IMPORTANT POINT
The distinction between maintainability and entertainability of writ petitions is crucial; a writ petition may be maintainable even if an alternative remedy exists.

JUDGMENT :

Nitin Jamdar, C.J.

Being aggrieved by summary dismissal of the writ petition as not maintainable, the Petitioner has filed this appeal under Section 5 of the Kerala High Court Act, 1958.

2. The Appellant/Original Petitioner had challenged Exhibit-P5 notice dated 18 June 2024 issued under Section 7 of the Kerala Revenue Recovery Act, 1968 by filing W.P.(C) No.25929 of 2024. The notice was issued by the Deputy Tahsildar (Revenue Recovery) – Respondent No.1, wherein the Village Officer, Chittur Village, Chittur Taluk was authorised to seize movable property of the Appellant for the defaulted amount of Rs.1,10,096/- with interest due to the Kerala State Electricity Board (KSEB).

3. In the petition, the Petitioner had raised an issue regarding the correctness of the methodology of recovering the amount due to KSEB as arrears of tax. According to the Petitioner, unless there is an adjudication of the issue, the said amount cannot be unilaterally recovered as arrears of tax. The Petitioner has also contended that she had not entered into any contract with Respondent Nos.3 and 4 and it was only a firm running Cable TV Network as a franchisee of Respondent No.5 and the only contract that the Petitioner had was with the Respondent No.5.

4. The impugned judgment, which is a short order, reads thus:

“The present writ petition has been filed seeking the following reliefs:

“(i) Issue a Writ of Certiorari or other appropriate Writs, orders or directions to call for the records leading to Exhibit P5 notice issued under Section 7 of the Kerala Revenue Recovery Act and to quash the same;

(ii) To issue a Writ to declare that, the Revenue Recovery proceedings cannot be initiated to recover amounts which are disputed by a party.

(iii) Render such other orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”

2. This Court is of the considered view that against the demand notice in Ext.P5 issued under Section 7 of the Kerala Revenue Recovery Act, the writ petition is not maintainable. Therefore, the same is dismissed leaving it open to the petitioner to take recourse to any other remedy as may be available to him under the law.”

(emphasis supplied)

5. The writ petition is dismissed as not maintainable. There is a difference between entertainability and maintainability of a writ petition. 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.

6. A review of case law on the subject on this distinction was taken by the Hon’ble Supreme Court in the case of M/s. Godrej Sara Lee Ltd. v. Excise and Taxation Officer-cum-Assessing Authority and Others [2023 SCC Online SC 95], and it was observed as under:

“4. Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by Article 226 of the Constitution having come across certain orders passed by the High Courts holding writ petitions as “not maintainable” merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. The power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself. Profitable reference in this regard may be m