Remedy Under Article

7/29/2019 Remedy Under Article

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Role of Judiciary in granting Constitutional Damages

Historical Background of Writs

The judicial history of India is very closely connected with the judicial history of

England since the present judicial system in India is predominantly of British heritage.

Originally in England the judicial institutions began with Anglo Saron courts and during the

period of William the conqueror, the itinerant justices came into existence. Though the court

of kings Bench began to function even during the period of William, the conqueror, a final

shape, separating judicial functions from legislative functions, was given to it during the

period of Henry II. Thus in course of time the Court of Common pleas, the Court of

Exchequer, the Court of Chancery etc, came into existence with specified judicial functions.

Originally, the extra ordinary power of issuing a writ was being exercised by Crown only

but by gradual growth of the judicial institutions in Britain, now these writs are being issued

by courts. The Indian judicial history in this context can be traced back from 1618 when Sir

Thomas Roe entered into a treaty with Emperor Jahangir regarding the settlement of

disputes between themselves by themselves. This was followed by charters of 1661 and

1683 and subsequent thereto the Mayors courts came into existence in the year 1726 apart

from the establishment of Native Courts. During the period of Warren Hastings Suddar

Dewani Adaulat and Saddar Nizamat Adaulat came into existence and by virtue of the

Regulating Act of 1773, a Supreme Court was established at Fort Williams but because its

authority was not well defined, it paved the way for passing of the statute of 1781, Acts of

1784, 1786, 1793 and 1813. In the year 1862, the Indian High Courts Act, 1862 was passed

establishing High Courts at Calcutta, Madras and Bombay. The Federal Court came into

existence by the virtue of Government of India Act, 1935 and by the virtue of the Federal

Court Order, 1947 the said federal court became the federal court of domination of India and


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ultimately after the constitution of India came into force the present judicial institutions

came into existence.

Supreme Court

Articles 124 to 147 of the constitution of India deal with the union

judiciary. An appeal lies to Supreme Court from any judgment, decree or final order of High

Court in a civil, criminal or other proceeding if the high court certifies that the case involves

a substantial question of law regarding interpretation of the constitution and where such

certificate is refused by the High Court, the Supreme Court may grant special leave to

appeal if it is satisfied that the matter involves a substantial question of law relating to the

interpretation of the constitution.

Where violation of fundamental rights are established, it is the duty of High Courts

and Supreme Court to enforce the same and writ cannot be refused.

High Court

There shall be a High Court for each state. Every High Court shall be a court

of record and shall have all the powers of such a court including the power to punish for the

contempt of itself. Article 226 of the constitution of India deals with power of High Courts

to issue certain writs like habeas corpus, mandamus, prohibition, quo warranto and

certiorari.

The courts have taken advantage of the open textured wording of articles 32 and 226 of the

constitution. These articles have given freedom to the courts to mould the remedies and even

invent new remedies for the enforcement of the rights. Traditionally, the writ jurisdiction

was supposed to be an exercise only for stopping or preventing a mischief not for providing

relief for mischief already done. If a person was illegally detained, a court could set him free

but could not provide compensation for wrongful confinement or punishment for the

wrongdoer. The person concerned had to prosecute or sue the policy or any other authority


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responsible for such illegal detention. In India, there has been a very weak tradition of tort

litigation because of delays, High Court costs and Indian judges tendency to award meager

compensation.

In England, the Kings courts exercised the power of judicial review over all

subordinate courts and administrative authorities with a view to ensure that they acted within

the limits drawn upon their powers by law. The courts were endowed with power to issue

prerogative writs such as habeas corpus, mandamus, certiorari, prohibition and quo-

warranto for enforcing such limits. If a person was illegally detained or arrested, the writ of

habeas corpus was issued to set him free. If a tribunal or an administrative authority acted

illegally, it could be stopped from proceeding by the writ of prohibition or its decision could

be quashed by the writ of certiorari. Mandamus was a writ issued for compelling an

authority to do what it was legally bound to do or to forbear from doing what it was

forbidden by law to do. If a person occupied a public office illegally or by usurpation, he

could be asked to vacate it by issuing the writ ofquo-warranto.

It was because of the efficacy of these writs that Dicey said that liberty of an

individual emanated from remedies provided by the courts.

It, therefore, used the writ jurisdiction for awarding token compensation to the

aggrieved person. The first case in which such compensation was awarded was Rudal Shah

v. Bihar1, Rudal Shah had been arrested on the charge of murder in 1953 and was acquitted

in 1968. He, however, continued to languish in prison until 1982. The jail authorities said

that he had been insane but could not show on what basis he had been adjudged as insane

and what measures had been taken to cure him. It was obviously a case of illegal

imprisonment due to sheer carelessness and callousness. The court not only set him free but

also asked the state to pay him Rs. 30,000 /- as compensation. Since then compensation had

been awarded in a number of cases. 2


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1. AIR 1983 SC 1086.

2. S.P. Sathe, Administrator law, P. 466 (6th edn. Butterworths, 1998)

The infringement of fundamental right must be gross and patent, i.e, incontrovertible

and ex facie glaring and either such infringement should be on large scale affecting the

fundamental right of a large number of persons or it should appear unjust or unduly harsh or

oppressive on account of their poverty or disability or socially or economically

disadvantaged position to require the persons affected by such infringement to initiate and

pursue action in civil courts.

Thus award of compensation was to be made under the writ jurisdiction when

1) fundamental rights were infringed

2) of a large number of people

3) of people who were helpless, resource less and socially and economically

disadvantaged.

The writ jurisdiction under articles 32 and 226 was held to include the power to award

compensation so as to partly undo undo the effects of infringement of fundamental rights of

those who could not undertake civil litigation in pursuit of their claim for compensation.

A right without remedy is of no value. It is the remedy that makes a right real. If

there is no remedy it might be said that there is no right at all. While enunciating

fundamental rights, the constitution sought to make them real by providing remedies for

their enforcement.

Article 32 provides a guaranteed remedy for the enforcement of fundamental rights

and this remedial right is itself made a fundament right by being included in Part III of

Constitution. In respect of fundamental rights, the Supreme Court has been assigned the role


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of a sentinel on qui-vive under clause (2) of article, The Supreme Court has been given the

power to issue directions, orders or writs, including writs in the nature of habeas corpus,

mandamus, prohibition, quo-warranto and certiorari, whichever may be appropriate for

enforcement of any of rights conferred by Part III of Constitution. Under clause(3)

,Parliament is given the power by law to invest any other court to exercise within the local

limits of its jurisdiction all or any of powers exercisable by the Supreme Court under clause

(2). Clause(4) guaranteed that the right to move the Supreme Court under article 32 shall

not be suspended except as otherwise provided for by the constitution.

Article 226 of the constitution confers extra ordinary jurisdiction on the High Court

to issue high prerogative writs for the enforcement of fundamental rights or for any other

purposes. It is wide and expansive. The constitution does not place any fetter on exercise of

ordinary jurisdiction. It is left to the discretion of the High Court 1. The High Court under

article 226 is required to enforce rule of law and not pass an order or direction which is

contrary to what has been infected by law. 2 A writ petition is filed in public law remedy.

The High Court while exercising a power of judicial review is concerned with illegality,

irrationality and procedural impropriety of an order passed by the state or statutory

authority.3 The superior courts while entertaining a writ petition entertaining a writ petition

exercise a limited jurisdiction of judicial review, inter alia, when constitutional/ statutory

protection is denied to a person.4 Access to justice by way of public law remedy would not

be in a position to grant appropriate relief.5 Under article 226, High Court is empowered to

exercise its ordinary jurisdiction to meet unprecedented extraordinary situation having no

parallel. These powers are required to be sparingly used. The instant case was most

extraordinary which called for High Courts interference as the state government had

dismissed about 2 lakh employees for going on strike.6 Unless the action challenged in the


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writ petition pertains to the discharge of a public function or public duty by an authority, the

courts will not entertain a writ petition

1.Life Insurance Corp. of India v. Asha Goel, AIR 2001 SC 549.

2.Karnataka State Road Transport Corp. v. Ashrafulla Khan, AIR 2002 SC 629.

3.Dwarka Prasad Aggarwal v.B.D. Aggarwal, AIR 2003 SC 2636.

