Case BriefsHigh Courts

Allahabad High Court: Dr Yogendra Kumar Srivastava, J., held that,

Section 36 of the 1996 Act makes the arbitral award capable of being enforced in a like manner as a decree without any further judicial intervention.

Instant petition was filed under Section 226 of the Constitution of India principally seeking a writ of certiorari for quashing of the order passed by the Special Judge, SC/ST Act arising out of Execution Case.

Question for Consideration

Whether an order passed by the executing court during the course of enforcement of an arbitral award would be amenable to a writ of certiorari under Article 226 of the Constitution of India?

Analysis, Law and Decision

The A&C Act, 1996 was enacted to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards as also to define the law relating to conciliation.

In terms of Section 36 (1) where the time for making an application to set aside the arbitral award under Section 34 has expired, then, subject to the provisions of sub-section (2), such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908, in the same manner as if it were a decree of the court.

When the time for making an application to set aside the arbitral award under Section 34 has expired, then, subject to the provisions of sub-section (2), the award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908, in the same manner as if it were a decree of the Court.

Therefore, the enforcement of an arbitral award under the 1996 Act, is to be made as per the terms of Section 36 and, unlike the 1940 Act, there was no requirement of filing an application to make the award a rule of the Court. Under the said Act, it would not be possible to resist the enforcement of an award by contending that the award has not been converted into a decree for the reason that the award has now to be enforced as per the procedure under the CPC in the same manner as if it were a court decree.

Question as to whether the award of the arbitrator under the 1996 Act tantamount to a decree or not was considered in Leela Hotels Ltd. v. Housing and Urban Development Corporation Ltd., (2012) 1 SCC 302, wherein it was held that the language used in Section 36 makes it clear that such an award has to be enforced under the CPC, in the same manner as if it were a decree of the Court. “…the language of the section leaves no room for doubt as to the manner in which the award of the arbitrator was to be accepted.”

“…provision for enforcement of an award, as per terms of Section 36, having been provided for in the same manner as if it were a decree of the court, it would follow that the court enforcing the award would exercise powers under the CPC which are available to a court executing a decree. This power would not be limited or trammelled by any other provision of the Act, 1996.”

Court added that execution is the enforcement of decree by a judicial process which enables the decree-holder to realise the fruits of the decree in his favour. The court enforcing the award would be a civil court exercising judicial powers and the orders to be passed in these proceedings would be judicial orders.

Whether judicial orders of a civil court would be amenable to writ jurisdiction under Article 226 came up for consideration in the case of Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423.

The law laid down in the nine-Judge Constitution Bench in the case of Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 was also referred, wherein after considering the history of writ of certiorari and various English and Indian decisions, a conclusion was drawn that “certiorari does not lie to quash the judgements of inferior courts of civil jurisdiction”.

3-Judge Bench in the case of Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423 extensively referring to the legal position on the scope of writ of certiorari concluded that orders of civil court stand on different footing from the orders of authorities or tribunals or courts other than judicial/civil courts.

In the above decision, expression “inferior court” is not referable to judicial courts and accordingly judicial orders of civil courts are not amenable to a writ of certiorari under Article 226 and a writ of mandamus does not lie against a private person not discharging any public duty. It was also held that the scope of Article 227 is different from Article 226.

In view of the above, the legal position that emerged was that,

Judicial orders of civil court would not be amenable to writ jurisdiction under Article 226 and that challenge thereagainst can be raised under Article 227.

 High Court held that an order passed by the executing court in proceedings for enforcement of an arbitral award under Section 36 of the Act 1996, being a judicial order passed by a civil court of plenary jurisdiction, the same would not be amenable to a writ of certiorari under Article 226 of the Constitution of India. [Magma Leasing Ltd. v. Badri Vishal,  2021 SCC OnLine All 806, decided on 18-11-2021]


Advocates before the Court:

Counsel for Petitioner: C.K. Parekh

Counsel for Respondent: S.C., Shri Prakash Dwivedi

Op EdsOP. ED.

In its recent judgment delivered in U.P. Power Transmission Corporation Ltd. v. CG Power and Industrial Solutions Ltd.[1], the Supreme Court made certain observations as to the scope of interference under Article 226[2] of the Constitution in contractual matters, more specifically, in the specific context of contracts containing an arbitration clause. These observations have, however, led to uncertainty, as will be demonstrated.

