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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 06T H DAY OF SEPTEMBER, 2018 PRESENT THE HON’BLE MR.JUSTICE B.VEERAPPA AND THE HON’BLE MR.JUSTICE H.T. NARENDRA PRASAD
WRIT APPEAL No.100186/2018 [KLR-CON]
BETWEEN:
SRI. BHEEMAPPA GURAPPA HEBBALLI S/O GURAPPA HEBBALLI AGE:49 YEARS, OCC:AGRI. R/O KALLIMATA ONI, NAVALAGUND, TQ:NAVALAGUND, DIST:DHARWAD. ... APPELLANT (BY SRI. RAJASHEKHAR R GUNJALLI, ADV.)
AND:
THE STATE OF KARNATAKA
BY PRINCIPAL SECRETARY,
REVENUE DEPARTMENT,
M.S. BUILDING, BENGALURU.
THE DEPUTY COMMISSIONER
DHARWAD DISTRICT.
DHARWAD. ... RESPONDENTS (BY SRI. RAVI V HOSAMANI, AGA)
THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961 PRAYING THIS HON’BLE COURT THAT TO ALLOW THE WRIT APPEAL BY SETTING ASIDE THE ORDER PASSED BY THE LEARNED SINGLE JUDGE IN WRIT PETITION NO.109137/2017 DATED 5.6.2018 BY ALLOWING THE WRIT PETITION, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING, THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
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JUDGMENT This intra-court appeal is filed against the order dated 05.06.2018 made in WP No.109137/2017 (KLR-CON) passed by the learned Single Judge of this Court, dismissing the writ petition filed by the appellant herein as not maintainable, reserving liberty to the petitioner to avail of the statutory appellate remedy under Section 49(c) of the Karnataka Land Revenue Act, 1964 (for short, ‘the Act’). 2. The petitioner has filed writ petition before the learned Single Judge against the Endorsement dated 18.08.2017 issued by the 2nd respondent-Deputy Commissioner rejecting the application for conversion of land on the ground that the land sought for conversion was already reserved for park. The learned Single Judge of this Court has dismissed the writ petition as not maintainable. Hence, this writ appeal is filed. 3. We have heard the learned counsel for the parties to the lis.
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Sri. Rajashekhar R Gunjalli, the learned counsel for the appellant would vehemently contend that the impugned order passed by the learned Single Judge dismissing the writ petition on the ground that the petitioner has an alternative remedy, is erroneous and contrary to the material on record. He further contended that as per Section 95 of the Karnataka Land Revenue Act for conversion of land for non-agricultural purpose, the Deputy Commissioner has sought for report from the jurisdictional Tahsildar, and based on the report, the Deputy Commissioner can reject or grant permission. In the present case, the Revenue officials, Navalagund Town Planning Authority submitted their report to the 2nd respondent-Deputy Commissioner recommending for conversion of land. The 2nd respondent without considering the said report rejected the application, which is erroneous and contrary to the material on record.
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He further contended that the learned Single Judge failed to notice that if the authorities not acted upon on the application of the appellant within 120 days, the Deputy Commissioner ceases to act upon after statutory period, in view of the dictum of this Court in the case of S.M. Rudraswamy Vs. Deputy Commissioner, Chitradurga, reported in ILR (KAR) 1994 2953. He also contended that there is no need to file an appeal as an alternative remedy is available to the petitioner, in view of the dictum of this Court in 1974(1) Kar. L. J. short notes 87. He also relied upon the decision of the Division Bench of this Court in the case of Channabasappa Muregeppa Guddadavar Vs. The State of Karnataka & Another made in WA No.100028/2018 (KLR-CON) dated 06.08.2018 and WA No.200383/2015, The Deputy Commissioner Vs. Sushim S/o Bahubali Chinde, dated 16.02.2016, to the effect that this Court had decided the writ petitions holding that there is no need to file an appeal.
