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Mescot Hospital And Research Centre Pvt. Ltd. v. State Of M.P. And Others
Factual and Procedural Background
The petitioner is a hospital whose registration, originally granted on 16-8-2010 under the Madhya Pradesh Upcharyagriha Tatha Rujopchar Sambandhi Sthapanaye (Registrikaran Tatha Anugyapan) Adhiniyam, 1973 (the "Adhiniyam"), was cancelled by respondent No. 4 by an order dated 24-6-2015. The cancellation followed a complaint by Manoj Upadhyay (9-3-2015) to the Collector, who directed the CMHO to enquire. A two-member committee recorded statements on 18-3-2015 and 23-3-2015 and submitted its report on 31-3-2015. A show cause notice was issued on 10-4-2015. The petitioner requested a copy of the report and extensions, sought relocation of the enquiry, sought referral to a higher centre, and requested that proceedings be kept in abeyance. Despite those requests, the impugned cancellation order was passed on 24-6-2015. The petitioner filed this petition under Article 226 of the Constitution challenging the cancellation order.
Legal Issues Presented
- Whether the petitioner can maintain a writ petition under Article 226 challenging the cancellation order, given the availability of a statutory appeal under section 6(3) of the Adhiniyam (i.e., the question of availability and efficacy of the alternative remedy).
- Whether the decision-making process that led to cancellation of the petitioner's registration violated principles of natural justice or was otherwise procedurally flawed such that the writ petition should be entertained despite the alternative remedy.
- Whether amendment(s) to the Adhiniyam (specifically insertion of section 2(a) and substitution in section 6(3)) effected in or after 2008 affect the existence or competence of the appellate authority, and whether earlier notification dated 30-3-2007 appointing the Secretary, Department of Health and Family Welfare as appellate authority is valid and operative.
Arguments of the Parties
Petitioner's Arguments (Shri R.N. Singh)
- The decision-making process culminating in cancellation was procedurally improper and violated principles of natural justice; the petitioner was not given a full, reasonable and adequate opportunity of defence.
- The enquiry report was not supplied along with the show cause notice, thereby depriving the petitioner of an opportunity to file an effective reply; certain statements taken in the enquiry (e.g., of Seema Shivhare) were not reflected in the final order.
- Although an appeal remedy exists under section 6 of the Adhiniyam, the petitioner contends it cannot be relegated to that remedy for two reasons:
- Serious procedural impropriety and violation of natural justice makes the alternative remedy inadequate (relying on Harbanslal Sahnia v. Indian Oil Corporation Ltd.).
- Amendments made in or after 2008 changed section 6(3) (and inserted section 2(a)), and there is no valid notification appointing the appellate authority after those amendments; therefore presently no competent appellate authority exists and an appeal cannot be preferred.
- The petitioner accepted that respondent No. 4 had competence under the Adhiniyam to cancel the registration, but attacked only the process leading to the order.
State's Arguments (Shri Vishal Mishra, Deputy Advocate General)
- A statutory alternative remedy by way of appeal under section 6(3) exists and is available to the petitioner; insertion of section 2(a) and substitution in section 6(3) are procedural and must be presumed to be retrospective.
- The 30-3-2007 notification appointing the Secretary, Department of Health and Family Welfare as appellate authority should be treated as valid in the statutory scheme.
- The petitioner received a copy of the inquiry report on 15-4-2015 (as per petitioner's own representations, Annexures P-12 and P-13), and nothing prevented the petitioner from filing a detailed reply thereafter; no prejudice was caused.
- Relied on several precedents to support the proposition that procedural changes and appointments may be treated as operative retrospectively and to support existence/validity of the appellate authority.
Additional Counsel for Respondents (Shri Madhukar Rao et al.)
- Even before the 2008 amendment, section 14(d) empowered the State to prescribe procedure for preferring appeals; therefore the 30-3-2007 order appointing an appellate authority was valid and the appellate authority exists.