Uttar Pradesh Power Transmission Corporation Ltd. (UPPTCL) and CG Power and Industrial Solutions Ltd. (CG Power) entered into a “framework agreement” for the construction of sub-stations, pursuant to which four (4) contracts were executed. At the root of the present controversy is two (2) letters which UPPTCL had issued to CG Power, calling upon it to make payment of “labour cess” under Section 3[3] of the Building and Other Construction Workers Welfare Cess Act, 1996 r/w Section 2[4] of the Building and Other Construction Workers’ (Regulation of Employment and Condition of Service) Act, 1996. The combined effect of these legislations was to impose a “cess” on the total cost of construction, at such rate not exceeding 2% and not less than 1% thereof.

UPPTCL, however, sought to levy and collect such “cess” solely on the basis of an “audit report”, following an audit conducted under the instructions of the Senior Accountant General. CG Power had filed a writ petition in the Allahabad High Court, by which it assailed such demand of “cess” solely on the basis of an “audit report”.

Both the Allahabad High Court and the Supreme Court took the view that such “cess” could not have been levied solely on the basis of an “audit report”. Instead, such “cess” could have been levied and collected only in the manner as prescribed under the legislations as specified above, and not otherwise (i.e., not in the absence of an order of levy and assessment).

Views expressed as to the maintainability of the writ petition in view of the existence of an arbitration clause

In the instant case, the general conditions as applicable, contained an arbitration clause, the existence of which was not in dispute. Interestingly, UPPTCL did not even disclose the existence of such arbitration clause in its reply (to the writ petition), let alone oppose the maintainability of the said writ petition on this ground. As will be discussed shortly, the Allahabad High Court could have declined to exercise its jurisdiction under Article 226 of the Constitution in the event that the existence of such arbitration clause was brought to its attention.

The Supreme Court, however, observed that the existence of an arbitration clause will not debar the High Court from exercising its jurisdiction under Article 226 of the Constitution. It took the view that it is well settled that relief under Article 226 of the Constitution may be granted in contractual matters as well. Although this was not dispositive of the case at hand, the observations thus made by the Supreme Court have left open a window for confusion.

Discourse thus far

In its judgment in State of Gujarat v. Meghji Pethraj Shah Charitable Trust[5], the Supreme Court not only held that a writ petition is not maintainable in a contractual matter, but also held that no relief under Article 226 of the Constitution is “available” in case of contracts which are not “statutory” in nature. The Supreme Court has time and again thereafter, elucidated upon the concept of a “statutory” contract.

The Supreme Court had, in its judgment in State of U.P. v. Bridge & Roof Co. (India) Ltd.[6], held that a contract which is governed by the provisions of the Contract Act, 1872[7] will not be a “statutory contract”. This has, therefore, limited the concept of a “statutory” contract. However, it is only in its judgment in India Thermal Power Ltd. v. State of M.P.[8], did the Supreme Court hold that even a contract entered into in the exercise of an enabling power conferred by a statute would not, by itself, be a “statutory” contract. The Supreme Court further held that such a contract is a “statutory” one only to the extent to which a statute either prescribes certain terms and conditions to be contained in such contract, or has the effect of incorporating such terms and conditions by way of reference. In the facts of that case, the Supreme Court held that a power purchase agreement is a “statutory” contract only to the extent to which it contains certain provisions regarding determination of tariff and other statutory requirements, and not otherwise.

In its judgment in Kerala SEB v. Kurien E. Kalathil[9], the Supreme Court held that a dispute arising out of the terms of a contract entered into by a statutory body, would also have to be settled by the ordinary principles of contract law. It further held that the mere fact that one of the parties to such a contract is a statutory body will not, by itself, operate so as to exclude the ordinary principles of contract law.

In its judgment in Harbanslal Sahnia v. Indian Oil Corpn. Ltd.[10], the Supreme Court seems to have adopted a different interpretation. This is in spite of the fact that all of the aforesaid judgments, including that in the Harbanslal case[11], were delivered by two-Judge Benches. It was held that the rule of exclusion of writ jurisdiction by reason of availability of an alternative remedy, is a “rule of discretion” and not one of “compulsion”. The Supreme Court held that in spite of the availability of an “alternate remedy”, the High Court may still exercise its writ jurisdiction in the event that: (i) the writ petition seeks enforcement of fundamental rights; (ii) there is a failure of the principles of natural justice; and (iii) the orders or proceedings are wholly without jurisdiction or the vires of an Act is under challenge. In the facts of that case, the Supreme Court took the view that the High Court ought to have exercised its jurisdiction under Article 226 as above, as the dispute, which arose out of the termination of a dealership would attract the first two (2) contingencies.