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Per contra, Sri. Ravi V Hosamani, the learned AGA sought to justify the impugned order passed by the learned Single Judge and contended that when there is an alternative remedy available to the petitioner to file an appeal against the order passed by the Deputy Commissioner under Section 49(c) of the Act. Hence, he sought to dismiss the appeal. 7. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the material on record carefully. 8. The challenge before the learned Single Judge was only with regard to the Endorsement issued by the Deputy Commissioner dated 18.08.2017 rejecting the application filed by the appellant/petitioner for conversion of land on the ground that the said land has already been reserved for park and since it was already rejected by the concerned authorities, he cannot reconsider the same. The said Endorsement issued by
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the Deputy Commissioner is necessarily appealable under Section 49(c) of the Act. 9. Though the learned counsel for the appellant relied upon two decisions of the Division Bench of this Court and two decisions of the learned Single Judge of this Court with regard to entertainment of the writ petitions, with due respect to the orders passed by this Court dated 6.8.2018 in WA No.100028/2018 and 16.02.2016 in WA No.200383/2015, in the said cases where the appeals were decided on merits. 10. Even assuming that this Court can entertain writ petition under efficacious remedy as maintainable, still, the same is reversed by the Hon’ble Supreme Court in the case of Commissioner of Income Tax and others v. Chhabil Dass Agarwal, reported in (2014) 1 SCC 603, wherein the Hon’ble Supreme Court while considering the powers under Article 226 of the Constitution of India and interference in matters where efficacious remedy is available, held that when a
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statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. Paras 11 to 17 of the said judgment of the Hon’ble Supreme Court held as under:- “11. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of 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 despite the existence of an alternative remedy. However, the 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 exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See: State of U.P. vs. Mohammad Nooh, AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433; Harbanslal Sahnia vs. Indian Oil Corpn. Ltd., (2003) 2 SCC 107; State of H.P. vs. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499). 12. The Constitution Benches of this Court in K.S. Rashid and Sons vs. Income Tax Investigation
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Commission, AIR 1954 SC 207; Sangram Singh vs. Election Tribunal, Kotah, AIR 1955 SC 425; Union of India vs. T.R. Varma, AIR 1957 SC 882; State of U.P. vs. Mohd. Nooh, AIR 1958 SC 86 and K.S. Venkataraman and Co. (P) Ltd. vs. State of Madras, AIR 1966 SC 1089 have held that though Article 226 confers a very wide powers in the matter of issuing writs on the High Court, the remedy of writ absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted. (See: N.T. Veluswami Thevar vs. G. Raja Nainar, AIR 1959 SC 422; Municipal Council, Khurai vs. Kamal Kumar, (1965) 2 SCR 653; Siliguri Municipality vs. Amalendu Das, (1984) 2 SCC 436; S.T. Muthusami vs. K. Natarajan, (1988) 1 SCC 572; Rajasthan SRTC vs. Krishna Kant, (1995) 5 SCC 75; Kerala SEB vs. Kurien E. Kalathil, (2000) 6 SCC 293; A. Venkatasubbiah Naidu vs. S. Chellappan, (2000) 7 SCC 695; L.L. Sudhakar Reddy vs. State of A.P., (2001) 6 SCC 634; Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra, (2001) 8 SCC 509; Pratap Singh vs. State of Haryana, (2002) 7 SCC 484 and GKN Driveshafts (India) Ltd. vs. ITO, (2003) 1 SCC 72). 13. In Nivedita Sharma vs. Cellular Operators Assn. of India, (2011) 14 SCC 337, this Court has held that
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where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction for relief and observed as follows:
“12. In Thansingh Nathmal v. Supdt. of Taxes, AIR 1964 SC 1419 this Court adverted to the rule of self-imposed restraint that the writ petition will not be entertained if an efficacious remedy is available to the aggrieved person and observed: (AIR p. 1423, para 7).
‘7. … 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 jurisdiction 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 jurisdiction 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 Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 this Court observed: (SCC pp. 440-41, para 11) “11. … It is now well recognized 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
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Waterworks Co. v. Hawkesford, 141 ER 486 in the following passage: (ER p. 495)
“… There are three classes of cases in which a liability may be established founded upon a 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.”
The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd., 1919 AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd., 1935 AC 532 (PC) and Secy. 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 this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine.”
