Case Note & Summary
The petitioners, M/s Formac Engineering Ltd & Anr, filed a writ petition under Article 226 of the Constitution of India before the Bombay High Court challenging an order dated 21st September 2010 passed by the Municipal Corporation of Greater Mumbai (respondent Nos.1 to 3). The impugned order rejected the petitioners' application for renewal of factory permit No.V-537. The petitioners sought a writ of certiorari to quash the order and a writ of mandamus to restrain the respondents from implementing it and to allow them to continue running their factory in accordance with the factory permit dated 20th May 2008. The respondents raised a preliminary objection that the impugned order was appealable under section 394(5) of the Mumbai Municipal Corporation Act, 1888, before the Chief Judge, Court of Small Causes, Bombay, and therefore the writ petition was not maintainable. The petitioners argued that the order was passed under section 479(3) of the Act and that no appeal lay against it. The court, after hearing the parties, examined the nature of the impugned order and the provisions of the Act. The court noted that the order rejected the application for renewal, which is a decision that can be challenged by way of appeal under section 394(5). The court held that since an efficacious alternative remedy exists, the writ petition is not maintainable. Consequently, the court dismissed the petition, leaving it open to the petitioners to pursue the appellate remedy. The judgment was delivered by Justice S.C. Dharmadhikari on 10th March 2011.
Headnote
A) Constitutional Law - Writ Jurisdiction - Alternative Remedy - Maintainability - The court considered whether a writ petition under Article 226 is maintainable when an alternative remedy of appeal is available under section 394(5) of the Mumbai Municipal Corporation Act, 1888. The petitioners challenged an order rejecting renewal of factory permit, which the respondents argued was appealable. The court held that the impugned order is appealable under section 394(5) and thus the writ petition is not maintainable, as the petitioners have an efficacious alternative remedy. (Paras 3-5)
Issue of Consideration
Whether the impugned order dated 21st September 2010 rejecting the application for renewal of factory permit is appealable under section 394(5) of the Mumbai Municipal Corporation Act, 1888, and consequently whether the writ petition under Article 226 of the Constitution of India is maintainable.
Final Decision
The court dismissed the writ petition, holding that the impugned order is appealable under section 394(5) of the Mumbai Municipal Corporation Act, 1888, and therefore the writ petition is not maintainable. The petitioners are at liberty to pursue the appellate remedy.
Law Points
- Alternative remedy
- Writ jurisdiction
- Maintainability
- Appeal under section 394(5) of MMC Act
- 1888
- Revocation of factory permit
- Section 479(3) of MMC Act
Case Details
2011 LawText (BOM) (03) 99
Writ Petition No.2177 of 2010
Mr. Aspi Chinoy, Sr. Advocate a/w Mr. M.P.S. Rao, Sr. Advocate, L.A. Rubens, Ms. Savita Sadananda & Mr. Sujit Suryavanshi i/by Vigil Juris for the petitioners. Mr. S.U. Kamdar, Sr. Advocate a/w Mrs. Trupti Puranik i/by V.K. Khatu & Ors for respondent Nos.1 to 3. Mr. Virag Tulzapurkar, Sr. Advocate a/w F. Palkhiwala i/by Mahernosh Humranwala for respondent Nos.4 to 7.
M/s Formac Engineering Ltd & Anr
Municipal Corporation of Greater Mumbai & Ors
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Nature of Litigation
Writ petition under Article 226 of the Constitution of India challenging an order rejecting renewal of factory permit.
Remedy Sought
The petitioners sought a writ of certiorari to quash the impugned order dated 21st September 2010 and a writ of mandamus to restrain the respondents from implementing it and to allow the petitioners to continue running their factory.
Filing Reason
The petitioners' application for renewal of factory permit No.V-537 was rejected by the Municipal Corporation of Greater Mumbai by order dated 21st September 2010.
Issues
Whether the impugned order rejecting renewal of factory permit is appealable under section 394(5) of the Mumbai Municipal Corporation Act, 1888.
Whether the writ petition under Article 226 is maintainable in view of the availability of an alternative remedy of appeal.
Submissions/Arguments
Mr. Kamdar, for respondent Nos.1 to 3, submitted that the impugned order can be questioned by filing an appeal under section 394(5) of the Mumbai Municipal Corporation Act, 1888 before the Chief Judge, Court of Small Causes, Bombay.
Mr. Chinoy, for the petitioners, submitted that the remedy of appeal is not available to challenge this order as it was passed under section 479(3) of the Act.
Ratio Decidendi
The court held that when an efficacious alternative remedy of appeal is available under the statute, a writ petition under Article 226 of the Constitution of India is not maintainable. The impugned order rejecting renewal of factory permit is appealable under section 394(5) of the Mumbai Municipal Corporation Act, 1888.
Judgment Excerpts
A preliminary objection has been raised by Mr.Kamdar, learned senior counsel appearing on behalf of the respondent Nos.1 to 3 and it is that the impugned order can be questioned by filing an Appeal under section 394(5) of the Mumbai Municipal Corporation Act, 1888.
On the other hand, Mr.Chinoy, learned senior counsel appearing on behalf of the petitioner submits that the remedy of appeal is not available to challenge this order.
Procedural History
The petitioners filed Writ Petition No.2177 of 2010 under Article 226 of the Constitution of India before the Bombay High Court challenging the order dated 21st September 2010. The respondents raised a preliminary objection regarding maintainability. The court heard the preliminary objection and dismissed the petition.
Acts & Sections
- Mumbai Municipal Corporation Act, 1888: 394(5), 479(3)
- Constitution of India: 226