- The substitution of the word "appellate authority" in 2008 is procedural and must be construed as retrospective, maintaining the availability of the appeal forum.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Harbanslal Sahnia v. Indian Oil Corporation Ltd. (2003) 2 SCC 107 | Exception to exclusion of writ jurisdiction despite alternative remedy where there is enforcement of fundamental rights, failure of natural justice, orders wholly without jurisdiction, or vires of statute challenged. | The court acknowledged the principle but analyzed whether it applied; concluded that since competence of authority was not in question and an efficacious appeal was available, the petition should be relegated to appeal rather than entertained under Article 226. |
| Shambhu Dayai v. State of U.P. (1979) 1 SCC 202 : AIR 1979 SC 310 | Cited by State to support the proposition that procedural changes/notifications may be validly treated as operative. | Relied upon as part of State's submission; the court considered the State's reliance and proceeded to analyze procedural/substantive distinction and concluded the notification was operative. |
| Zile Singh v. State of Haryana (2004) 8 SCC 1 | Cited by State counsel in support of treating procedural changes/appointments as effective. | Included among authorities relied upon by State; court used broader set of authorities to determine that amendments/substitutions were procedural and retrospective. |
| Government of India v. Indian Tobacco Association, AIR 2005 SC 3685 | Cited by State counsel as supporting authority for treating certain procedural provisions/notifications as valid. | Part of the set of precedents considered; court relied on the settled principle distinguishing substantive and procedural changes and held the amendment was procedural and retrospective. |
| Ramgopal v. Haneef Khan, 2013 (2) MPLJ 220 | Cited by State counsel in support of their contention regarding existence/validity of appellate authority. | Included among the cases the State relied upon; court considered the State's authorities in concluding the notification dated 30-3-2007 is to be presumed valid under the amended provision. |
| Gardner v. Lucas (1878) 3 AC 582 | Principle that procedural statutes are presumed retrospective while substantive statutes are presumed prospective. | Applied as part of the analysis that amendments substituting forum are procedural and therefore retrospective, supporting the conclusion that the appellate authority exists. |
| Delhi Cloth and General Mills Co. Ltd. v. CIT, Delhi, AIR 1927 PC 242 | Authority cited on presumptions regarding retrospective operation of procedural provisions. | Used as supporting precedent in the court's reasoning that procedural changes are presumed retrospective unless textually impossible. |
| Jose De Costa v. Bascora Sadashiva Sinai Narcornim (1976) 2 SCC 917 : AIR 1975 SC 1843 | Cited for the proposition distinguishing substantive and procedural statutes and presumptions of retrospectivity applied to procedure. | Relied on in the court's analysis to hold that substitution of appellate forum is procedural and retrospective. |
| Gurbachan Singh v. Satpal Singh (1990) 1 SCC 445 : AIR 1990 SC 209 | Authority on the procedural/substantive distinction and presumptions about retrospective application of procedural amendments. | Invoked among other authorities to support the conclusion that section 2(a) and the amendment to section 6(3) are procedural and retrospective. |
| Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602 : AIR 1994 SC 2623 | Sets out that statutes affecting substantive rights are presumed prospective while statutes affecting procedure are presumed retrospective; law relating to forum and limitation is procedural. | The court relied on this case (and quoted it) to hold that the amendments affecting the forum are procedural and therefore retrospective, validating the earlier notification as appointing the appellate authority. |
| Blyth v. Blyth (1966) 1 All ER 524 (Lord Denning) | Observation that retrospection presumption applies to statutes affecting vested rights; not to those altering procedure or admissibility of evidence. | Used as an illustrative authority in the court's survey of the law distinguishing substantive and procedural changes. |
| Union of India v. Mangal Textile Mills India Pvt. Ltd. (2010) 14 SCC 553 | Proposition that restrictions on entertaining writ petitions despite available alternative remedy are self-imposed; High Court will not normally exercise Article 226 if an effective and efficacious statutory remedy is available. | The court applied this principle to conclude that, because an efficacious appeal remedy existed, the petitioner should normally be relegated to that remedy rather than maintain this writ petition. |
| U.P. State Spg. Co. Ltd. v. R.S. Pandey (2005) 8 SCC 264 | Authority stating grounds on which writ petitions may be entertained despite alternative remedies — infringement of fundamental rights, taxing authorities exceeding jurisdiction — and that normally the High Court should not entertain writs where alternative remedy is available. | The court quoted and relied on this authority to support the proposition that, where competence is not in question and an efficacious alternative remedy exists, the petitioner should be relegated to that remedy. |
Court's Reasoning and Analysis
The court proceeded in a structured manner: first it identified the statutory provisions relevant to registration and cancellation (sections 4 and 5 of the Adhiniyam) and summarized the factual allegation against the petitioner — that an inadequately qualified staff manned PICU on 25-1-2013, ventilator/oxygen support was withdrawn and the patient died, thus constituting a breach of licence terms (including Schedule II condition (k) that a medical practitioner be on duty at all times for emergencies).
