"Maintainability" Of Writ Petition Different From "Entertaining" Writ Petition: Kerala High Court Explains

The Kerala stated that there is distinction between entertainability and maintainability of a writ petition filed under Article 226 of the Constitution. The Court explained that the jurisdiction of a writ court is not generally invoked when there is an alternative remedy available, and in such cases, the Court may decline to entertain the petition. The Court stated that having an alternative remedy cannot be used as a ground to hold that the writ petition was not maintainable.Here, writ appeal has been filed challenging the dismissal of a writ petition as not maintainable. The division bench of Chief Justice Nitin Jamdar and Justice S Manu observed thus: “Even if alternate remedy is available to the Petitioner, that cannot be a ground to hold the writ petition under Article 226 of the Constitution of India against an administrative authority as “not maintainable”. The powers under Article 226 of the Constitution of India can be exercised even if there exists an alternate remedy, however, it is in restricted circumstances, within well defined parameters. As a matter of settled judicial practice, the jurisdiction under Article 226 of the Constitution of India is not exercised if there is an alternative efficacious remedy available and in such circumstances, the writ court may decline to “entertain” the writ petition. There is, therefore, a difference between maintainability and entertainability of a writ petition.”In the facts of the case, the petitioner had challenged a notice issued by the Deputy Tahsildar (Revenue Recovery) under Section 7 of the Kerala Revenue Recovery Act, 1968. The notice was issued for the seizure of movable property belonging to the appellant due to an outstanding amount owed to the Kerala State Electricity Board (KSEB).In the writ petition, the correctness of the methodology of recovering the amount due to KSEB as arrears of tax was challenged. The writ petition was dismissed by the Court as not maintainable, stating that the demand notice issued under the Revenue Recovery Act cannot be challenged.The Court explained the distinction between entertainability and maintainability of a writ petition by referring to the Apex Court decision in M/s. Godrej Sara Lee Ltd. v. Excise and Taxation Officer-cum-Assessing Authority and Others (2023). In the facts of the case, the Court observed that the writ petition of the petitioner was maintainable, but, whether the writ petition should be entertained or not is a different issue. Accordingly, the Court set aside the order of the single judge dismissing the petition as not maintainable. The Court further directed the writ petition to be restored to file to decide whether the writ petition should be entertained. As such, the appeal was allowed. Counsel for Appellants: Advocates Binoy Vasudevan, K.V.Rajeswari, Rincy Khader, Sreejith SreenathCounsel for Respondents: Advocates Saji Varghese T G, Mariam Mathai, Standing Counsel B Pramod, Government Pleader V TekchandCase Number: WA NO. 1143 OF 2024Case Title: Manohari R v The Deputy Tahsildar (Revenue Recovery)Citation: 2024 LiveLaw (Ker) 783Click here to Read/Download Order

"Maintainability" Of Writ Petition Different From "Entertaining" Writ Petition: Kerala High Court Explains

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