In Commissioner Of Income Tax v. Wp(C)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY ,THE 29TH DAY OF MARCH 2019 / 8TH CHAITHRA, 1941 WP(C).No. 8697 of 2019 PETITIONER/S: 1SHALIJA @ SAINABHA P.H.AGED 42 YEARSAGED 42 YEARS W/O. SHAMSUDHEEN, RESIDING AT VANIYAPURAYIL HOUSE, VENGALLOOR.P.O., THODUPUZHA, PIN - 685 608VENGALLOOR.P.O., THODUPUZHA, PIN - 685 608 2SHAMSUDHEENAGED 56 YEARSAGED 56 YEARS S/O. KASSIM RAWTHER, RESIDING AT VENIYAPURAYIL HOUSE,VENGALLOOR.P.O., THODUPUZHA, PIN - 685 608VENGALLOOR.P.O., THODUPUZHA, PIN - 685 608 BY ADV. SRI.MATHEW KURIAKOSE RESPONDENT/S: 1THODUPUZHA MUNICIPALITYREPRESENTED BY ITS SECRETARY, THODUPUZHA.P.O., PIN - 679 335REPRESENTED BY ITS SECRETARY, THODUPUZHA.P.O., PIN - 679 335 2THE SECRETARYTHODUPUZHA MUNICIPALITY, THODUPUZHA.P.O., PIN - 679 335THODUPUZHA MUNICIPALITY, THODUPUZHA.P.O., PIN - 679 335 BY ADV. SRI.UNNIKRISHNAN V.ALAPPATT, SC, THODUPUZHA MUNICIPALITY JUDGMENT The second petitioner is the husband of the firstpetitioner. The first petitioner is stated to be the owner of1.62 Ares of property in Survey No.2/8/2 ofKumaramangalam Village, Thodupuzha Taluk with an old twostoried commercial building covered by Ext.P1 sale deed. Thepetitioners have filed this writ petition under Article 226 ofthe Constitution of India seeking a writ of certiorari quashingExt.P10 order dated 19.02.2019 and Ext.P11 order dated21.02.2019 issued by the second respondent Secretary of thefirst respondent Municipality; a writ of mandamuscommanding respondent No.2 to effect correction of themistake in records of the first respondent Municipality asregards the nature of occupancy of building No.I/671 as'commercial' instead of 'residential'; and a writ of mandamuscommanding respondent No.2 to process Ext.P8 applicationsubmitted by the second petitioner for D&O license to runrestaurant in Building No.1/671 and to pass orders, asexpeditiously as possible, and within a time limit fixed by thisCourt. 2.On 21.03.2019, when this writ petition came up foradmission, the learned Standing Counsel for the first respondent Municipality, sought time to get instructions. 3.Heard the learned counsel for petitioners and alsothe learned Standing Counsel for the first respondentMunicipality, representing respondents 1 and 2. 4.The petitioners filed Ext.P8 application for D&Olicense for running a restaurant in building No. I/671. Ext.P9application, which according to petitioners, is for correction ofmistake in the Municipal records regarding the nature ofoccupancy of building No.I/671. On receipt of Ext.P8application, the second respondent issued Ext.P10communication dated 19.02.2019, whereby the petitionersare informed that Ext.P8 application for D&O license inrespect of building No.I/167 could not be processed.Thereafter, the petitioners were issued with Ext.P11communication dated 21.02.2019 whereby, they are informed about the outcome of Ext.P9 application. It is feelingaggrieved by those orders that the petitioners are before thisCourt by filing this writ petition. 5. The learned Standing Counsel for the Municipality representing respondents 1 and 2 would point out that, if thepetitioners are feeling aggrieved by Exts.P10 and P11, theycan invoke the statutory remedy under sub-section (1) of Section 509 of the Kerala Municipality Act, 1994 by filingappeal before the Municipal Council. 6.The availability of statutory remedy against Exts.P10 and P11 is not in dispute. However, the learned counselfor petitioners would contend that since the reasoning of thesecond respondent in Exts.P10 and P11 are erroneous,interference of this Court, invoking the writ jurisdiction underArticle 226 of the Constitution of India is warranted. 5. The learned Standing Counsel for the Municipality representing respondents 1 and 2 would point out that, if thepetitioners are feeling aggrieved by Exts.P10 and P11, theycan invoke the statutory remedy under sub-section (1) of Section 509 of the Kerala Municipality Act, 1994 by filingappeal before the Municipal Council. 