4. Sarabjit Rick Singh v. UOI, (2008) 2 SCC 417.

5. Sanjana M.Wig v. Hindustan Petroleum Corp. Ltd, AIR 2005 SC 3454.

6. T.K. Rangarajan v. Govt. of T.N., AIR 2003 SC 3032.

which does not involve the performance of the said public function or public duty by an

authority, the courts will not entertain a writ petition which does not involve the

performance of said public function or public duty.7

Every action of state or its instrumentality, which is illegal, in contravention of

prescribed procedure, unreasonable, irrational or malafied is open to judicial review.8 Every

executive or administrative action of the state or other statutory or public bodies, legally

treated to be authority, which is violative of fundamental rights or any statute is open to

judicial review. Remedies are available in cases of torts also. Such action is subject to

judicial review even if it pertains to the contractual field.9 New question arises what is

judicial review?

Judicial review is the power of courts to pronounce upon the constitutionality of

legislative acts which fall within their normal jurisdiction to enforce and the power to refuse

to enforce such as they find to be unconstitutional and hence void10

. Judicial review is a

judicial weapon to strike down the power exercised in excess or exercised arbitrarily or

exercised in contravention to what is mandated in the constitution, by the legislative and

executive organs of the state. Thus, the concept has the origin in the theory of limited

government and in the theory of two laws-an ordinary and supreme. If the ordinary law as


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made by the legislative contravenes the provisions of the supreme law then there must be

some organ which is to possess the power or authority to pronounce those legislative acts as

void, such power in the present system is vested in the institution of judiciary.10

7.ABL Int. Ltd. v. Export credit Guarantee Corp. of India, (2004) 3 SCC 553.

8.M.I. Builders Pvt. Ltd. v. Radhey.

9. Style v. UT, Chandigarh, (1999) 7 SCC.

10. Though the Indian constitution provides express provisions for judicial review but even

in the absence of such provisions the courts would have been able to invalidate a law which

contravened any constitution provision, for such nature of constitutional law.

The administrative actions also fall within the ambit of judicial review. If the rule of law and

the conformity to the provisions of the constitution is to be maintained, it is necessary that

the administrative authorities are also brought under the control of courts of law. Judicial

review helps in proper administration of justice. The activist Supreme Court in order to

make justice available to poor and weaker sections of society, has done away within the

traditional rule of locus standi, i.e, the party whose right is infringed can only apply under

article 32. Today, a progressive approach is followed. The court now permits public interest

litigation or social action litigation at the instance ofPublic Spirited Citizen for the

enforcement of constitutional and other legal rights of any person or group of persons who

because of their poverty or socially or economically disadvantaged position are unable to

approach the court for relief.11

In A.B.S.K.Sangh (Rly) v.UOI12 the court held that the Akhil Bhartiya Soshit

Karamchari Sangh (Rly), though an unregistered association could maintain a writ petition

under article 32 for the redressal of a common grievance. Access to justice through class


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action, public interest litigation and representative proceedings is the present constitutional

jurisprudence.

Hence, the power of judicial review has enabled the judiciary to control the power of

legislative and executive organs of the state. Just think of a situation when a law enacted by

the legislative is challenged and if legislature is made to decide upon the validity. The

decision is obvious, it would never let its succumb to the challenges made against it.

Therefore, if unlimited power are given to the legislative and executive organs of the state

then there will be rule of men and not of law. Democracy will give way to dictatorship and

11. Mumbai Kamgar Sabha v. Abdulbhai, AIR 1976 SC 1455, J. Krishna Iyer gave liberal

expansion to the locus standi rule.

12. AIR 1981 SC 298.

justice will be delivered according to the whims and fancies of the rulers. That is why, the

Indian Constitution makes board division of powers and specifically provides under article

50 that judiciary should be independent and separate from the executive13.

In exercise of the power of judicial review, the court either upholds the

constitutionality of an act or declares such act as unconstitutional, invalid orultravires. In

case of a legislative enactment, when it is declared unconstitutional the effects are reaching.

In an American case, Norton v. Shelby county,14 the court held constitutional act is not a

law, it confers no right, it imposes no duties it affords no protection, it creates no offices, it

is, in the legal contemplation as inoperative as though it has never been passed. In Keshav

Madhav Menon v. State of Bombay,15 Justice Mahajan stated on the similar lines as to what

was quoted in the American case that unconstitutional statute is void since inception and

anything done under it is void and illegal, even convictions made under it are set aside; and

the person affected is entitled to relief.


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The effect of judicial review in administrative actions is that it affects directly the

concerned government department or agency. Judicial review has an impact on public

bodies and has the capacity to perform an educative role; to provide public authorities with

principles and standards to guide their future decision making.16

General Principals relating to Article 226

1. Power of judicial review is implicit in a written constitution and unless expressly

excluded by a provision of the constitution, this power is available in respect of exercise of

13. Article 50, Separation of judiciary from executive.

14. 118 U.S. 425, 442 (1886).

15. AIR 1951 SC 128.

16.Public Law, Judicial Review; Questions of Impact by G.Rcihardson & M.Sunkin.

powers under any provisions of the constitution.17 Judicial review is the heart and soul of the

constitutional scheme. Judiciary is constituted as the ultimate interpreter of the constitution

and is assigned the delicate task of determining the context. There are reviewable discretions

under the constitutional dispensation.18 A High Court would be within its jurisdiction to

modify the punishment/penalty awarded to a government servant in disciplinary proceeding

by moulding the relief. In case of dismissal, article 21 gets attracted and , in view of inter

dependence of fundamental rights, the punishment penalty awarded has to be reasonable

,and if it is unreasonable article 14 would be attracted which can be taken care of it by

substituting a punishment deemed reasonable by it.19 While exercising the power of

judiciary review, the High Court or Tribunal, can not normally substitute their own

conclusion on penalty and impose some other penalty in disciplinary proceeding against a

government servant but if punishment imposed shocks its conscience, it would appropriately


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mould the relief by directing the disciplinary/appellate authority to reconsider the penalty

imposed ,or ,to shorten the litigation.

2. Article 226 is couched in the widest possible terms and unless there is a clear bar to

its jurisdiction, its power under this article can be exercised when there is any act which is

against any provisions of law or violative of constitutional provisions when recourse cannot

be had to the provisions of the Act for the appropriate relief.20

3. Article 226 empowers the High Court to issue writs, directions or order in the nature

ofhabeas corpus, mandamus, prohibition, quo warranto and certiorari-

(a) for the enforcement of any of the rights conferred by part III and

(b) for any other purposes.

Under the first part, a writ may be issued under the article only after a decision that the

17.A.K. Kaul v. UOI, AIR 1995 SC 1403.

18.Election Commission of India v. UOI, 1995 Supp. (3) SCC 643.

19. B.C. Catered v. UOI, AIR 1996 SC 484.

20.K. Venkatachalan v. A. Swamickan, AIR 1999 SC 1723.

aggrieved party has a fundamental right and that it has been infringed, under the second part,

it may be issued only after a finding that the aggrieved party has a legal right which entitles

him to any of the aforesaid writs and that such right has been infringed. 21 In absence of any

legal right, the writ should not act on the basis of sympathy alone.22

4. Where there has been infringement of fundamental rights, an application under

article 226 should not be thrown out simply on the ground that the proper writ has not been

prayed for23. The petitioner is entitled to a suitable order for protection of his fundamental

right, 24 or enforcement of the legal duty of the respondent.25


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Thus, where the petitioner has asked for relief in a very wide form, the court would

issue the order in the proper form.26 A High Court is as much bound as the Supreme Court to

enforce the fundamental right guaranteed by the Constitution.27

5. The power of judicial review under article 226 is not directed against the decision

but is confined to the decision making process. Judicial review is not an appeal from a

decision but a review of the manner in which the decision is made. The court sits in

judgment only on the correctness of the decision making process & not on the correctness of

the decision making process and not on the correctness of the decision itself. 28

6. The Supreme Court held that the High Court exceeded its jurisdiction in entertaining

a writ petition in respect of an order proceedings regarding the legality of which were

21. State of Orissa v. Madangopal Rungta, AIR 1952 SC 12.

22. State of M.P. v. Sanjay kumar Pathak, (2008) 1 SCC 456.

23. Charanjit lal v. UOI, AIR 1951 SC 41.

24.Himmat lal v. State of M.P., AIR 1954 SC 403.