The court observed that the petitioner conceded respondent No. 4's competence under the Adhiniyam to cancel registration, and therefore the cancellation was not without jurisdiction on its face. The central legal threshold then became whether the writ petition was maintainable in the face of the statutory appeal remedy (section 6(3)) and, if maintainable, whether the alleged procedural defects in the enquiry warranted entertaining the writ.
The court analyzed the effect of amendments (insertion of section 2(a) and substitution in section 6(3)) and the 30-3-2007 notification, which had earlier appointed the Secretary, Department of Health and Family Welfare as appellate authority. The petitioner argued that because section 2(a) was inserted only in 2008, the 2007 notification could not be valid under the amended statute and thus there was presently no competent appellate authority.
Applying settled principles distinguishing substantive and procedural law (and relying on authorities cited in the opinion), the court treated the substitution of the appellate forum as procedural in nature. The court reiterated the legal principle that statutes which merely affect procedure are presumed retrospective unless the text makes such a construction impossible. Relying on a line of authorities (including Hitendra Vishnu Thakur and other cases cited), the court concluded that the alteration in the statutory description of the appellate forum was procedural and therefore retrospective, and that the 30-3-2007 notification must be presumed to be valid under the enabling provision. The court also noted that Rule 20 of the Rules continuing to refer to the State Government as appellate authority does not override the main Adhiniyam; rules cannot prevail over the statute.
Having found that a competent appellate authority exists and that the appeal remedy was available and capable of providing interim relief (section 6(6) empowers the appellate authority to stay the impugned order for sufficient cause), the court turned to whether the writ should nonetheless be entertained in view of alleged defects in the decision-making process. The court acknowledged the three recognized contingencies (including failure of natural justice) where a writ may be entertained despite alternative remedy (as in Harbanslal Sahnia) but emphasized that entertaining writs in the face of alternative remedies is discretionary and that where the authority's competence is not in dispute and an effective remedy is available, the court should normally not exercise Article 226.
On the facts, the court found no reason to treat the petition as falling into the exceptional categories that would justify bypassing the statutory appeal. The petitioner had not challenged the competence of respondent No. 4; nor had the court been shown that relegation to the appellate remedy would cause palpable injustice. The court therefore held that the petitioner should be relegated to the statutory appeal and that any procedural flaws in the enquiry can be raised and examined by the appellate authority.
Holding and Implications
Holding: The petition is dismissed / not entertained.
Implications and immediate consequences:
- The petitioner is required to prefer an appeal to the appellate authority under section 6(3) of the Adhiniyam; the appellate forum is to be treated as competent and available.
- The appellate authority has power to pass interim orders including stay of the impugned order under section 6(6); the petitioner may seek such relief on appeal.
- The time consumed before the High Court shall not be counted for the purpose of counting limitation by the appellate authority (i.e., the petitioner is granted liberty and equitable consideration on limitation).
- The High Court expressly stated that it has not expressed any opinion on the merits of the cancellation order; the alleged procedural defects may be considered by the appellate authority.
- No costs were awarded, and the petition was dismissed subject to the observations above.
Broader legal effect:
This opinion applied established principles distinguishing substantive and procedural changes and did not purport to lay down a new precedent; its direct effect is to deny immediate writ relief and to direct the petitioner to seek redress through the statutory appellate mechanism.
