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 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941 WP(C).No. 9509 of 2019 PETITIONER : BEENA ALBERTAGED 53 YEARSW/O. ALBERT, HAPPY VILLA, MUTHIYAVILA, THIRUVANANTHAPURAM. BY ADV. SMT.M.HEMALATHA RESPONDENTS: BY SRI T.NAVEEN, STANDING COUNSEL,POLLUTION CONTROL BOARD BY SRI MANU RAJ K.J, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner has been issued with Ext.P9 notice dated 06.03.2019 issued by the 2[nd] respondent GramaPanchayath, whereby she has been asked to close downthe poultry farm in the property referred to in Ext.P2building permit, as the same is being conducted withoutobtaining necessary licence from the Panchayath inaccordance with the provisions under the KeralaPanchayath Raj Act, 1994 and the rules madethereunder. The petitioner has filed this writ petitionunder Article 226 of the Constitution of India, seeking awrit of certiorari to quash Ext.P9 notice. The petitionerhas also sought for an order staying further proceedingspursuant to Ext.P9 notice, pending disposal of this writpetition. 2. According to the petitioner, on account of thependency of an application for licence made by her sonAkshay Albert on 11.01.2019 for the year 2018-19, hegot the benefit of a deemed licence and on the strength of that deemed licence, the poultry farm was beingconducted till 31.03.2019. The learned counsel for thepetitioner would submit that, now the petitioner's sonproposes to make a fresh application for licence toconduct a poultry farm, based on necessary consent/permission/no-objection certificate from the statutoryauthorities. 3. On 28.03.2019, when this writ petition came up for admission, the learned Government Pleader tooknotice on admission for the 1[st] respondent. The learnedStanding Counsel took notice on admission for the 3[rd]respondent. Urgent notice on admission by speed postwas ordered to the 2[nd] respondent returnable within tendays. 4. Heard the learned counsel for the petitioner, thelearned Government Pleader appearing for the 1[st]respondent and also the learned Standing Counsel forthe Pollution Control Board, representing the 3[rd]respondent. Despite service of notice, none appears for the 2[nd] respondent Grama Panchayath. 5. The learned Standing Counsel for the 3[rd] respondent would submit that the Pollution ControlBoard has already issued Ext.P5 consent dated04.01.2019 to operate a poultry farm by the petitioner'sson. 6. The learned counsel for the petitioner wouldpoint out that Ext.P7 no-objection certificate dated23.12.2016 has already been issued by the Fire andRescue Department and that, on receipt of Ext.P9notice, the petitioner has already submitted Ext.P10objection dated 14.03.2019 before the Secretary of the2[nd] respondent Grama Panchayath. 7. Since the petitioner has already submitted Ext.P10 objection to Ext.P9 notice before the Secretaryof the 2[nd] respondent Grama Panchayath, it is for thesaid authority to take an appropriate decision as to thefurther course to be taken in the matter, based onExt.P9 notice, after affording the petitioner and her son Akshay Albert an opportunity of being heard. WhenExt.P9 notice issued by the Secretary of the 2[nd]respondent Grama Panchayath can be challenged beforethe appropriate authority, by invoking the statutoryremedy under Section 276 of the Kerala Panchayath RajAct, 1994, the petitioner cannot invoke writ jurisdictionof this Court under Article 226 of the Constitution ofIndia seeking a writ of certiorari to quash that notice. 7. Since the petitioner has already submitted Ext.P10 objection to Ext.P9 notice before the Secretaryof the 2[nd] respondent Grama Panchayath, it is for thesaid authority to take an appropriate decision as to thefurther course to be taken in the matter, based onExt.P9 notice, after affording the petitioner and her son Akshay Albert an opportunity of being heard. WhenExt.P9 notice issued by the Secretary of the 2[nd]respondent Grama Panchayath can be challenged beforethe appropriate authority, by invoking the statutoryremedy under Section 276 of the Kerala Panchayath RajAct, 1994, the petitioner cannot invoke writ jurisdictionof this Court under Article 226 of the Constitution ofIndia seeking a writ of certiorari to quash that notice. 8. In Commissioner of Income Tax v. ChhabilDas Agarwal [(2014) 1 SCC 603], the Apex Courtheld that non-entertainment of a writ petition underArticle 226 of the Constitution of India when anefficacious alternative remedy is available is a rule andself imposed limitation. It is essentially a rule of policy,convenience and discretion rather than a rule of law.Undoubtedly, it is within the discretion of the High Courtto 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 adequate efficacious alternative remedy available to the petitioner and he has approached the High Courtwithout availing the same, unless he has made out anexceptional case warranting such interference or thereexists sufficient ground to invoke the extraordinaryjurisdiction under Article 226. 9. In Authorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85], theApex Court reiterated that the discretionary jurisdictionunder Article 226 of the Constitution of India is notabsolute but has to be exercised judiciously in the givenfacts of a case and in accordance with law. The normalrule is that a writ petition under Article 226 of theConstitution of India ought not to be entertained ifalternative statutory remedies are available, except incases falling within the well defined exceptions asobserved in Chaabil Das Agarwal's case (supra),i.e., where the statutory authority has not acted inaccordance with the provisions of the enactment in question or in defiance of the fundamental principles ofjudicial procedure, or has resorted to invoke theprovisions which are repealed, or when an order hasbeen passed in total violation of the principles of naturaljustice. After referring to the law laid down inThansingh Nathmal v. Superintendent of Taxes and Titaghur Paper MillsCompany Ltd. v. State of Orissa [(1983) 2 SCC433]the Apex Court held that High Court will notentertain a petition under Article 226 of the Constitutionif an effective alternative remedy is available to theaggrieved person or the statute under which the actioncomplained of contains a mechanism for redressal ofgrievance. Therefore, when a statutory forum is createdby law for redressal of grievances, a writ petition shouldnot be entertained ignoring the statutory dispensation. 