In Commissioner Of Income Tax v. Wp(C)13019 Of 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 04TH DAY OF JUNE 2019 / 14TH JYAISHTA, 1941 WP(C).No.13019 of 2019 PETITIONER: M/S.POOJA MODERN RICE MILL,CHENGAL, VADAKKUM BHAGOM VILLAGE, ALUVA, KALADY P.O, PIN-683574, REPRESENTED BY ITS MANAGING PARTNER, K.D.BABY, S/O. DEVASSY, KOLENCHERRY HOUSE, SREEMOOLANAGARAM P.O, KANJOOR, KALADY P.O, ERNAKULAM -683580. BY ADV. SRI.DINESH MATHEW J.MURICKEN RESPONDENTS: BY ADVS.SRI.V.A.VINODSRI.P.G.JOSESRI PAUL ABRAHAM VAKKANAL- GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON04.06.2019, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: WP(C)13019 OF 2019 JUDGMENT The petitioner, which is a partnership firm running a ricemill in 128.088 ares of property comprised in surveyNos.327/12, 327/19, 349/1, 349/2, 349/7, 349/8, 350/1,350/2, 349/2-2, 350/1, 342/10, 349/2, 349/9 and 350/4 ofKanjoor Village, Aluva Taluk covered by Ext.P1 tax receipt, hasfiled this writ petition under Article 226 of the Constitution ofIndia, seeking a writ of certiorari to quash Ext.P14 order dated16.04.2019, wherein it has been stated that the application forlicence made by the petitioner cannot be considered since thepetitioner has completed the construction while the order ofstatus quo in Ext.P12 judgment dated 18.12.2018 in W.P.(C)No.41253 of 2018 was in force. According to the petitioner, noconstruction was done after the status quo order passed bythis Court on 18.12.2018. Hence, the reasons stated inExt.P14 order for non-consideration of application for licence isillegal and unsustainable. Feeling aggrieved by Ext.P14 order,the petitioner has already preferred Ext.P15 appeal before the3[rd] respondent, invoking the provisions under Section 276 ofthe Kerala Panchayat Raj Act, 1994 which is now pending WP(C)13019 OF 2019 consideration. The further relief sought for in this writ petitionis a writ of mandamus commanding the 3[rd] respondent toconsider Ext.P15 appeal dated 30.04.2019 and to passappropriate orders. 2.On 03.05.2019, when this writ petition came up foradmission, the learned Government Pleader took notice for the1[st] respondent. Urgent notice by speed post was ordered torespondents 2 to 4. 3.The sole issue that arises for consideration in thiswrit petition is as to whether any interference is warranted onExt.P14 order dated 16.04.2019 of the 4[th] respondentSecretary of the 2[nd] respondent Grama Panchayat. 4.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 remedy isavailable is a rule and self imposed limitation. It is essentially arule of policy, convenience and discretion rather than a rule oflaw. Undoubtedly, it is within the discretion of the High Courtto grant relief under Article 226 of the Constitution of India,despite the existence of alternative remedy. However, High Court must not interfere if there is an adequate efficaciousalternative remedy available to the petitioner and he hasapproached the High Court without availing the same, unlesshe has made out an exceptional case warranting suchinterference or there exists sufficient ground to invoke theextraordinary jurisdiction under Article 226. Court must not interfere if there is an adequate efficaciousalternative remedy available to the petitioner and he hasapproached the High Court without availing the same, unlesshe has made out an exceptional case warranting suchinterference or there exists sufficient ground to invoke theextraordinary jurisdiction under Article 226. 5.InAuthorised Officer, State Bank ofTravancore v. Mathew K.C.