This petition filed under Article 226 of the Constitution challenges the order dated 24-6-2015, whereby the registration of petitioner hospital is cancelled by respondent No. 4.
2. Shri R.N Singh, learned senior counsel for the petitioner submits that the petitioner hospital was registered under Madhya Pradesh Upcharyagriha Tatha Rujopchar Sambandhi Sthapanaye (Registrikaran Tatha Anugyapan) Adhiniyam, 1973 (for brevity, the ‘Adhiniyam’) on 16-8-2010. On 9-3-2015, one Manoj Upadhyay made a complaint (Annexure P-5) to the Collector. Ip turn, the Collector directed the CMHO for enquiry in relation to complaint preferred by Manoj Upadhyay. The CMHO, in turn, appointed a two-member committee comprising of Dr. Sunil Agarwal and Dr. Prabhat Kaushal. On 18-3-2015 (Annexure P-7) and 23-3-2015 (Annexure P-7), statements of Dr. Shivhare and Manoj Upadhyay were recorded by the committee. The committee submitted its report on 31-3-2015 (Annexure P-7). On 10-4-2015 (Annexure P-8), a show cause notice was issued on the basis of said enquiry report. On 15-4-2015 (Annexure P-9), the petitioner made request to respondent No. 4 to supply him copy of the report. In addition, extention of time was prayed for. On 11-4-2015 (Annexure P-10), the petitioner preferred a representation for relocation of enquiry. Another representation dated 23-4-2015 (Annexure P-10) was filed by the petitioner to respondents No. 1 and 2 for relocation of enquiry. Shri Singh, learned senior counsel submits that on 25-4-2015 the Collector summoned all including CMHO to remain present on 28-4-2015. On 26-4-2015 the petitioner made a request to CMHO for referring the enquiry to State Leval Higher Centre. On 2-5-2015 the petitioner made a request to CMHO to keep the proceedings in abeyance. On 24-6-2015, the impugned order is passed, whereby registration of petitioner hospital is cancelled.
3. Shri R.N Singh criticized this order by contending that the decision making process, adopted by the respondents is vitiated/polluted. The same were not in consonance with principles of natural justice. The full, reasonable and adequate opportunity of defence was not provided to him. He reiterated his stand which was taken before this Court on 17-7-2015 which was recorded in extenso by this Court in the said order dated 17-7-2015.
4. To elaborate, Shri Singh, learned senior counsel submits that copy of enquiry report was not supplied to the petitioner along with show cause notice. This deprived the petitioner to file an effective reply in the matter. One Seema Shivhare's statement was recorded in the enquiry but in final order there is no whisper about her statement.
5. During the course of argument, Shri Singh fairly submits that although there exists an appellate remedy as per section 6 of the Adhiniyam, the petitioner cannot be relegated to avail the said remedy for twin reasons. Firstly, the decision making process suffers from serious procedural impropriety and violation of principle of natural justice. Hence, as per (2003) 2 SCC 107, Harbanslal Sahnia v. Indian Oil Corporation Ltd., the alternative remedy is not a bar. Secondly, when said Adhiniyam was initially brought into force, as per section 6(3), State Government was the appellate authority. In the year 2008, by way of M.P Adhimyam 16 of 2008, section 2(a) was inserted. Similarly, in section 6(3), the words “State Government” were substituted by the word “appellate authority”. He submits that the Government has placed reliance on Notification dated 30-3-2007, whereby Secretary of Department of Health and Family Welfare is appointed as appellate authority. The said order/notification is of no assistance to the other side because in the year 2007, admittedly the State Government was the appellate authority. Section 2(a) was inserted for the first time in 2008. There is no Notification appointing any appellate authority after 2008. Hence, earlier notification dated 30-3-2007 cannot be treated to be a valid order/notification appointing the appellate authority. In nutshell, he submits that although there exists a statutory remedy of appeal, presently no appellate authority exists in accordance with law. Hence, the question of preferring appeal does not arise. In addition, it is contended that although sections 2(a) and 6(3) of the Adhimyam have undergone a change/modification, no change was made in Rule 20 of Madhya Pradesh Upcharyagriha Tatha Rujopchar Sambandhi Sthapanaye (Registrikaran Tatha Anugyapan) Rules, 1997 (for brevity, the ‘Rules’). He submits that State Government is still an appellate authority as per Rule 20. Hence, this petitioner may be directly entertained.