In Mafatlal Industries Ltd. v. Union of India,
(1997) 5 SCC 536 B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed: (SCC p. 607, para 77) “77. … So far as the jurisdiction of the High Court under Article 226—or for that matter, the jurisdiction of
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this Court under Article 32—is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment.”” (See: G. Veerappa Pillai v. Raman & Raman Ltd., AIR 1952 SC 192; CCE v. Dunlop India Ltd., (1985) 1 SCC 260; Ramendra Kishore Biswas v. State of Tripura, (1999) 1 SCC 472; Shivgonda Anna Patil v. State of Maharashtra, (1999) 3 SCC 5; C.A. Abraham v. ITO, (1961) 2 SCR 765; Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433; H.B. Gandhi v. Gopi Nath and Sons, 1992 Supp (2) SCC 312; Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1; Tin Plate Co. of India Ltd. v. State of Bihar, (1998) 8 SCC 272; Sheela Devi v. Jaspal Singh, (1999) 1 SCC 209 and Punjab National Bank v. O.C. Krishnan, (2001) 6 SCC 569)
In Union of India vs. Guwahati Carbon Ltd.,
(2012) 11 SCC 651, this Court has reiterated the aforesaid principle and observed:
“8. Before we discuss the correctness of the impugned order, we intend to remind ourselves the observations made by this Court in Munshi Ram v. Municipal Committee, Chheharta, (1979) 3 SCC 83. In the said decision, this Court was pleased to observe that: (SCC p. 88, para 23).
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‘23. … when a revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all the other forums and modes of seeking [remedy] are excluded.’”
Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy 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, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. 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 the instant case, the Act provides complete machinery for the assessment/re-assessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to
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abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. In Ram and Shyam Co. vs. State of Haryana, (1985) 3 SCC 267 this Court has noticed that if an appeal is from “Caesar to Caesar’s wife” the existence of alternative remedy would be a mirage and an exercise in futility.
In the instant case, neither has the writ petitioner-assessee described the available alternate remedy under the Act as ineffectual and non-efficacious while invoking the writ jurisdiction of the High Court nor has the High Court ascribed cogent and satisfactory reasons to have exercised its jurisdiction in the facts of instant case. In light of the same, we are of the considered opinion that the Writ Court ought not to have entertained the Writ Petition filed by the assessee, wherein he has only questioned the correctness or otherwise of the notices issued under Section 148 of the Act, the re-assessment orders passed and the consequential demand notices issued thereon.”
The said view of the Hon’ble Supreme Court is reiterated by the latest dictum of the Hon’ble Supreme Court in the case of Authorized Officer, State Bank of Travancore and another v. Mathew
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K.C. reported in (2018) 3 SCC 85, wherein paras 3 and 5 held as under:- “3. The SARFAESI Act is a complete code by itself, providing for expeditious recovery of dues arising out of loans granted by financial institutions, the remedy of appeal by the aggrieved under Section 17 before the Debts Recovery Tribunal, followed by a right to appeal before the Appellate Tribunal under Section 18. The High Court ought not to have entertained the writ petition in view of the adequate alternate statutory remedies available to the Respondent. The interim order was passed on the very first date, without an opportunity to the Appellant to file a reply. Reliance was placed on United Bank of India vs. Satyawati Tandon and others, 2010 (8) SCC 110, and General Manager, Sri Siddeshwara Cooperative Bank Limited and another vs. Ikbal and others, 2013 (10) SCC 83. The writ petition ought to have been dismissed at the threshold on the ground of maintainability. The Division Bench erred in declining to interfere with the same. 4. xxx 5. We have considered the submissions on behalf of the parties. Normally this Court in exercise of jurisdiction under Article 136 of the Constitution is loath to interfere with an interim order passed in a pending proceeding before the High Court, except in special circumstances, to prevent manifest injustice or abuse of the process of the court. In the present case, the facts are not in dispute. The discretionary
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jurisdiction under Article 226 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 ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well defined exceptions as observed in CIT and Others vs. Chhabil Dass Agarwal, 2014 (1) SCC 603, as follows:
“15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy 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, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.”
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In view of the aforesaid reasons and settled principle of law, we see no ground to interfere with the impugned order passed by the learned Single Judge when there is an alternative remedy available by way of an appeal under Section 49 (c) of the Act. Accordingly, the writ appeal is dismissed as devoid of merits to interfere under the provisions of Section 4 of the Karnataka High Court Act, 1961. 13. At this stage, Sri. Rajashekhar R Gunjalli, the learned counsel for the appellant submits that if an appeal is filed before the appellate authority with delay, he may be permitted to file an application seeking exemption of the pendency of the writ petition as well as appeal before this Court. Therefore, it is needles to observe that it is always open for the appellant/petitioner to file such application and the same shall be considered by the appellate authority and thereafter decide the appeal on merits in accordance with law.
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In view of disposal of the main appeal, IA No.1/2018 for dispensation does not survive for consideration, hence, it also stands disposed of.
Sd/- JUDGE
Sd/- JUDGE
JTR