10. In Thansingh Nathmal's case (supra)aConstitution Bench ofthe Apex Court held that, thejurisdiction of the High Court under Article 226 of the 10. In Thansingh Nathmal's case (supra)aConstitution Bench ofthe Apex Court held that, thejurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercisethereof is not subject to any restrictions except theterritorial restrictions which are expressly provided inthe Article. But the exercise of the jurisdiction isdiscretionary: it is not exercised merely because it islawful to do so. The very amplitude of the jurisdictiondemands that it will ordinarily be exercised subject tocertain self imposed limitations. Resort to thatjurisdiction is not intended as an alternative remedy forrelief which may be obtained in a suit or other modeprescribed by statute. Ordinarily, the court will notentertain a petition for a writ under Article 226, wherethe petitioner has an alternative remedy, which withoutbeing unduly onerous, provides an equally efficaciousremedy. Again the High Court does not generally enterupon a determination of questions which demand anelaborate examination of evidence to establish the rightto enforce for which the writ is claimed. The High Courtdoes not, therefore, act as a court of appeal against the decision of a court or tribunal, to correct errors of fact,and does not by assuming jurisdiction under Article 226trench upon an alternative remedy provided by statutefor obtaining relief. Where it is open to the aggrievedpetitioner to move another tribunal or even itself inanother jurisdiction for obtaining redress in the mannerprovided by a statute, the High Court normally will notpermit by entertaining a petition under Article 226 ofthe Constitution the machinery created under thestatute to be bypassed, and will leave the partyapplying to it to seek resort to the machinery so set up.11. In Titaghur Paper Mills' case (supra)aThree-Judge Bench of the Apex Court held that, theOrissa Sales Tax Act, 1947 provides for a completemachinery to challenge an order of assessment, and theimpugned orders of assessment can only be challengedby the mode prescribed by the Act and not by a petitionunder Article 226 of the Constitution. It is now wellrecognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must beavailed 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 inthe 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 statute whichat the same time gives a special and particularremedy for enforcing it ..... the remedy provided bythe statute must be followed, and it is not competentto the party to pursue the course applicable to casesof the second class. The form given by the statutemust 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 beenreaffirmed by the Privy Council in Attorney General ofTrinidad and Tobago v. Gordon Grant and Co.[1935 AC 532] and Secretary of State v. Mask and Co. . It has also been held to beequally applicable to enforcement of rights and hasbeen followed by the Apex Court throughout. 12.In Pavithran V. State of Kerala (2009 (4)KHC 4), a Full Bench of this Court held that, wheneveran adverse order is passed against a person, unless thesame is challenged before the appropriate forum, withinthe prescribed time limit, the said order will becomefinal. 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 beenreaffirmed by the Privy Council in Attorney General ofTrinidad and Tobago v. Gordon Grant and Co.[1935 AC 532] and Secretary of State v. Mask and Co. . It has also been held to beequally applicable to enforcement of rights and hasbeen followed by the Apex Court throughout. 12.In Pavithran V. State of Kerala (2009 (4)KHC 4), a Full Bench of this Court held that, wheneveran adverse order is passed against a person, unless thesame is challenged before the appropriate forum, withinthe prescribed time limit, the said order will becomefinal. 13. Viewed in the light of the law laid down in thedecisions referred to supra, conclusion is irresistible thatno interference under Article 226 of the Constitution ofIndia is warranted on Ext.P9 notice issued by theSecretary of the 2[nd] respondent Grama Panchayath, inview of the statutory remedy available under Section276 of the Kerala Panchayath Raj Act. 14. In such circumstances, this writ petition isdisposed of by directing the Secretary of the 2[nd]respondent Grama Panchayath to consider Ext.P10 objection made by the petitioner to Ext.P9 notice andtake an appropriate decision as to the further course tobe taken in the matter, based on that notice. A decisionin this regard shall be taken, strictly in accordance withlaw, with notice to the petitioner and her son, and afteraffording them an opportunity of being heard, asexpeditiously as possible, at any rate, within a period ofone month from the date of receipt of a certified copy ofthis judgment. Sd/- ANIL K.NARENDRAN, JUDGE AV/12/4 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE RECEIPT OF THE APPLICATION FOR LICENSE DATED 11.1.2019. EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT FORCONSTRUCTION OF THE BUILDING DATED 17.2.2017.CONSTRUCTION OF THE BUILDING DATED 17.2.2017. EXHIBIT P3 THE TRUE COPY OF THE LOAN PASS BOOK. EXHIBIT P4 THE TRUE COPY OF THE MDS PASS BOOK. EXHIBIT P5 TRUE COPY OF THE CERTIFICATE ISSUED BY THE 3RD RESPONDENT DATED 04.01.2019.BY THE 3RD RESPONDENT DATED 04.01.2019. EXHIBIT P6 TRUE COPY OF THE SAKSHYAPATHRAM DATED 10.7.2017.DATED 10.7.2017. EXHIBIT P7 TRUE COPY OF THE CERTIFICATE ISSUED BY THE FIRE AND RESCUE DEPARTMENT DATED 23.12.2016.BY THE FIRE AND RESCUE DEPARTMENT DATED 23.12.2016. EXHIBIT P8 TRUE COPY OF THE RECEIPT DATED 11.1.2019.11.1.2019. EXHIBIT P9 TRUE COPY OF THE NOTICE DATED 6.3.2019.6.3.2019. EXHIBIT P10 TRUE COPY OF THE REPLY DATED 14.3.2019.14.3.2019.