25. State of Mysore v. Chandrasekhar, AIR 1965 SC 523.

26. Yasin Hohammad v. Town Area Committee, AIR 1952. SC 115.

27. Supra Note 24.

28.H.B.Gandhi v. Gopinath & Sons, (1992) Supp (2) SCC 312.

pending before the CAT which has passed an order ofstatus quo.29

7. The court should not interfere with matters that do not involve violation of any law,

even though agitated against by a section of people. It has no jurisdiction to access the

decency or indecency of a show about which two views might be possible. Also it should

not direct which force to be used to maintain law and order which is the job of the

executive.30


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8. The High Court in exercise of its power under extraordinary jurisdiction cannot

interfere with a collateral proceeding initiated by the High Court itself in an application filed

in public interest.31

9. The writ jurisdiction of High Court can not be circumscribed by the provisions of the

enactments, they will certainly have due regard to the legislative intent of them and would

exercise their jurisdiction in consistence with the provisions of Acts, i.e, to effectuate the

regime of law and not to abrogate the same.32

Against whom maintainable

A writ petition under article 226 may be maintainable against-

a) state,

b) an authority,

c) a statutory body,

d) an instrumentality or agency of the state,

e) company financed and owned by the state ,

f) a private body run substantially on state funding,

g) a private body discharging public duty or positive obligation of public nature,

h) a person or a body under liability to discharge any function under any statute

to compel it to perform such statutory function. However, a writ ofmandamus can be

issued to any person or authority performing public duty, owing positive obligation to the

affected party.33

29. State of U.P. v. Sunanda Prasad, (1999) 6 SCC 34.

30.ABCL v. Mahila Jagran Manch, (1997) 7 SCC 91.

31.Mahonar M. Galani v. Ashok N. Advani, (1999) 8 SCC 37.

32.Maftlal Indus. Ltd. v. Collector of Central Excise. Bombay, (1998) 9 SCC 712.

33.Federal Bank Ltd. v. Thomas, AIR 2003 SC 4325.


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Purposes for which the power under article 226 may be exercised

The power of High Court to issue of writs under article 226 can be exercised for a

two fold purpose, viz; the enforcement of (a) fundamental rights, as well as of (b) non-

fundamental or ordinary legal rights34.

The words for any other purpose at the end of article 226 make the jurisdiction of

High Court to issue the writs more extensive than that of the Supreme Court in as much as

these words are absent from article 32 and the Supreme Court may have power for other

purpose only if such power is conferred by legislation. But article 226 itself confers upon

High court power to issue the writs for the enforcement of fundamental rights as well as for

other purpose.35

For the enforcement of fundamental rights

(i) The jurisdiction of the Supreme Court under article 32 or of High Court under article 226

to enforce a fundamental right arises where a fundamental right of the petitioner has been

affected by an act or order of in the following case, interalia: 36

a) Where the action has been taken under a statute which is ultra vires the constitution;

b) Where the statute is intra vires but the action taken is without jurisdiction;

c) Where the action taken is procedurally ultra vires, 37

d) Where the authority, being under an obligation to act judicially, passes an order

which is in violation of the principles of Natural Justice.38

(ii) Since the jurisdiction of High Court to enforce fundamental right under article 226 is

similar to that of Supreme Court under article 32, principles laid down by the Supreme

Court under article 32 are directly applicable to the jurisdiction under article 226, so far as

the enforcement of fundamental rights are concerned.

34. State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12.

35.Ibid.


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36. Olga Tellis v. Bombay Municipal Corp., AIR 1986 SC 180.

37. Ibid.

38. Ibid.

applicable to the jurisdiction under article 226, so far as the enforcement of fundamental

rights is concerned.

4. Any other purpose means a purpose for which any of the writs could, according to

well established principle, 39 issue. The result is that while under the first part, a writ may be

issued under the article only after a decision that the aggrieved party has a fundamental right

and that it has been infringed under the second part, it may be issued only after a finding that

the party aggrieved has a legal right which entitles him to any of the aforesaid writs and that

such right has been infringed.40 Any other purpose, in short, means the enforcement of any

legal right41 and the performance of any legal-duty. A legal right means any legally

enforceable right, and includes contractual rights, 42 other than merely personal rights.43 when

there is negligence of public duty on the face of it and infringement of article 21, there will

be no bar to proceed under article 226.44

5. The court martial proceedings are subject to judicial review.45

Power of Supreme Court under article 32 and High Courts under article 226 compared

and contrasted

The power under article 226 is comprehensive and wide enough to reach injustice

wherever found. The scope of powers of High Court under article 226 is wider than the

scope of powers of Supreme Court under article 32 of the constitution. The relief prayed for

in the petition is one which

39.Election Commissioner. v. Saka Venkata Rao, (1953) SCR 1144.

40. Cf. Samnarth Transport Corp. Ltd. v. Regional Transport Auth., AIR 1961 SC 93.


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41. State of Orissa v. Madangopal Rungta, AIR 1952 SC 12.

42. Calcutta Gas Co. v. State of W.B., AIR 1962 SC 1044.

43.Banchhanidhi Rath v. State of Orissa, AIR 1972 SC 843.

44. T.N. Electicity Board v. Sumathi, AIR 2000 SC 1603.

45. UOI v. Major A. Hussain, (1998) 1 SCC 537.

may be granted by High Court can approach Supreme Court by way of an appeal. The facts

that some cases involving the very same point of law is pending in the Supreme Court is no

ground to entertain a petition directly by passing the High Court. It the parties get relief at

High Court, they need not come here and to that extent the burden on the Supreme Court is

reduced. The hearings of the case at the level of the High Court are more convenient from

several angles and will be cheaper to the parties. It saves a lot of time too. Besides the

principle pertaining to pleadings in a suit before a civil court would not strictly be applicable

in a writ jurisdiction of High Court. In this connection reference has been made on behalf of

the ticea mazdoors to a bench judgment of High Court in case of Consumer Education &

Research Center v. State of Gujarat, 46relying upon the number of decisions of the Supreme

Court, the bench found that in exercise of the extra ordinary powers under article 226 of

Constitution of India, it would be open to the High Court to mould the relief to meet with

peculiar and complicated requirements so as to make granting of the relief effective and that

wide powers have been conferred on High Court to reach injustice wherever it is found. 47

It is no doubt, true that the courts have been held that while granting custody of the

minor child, the courts are to take into consideration the paramount interest of the minor

child. In the instant case the child is said to be about 6 months old. In the decision ofVeena

Kapoor v. Varinder Kumar Kapoor,48 the Apex Court has held that the dismissal of the writ

petition which is filed forhabeas Corpus is incorrect in as much as the courts held that

unless there is an enquiry as to whether the petitioner is entitled to the custody of minor


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children, the High Court ought not to have dismissed the writ petition. While holding so, the

Supreme Court directed the District Judge concerned to make an enquiry and give a finding

46. (1981) XXII Guj LR 712.

47.RBI v.C.D. Chauhan, 1994 (2) Civil LJ 212.

48. AIR 1982 SC 792.

as to who is entitled for custody of minor children.49

It is open to the police to take action according to law against the petitioner and his

family members if they are found to be indulging in the commission of any offences. This

however, will not entitle the police to interfere with their life, liberty and privacy without

following the due procedure prescribed by law. Article 21 of the constitution ordains that no

person shall be procedure established by law. Accordingly there will be a direction to the

respondents not to interfere with the life and liberty of petitioner and his family without

following the procedure established by law. This will not preclude the respondents from

taking action according to law for prosecuting the petitioner and his family members if they

are found to be indulging in commission of any offences. As regards the allegation that fifth

respondents along with some constables forcibly entered the petitioners house and took

away articles worth Rs. 10000/- on 8th Aug, 1995, the same is denied by the fifth respondent

in counter affidavit. It will be open to the petitioner to take appropriate proceeding in

accordance with law for recovery of articles alleged to have been taken away by the fifth

respondent or their value from him and also for prosecuting him for the alleged offences.50

The High Courts have concurrent jurisdiction with the Supreme Court to issue

directions, orders and writs including writs in the nature of habeas corpus, mandamus,

prohibition, quo-warranto and certiorari, whichever may be appropriate, for the


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enforcement of fundamental rights51 and for any other purpose which expression is wide

enough to include any legal rights of persons or citizens, 52 where such rights are infringed.53

49. G.Hari Padma v. G. Sridhar, (1998) 6 Andh LT 408.

50.P. Sambhalah v. Govt. of A.P., (1998) 2 An WR 449.

51.Ramesh Thapper v. State of Madras; AIR1950 SC 124

52.New Educational society v State, AIR 1968 Goa 49.

53.Biharilal Kanhaiyalal v. State of Gujrat, (1969) 10 Guy LR 635.

High Courts and Supreme Court both can interfere in the punishment awarded to

delinquent employee in disciplinary proceedings if the punishment shocks conscience of

Courts.54

Nature and Scope of Jurisdiction

The Jurisdiction under the two articles, though very wide and extensive, is not

unlimited. The limitations have been crystalised.55 The limitations are one of jurisdictions

and power.

