRIKA HOUSE, PERUMPALLY P.O., MULAMTHURUTHY, ERNAKULAMP.O., MULAMTHURUTHY, ERNAKULAM 3DR.BALU MATHEW, S/O. MATHEW, VALADIYIL HOUSE, MAMALASSERY, RAMAMANGALAMRAMAMANGALAM 4DR.DEEPAAGED 1 YEARSAGED 1 YEARS W/O. MATHEW, VALADIYIL HOUSE, MAMALASSERY, RAMAMANGALAMRAMAMANGALAM 5CHINNAMMAW/O.JOY, NEETTINKARA HOUSE, KAKKAD P.O. PIRAVOMW/O.JOY, NEETTINKARA HOUSE, KAKKAD P.O. PIRAVOM 6SOORAJ MURALEEDHARANS/O. MURALEEDHARAN, MURALI BHAVAN, ELANTHOOR P.O., PATHANAMTHITTAS/O. MURALEEDHARAN, MURALI BHAVAN, ELANTHOOR P.O., PATHANAMTHITTA BY ADV. SRI.DOMSON J.VATTAKUZHY RESPONDENTS: 1THE PIRAVOM MUNICIPALITY,PIRAVOM P.O., ERNAKULAM DISTRICT, REPRESENTED BY ITS PIRAVOM P.O., ERNAKULAM DISTRICT, REPRESENTED BY ITS SECRETARY 2THE SECRETARYTHE PIRAVOM MUNICIPALITY, PIRAVOM P.O., ERNAKULAM DISTRICTTHE PIRAVOM MUNICIPALITY, PIRAVOM P.O., ERNAKULAM DISTRICT BY ADV. SRI.GEORGE SEBASTIAN, SC, PIRAVOM MUNICIPALITY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioners 1 to 4, who are doctors by profession andpetitioners 5 and 6, who are running diagnostic laboratories, afterobtaining D&O licence from the first respondent Municipality, havefiled this writ petition under Article 226 of the Constitution ofIndia seeking a writ of certiorari to quash Exts.P1 to P6proceedings, dated 13.06.2018 issued by the first respondent,whereby a demand for payment of D&O licence fee is made forthe year 2016-17 together with fine and late fee. 2. On 18.02.2019, when this writ petition came up foradmission the learned Standing Counsel for the first respondentMunicipality, sought time to get instructions. 3. Heard the learned counsel for the petitioners and also thelearned Standing Counsel for the first respondent Municipality,representing respondents 1 and 2. 4. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Exts.P1to P6 orders of the first respondent, whereby a demand has beenmade for D&O licence fee for the year 2016-17 together with fineand late fee. 5. The fact that, going by the provisions under the KeralaMunicipality (Issue of licence to Dangerous and Offensive Tradesand Factories) Rules, 2011 (hereinafter referred to as 'D&Olicence Rules') the petitioners who are running hospitals/medicallaboratories, etc., can run those institutions only after obtainingnecessary licence, after remitting requisite fee, is not in dispute.Admittedly, the petitioners have not chosen to obtain D&O licenceand remit the requisite licence fee for the year 2016-17 and theyconducted their institutions, without any such licence. When thiswas noticed in the audit conducted by the audit wing, the firstrespondent Municipality has issued Exts.P1 to P6 notices dated13.06.2018, whereby a demand for the defaulted D&O licence feetogether with fine and late fee is made. A perusal of Exts.P1 to P6notices would make it explicitly clear that on noticing the non-payment of licence fee for the year 2016-17, the petitioners wereissued with individual notices dated 16.01.2018. They submittedtheir reply and it was only thereafter, that the first respondentMunicipality issued Exts.P1 to P6 notices, whereby a demand hasbeen made for defaulted D&O licence fee together with fine andlate fee. 6.Admittedly, the petitioners have not complied with thestatutory mandate and obtained renewal of D&O licence for the WP(C).No. 4777 of 2019 4 6.Admittedly, the petitioners have not complied with thestatutory mandate and obtained renewal of D&O licence for the WP(C).No. 4777 of 2019 4 year 2016-17 and it was in such circumstances that the 1[st]respondent has issued Exts.P1 to P6 notices, demanding thedefaulted D&O licence fee, together with fine and late fee. If thepetitioners were feeling aggrieved by Exts.P1 to P6 notices, theycould have very well invoked the statutory remedy of appealprovided under Section 509 of the Kerala Municipality Act, byapproaching the appellate authority, within the time limitspecified in the Statute. 7.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 the Constitutionof India when an efficacious alternative remedy is available is a ruleand self imposed limitation. It is essentially a rule of policy,convenience and discretion rather than a rule of law. Undoubtedly, itis within the discretion of the High Court to grant relief under Article226 of the Constitution of India, despite the existence of alternativeremedy. However, High Court must not interfere if there is anadequate efficacious alternative remedy available to the petitionerand he 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. WP(C).No. 4777 of 2019 5 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 Constitution ofIndia is not absolute but has to be exercised judiciously in the givenfacts of a case and in accordance with law. The normal rule is that awrit petition under Article 226 of the Constitution of India ought notto be entertained 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 thestatutory authority has not acted in accordance with the provisionsof the enactment in question or in defiance of the fundamentalprinciples of judicial procedure, or has resorted to invoke theprovisions which are repealed, or when an order has been passed intotal violation of the principles of natural justice. After referring tothe law laid down in Thansingh Nathmal v. Superintendent ofTaxes and Titaghur Paper Mills CompanyLtd. v. State of Orissa [(1983) 2 SCC 433] the Apex Court heldthat High Court will not entertain a petition under Article 226 of theConstitution if an effective alternative remedy is available to theaggrieved person or the statute under which the action complainedof contains a mechanism for redressal of grievance. Therefore, whena statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutorydispensation. writ petition should not be entertained ignoring the statutorydispensation. 