Sree Gokulam Chit And Finance Company Private Limited vs. Corporation Of Cochin - Kerala High Court, 03 April 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNE AY,THE 03RD DAY OF APRIL 2019 / 13TH CHAITHRA, 1941 WP(C).No. 10445 of 2019 PETITIONER : SREE GOKULAM CHIT AND FINANCE COMPANY PRIVATE LIMITED,NO.66(OLD NO.356) ARCOT ROAD, KOAMBAKKAM, CHENNAI-24, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, MR.K.N.LENIN, S/O. LATE NARAYANAN, DEPUTY MANAGER, SREE GOKULAM CHIT AND FINANCE COMPANY PVT. LTD, BRANCH OFFICE AT IST FLOOR, CORPORATION COMPLEX, VYTTILLA, COCHIN-19, ERNAKULAM DISTRICT. BY ADVS. SRI.K.S.BABU SMT.BOBBY U. NAIR SMT.DHANUJA M.S SMT.MINU SIBY ROY SMT.N.SUDHA SRI.BABU SHANKAR RESPONDENTS: 1 CORPORATION OF KOCHI CORPORATION OFFICE, PARK AVENUE, P.B.NO.1016, KOCHI- 682 011, REPRESENTED BY ITS SECRETARY. 2 THE REVENUE OFFICER CORPORATION OFFICE, PARK AVENUE, P.B.NO.1016, KOCHI- 682 011. 3 STATE OF KERALA REPRESENTED BY ADDITIONAL SECRETARY TO LOCAL SELF GOVERNMENT INSTITUTIONS, SECRETARIAT, THIRUVANANTHAPURAM-695 001. BY SRI RAJU SEBASTIAN VADAKKEKARA-STANDING COUNSEL, KOCHI CORPORATION ; BY SRI MANU RAJ K.J-GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No. 10445 of 2019 2 JUDGMENT The petitioner, which is stated to be a Company registered under the Companies Act, 1956, which is running, Chit and Finance business, occupying Room No.2 on the 1st Floor in South Block of Vyttila Shopping Complex of the 1st respondent Corporation by paying a monthly licence fee of Rs.24,477/-, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 and 2 to dispose of Ext.P2; a declaration that the inaction of the respondents is highly illegal, discriminatory and arbitrary; and to award the cost of the proceedings to the petitioner.

Heard the learned counsel for the petitioner, the learned Standing Counsel for the Corporation representing respondents 1 and 2 and also the learned Government Pleader appearing for the 3rd respondent.

The pleadings and materials on record would show that the petitioner is the licensee in respect of shop room No.2 in the South Block of Vyttila Shopping

WP(C).No. 10445 of 2019 3 Complex of the 1st respondent Corporation, on payment of monthly licence fee of Rs.24,477/-. On 17.03.2018, the petitioner has been issued with Ext.P1 notice of the Corporation, whereby a demand for licence fee at the rate of Rs.51,000/- has been made, with retrospective effect from 01.04.2017, and the petitioner has been directed to pay a sum of Rs.6,09,982/- towards arrears of the rent along with a deposit amount of Rs.1,81,542/- and GST. On receipt of Ext.P1 notice, the petitioner caused to issue Ext.P2 lawyer notice dated 10.04.2018, whereby a request has been made for fixing a reasonable rate of licence fee and for renewal of the licence deed with effect from 01.04.2018 onwards. Now, the petitioner is before this Court in this writ petition seeking consideration of Ext.P2 lawyer notice.

Ext.P1 is a notice issued by the 2nd respondent, in exercise of powers of the Secretary of the 1st respondent Corporation, demanding licence fee at the rate of Rs.51,000/- with effect from 01.04.2017, in respect of the shop room No.2, which is having a plinth

WP(C).No. 10445 of 2019 4 area of 1700 sq.feet. As can be seen from Ext.P1, such a notice has been issued based on the Decision No.20 of the Standing Committee for Finance dated 15.03.2017 and also Decision No.30 of the Municipal Council dated 11.07.2017. If the petitioner was feeling aggrieved by the demand of licence fee at the enhanced rate, with effect from 01.04.2017, the petitioner should have availed the statutory remedy by approaching the appropriate forum, invoking the provisions under Section 509 of the Kerala Municipality Act, 1994, within the time limit specified in the statute.

During the course of arguments, it has come out that despite the issuance of Ext.P1 notice dated 17.03.2018 demanding licence fee at the enhanced rate of Rs.51,000/-, the petitioner is occupying Room No.2 in the shopping complex in question by remitting licence fee at the rate of Rs.24,477/-. Despite non-payment of licence fee at the enhanced rate as per Ext.P1, the Corporation has not chosen to make any coercive steps against the petitioner.