Writ jurisdiction under article 226 of the constitution of India is to be exercised

sparingly by the High Court, much more so when alternative remedy is provided by the

legislature and is available to the petitioner. In the scheme of our constitution, court is

sentinel of the fundamental rights of the people. The court has to safeguard the fundamental

rights of the people. This is the bounden duty of the court. But at the same time pragmatic,

considerations demand that certain restraints be exercised by the courts themselves in

exercise of these extraordinary powers under article 226 of the Constitution of India. If this

is not done the system itself would collapse. The care which the court should take is that

while exercising this restraint the object of safeguarding the fundamental rights of citizens

should not be frustrated. Following aspects are required to be kept in mind while


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entertaining a matter under article 226 of constitution of India even when there is alternative

remedy:

a) It should not be forgotten that powers under article 226 of constitution of India are to

be exercised sparingly and the remedy of petition under article 226 has not been devised by

the framers of the constitution as an alternative forum for redressal of grievance of the

citizens which arise in normal working of government and /or statutory co-operation. The

very phrase extra

54. U.P. SRTC v. Mahesh Kumar Mishra, AIR 2000 SC 1151.

55. Veerapa Pillai v. Raman Ltd., AIR 1952 SCR. 583.

ordinary remedy suggests that it is not to be resorted to for which ordinary remedy is

available.

b) The legislature provides for alternative remedy by making necessary provisions in

the relevant statute or in relevant rules and regulations. The object of making this provisions

is to see that the persons governed by the statutes and/or relevant rules, whenever adversely

affected, have a royal road to proceed further for redressal of their grievances.

c) It is true that availability of alternative remedy is nothing but a rule of convenience.

For the sake of convenience, the court may refuse to exercise jurisdiction on the ground of

alternative remedy.

A university professor who works as a guide for Ph.d.students can certainly be said to be

well qualified to do the work of a primary school teacher. That does not mean that the

professors imparting the work of training the pupils of primary school. There is world of

difference between can and should. Simply because the High Court can entertain such a

petition it does not mean that in all cases the High Court should entertain such matter. If this

distinction is not borne in mind and ordinary channels for redressal of the grievances of

citizen are not allowed to be fully utilized as intended by the legislature, emergency gates or


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escape routes would very probably burst out leading to chaos in the system. Therefore the

rule of convenience demands that the litigants be not allowed to bypass their normal channel

and be not permitted to use the emergency gates and / or escape routes as an ordinary

passage.56

Scope

In England, the proceedings for enforcement or rights through a writ are civil in

56. T.K. Rabari v. State of Gujrat, (1989) 1 LLJ 98 PP. 99, 100.

nature and petition in India, under article 226, is not different. 57 The jurisdiction under

article 226, can be exercised only in interest of justice and Can not be invoked for unfair

advantage58. This jurisdiction can be invoked only when there is infringement of petitioners

right or alleged threat to it.59

Persons other than those claiming fundamental rights can also approach the

High Court seeking relief under article 226,60 because the scope of writs available under

article 226 has been widened by use of expression nature which expression does not equate

the writs that can be issued in India with those in England but draws an analogy from them,61

and a writ, order or direction will issue to remedy a wrong but not to promote one. 62 The

courts are certainly the ultimate authority to retrain all exercise of absolute or arbitrary

power by subordinate tribunals.

Writ can be issued even in cases of infringement of private right by any person or

authority if some statutory authority or officer has passed any order causing such

infringement. It has also been held that in such cases it is not necessary as to what is the

source of power. The source of power may be from the bye-laws which also have no

statutory stature.63


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57. Shiv Prasad v. State of U.P., AIR 1965 All 106.

58.Begum A. H. Khan v. R.T.A. Meerut, 1963 All LJ 909.

59.B.C. Das v. R.C. & E.O. Allahabad, AIR 1952 All 8.

60. Calcutta Gas Co. Ltd. v. State of W.B., (1962) 2 SCA 147.

61.Dwarka Nath v. I.T.O., Kanpur, (1965) 2 SCA 868.

62.K.Ramulu v. D.C. of Excise,Hry, (1964) 1 And Lt 403.

63.Raghunath Dwivedi v. V.C. University of Allahabad, AIR 1996 All 310.

One such limitation is that the High Court will not normally go into disputed

questions of fact.64

Under article 226, power is achieving twin objectives, one is for the enforcement of

any of rights conferred by part III and other is for any other purpose. But it is well settled

that when there is an infringement of fundamental right, the court will liberally consider the

objection on the ground of delay and laches.

Thus the power under article 226 of the constitution has been conferred in a very

wide terms and to secure the aforesaid two objectives. This makes the jurisdiction of High

Court under article 226 of Constitution much wider than the jurisdiction conferred on the

honble Supreme Court under article 32 of constitution.65

Although there is no law which prevents High Courts from taking or scanning

evidence for investigating a pure question of fact and article 226 has imposed no such

limitations as are imposed under section 100 and 101 Civil Procedure Code in a second

appeal.66

However, in view of the nature of jurisdiction under article 226, the High Court

should not determine question of fact, nor should it determine whether a scheme has been

validly framed67, nor would it be open to a petitioner to challenge the merits of finding68 nor


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will the High Court function as a court of appeal and examine the question whether the

findings were based on a proper assessment of probative value of evidence, except in

exceptional cases such as examination of fact on which jurisdiction of an authority depends,

or such when a finding is shown as tainted with any error of law apparent on record

64. D.L.F. Housing Const. (P.) Ltd. v. Delhi Municipal Corp. Ltd., AIR 1976 SC 386.

65.Mohan Prasad Singh v. State of Bihar, 1999 (3) BLJ 200.

66.Raja Himanshu Dhar Singh v. Addl. Registrar Co-op Societies, U.P., AIR 1962 All 439.

67. Sri Jagadgur v. Commr. of AIR 1965 SC 502

68. Associated Cement Co. Ltd Hindu Charitable Endowment, Hydrabad,. v. P.D. Vyas,

(1961-62) 20 FJR 59.

of law apparent on record or vitiated for contravention of rules of Natural Justice or want of

jurisdiction or such when unreasonableness of inference is patent on record or when the

construction of a statue is found to be wrong.

The exercise of jurisdiction under article 226 is judicial and not administrative.

Therefore, it is not open to High Court to hold in any case whether in doing a particular act,

e.g., that a particular building is required for state purposes 69, the government or any other

officer was justified, malafides being always an exception70.

The property belonging to the army is the property of the central government over

which any citizen can maintain a petition if any of his fundamental rights is infringed.

Holding the Indian army to be distinct entity would lead to dangerous consequences. Such a

conclusion would result in giving a license to various organs of union of India to claim

independent and distinct rights in their favour.71

Where a finality to any matter is attached by provisions of a statute, that matter does

not remain justifiable, and the finality so created by statute may operate even to restrict


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power of Supreme Court under article 32.72 But that does not mean that the jurisdiction of

High Court under article 226 or Supreme Court under article 32 or on appeal, has been

impaired. What follows is that the special powers of these courts cannot extend to reopening

a finding by state government given under the provisions of an Act.73 Thus the High Court

or Supreme Court can not go into the question of unfairness or unreasonableness of a rule,

and what these courts can see is whether such rule is valid and applicable. 74 So again, when

the allegation is that certain

69.Revenue Divisional officer, Salem v. D. Krishnamurthy, AIR 1961 Mad 475.

70. Ibid.

71. G. Khot v. Station Commandant, Belgaum, AIR 1998 Karnatak 300.

72. Somvati v. State of Punjab, Air 1963 SC 151.

73.Lilawati Bai v. State of Bombay, 1957 SCR 745.

74.Hazarilal Srivastva v. Tulsipur Sugar Co. Ltd., AIR 1964 All 411.

application on behalf of the petitioner had been made under some misapprehension or in

ignorance of petitioners rights, it is for petitioner to approach the appropriate authorities

and it is not open under the writ jurisdiction to interfere in such matters. The point is that

matter which is within exclusive jurisdiction of a lower tribunal under some special act as

for example a question of urgency in any matter or, say a question of existence of any

industrial dispute 75, the same is not open for examination of High Court under article 226.76

The power under article 226 is jurisdictional. The High Court acting under this

article exercise jurisdictions 77 and existence of right is foundation of High Courts

jurisdiction under that article78, and therefore, the conferment of an additional power on

existing courts or even the creation of new courts does not create any new jurisdiction. 79


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The jurisdiction under article 226 is special and peculiar right, and it can not be

utilized simply to enable a petitioner to advance a money claim. Therefore, powers of an

appellate authority under particular provisions of statute are much wider and an analogy

between appellate powers under the provisions of statute and that under article 226 cannot

be drawn.80

The proceedings of a writ are summary proceedings and the High Court can not start,

in proceedings under this article such inquiry as can be done in regular suit nor can it be

questioned under this article that the appellate tribunal has not set out in its judgment all the

relevant reasons.81

75.Management of Rly Employees Cop. credit society Ltd. v. Industrial Tribunal, 1962 Raj

LW 417.