6.The availability of statutory remedy against Exts.P10 and P11 is not in dispute. However, the learned counselfor petitioners would contend that since the reasoning of thesecond respondent in Exts.P10 and P11 are erroneous,interference of this Court, invoking the writ jurisdiction underArticle 226 of the Constitution of India is warranted. 7.In Commissioner of Income Tax v. Chhabil DasAgarwal [(2014) 1 SCC 603], the Apex Court held thatnon-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 essentiallya rule of policy, convenience and discretion rather than a ruleof law. Undoubtedly, it is within the discretion of the HighCourt to grant relief under Article 226 of the Constitution ofIndia, despite the existence of alternative remedy. However,High Court must not interfere if there is an adequateefficacious alternative remedy available to the petitioner andhe 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 the WP(C).No. 8697 of 2019 5 extraordinary jurisdiction under Article 226. 8.In Authorised Officer, State Bank of Travancorev. Mathew K.C.[(2018) 3 SCC 85] the Apex Court reiteratedthat the discretionary jurisdiction under Article 226 of theConstitution of India is not absolute but has to be exercisedjudiciously in the given facts of a case and in accordance withlaw. The normal rule is that a writ petition under Article 226 ofthe Constitution of India ought not to be entertained ifalternative statutory remedies are available, except in casesfalling within the well defined exceptions as observed inChaabil Das Agarwal's case (supra), i.e., where thestatutory 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 naturaljustice. After referring to the law laid down in ThansinghNathmal v. Superintendent of Taxes and Titaghur Paper Mills Company Ltd. v. State of Orissa[(1983) 2 SCC 433] the Apex Court held that High Court willnot entertain a petition under Article 226 of the Constitution ifan effective alternative remedy is available to the aggrieved person or the statute under which the action complained ofcontains a mechanism for redressal of grievance. Therefore,when a statutory forum is created by law for redressal ofgrievances, a writ petition should not be entertained ignoringthe statutory dispensation. person or the statute under which the action complained ofcontains a mechanism for redressal of grievance. Therefore,when a statutory forum is created by law for redressal ofgrievances, a writ petition should not be entertained ignoringthe statutory dispensation. 9.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 jurisdictiondemands 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 writ underArticle 226, where the petitioner has an alternative remedy,which without being unduly onerous, provides an equallyefficacious remedy. Again the High Court does not generallyenter upon a determination of questions which demand an WP(C).No. 8697 of 2019 7 elaborate examination of evidence to establish the right toenforce for which the writ is claimed. The High Court does not,therefore, act as a court of appeal against the decision of acourt or tribunal, to correct errors of fact, and does not byassuming jurisdiction under Article 226 trench upon analternative remedy provided by statute for obtaining relief.Where it is open to the aggrieved petitioner to move anothertribunal or even itself in another jurisdiction for obtainingredress in the manner provided by a statute, the High Courtnormally will not permit by entertaining a petition under Article226 of the Constitution the machinery created under thestatute to be bypassed, and will leave the party applying to itto seek resort to the machinery so set up. 10. 