6. Shri Singh, learned senior counsel, during the course of argument fairly admitted that the petitioner is not challenging the competence of respondent No. 4 in passing the impugned order, Annexure P-1. He fairly admitted that as per the Adhimyam, the respondent No. 4 is the competent authority to decide the question of cancellation. However, his main attack is on the decision making process, which resulted in issuance of impugned order.
7. Per contra, Shri Vishal Mishra, learned Deputy Advocate General for the State, submits that the petitioner has statutory alternative remedy. The insertion of section 2(a) and substitution of word “appellate authority” in section 6(3) are procedural in nature. Hence, it must be presumed that the said provisions were there in the statutory book since inception of the Adhiniyam. On the strength of this contention, it is contended that the Order/Notification dated 30-3-2007 must be treated to be issued under the Adhiniyam. In support of his contention, Shri Mishra relied on (1979) 1 SCC 202 : AIR 1979 SC 310, Shambhu Dayai v. State of U.P; (2004) 8 SCC 1, Zile Singh v. State of Haryana; AIR 2005 SC 3685, Government of India v. Indian Tobacco Association; and 2013 (2) MPLJ 220, Ramgopal v. Haneef Khan. He further submits that there is no flaw in decision making process also. Copy of inquiry report was admittedly supplied to the petitioner on 15-4-2015, which is clear from petitioner's representation, Annexures P-12 (p. 175) and P-13 (P. 179). The impugned order is passed on 25-6-2015. Nothing prevented the petitioner to submit a detailed reply after receiving said report. It is urged that no prejudice is caused to petitioner.
8. Shri Madhukar Rao, learned senior counsel assisted by Shri Jitendra Sharma and Shri Mukesh Sharma, submits that even prior to amendment of 2008 aforesaid, as per section 14(d), the State was competent to prescribe the procedure for preferring appeal. Thus, it cannot be said that the order dated 30-3-2007 appointing the appellate authority is invalid or without authority of law. As per said order, appellate authority very much exists. The petitioner has a statutory, alternative and efficacious remedy. Hence, this petition be not entertained. In addition, it is contended that by way of amendment in 2008, the word “appellate authority” is substituted. This provision being procedural in nature must be treated to be retrospective.
9. No other point is pressed by learned counsel for the parties.
10. I have heard the parties at length on admission and perused the record.
11. Before dealing with rival contention of parties, I deem it apposite to refer certain provisions of the Adhiniyam. Section 4 deals with application for registration and licence. Section 4(4)(a) reads as under:
“Section 4(4). The supervising authority may reject an application if he is satisfied— (a) that the applicant, or any person employed by him at the nursing home or the clinical establishment is not a fit person, whether by reason of age of otherwise, to carry on or to be employed at, the nursing home or the clinical establishment of such a description as the nursing home or clinical establishment named in the application.”
Section 5 talks about cancellation of registration and licence. It reads as under:
Section 5. Cancellation of registration and licence.— If at any time after any person has been registered in respect of any nursing home or clinical establishment and granted a licence therefore, the supervising authority is satisfied—
(i) that the terms of the licence are not being complied with; and
(ii) that any of the grounds which would have entitled him to refuse the application for registration or licence, exist; or
(iii) that the person registered and licensed, has been convicted of any offence punishable under this Adhiniyam; or
(iv) that any other person who has been convicted of an offence under this Adhiniyam is materially interested in the nursing home or the clinical establishment, he may cancel such registration and licence.
A plain reading of section 5 shows that if terms of licence are not complied with and there exists any ground, which would have entitled the supervising authority to refuse the application for registration or licence, the licence can be cancelled.