[(2018) 3 SCC 85] the ApexCourt reiterated that the discretionary jurisdiction under Article226 of the Constitution of India is not absolute but has to beexercised 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 withthe provisions of the enactment in question or in defiance ofthe fundamental principles of judicial procedure, or hasresorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural 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 redressal ofgrievance. Therefore, when a statutory forum is created by lawfor redressal of grievances, a writ petition should not beentertained ignoring the statutory dispensation. 6.InThansingh Nathmal's case (supra)aConstitution Bench ofthe Apex Court held that, the jurisdictionof the High Court under Article 226 of the Constitution iscouched in wide terms and the exercise thereof is not subjectto any restrictions except the territorial restrictions which areexpressly provided in the Article. But the exercise of thejurisdiction is discretionary: it is not exercised merely becauseit is lawful to do so. The very amplitude of the jurisdiction WP(C)13019 OF 2019 demands that it will ordinarily be exercised subject to certainself imposed limitations. Resort to that jurisdiction is notintended as an alternative remedy for relief which may beobtained in a suit or other mode prescribed by statute.Ordinarily, the court will not entertain a petition for a writunder Article 226, where the petitioner has an alternativeremedy, which without being unduly onerous, provides anequally efficacious remedy. Again the High Court does notgenerally enter upon a determination of questions whichdemand an elaborate examination of evidence to establish theright to enforce for which the writ is claimed. The High Courtdoes not, therefore, act as a court of appeal against thedecision of a court or tribunal, to correct errors of fact, anddoes not by assuming jurisdiction under Article 226 trenchupon an alternative remedy provided by statute for obtainingrelief. 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 a petitionunder Article 226 of the Constitution the machinery created WP(C)13019 OF 2019 under the statute to be bypassed, and will leave the partyapplying to it to seek resort to the machinery so set up. WP(C)13019 OF 2019 under the statute to be bypassed, and will leave the partyapplying to it to seek resort to the machinery so set up. 7.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 created bya 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 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 givesa 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 Councilin Attorney General of Trinidad and Tobago v. GordonGrant and Co. [1935 AC 532] and Secretary of State v.Mask and Co. . It has also been held tobe equally applicable to enforcement of rights and has beenfollowed by the Apex Court throughout. 8.In Pavithran V. State of Kerala (2009 (4) KHC4), a Full Bench of this Court held that, whenever an adverseorder is passed against a person, unless the same ischallenged before the appropriate forum, within the prescribedtime limit, the said order will become final. 9.Therefore, in view of the statutory remedy availableunder Section 276 of the Kerala Panchayat Raj Act, thepetitioner cannot invoke the writ jurisdiction of this Courtunder Article 226 of the Constitution of India challengingExt.P14 order, on the grounds raised in this writ petition. Thepetitioner has already moved Ext.P15 appeal before the 3[rd]respondent Panchayat Committee, which is now pending WP(C)13019 OF 2019 consideration. Therefore, it is for the petitioner to pursueExt.P15 appeal before the Appellate Authority. 