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 is nowwell recognised that where a right or liability is created by astatute which gives a special remedy for enforcing it, theremedy provided by that statute only must be availed of. This rule 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 given bythe 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 inAttorney General of Trinidad and Tobago v. Gordon Grant and Co. [1935 AC 532] and Secretary of State v. Mask andCo. . It has also been held to be equallyapplicable to enforcement of rights and has been followed by theApex Court throughout. 11.In Pavithran V. State of Kerala (2009 (4) KHC 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 inAttorney General of Trinidad and Tobago v. Gordon Grant and Co. [1935 AC 532] and Secretary of State v. Mask andCo. . It has also been held to be equallyapplicable to enforcement of rights and has been followed by theApex Court throughout. 11.In Pavithran V. State of Kerala (2009 (4) KHC 4), a Full Bench of this Court held that, whenever an adverseorder is passed against a person, unless the same is challengedbefore the appropriate forum, within the prescribed time limit,the said order will become final. DCS 12.Viewed in the light of the law laid down in thedecisions referred to supra, conclusion is irresistible that nointerference under Article 226 of the Constitution of India iswarranted on Exts.P10 and P11, in view of the statutoryremedy available under sub-section (1) of Section 509 of theKerala Municipality Act on the grounds raised in this writpetition. In such circumstances, the challenge made in this writpetition against Exts.P10 and P11 fails for the aforesaid reasonand this writ petition filed on 20.03.2019 is dismissed;however, without prejudice to the right of the petitioners toavail statutory remedy against Exts.P10 and P11 by filing anappeal before the Municipal Council, invoking the provisionunder sub-section (1) of Section 509 of the Kerala MunicipalityAct, 1994. SD/- ANIL K.NARENDRAN JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.3559 OF 1993 OF S.R.O. THODUPUZHA EXHIBIT P2TRUE COPY OF THE LICENSE DATED 16.07.2004 ISSUED TO MR. V.K. NASEER BY THE 1ST RESPONDENT MUNICIPALITYISSUED TO MR. V.K. NASEER BY THE 1ST RESPONDENT MUNICIPALITY EXHIBIT P3TRUE COPY OF THE PROFESSIONAL TAX RECEIPT DATED 03.08.2017 ISSUED BY THE 1ST RESPONDENT MUNICIPALITYDATED 03.08.2017 ISSUED BY THE 1ST RESPONDENT MUNICIPALITY EXHIBIT P4TRUE COPY OF THE PROFESSIONAL TAX RECEIPT DATED 12.01.2018 ISSUED BY THE 1ST RESPONDENT MUNICIPALITYDATED 12.01.2018 ISSUED BY THE 1ST RESPONDENT MUNICIPALITY EXHIBIT P5TRUE COPY OF THE REGISTRATION CERTIFICATE DATED 23.06.2003 ISSUED BY THE ASSISTANT LABOUR OFFICER, THODUPUZHA.DATED 23.06.2003 ISSUED BY THE ASSISTANT LABOUR OFFICER, THODUPUZHA. EXHIBIT P6TRUE COPY OF THE CONSENT DATED 22.12.2018 FROM THE KERALA STATE POLLUTION CONTROL BOARD.FROM THE KERALA STATE POLLUTION CONTROL BOARD. EXHIBIT P7 TRUE COPY OF THE APPLICATION SUBMITTED BY THE SECOND PETITIONER BEFORE THE SECOND THE SECOND PETITIONER BEFORE THE SECOND RESPONDENT TO OBTAIN D&O LICENSE. EXHIBIT P8 TRUE COPY OF THE APPLICATION SUBMITTED ONLINE BY THE SECOND PETITIONER TO THE SECOND RESPONDENT TO OBTAIN D&O LICENSE ONLINE BY THE SECOND PETITIONER TO THE SECOND RESPONDENT TO OBTAIN D&O LICENSE EXHIBIT P9 TRUE COPY OF THE APPLICATION DATED 31.01.2019 SUBMITTED BY THE 1ST PETITIONER TO THE SECOND RESPONDENT 31.01.2019 SUBMITTED BY THE 1ST PETITIONER TO THE SECOND RESPONDENT EXHIBIT P10 TRUE COPY OF THE ORDER CUM COMMUNICATION DATED 19.02.2019 ISSUED BY THE SECOND RESPONDENT TO THE SECOND PETITIONER RESPONDENT TO THE SECOND PETITIONER EXHIBIT P11 TRUE COPY OF THE ORDER CUM COMMUNICATION DATED 21.02.2019 ISSUED BY THE SECOND DATED 21.02.2019 ISSUED BY THE SECOND RESPONDENT TO THE 1ST PETITIONER EXHIBIT P12 PHOTOGRAPHS SHOWING THE BUILDING OF THE 1ST PETITIONER