76. Girdhari Lal Bulaki Ram v. LJ. Johnson, AIR 1961 Puny 464.

77.Khacheru Singh v. S.D.O. kirsuya, ILR (1960) 1 All 429.

78.RTA, Gorakhpur v. Kanshi Prasad Gupta, AIR 1962 All 551.

79. Sheo Prasad v. State of U.P., AIR 1965 All 106.

80. Collector of Contral Excise, Madras v. V.K. Palappa Naddar, AIR 1964 Mad 111.

81. Sri Rama Vilas Service (P) Ltd. v. C. Chandraskher, AIR 1965 SC 107.

It is only in extraordinary case where authorities act without jurisdiction, the High

Court can interfere in exercise of the powers conferred under article 226 of the

constitution.82

In the instant case the writ petition was taken up in the form of public interest

litigation on the basis of petition sent by petitioner. The petitioner is an educated and is a

doctor by profession. He is seeking a personal relief to himself. It is not a litigation being

fought in the interest of public cause. The question whether he is in possession of the

premises in question or not is a pure question of fact. He states that he is in possession of the


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premises, whereas, the owner states he is not in possession. The inspector of police in his

counter affidavit stated that the cases were registered on the complaints filed by the parties

and on enquiry during investigation it was found that the owner is in possession of the

garage and that was not given on rent to the petitioner. The garage was demolished by

landlady. No car was kept by the petitioner is not in possession of the garage. The petitioner,

when examined, did not produce rental deed or any document to prove that he is in

possession of the premises.

The writ petitioner has misconceived his remedies in filling the writ petition

invoking the jurisdiction of the High Court under article 226 of the constitution of India,

particularly when the merit or otherwise of the claim, which requires to be proved and

substantiating seriously dispute factual issues, which requires to be proved and substantiated

on the basis of oral and documentary evidence that may be adduced by either of the parties.

A challenge to the merits of findings83 is not open in proceedings under article 226

and even if there be an error of law apparent on the face of record, the usual course in the

issue of writ is to correct the error and send the case back to the concerned tribunals 84. In the

exercise of jurisdiction under article 226, the validity of an order should be judged a

consideration of its on

82. E.I.D. Parry (India) Ltd. v. Regional Director, TN, ESI Corp., 1995 (1) MLJ 261.

83.Associated Cement Co. Ltd v. P.D. Vyas, (1960) 1 Lab. LJ 563.

84. T. Prem Sagar v. Standard Vaccum Oil Co., Madras, (1964) 5 SCR 1030.

substance and not its form and if it can be shown that an order was within competence of

authority to pass, under some provision, the fact that the order purports to be made some

wrong provisions, can not fall the competence of that authority, 85 and it is not for the High

Court to say whether the authority has taken a correct view of the facts or whether it has


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interpreted any documents rightly or wrongly,86 nor would the High Court interfere where a

previous grant has been superseded as an obvious case of mistake.87

It is very well within the jurisdiction of High Court to quash any proceedings before

any, tribunal including labour court, if it finds that its appointment is illegal or

unconstitutional orultra vires88. If there is violation of any statutory rule or if any rule exists

which is contrary to any existing Act, the High Court would strike down the rule and hold it

illegal orultra vires89, and when the validity of an order is challenged, the High Court would

not be restricted merely to the pleading of the state, and any particular statement in a

counter-affidavit will compel High Court to examine validity of the impugned order in that

background only. The court will not embark on a trial of some issue.

Protection of environment is a constitutional goal. It has to be realized by active

guards of the state and citizens thereof. As was directed by the apex court in Charanlal Sahu

v. UOI90, steps should be taken to create separate tribunals, and appoint a body of experts to

advise the government in environmental issues. States should play a positive role for the

protection of environment. This being a constitutional mandate, welfare of the people at

large has to be

85.Abdul Ahmed v. I.G.P., U.P., (1965) 1 Lab. L.J. 791.

86.Jagannath Prabhashankar Joshi v. Vasikar, AIR 1961 Bom 244.

87.Debi Ram Sharma v. HC of Judicature for State of Punjab, AIR 1963 Puny 46.

88.PNB v. G.M. Hajee, Labour Court, 1969 Lab. I.C. 1574 (J&K).

89. 1968 Kash LJ 106.

90. AIR 1990 SC 1480.


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looked into, and in such matters the court can not sit with eyes closed. A petition under

article 226 can be disposed of on the basis of uncontroversial statements made in counter-

affidavit on the footing that facts states in such counter-affidavit are correct.91

Power of High Court in revision can not be said to be wider than those under article

226.92

The decision in writ petition forhabeas corpus, has to be regarded as decision of the

High Court rather than any of its bench as separate court.93

The scope of judicial review in confined to two circumstances, i.e.

a) Where there is judicial review in confined to the part of state financial company.

b) Where the state financial corporation acts unfairly, i.e, unreasonable while exercising

its jurisdiction under article 226 of the constitution, the High Court does not sit as an

appellate authority over the acts and deeds of the corporation. Similarly, the courts other

than the High Courts are not to interfere with action under section 29 of the State Financial

Corporation Act unless the aforesaid two situations exist.94 While judicially reviewing an

administrative decision, the duty of the court is to confine itself to the question of legality its

concern should be

a) whether a decision making authority exceeded its powers,

b) committed an error of law,

c) committed a breach of rule of the Natural Justice,

d) reached a decision which no reasonable tribunal would have reached,

e) abused its powers.

91. Bipin Bihari Das v. State of Orissa, (1967) 1 Lab. L.J. 787.

92.Bhartiya Hotel v. UOI, AIR Pat 476.

93.Ram Kumar v. DM, Delhi, 1966 Cr LJ 153.


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94. State Financial Corp. v. Jagdamba Oil Mills, AIR 2002 SC 834.

Therefore, it is not for the court to determine whether a particular policy or particular

decision taken in the fulfillment of that policy is fair. It is only concerned with the matter in

which those decisions have been taken. The extent of duty to act fairly will vary from case

to case.95

The writ court can not consider the relevance of qualification and eligibility

prescribed for various posts to be filled up through an advertisement and there is no scope of

judicial review in such situation.96

Powers not limited to prerogative writs

1. The public law remedy given by article 226 is to issue not only the prerogative writs

but also any order or direction to enforce any of the fundamental rights and for any other

purpose. The distinction between public law and private law remedy by judicial

adjudication is gradually getting marginalized and obliterated.97

2. The powers of High Court under article 226 like those of the Supreme Court under

article 32 are not confined to prerogative writs and High Court, in issuing directions,

orders and writs under article 226 can travel beyond the contents of the writs which are

normally issued as writs of habeas corpus, mandamus, prohibition, quo-warranto and

certiorari.98

3. Article 226 speaks not of the English writs but of writs in the nature of those writs;

consequently, there is no reason why the High Courts in India should feel oppressed by the

procedural technicalities of the English writs.99

Thus, the court can make order or issue a

95.Kanwar Pal Singh v. State of U.P., AIR 2002 All 27 at P.40.

96.Indra Kumar Shukla v. Zila Basic Shiksha Adhikari, Jaunpur, 2002 All LJ 691.

97.All India Statutory Corp. v. United Labour union, AIR 1997 SC 645.

98. Irani, P.J. v. State of Madras, AIR 1961 SC 1731.


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99. T.C. Bassappa v. T. Nagappa, AIR 1954 SC 440.

writ in the nature ofcertiorari in all appropriate cases and in appropriate manner, so long as

we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in

the matter of granting such writs in English law. The expression directions, orders or writs,

including writs in the nature of certiorari reproduces the identical expression used in

article 32(2), where it has been liberally interpreted.100

4. The court can also mould the relief to meet the peculiar to complicated requirements

of this country, 101 provided, in so doing, the High Court does not contravene any provisions

of constitution or law declared by the Supreme Court in this behalf.102 Any technical

construction of this power would defeat the purpose of the article itself.

