While A Writ Petition May Be Maintainable Even Where Alternative Remedy Exists, Courts Can Refuse To Entertain It: Telangana HC

The Telangana High Court enunciated that while a writ petition may be maintainable even where an alternative remedy exists, the Courts can refuse to entertain the same.

The Court was deciding a writ petition filed by Bharat Petroleum Corporation Limited (BPCL) under Article 226 of the Constitution seeking writ of certiorari and setting aside an order being violative of principles of natural justice and violative of Rule 8 of the Telangana Buildings (Lease, Rent and Eviction) Control Rules, 1961.

A Single Bench of Justice K. Lakshman observed, “At this stage it is also important to know the subtle difference between maintainability and entertainability of a writ petition. While a writ petition may be maintainable even where an alternative remedy exists, the courts can refuse to entertain the same. As stated above, the power of issuing writs is discretionary and the court, in its discretion, can refuse to issue a writ.”

Senior Advocate Avinash Desai and Advocate D. Narendra Naik appeared for the petitioner while Senior Advocate A. Venkatesh and Advocate Vishal Kumar Jain appeared for the respondents.

In this case, an LLP (respondent) filed an application before the Principal Rent Controller under Section 10(2)(i) of the Telangana Buildings (Lease, Rent and Eviction) Control Act, 1960 against BPCL (petitioner) seeking eviction of it from the subject property. The petitioner filed an application under Order VII Rule 11 of Civil Procedure Code (CPC) for rejection of petition filed by the respondent.

The Principal Rent Controller allowed the application and rejected the petition of the respondent on the ground that the property was mere vacant land and not a building under the 1960 Act. The respondent filed a revision and the High Court allowed the same by setting aside the said order. Ultimately, the Principal Rent Controller passed a final order. Thereafter, the petitioner filed an application to condone the delay of 64 days in filing application under Order IX Rule 13 of CPC to set aside the ex-parte order. The petitioner then filed the writ petition of certiorari before the High Court.

The High Court in the above regard said, “Now coming to the question whether the writ petition is maintainable, this Court holds that the present writ petition is maintainable. However, this Court refuses to entertain the present writ petition. After the ex parte impugned order dated 18.03.2024 was passed, the petitioner was left with multiple remedies. The petitioner could have filed an appeal under Section 20 of the Act or could have filed a revision under Section 21 or could have filed an application under Order IX Rule 13 seeking to set aside the order dated 18.03.2024. In the context of the present writ petition, these remedies were also the alternative remedies available to the petitioner.”

The Court noted that the petitioner from among the available remedies, chose to file an Order IX Rule 13 application along with an application to condone delay and such action amounts to it choosing a remedy.

“Once the petitioner chose to challenge the impugned order dated 18.03.2024, it was not open for it to challenge the same order in the present writ petition. … In National Insurance Co. Ltd. v. Mastan15, Hon’ble Supreme Court explaining the Doctrine of election held that when a party has two remedies available, he can choose only one. In the present case, once the petitioner chooses to exercise its right under Order IX Rule 13 seeking to set aside the order dated 18.03.2024, it could not have filed a writ of certiorari challenging the same order”, it added.

The Court, therefore, held that the writ petition is maintainable but not entertainable. It further granted liberty to the petitioner to avail the remedy of revision to challenge the order and extended the protection granted by 10 days.

Accordingly, the High Court disposed of the writ petition.

Cause Title- Bharat Petroleum Corporation Limited v. The Principal Rent Controller & Anr.

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