9.In Thansingh Nathmal's case (supra) a ConstitutionBench ofthe Apex Court held that, the jurisdiction of the High Courtunder Article 226 of the Constitution is couched in wide terms andthe exercise thereof is not subject to any restrictions except theterritorial restrictions which are expressly provided in the Article.But the exercise of the jurisdiction is discretionary: it is notexercised merely because it is lawful to do so. The very amplitude ofthe jurisdiction demands that it will ordinarily be exercised subjectto certain 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 alternative remedy 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 createdunder the statute to be bypassed, and will leave the party applyingto it to seek resort to the machinery so set up. 10. In Titaghur Paper Mills' case (supra) a Three-JudgeBench of the Apex Court held that, the Orissa Sales Tax Act, 1947provides for a complete machinery to challenge an order ofassessment, and the impugned orders of assessment can only bechallenged by the mode prescribed by the Act and not by a petitionunder Article 226 of the Constitution. It is now well recognised thatwhere a right or liability is created by a statute which gives aspecial remedy for enforcing it, the remedy provided by that statuteonly must be availed of. This rule was stated with great clarity byWilles, J. in Wolverhampton New Water Works Co. v.Hawkesford [(1859) 6 CBNS 336] at page 356 in the followingpassage: "There are three classes of cases in which a liability maybe established founded upon statute ..... But there is athird class, viz., where a liability not existing at commonlaw is created by a statute which at the same time gives a special and particular remedy for enforcing it ..... theremedy provided by the statute must be followed, and itis not competent to the party to pursue the courseapplicable to cases of the second class. The form givenby 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 AC 368] 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. 11. In Pavithran V. State of Kerala (2009 (4) KHC 4), a Full Bench of this Court held that, whenever an adverse order ispassed against a person, unless the same is challenged before theappropriate forum, within the prescribed time limit, the said orderwill become final. The rule laid down in that passage was approved by the House of Lords in Neville v. London Express Newspaper Ltd.[1919 AC 368] 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. 11. In Pavithran V. State of Kerala (2009 (4) KHC 4), a Full Bench of this Court held that, whenever an adverse order ispassed against a person, unless the same is challenged before theappropriate forum, within the prescribed time limit, the said orderwill become final. 12. Having failed to challenge Exts.P1 to P6 notices atappropriate time, by availing the statutory remedy, the petitionercannot seek interference on those notices, invoking the writjurisdiction of this Court under Article 226 of the Constitution ofIndia, in this writ petition filed on 15.02.2019, much after theissuance of those demand notices. 13. Learned counsel for the petitioner would place relianceon Ext.P7 judgment of this Court in W.P.(C)No.30211 of 2018.By the said judgment, this Court ordered that if the amountsdemanded towards licence fee, fine and late fee is paid within thetime limit specified in that judgment, further proceedingspursuant to that notice shall be dropped. 14. In the instant case, despite the issuance of Exts.P1 to P6 notices dated 13.06.2018, the petitioners have not chosen tomake payment whatsoever, in terms of those notices, for the lasteight months. The petitioners, who have shown scant regard tothe statutory mandate of obtaining D&O licence for running theirhospitals/medical laboratories, are not entitled for any indulgencefrom this Court, at this distance of time. In the result, this writ petition fails and the same isaccordingly dismissed. DCS SD/- ANIL K.NARENDRAN JUDGE APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1TRUE COPY OF THE PROCEEDINGS ISSUED TO THE 1ST PETITIONER BY THE 1ST RESPONDENT DATED 13.06.2018 EXHIBIT P2TRUE COPY OF THE PROCEEDINGS ISSUED TO THE 2ND PETITIONER BY THE 1ST RESPONDENT DATED 13.06.2018 EXHIBIT P3TRUE COPY OF THE PROCEEDINGS ISSUED TO THE 3RD PETITIONER BY THE 1ST RESPONDENT DATED 13.06.2018 EXHIBIT P4TRUE COPY OF THE PROCEEDINGS ISSUED TO THE 4TH PETITIONER BY THE 1ST RESPONDENT DATED 13.06.2018 EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS ISSUED TO THE 5TH PETITIONER BY THE 1ST RESPONDENT DATED 13.06.2018