5. For the same reason-

a. Under article 226, the High Court has the power to set aside an ultra vires executive

order, whether or not the writ of certiorari is attracted to it, The same principle has been

applied toprohibition.103

b. The court under article 226, has also the power to give consequential relief, such as

ordering repayment of money realized without the authority of law or under an invalid

law.104

c. In proper cases, declaratory relief may be granted in a petition under article 226, e.g,

declaring some act of statutory body to be ultra vires and like,105 even though such relief was

not brought in proceeding for a prerogative writ under English law.

100.Bandua Mukti Morcha v. UOI, AIR 1984 SC 802.

101.Dwarka Nath v. I.T.O., AIR 1966 SC 81.

102.Desai Jasbhai Matibhai v. Roshan Kumar, AIR 1975 SC 578.


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103. Calcutta Discount Co. Ltd. v. I.T.O., AIR 1961 SC 372.

104. State of M.P. v. Bhailal Bhai, AIR 1964 SC 1006.

105.Bidi Leaves & Tobacco Merchants Assn. V. State of Bombay, AIR 1962 SC 486.

6. The Court can, under articles 32 or 226, give any direction requiring affirmative

action or positive activity where, under the corresponding prerogative writ, the court could

only set aside the order complained of.106

Grounds upon which only an application should not be refused

1. Though it is desirable that the prayers in an application under article 226 should be

as specific and definite as they can be, the court is not powerless to afford necessary relief in

proper cases. Merely because in the cause title article 226 has not been specifically

mentioned and the proper writ or direction has not been prayed for, an application which is

in substance one under article 226 cannot thrown out. The court should mould the remedy

according to the circumstances of the case. Thus, certiorari may be issued where only

prohibition was sought for.107

2. For the same reason, though the illegality of appointment of a de facto officer can

not be questioned in a collateral proceeding, where a party challenges the decisions or order

of an officer on the ground that it was a nullity on account of his lacking the quantification

for challenging the appointment. Hence, even though the writ of quo warranto may not have

been specifically asked for in the petition, the court may, on such pleadings, declare the

appointment invalid in such proceeding, because to strike down usurpation of office is a

function and duty of High Court in exercise of its constitutional powers under articles 226

and 227.108

3. It is open to the applicant to ask for some specific reliefs and such other relief as the

court may been fit and proper.109 Under such residuary prayer, the court may grant an

106. State of Kerla v. T.P. Roshana, AIR 1979 SC 765.


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107. Sriniwas v. S.D.O., AIR 1952 All 590.

108. State of Haryana v. Haryana Co-op. Transport Ltd; AIR 1962 SC 1161.

109. Satya Narain Singh v. Dy. Engineer, P.W.D., AIR 1954 SC 207.

applicant the proper relief which he should get in view of changed circumstances, even

though that relief may be altogether different from the specific relief asked for.110

Where Fundamental rights are not affected.

1. One of the grounds against the exercise of the discretion in such cases, would be that

the right claimed by the petitioner is not capable of being established in the summary

proceeding under article 226 because it requires a detailed examination of the evidence as

may be had in a suit.111 The object of article 226 is the enforcement and not establishment of

right or title. A petition under article 226 cannot be converted into suit. In case of highly

disputed questions of fact for decision, civil suit would be the appropriate action and the

question of reasonableness of the scales of rates and statements of conditions framed by the

Dock Labour Board for rendering services to the shippers can be decided by the central

government and not by High Court in a writ petition112.

2. The principle has been extended even to mixed questions of fact and law.113

3. In general, therefore, a disputed questions of fact is not investigated in a proceeding

under article 226, particularly where an alternative remedy is available114 e.g.-

a) The merits of rival claims to property or disputed question of title.

b) Whether a person is foreigner within the meaning of the foreigners Act, 1946,

whether the petitioner was casual labourer or not.115

110. K.S. Rashid v. I.T.Investigation Commission., AIR 1954 SC 207.

111. UOI v. Ghaus Mohammad, AIR 1961 SC 1526.

112. Vishakhapatnam Port Trust v. Ram Bahadur Thakur Pvt. Ltd. AIR 1997 SC 1057.

113.M/S Sri Triumala Venkasteswara Timber v. C.T.O., AIR 1968 SC 784.


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114.Jai Singh v. UOI, AIR 1977 SC 898.

115. Dabur Pvt Ltd. v. Workmen, AIR 1968 SC 17.

c) Where the determination is that of an expert body, in the absence of malafide, 116

d) Claims arising out of breach of contract or tort.117

e) Where the petition rests on allegations of malice in fact.118

4. This is, however, a rule of discretion and not of exclusion of jurisdiction. Hence, the

court is not, in a proceeding under article 226, incompetent to decide an issue of fact which

can be determined from the materials on record. Hence, the court can not dismiss in limine a

petition under article 226, merely observing that it raises a question of fact, without

determining whether the question can be decided on the material on the record, whether the

petitioner has an efficacious alternative remedy and whether the case is otherwise fit for

exercise of the writ jurisdiction.119

Where the judgement, decree or order has been obtained by allegedly committing

fraud on the court, it is obliged to decide the question regarding fraud recording evidence

and in appropriate cases, it can recall its decree or order.120 where the collector had already

decided the question of fact as to the title to the property concerned and appeal against the

said order was pending, the High Court was justified in not going into that question and

relegating the parties to the decision of the appellate tribunal. 121 Seriously disputed questions

or rival claims of the parties with regard to breach of contract are to be investigated and

determined on the basis of evidence which may be led by the parties in a properly instituted

civil suit rather than by a court exercising prerogative of issuing writs122. A writ petition

116.Maheswar Prasad v. Suresh Singh, AIR 1976 SC 1404.

117. UOI v. T.R. Verma, AIR 1957 SC 882.

118.Regional Manager v. Pawan Kumar, AIR 1976 SC 1766.


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119. Om Prakash v. State of Hry., (1970) VJ SC 481.

120.Indian Bank v. Satyam Fibres (India) Pvt. India, (1996) 5 SCC 550.

121. UOI v. S.J. Thauawalla, (1996) 8 SCC 469.

122. State of Bihar v. Jain Plastics & Chemicals Ltd. (2002) 1 SCC 216.

involving serious disputed questions of fact which requires consideration of evidence which

is not on record, will not normally be entertained by a court in exercise of its jurisdiction

under article 226 of the constitution, but there is no absolute rule that in all cases involving

disputed questions of fact, the parties should be relegated to a civil suit.

Where aFundamental Rights has been infringed

1. As has been stated earlier under article 32, the Supreme Court has held123 that where

the breach of fundamental rights has been prima facie established, the court would not be

justified to reject the petition on the simple ground that it involves a determination of

disputed questions of fact, because it is the duty of Supreme Court to enforce fundamental

rights.

2. There is no reason why the above principle should not be applicable to a petition

under article 226, where it has been brought for the enforcement of a fundamental rights, for

the duty of High Court to protect the fundamental rights cannot, in any way, be less than that

of Supreme Court124.

3. But the Supreme Court has held in some cases that even where the infringement of

fundamental rights is alleged, the High Court would be justified in dismissing an application

under article 226 in limine where the determination of the constitutional question depended

upon the investigation of complicated questions of fact, on taking evidence. 125


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4. Of course, the earlier doctrine that where fundamental rights are affected, it is duty

of Supreme Court to interfere has been seriously weakened by later decision, which have

applied doctrines of laches even to applications under article 32.126

Nevertheless, a distinction must be made between considerations like laches or

acquiescence which disentitle a litigation by his own conduct and the problem of

investigating

123.Kochunni, K.K. v. State of Madras, AIR 1959 SC 725.

125.Bandhua Mukti Morcha v. UOI, AIR 1984 SC 802.

126. Tilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898.

facts which is founded on the courts reluctance, which should not be allowed to be made

into a rule of thumb to dismiss a petition under article 32 or 226, even where there is a prima

facie invasion of a fundamental rights. To do so would, as Hegde J., in his dissenting

judgment in Trilok Chands Case127 observed, pull down from the high pedestal now

occupied by the fundamental rights to the level of other civil rights, thus down grading the

fundamental rights guaranteed under the constitution.

Acquiescence

Relief under articles 32 or 226 has also been refused on the ground of acquiescence.