WP(C).No. 10445 of 2019 5

In Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603], the Apex Court held that non-entertainment of a writ petition under Article 226 of the Constitution of India when an efficacious alternative remedy is available is a rule and self 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 Court to 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 efficacious alternative remedy available to the petitioner 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 ground to invoke the extraordinary juri iction under Article 226. 6. In Authorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85], the Apex Court reiterated that the discretionary juri iction

WP(C).No. 10445 of 2019 6 under Article 226 of the Constitution of India is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution of India ought not to be entertained if alternative statutory remedies are available, except in cases falling within the well defined exceptions as observed in Chaabil Das Agarwal's case (supra), i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question or in defiance 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 the principles of natural justice. After referring to the law laid down in Thansingh Nathmal v. Superintendent of Taxes [AIR 1964 SC 1419] and Titaghur Paper Mills Company Ltd. v. State of Orissa [(1983) 2 SCC 433] the Apex Court held that High Court will not entertain a petition under Article 226 of the Constitution

WP(C).No. 10445 of 2019 7 if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of contains a mechanism for redressal of grievance. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.

In Thansingh Nathmal's case (supra) a Constitution Bench of the Apex Court held that, the juri iction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article. But the exercise of the juri iction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the juri iction demands that it will ordinarily be exercised subject to certain self imposed limitations. Resort to that juri iction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily, the court will not

WP(C).No. 10445 of 2019 8 entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce for which the writ is claimed. The High Court does 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 juri iction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal or even itself in another juri iction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.

In Titaghur Paper Mills' case (supra) a

WP(C).No. 10445 of 2019 9 Three-Judge Bench of the Apex Court held that, the Orissa Sales Tax Act, 1947 provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised 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 be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton 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 may be established founded upon statute ..... But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it ..... the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to."

WP(C).No. 10445 of 2019 10 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 Attorney General of Trinidad and Tobago v. Gordon Grant and Co. [1935 AC 532] and Secretary of State v. Mask and Co. [AIR 1940 PC 105]. It has also been held to be equally applicable to enforcement of rights and has been followed by the Apex Court throughout.

In Pavithran V. State of Kerala (2009 (4) KHC 4), a Full Bench of this Court held that, whenever an adverse order is passed against a person, unless the same is challenged before the appropriate forum, within the prescribed time limit, the said order will become final.

10.

In the absence of a challenge made by the petitioner against the demand of licence fee at the enhanced rate, by availing the statutory remedy under Section 509 of the Kerala Municipality Act, 1994 by approaching the appropriate forum, within the time limit

WP(C).No. 10445 of 2019 11 specified in the statute, the petitioner cannot seek interference on that demand by consideration of Ext.P2, which is only a lawyer notice.

11.

In Santosh Kumar v. Central Warehousing Corporation [(1986) 2 SCC 343] the Apex Court held that what may not be done under the provisions of the Act may not be permitted to be done by invoking the juri iction of the High Court under Article 226 of the Constitution of India. Article 226 is not meant to avoid or circumvent the process of the law and the provisions of the Statute. Having considered the submissions made by the learned counsel on both sides, this Court finds that despite the receipt of Ext.P1 notice, the petitioner has not chosen to avail statutory remedy against the demand for enhanced licence fee, by approaching the appellate authority under Section 509 of the Kerala Municipality Act. The said notice is also not under challenge in this writ petition. Even if it is under challenge, no interference is warranted in view of the

WP(C).No. 10445 of 2019 12 statutory remedy available under Section 509 of the Municipalities Act. Having failed to challenge Ext.P1 at appropriate time, the petitioner cannot now seek interference on Ext.P1 notice, by consideration of Ext.P2. In such circumstances, this writ petition fails and the same is accordingly dismissed. No order as to costs. ANIL K.NARENDRAN, JUDGE AV/4/4

WP(C).No. 10445 of 2019 13 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 THE TRUE PHOTOSTAT COPY OF THE NOTICE DATED 17.3.2018 ISSUED BY THE CORPORATION OF KOCHI, THROUGH ITS REVENUE OFFICER TO THE PETITIONER. EXHIBIT P2 THE TRUE PHOTOSTAT COPY OF THE REPLY NOTICE ISSUED BY THE PETITIONER TO THE CORPORATION OF KOCHI. EXHIBIT P2 A THE TRUE PHOTOSTAT COPY OF RECEIPT OF ACKNOWLEDGMENT OF EXHIBHIT P2 BY THE IST RESPONDENT. EXHIBIT P2 B THE TRUE PHOTOSTAT COPY OF RECEIPT OF ACKNOWLEDGMENT OF EXHIBIT P2 BY THE 2ND RESPONDENT. EXHIBIT P3 THE TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED 21.12.2018 IN WPC NO.42393/2018.