12. The licence was issued in statutory Form ‘B’/’BB’. The licence, Anneuxre P-2, shows that it was issued subject to terms and conditions specified in Schedule II of the said Rules. Schedule II provides various conditions. Once of such condition is as under:
“(k) Services of one Medical Practitioner on duty shall be available at all time for attending to emergency call of the indoor patients.”
(Emphasis supplied)
13. The allegation against the petitioner is that on 25-1-2013, Manoj Upadhyay took his daughter Ku. Gargi to the petitioner hospital. Considering her critical condition, she was admitted in PICU. It is alleged that in PICU, no MBBS duty doctor was available. PICU was manned on the said date by Shri Shailendra Sahu and Shri Awadhesh Diwakar. They treated the said patient on the said date. It is further alleged that Shailendra Sahu was a student of BHMS in Vasundhara Raje Homoeopathic Medical College, Gwalior, whereas Awadhesh Diwakar was final year student of BHMS of Sofia Homoeopathic Medical College. Thus, said two students were entrusted with the expertise, delicate, sensitive and emergent work of PICU. The said persons on 26-1-2013 closed ventilator and oxygen support system, which was given to Ku. Gargi. In the result, she died at 3:35 a.m The said persons treated Ku. Gargi as dead and even issued death certificate. Therefore, it is alleged that the petitioner has violated the terms of licence.
14. A conjoint reading of sections 4 and 5 of the Adhiniyam shows that if the terms of licence are not complied with, section 5 can be invoked. As noticed above, Shri R.N Singh, learned senior counsel fairly admitted that respondent No. 4 is competent authority under the Adhiniyam. In view of this stand coupled with the factual backdrop of matter and combined reading of sections 4 and 5 of the Adhiniyam, it is clear that it cannot be said that action of respondent No. 4 is without authority of law or jurisdiction.
15. Before dealing with the aspect of decision making process, I deem it proper to first deal with the question of maintainability of writ petition because of availability of alternative remedy.
16. Section 6(3) of the Adhiniyam reads as under:
“Section 6(3) — Any person aggrieved by an order refusing an application for registration and licence, or cancelling any registration and licence may, within a period of a calendar month after the date on which the copy of the order was received by him, appeal to the appellate authority against such order.”
Section 6(6) provides the power of the appellate authority to pass interim orders. It reads as under:
“(6) The appellate authority may, for sufficient cause order the stay of the order appealed against until further orders or until the disposal of the appeal whichever is earlier.”
17. The State Government has passed following notification/order:
“Bhopal, the 30th March
No. F. 13-3-2005-XVII-Med. 2 — In exercise of the powers conferred by the clause (3) of section 6 of Madhya Pradesh Upcharyagriha Tatha Rujopchar Sambandhi Sthapanaye (Registrikaran Tatha Anugyapan) Adhiniyam, 1973 (No. 47 of 1973), the State Government hereby appoints the Secretary, department hereby appoints the Secretary, Department of Health and Family Welfare as “appellate authority” for the purpose of the said Adhiniyam.
By order and in the name of Governor of Madhya Pradesh
M.M Upadhyaya, Principal Secretary.”
18. Learned senior counsel for the petitioner contended that although remedy of appeal is provided to him, there exists no competent appellate authority. Since sections 2(a) and 6(3) were amended in 2008, the order of 2007 aforesaid cannot be treated to be a valid competent order providing a competent appellate authority. On the first blush, the argument appears to be attractive. However, on a deeper scrutiny, I find that there is no force in such submission. This is trite that right of preferring appeal is a substantive right whereas right relating to forum is procedural in nature. The substantive right of preferring appeal exists since the inception of the Adhiniyam. By way of amendment, appellate authority is substituted, which at best is a substitution of forum. This substitution is a procedural change which will be presumed to be retrospective. This is settled in law that in contrast to statutes dealing with the substantive rights, statutes dealing with merely matters of procedure are presumed to be retrospective unless such a construction is textually inadmissible. See, Gardner v. Lucas, (1878) 3 AC 582; Delhi Cloth and General Mills Co. Ltd. v. CIT, Delhi, AIR 1927 PC 242; Jose De Costa v. Bascora Sadashiva Sinai Narcornim, (1976) 2 SCC 917 : AIR 1975 SC 1843; Gurbachan Singh v. Satpal Singh, (1990) 1 SCC 445 : AIR 1990 SC 209; Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : AIR 1994 SC 2623; Lord Denning in Blyth v. Blyth, (1966) 1 All ER 524, opined that the rule that an Act of Parliament is not to be given retrospective effect applies only to statutes which affect vested rights. It does not apply to statutes which only alter the form of procedure or the admissibility of evidence, or the effect which the Courts give to evidence.