10.In such circumstances, this writ petition is disposedof by directing the 3[rd] respondent to consider Ext.P15 appealfiled by the petitioner against Ext.P14 order and passappropriate orders thereon, strictly in accordance with law,with notice to the petitioner and after affording the petitioneran opportunity of being heard. Necessary orders in this regard shall be passed, asexpeditiously as possible, at any rate, within a period of onemonth from the date of receipt of a certified copy of thisjudgment. Sd/- ANIL K. NARENDRAN JUDGE yd PETITIONER'S EXHIBITS: APPENDIX EXHIBIT P1TRUE COPY OF THE PROPERTY TAX RECEIPT WITH RESPECT TO 128.08 ARES OF PROPERTY OF THE PETITIONER DATED 13.04.2018.WITH RESPECT TO 128.08 ARES OF PROPERTY OF THE PETITIONER DATED 13.04.2018. EXHIBIT P2THE TRUE COPY OF LICENSE ISSUED BY FACTORIES AND BOILERS DEPARTMENT DATED23.11.2018.FACTORIES AND BOILERS DEPARTMENT DATED23.11.2018. EXHIBIT P3TRUE COPY OF THE INTEGRATED CONSENT TOOPERATE RENEWAL ISSUED FROM THE POLLUTION CONTROL BOARD DATED 16.04.2019.OPERATE RENEWAL ISSUED FROM THE POLLUTION CONTROL BOARD DATED 16.04.2019. EXHIBIT P4TRUE COPY OF THE D&O LICENCE ISSUED FROM THE KANJOOR GRAMA PANCHAYATH DATED 21.05.2018.FROM THE KANJOOR GRAMA PANCHAYATH DATED 21.05.2018. EXHIBIT P5TRUE PHOTOGRAPHS SHOWING THE AFTERMATHOF THE FLOOD IN THE RICE MILL.OF THE FLOOD IN THE RICE MILL. EXHIBIT P1TRUE COPY OF THE PROPERTY TAX RECEIPT WITH RESPECT TO 128.08 ARES OF PROPERTY OF THE PETITIONER DATED 13.04.2018.WITH RESPECT TO 128.08 ARES OF PROPERTY OF THE PETITIONER DATED 13.04.2018. EXHIBIT P2THE TRUE COPY OF LICENSE ISSUED BY FACTORIES AND BOILERS DEPARTMENT DATED23.11.2018.FACTORIES AND BOILERS DEPARTMENT DATED23.11.2018. EXHIBIT P3TRUE COPY OF THE INTEGRATED CONSENT TOOPERATE RENEWAL ISSUED FROM THE POLLUTION CONTROL BOARD DATED 16.04.2019.OPERATE RENEWAL ISSUED FROM THE POLLUTION CONTROL BOARD DATED 16.04.2019. EXHIBIT P4TRUE COPY OF THE D&O LICENCE ISSUED FROM THE KANJOOR GRAMA PANCHAYATH DATED 21.05.2018.FROM THE KANJOOR GRAMA PANCHAYATH DATED 21.05.2018. EXHIBIT P5TRUE PHOTOGRAPHS SHOWING THE AFTERMATHOF THE FLOOD IN THE RICE MILL.OF THE FLOOD IN THE RICE MILL. EXHIBIT P6THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE1ST RESPONDENT DATED 30.08.2018.SUBMITTED BY THE PETITIONER BEFORE THE1ST RESPONDENT DATED 30.08.2018. EXHIBIT P7THE TRUE COPY OF THE CLAIM FORM SUBMITTED BY THE PETITIONER BEFORE THESBI GENERAL INSURANCE.SUBMITTED BY THE PETITIONER BEFORE THESBI GENERAL INSURANCE. EXHIBIT P8THE TRUE COPY OF THE NOTICE ISSUED BY THE 5TH RESPONDENT DATED 23.10.2018.THE 5TH RESPONDENT DATED 23.10.2018. EXHIBIT P9THE TRUE COPY OF THE REPLY TO EXHIBIT P8 NOTICE SUBMITTED BY THE PETITIONER DATED 05.11.2018P8 NOTICE SUBMITTED BY THE PETITIONER DATED 05.11.2018 EXHIBIT P10THE TRUE COPY OF THE PROVISIONAL ORDERISSUED BY THE 4TH RESPONDENT DATED 16.11.2018.ISSUED BY THE 4TH RESPONDENT DATED 16.11.2018. EXHIBIT P11THE TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER TO EXHIBIT P10 PROVISIONAL ORDER DATED 03.12.2018.THE PETITIONER TO EXHIBIT P10 PROVISIONAL ORDER DATED 03.12.2018. EXHIBIT P12 TRUE COPY OF THE JUDGMENT IN WPC NO.41253/2018 PASSED BY THIS HONOURABLE COURT DATED 18.12.2018. EXHIBIT P13 TRUE COPY OF THE APPLICATION FOR RENEWING THE LICENCE BEFORE THE 2ND RESPONDENT DATED 28.02.2019. EXHIBIT P14TRUE COPY OF THE COMMUNICATION SENT BYTHE 4TH RESPONDENT TO THE PETITIONER DATED 16.04.2019. EXHIBIT P15TRUE COPY OF THE APPEAL SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 30.04.2019. RESPONDENT'S EXHIBITS:NIL TRUE COPY P.A. TO JUDGE