(i) In general, a person who submits to the jurisdiction of an inferior tribunal and takes

part in the proceedings without objection on the ground that the tribunal has no jurisdiction,

cannot, after having failed in these proceedings, turn round and question the jurisdiction on

that tribunal, in a petition under article 226.128


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(ii) A regards the constitutionality of statutes even, the view has been taken that though

an unconstitutional statute cannot be validated by estoppels or acquiescence, a person who

has received a benefit under a statute is not entitled to challenge its constitutional validity.129

But where an order under a statute violates a persons fundamental rights, he cannot

be said to have lost his right to challenge the constitutionality of the statute merely on the

ground that he had applied for an order in his favour under that statute. 130

(iii) As to the effect of acquiescence in proceedings ofprohibition orcertiorari on the

ground of want of jurisdiction.

127.Ibid.

128.Maharashtra State Road Transport Corp.v.Balwant Regular Motor Services, AIR 1969

SC 329

129.Nain Sukh Das v. State of U.P., (1953) SCR 1184.

130.Rama Rao v. State of A.P., 1961 (2) SCR 931.

(iv) The principle underlying the doctrine of acquiescence is that the omission on the part

of petitioner to assert his right, has caused prejudice to the adverse party. The appellant was

selected to the post of lecturer but the Vice-chancellor disapproved the selection and

directed the post to be re advertised. After re-adverstisment the appellant again applied for

the same post and appeared before the selection committee the order of the V.C.

disapproving her selection by any discretionary relief.131

(v) In another group of cases it has been held that where fundamental right has been

infringed, acquiescence, by itself, may not be ground for refusing relief, e.g., for challenging

an unconstitutional tax which infringes article 19 (1) (g)132, or a law which infringes Art 30


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(1)133. The principal is- There can be no loss of fundamental rights merely on the ground of

non-exercise of it.134

(vi) When a public interest litigation has been entertained the individual conduct of the

writ petitioner would take a back seat. There can not be any doubt whatsoever that in a given

case a party may waive his legal right. In an appropriate case, the doctrine of acquiescence

or acceptancesub silentio may also be invoked, but the High Court, in the instant case, has

gone into question with a wider perspective. The Supreme Court is not only required to

construe the provisions of the statute but also to take into consideration the subsequent

events which took place vis-a-vis the action on the part of the state after passing the interim

order. The issue as regards the application acquiescence or wavier has become irrelevant.

Against Whom Writ Lies

Old View- Under article 32 as well 226 of constitutional writs or orders or directions lies

131. Sunita Aggarwal v. State of Hry., AIR 2000 SC 1058.

132.Amakgamated Coalfields v. Janpada Sabha, AIR 1961 SC 964.

133.Kerala Education Bill, in re, AIR 1958 SC 956.

134.Ashok Lanka v. Rishi Dixit, (2005) 5 SCC 598.

against any person or authority, including in appropriate cases any government. Under

article 12 of the constitution, it is provided that in Part III of the constitution the expression

State shall include the government and parliament of India and the legislative of each state

and all other authorities within territory of India or under the control of the government of

India. Apart from the state government and government of India, what are the other local or

other authorities who are amendable to writ jurisdiction have been considerate in a large

number of cases. The earlier view of the Supreme Court was explained in case of Sukhdev

Singh v. Bhagatram135, in which the Supreme Court held that the expression other


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authorities under article 12 is wide enough to include within it every authority created by

the statue and functioning within the territory of India or under the control of government of

India. In this case the question for consideration by the Supreme Court was whether an order

of removal from service contrary to the regulations framed under the Oil and Natural Gas

Commission Act, 1959, the Industrial Finance Corporation Act, 1948, Life Insurance of

Corporation of India Act, 1956 enables the employees a declaration against the Statutory

Corporation of Continuance in service or would only give rise to claim for damages.

Prior to Sukhdevs case in the case ofRajasthan StateElectricity Board, Jaipur v.

Mohanlal, 136 the Supreme Court held that authority is a public administrative agency or

corporation having quasi-governmental powers and authorized to administer revenue

producing public enterprise.

It was the view of the Supreme Court in some other earlier decisions that the

expression other authorities under article 12 will include all constitutional or statutory

authorities who are created by law and on whom powers are conferred by law.

Relying upon this old view it was held that a writ petition challenging the

termination of service of an assisstant teacher of college impleading the committee of

management, the president of the committee etc. was not maintainable as none of the

135. AIR 1975 SC 1331.

136. AIR 1967 SC 1857.

opposite parties was a public authority and the impugned orders were not made in exercise

of its statutory functions.

In Anandi Muktha Sadguri S.M.V.S.J.M.S. Trust v. V.R. Rudani, 137 Supreme Court

for the first time held that the authority used under article 226 must receive a liberal

meaning unlike the term in article 12 of the Constitution. Where rights are purely of a


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private character, no mandamus can issue. If the management of college is purely a private

character, no mandamus can issue. If management of college is purely a private body with

no public duty, mandamus will not lie. These are two exceptions to mandamus. But once

these are absent and when the party has no other equally convenient remedy mandamus can

not be denied. The law relating to mandamus has made a spectacular advance. Article 226

confers wide powers on High Courts to issue writs in the nature of prerogative writs. This is

striking departure from English law. Under article 226, writ can be issued to any person or

authority. It can be issued for the enforcement of any of fundamental rights and for any

other purpose.

When does not lie

Chandra Mohan Khanna v. NCERT, 138 it was held that article 12 should not be

stretched so as to bring in every autonomous body which has some nexus with the

government within the sweep of the expression state. A wide enlargement of the meaning

must be tempered by a wise limitation. It must not be lost right of that in the modern concept

of welfare state, independent institution, corporation and agency are generally subject to

state control. The state control does not render such bodies as state under article 12. The

state control, however, vast and pervasive is not determinative. The financial contribution by

state is also not conclusive. The combination of state-aid coupled with an unusual degree of

control over the management and policies of body and rendering of an important public

service being the

137. AIR 1989 SC 1607.

138. AIR 1992 SC 76.

obligatory functions of vital public importance, there may be little difficulty in identifying

the body a state under article 12 as activities of NCERT comprising undertaking several


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kinds of programmes and activities connected with the co-ordination of research extension

services and training and dissemination of improved educational techniques collaboration in

the educational programmes and preparation of and publication of books are not wholly

related to government functions.

No writ lies to non-statutory bodies exercising the non-governmental functions.

Locus Standi

In India, there is no law and /or any restriction has been put forth as to the persons

who may file a writ application under article 226 and /or 32 of the Constitution of India. But

it is well settled by several decisions of Supreme Court of India that the person aggrieved

can file writ application. In other words, there must exist some subsisting legal and /or

constitutional right which has been violated or infringed and in such a case a person can file

writ application. So far as the article 32 is concerned, the same is available for breach of

fundamental rights. But under article 226, the same is available not only for the violation of

any fundamental rights but also for violations of any legal rights. In UK, Sec 31(3) of

Supreme Court Rules, 1981 had laid down that unless the applicant has sufficient interest,

no relief should be granted for filing an application for judicial review by the court.

Accordingly, before granting leave the court must satisfy that the applicant has sufficient

interest in the matter to which the application relates. This change in the law was brought

about afterBlack Burn Series of cases. In England, Lord Denning in various statements

liberalized and lowered the standing requirement in a series of cases, which is known as

Black Burn Series of cases. In R. V. Commissioner of Police,139

a writ petition was

entertained at the instance of Mr. Black Burn. In the former case, when the police authorities

139. (1973) Q.B. 241.


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were not proceeding against the small gambling clubs in London under a policy division and

in the latter case on the ground of failure of the police authority to enforce the law against

pornography. In this case, it was held that the applicant has sufficient interest to be protected

and /or right to see that the police did not act on the basis of mistaken policy decision, but

the House of Lords took a different stand in Gourmet v. Union of Post office workers &

others140 and held that it was fundamental principle of English Law that Public right can

only be ascertained in civil action by Attorney General or officer representing public except

where statute otherwise provide a private person could bring action to restrain against

threatened breach of law if his claim was based on allegation as a threatened breach would

constitute an infringement of the private right or would inflict special damage on him.

The term Locus Standi, standing to sue denote the existence of right of an

individual or group of individuals. The court always requires that a litigant have standing to

challenge the action sought to be adjudicated in the proceedings. No aspect of administrative

law has been changed more rapidly than the law governing a standing. The question of locus

standi to present petitions under articles 32 and 226 has its importance because the Supreme

Court and High Courts may not entertain such petitions filed by incompetent persons.

Ordinarily writ application can be filed only by a person aggrieved and not by stranger

except in public interest litigation and in case of writ ofquo-warranto. Neither article 32 nor

226 of constitution has laid down as to who the persons are entitled to invoke this

jurisdiction.