19. This aspect was dealt with by Apex Court in (1994) 4 SCC 602, Hitendra Vishnu Thakur etc. v. State of Maharashtra. Relevant para reads as under:
“26. xxxxxxxxx
(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.
(ii) Law relating to forum and limitation is procedure in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.”
(Emphasis supplied)
20. In view of aforesaid analysis, in my view, section 2(a) and amendment in section 6(3) must be treated as procedural and are, therefore, retrospective in nature. Thus, the notification/order dated 30-3-2007 must be presumed to be issued under the enabling provision. Thus, I am unable to hold that no appellate authority exists for the present petitioner to prefer the appeal. It is noteworthy that the petitioner has not challenged the validity of notification/order dated 30-3-2007. So far Rule 20 of the Rules is concerned wherein State Government is still shown to be appellate authority, suffice it so say that rules are always made in aid to the main Adhiniyam. Rule cannot supplant the main provision of the Adhiniyam. In view of finding that amendment in section 2(a) and 6(3) is retrospective in nature, the appellate authority as per order dated 30-3-2007 must be held to be competent and in consonance with the Adhiniyam. Even if Rule 20 has not undergone corresponding change (in the name of appellate authority), this cannot override or prevail over the provisions of the Adhiniyam.
Thus, the contention of the petitioner that no appellate authority exists is hereby rejected.
21. Now, the question is, whether the petitioner should be relegated to avail the remedy of appeal. Reliance is placed on the judgment of Apex Court in Harbanslal Sahnia (supra). No doubt that in three contingencies, viz., (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders of proceedings are wholly without jurisdiction or the vires of an Act is challenged; despite availability of alternative remedy, writ petition can be entertained. However, this is settled in law that rule of exclusion of writ jurisdiction because of availability of alternative remedy is a rule of discretion and not one of compulsion. The competence of respondent No. 4 is not in question. The subject-matter of show cause and final order also shows that it was within the competence of respondent No. 4 to deal and decide the question of cancellation of licence. After considering the judgment of Harbanslal Sahnia (supra), the Apex Court in (2010) 14 SCC 553, Union of India v. Mangal Textile Mills India Private Limited, opined that restrictions regarding entertaining writ petition under Article 226 despite availability of alternative remedy are self imposed. If an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction under Article 226 of the Constitution. In (2005) 8 SCC 264, U.P State Spg. Co. Ltd. v. R.S Pandey, the Apex Court opined that if the competence of authority is not in question, the petitioner should be relegated to avail the alternative remedy, more so when such relegation does not cause any palpable injustice to the petitioner. The Apex Court opined as under:
“Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute.”
(Emphasis added)
22. In the present case, sections 6(3) and (4) of the Adhiniyam prescribe a remedy of appeal. It also empowers the appellate authority to pass necessary interim orders. Thus, petitioner has at alternative, statutory and efficacious remedy. Hence, in my view, the petitioner must be relegated to avail the said remedy. So far other contention regarding flaw in decision making process is concerned, it may be raised before the said appellate authority, which may deal with it in accordance with law.
23. Resultantly, this petition is not entertained. Liberty is reserved to the petitioner to prefer appeal. The time consumed before this Court shall not be counted for the purpose of counting limitation by the appellate authority. It is made clear that this Court has not given any opinion on the merits of the case.
24. Subject to an aforesaid observations, petition is dismissed. No costs.
Petition dismissed.
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