In Chairman, Rly Board v. Chandrima Das 141

, the Supreme Court held that in a

public interest litigation filed by an advocate in respect of some personal injury caused to a

lady who came from Bangladesh while she arrived at Howrah railway station with a view to

catch a train for Ajmer who was taken by some of the employees of Railway to Yatri Niwas


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and raped there by four employees. Such a public interest litigation was held to be

maintainable and

140. (1977) 3 All ER 70.

141. AIR 2000 SC 988.

in this connection, the Supreme Court held that though initially a petition under article 226

of constitution relating to commercial matter was held not to lie, but the law has undergone a

change by subsequent decision and even contractual matters are amendable to writ

jurisdiction. The public law remedy has also been extended to a realm of tort and the court

can award compensation to petitioners who suffer personal injury amounting to tortious act

at the hands of the officers of government. It was held that rape is an offence which is

violative of fundamental right of person guaranteed under article 21 of the constitution. The

existence of legal right is the foundation for petition under article 226 and bare interest, may

be of minimum nature, may give locus standi to a person to file a writ, but the concept of

locus standi to a person to file a writ, but the concept of locus standi has undergone a sea

change. There has been a spectacular expansion of the concept of locus Standi. The

concept is much wider and it takes in its stride any one who is not very busy body. Public

spirited citizens having faith in the rule of law are rendering great social and legal service by

exposing cause of public nature. They cannot be ignored or overlooked on the technical or

conservative yardstick of the rule oflocus standi or in absence of personal loss or injury.

When can court treat letter addressed to it as writ petition?

The Supreme Court under article 32 and High Court under article 226 of constitution

can treat a letter as a writ petition and take action upon it. It is not every letter which will be

treated as a writ petition by the Supreme Court or High courts. It is only where a letter is

addressed by an aggrieved person or by a public spirited individual or social action group for


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enforcement of the constitutional or legal rights of a person in custody or of a class or group

of persons who by reason of poverty, disability or socially or economically disadvantaged

position find it difficult to approach the court for redress that Supreme Court or High Courts

would be justified nay bound, to treat the letter as a writ petition. There may also be cases

where even a letter addressed for redressal of a wrong done to an individual may be treated

as a petition where the court considers it expedient to do so in the interest of justice. It is

highly effective weapon in the armory of law for reaching social justice to the common man.

Even if a letter addressed to an individual judge of the court it should be entertained

provided it is by or on behalf of a person in custody or on behalf of a woman or a child or a

class of deprived or disadvantaged persons.

The Supreme Court in the case ofBandhua Mukti Morcha v. UOI 142 considered

danger inherent in a practice where the mere letter is entertained as a petition from a person

whose antecedents and status are unknown or so uncertain that no sense of responsibility can

without anything more be attributed to the communication. The practice of addressing letters

to a particular learned judge was deprecated and it was held that this practice should be

followed only in any exceptional cases and particularly in matters of general public interest.

A public interest litigation may be initiated on the basis of a letter addressed to the

court in appropriate case. On the basis of letter addressed by one Laxmikant Panday, an

advocate complaining of malpractice indulged by social organization and voluntary agencies

engaging in the work or offering Indian children in adoption to the foreign parents, the

Supreme Court laid down a normative and procedural safeguard to be followed in this behalf

for the welfare and interest of Indian child.

Compensation / Damages


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It has been seen under article 32 that reversing its early view that no monetary relief

can be granted in a writ proceeding, the court may, in an appropriate case, award

compensation to the victim of infringement of fundamental rights.143

In public law, claim for compensation is a remedy available under articles 32 and

226 for the

142. AIR 1984 SC 802.

143. SAHELI v. Commr of Police, Delhi, (1990) 1 SCJ 300.

enforcement and protection of fundamental and human rights.144 Public law remedy for the

purpose of grant of compensation can be resorted to only when the fundamental right of a

citizen under article 21 of constitution is violated and not otherwise. It is not very violation

of the provisions of constitution or a statute which would enable the court to direct grant of

compensation. The trial court awarded compensation to the victim of offence of rape and

directed the same to be paid by the state and it was confirmed by High Court in an appeal

against conviction. The accused by a special leave petition in which the state sought to

challenge the award of compensation. The Supreme Court held that it was not open to the

state to challenge the same in the appeal filed by the accused145. In case of damages, it

should be proportionate and with some statement respecting that in the order146. Such a claim

based on strict liability made by resorting to constitutional remedy, provided for the

enforcement of fundamental rights is distinct from, and in addition to the remedy in private

law for the damages for the torts. It is in fact an innovation of a new tool with courts which

are the protectors of civil liberty of the citizen. However, it would not be correct to assume

that every minor infraction of public duty by every public officer would command the court

to grant compensation in a petition under article 226 and 32 by applying the principle of

public law proceeding. Before exemplary damages can be awarded it must be shown that


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some fundamental right under section 21 has been infringed by arbitrary or capricious action

on the part of public functionaries and that the sufferer was helpless victim of that act.147

The same principles have been followed in cases under article 226.148 In case of hand

cuffing of an undertrial prisoner, the High Court awarded compensation for violation of

article 21, and it was

144. Consumer Education & Research Centre v. UOI, AIR 1995 SC 922.

145.Dinesh v. State of Rajasthan, (2006) 3 SCC 771.

146.Bihar State Housing Board v. Ranjan Roy, (1997) 6 SCC 487.

147.Rabundra Nath v. University of Calcutta, (2002) 7 SCC 478.

148. State of Maharashtra v. Ravikant, (1991) 2 SCC 746.

confirmed by the Supreme Court. Similarly, the Supreme Court has affirmed order for the

payment of compensation, in a proceeding for mandamus by father whose child died by

falling into a sewage tank which was left uncovered by negligent local authority.149

The mere fact that the claimants of compensation had suffered loss, owing to the

electric transmission wires belonging to Grid Corporation having snapped and deceased

coming in contact therewith and dying, is not sufficient for awarding compensation. The

court is required to examine whether the loss was caused by the negligence of the

defendants, i.e., the wire snapped due to their negligence. The defendants are to be given

opportunity to prove that proper care and precautions were taken in maintaining the line and

yet wires had snapped due to circumstances beyond their control or unauthorized

intervention of the third parties. Such disputed questions of fact cannot be decided under

article 226.150

An army officer was invalidated out of service on account of disability attributable to

his military service. He had been knocking at the doors of the authorities for nearly three

decades during his life time without grant of any relief and was unable to obtain direction


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for re-examination by a Medical Board which was required to be done within one year of his

being invalidated out of military service. Intimation for re-examination by Medical Board

was sent after one year of his death. The single judge of the High Court directed for the

payment of Rs. 3 lakh as compensation in favour of the widow of said officer besides the

amount on account of disability pension and special family pension with interest @ 18%.

The Division Bench set a side the order for compensation, holding that it was virtually

penalizing the government. The Supreme Court declined to go into the question whether

there was violation of fundamental right or not and set aside the order of the Division Bench

and directed to pay the compensation

149.Kumari v. State of TN, AIR 1992 SC 2069.

150. A.K. Singh v. Uttrakhand Jan Morcha, (1999) 4 SCC 476.

within a period of 4 weeks.151

General Grounds for refusing relief under article 226

The exercise of the powers for other purpose (i.e.; purposes other than the

enforcement of fundamental rights) is discretionary.

Hence, in such cases, the application may be refused by the court upon a

consideration of certain circumstances as disentitling the applicant to relief even though he

may have a legal right which has been infringed, e.g.,

a) That there is an alternative remedy.

b) That the conduct of the applicant is such that he does not deserve the discretionary

remedy, e.g., that he is guilty of laches or acquiescence or that he has not come with clean

hands.


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c) That the applicant had waived his legal (not fundamental) right, 152 by his conduct in

circumstances similar to those required to constitute estoppel.

d) That the applicant had misrepresented or suppressed the material facts in his

affidavit, thus misleading the court.153

e) That disputed facts have to be investigated in order to give relief to the petitioner.

f) That the writ would be futile or ineffective or of a mere academic interest but not if

the impugned order or notification subsists by the virtue of legislation or where renewal of a

yearly license is almost automatic.

151. Savitra Devi v. UOI, (2005) 10 SCC 325.

152.Krishan Lal v. State of J&K, 1995 (2) LLJ 718.

153. State of Hry. v. Karnal Distillary Co.Ltd., AIR 1977 SC 781.

g) Where the petition has become infractuous by reason of subsequent orders which are

not challenged.

h) That the petitioner had applied

Documents

Remedy Under Article