The Supreme Court had, in its judgment in Pimpri Chinchwad Municipal Corpn. v. Gayatri Construction Co.[12], held that the High Court ought not to have entertained a writ petition in a dispute which could have been settled by way of the “in-house” remedy as provided for. However, the Supreme Court expressed its unwillingness to adjudicate upon the merits of the controversy in that case, given the advanced stage of completion of work under the tender, which formed the subject-matter of that dispute.

In a recent judgment delivered as on 6-1-2021 in Bhaven Construction v. Sardar Sarovar Narmada Nigam Ltd.[13], the Supreme Court dealt with and answered the question of whether the arbitral process could be interfered with under Articles 226/227[14] of the Constitution. While doing so, the Supreme Court held that it is not prudent for the courts to exercise their discretion beyond the procedure prescribed under the Arbitration and Conciliation Act, 1996[15] (Arbitration Act). Instead, such discretion ought to be exercised in “exceptional rarity”, in the event that a party is left without a remedy under the statute, or clear “bad faith” is demonstrated. This, as the Supreme Court observed, is with a view to ensuring that the arbitral process is conducted in a fair and efficient manner, consistent with the legislative intention underlying the Arbitration Act. In the facts of that case, the Supreme Court saw no reason to interfere with the unilateral appointment of an arbitrator, as such appointment was made in accordance with the arbitration clause. It may be noted that the judgment in Bhaven Construction[16] was delivered by a three-Judge Bench of the Supreme Court, while the judgment under discussion, and all other judgments as cited, were delivered by two-Judge Benches thereof.

Concluding observations

Having regard to all the judgments as cited, it appears to be the case that the Supreme Court has, as a general principle, adopted restraint while exercising its jurisdiction under Article 226 of the Constitution in contractual matters. The concept of a “statutory” contract has only limited the exercise of such discretion, inasmuch as a contract entered into under a statute, or one to which a statutory body is a party, would not become a “statutory contract”. The judgment in the Bhaven Construction case[17] only operates so as to further limit the scope of such interference in the specific context of contracts containing an arbitration clause.

In the instant case, had the Supreme Court delved into the issue of scope of interference under Article 226 of the Constitution in contractual matters, it could have held that an objection as to the maintainability of a writ petition on the ground of existence of an arbitration clause would have to be taken at the earliest available opportunity. Having said that, the observations as made by the Supreme Court in the judgment under discussion are at variance with the view as taken by it in the Bhaven Construction case[18]. This is only likely to lead to uncertainty as to the scope of interference under Article 226 of the Constitution in contractual matters.


Advocate, Delhi High Court, e-mail: ashwinichawla.net.in.

†† Assistant Professor of Law at BML Munjal University, Gurgaon

[1] 2021 SCC OnLine SC 383.

[2]  <http://www.scconline.com/DocumentLink/22VRSLhE>

[3] <http://www.scconline.com/DocumentLink/Bri0ov7D>.

[4] <http://www.scconline.com/DocumentLink/RuDXsRPF>.

[5] (1994) 3 SCC 552.

[6] (1996) 6 SCC 22.

[7] <http://www.scconline.com/DocumentLink/xAi185p6>.

[8] (2000) 3 SCC 379.

[9] (2000) 6 SCC 293.

[10] (2003) 2 SCC 107.

[11] (2003) 2 SCC 107.

[12] (2008) 8 SCC 172.

[13] 2021 SCC OnLine SC 8.

[14] <http://www.scconline.com/DocumentLink/FQ8PHQWi>.

[15] <http://www.scconline.com/DocumentLink/QWdt5a4f>.

[16] 2021 SCC OnLine SC 8.

[17] 2021 SCC OnLine SC 8.

[18] 2021 SCC OnLine SC 8.

Op EdsOP. ED.

I. Introduction

On 12-5-2021, the Bombay High Court issued two separate notifications[1] under Articles 225[2] and 226(3)[3] of the Constitution of India (hereinafter referred to as “the Constitution”), amending both the Original and Appellate Side Rules of the Bombay High Court. The new amendments expressly state that Section 148-A of the Code of Civil Procedure, 1908 (hereafter referred to as “CPC”) will not apply to writ petitions filed under Article 226 of the Constitution. Section 148-A[4] CPC deals with the right to lodge a caveat in “any suit or proceeding instituted or about to be instituted in a court.” Therefore, as a result of these amendments to the High Court Rules, no caveats can be filed in proceedings that may arise under Article 226. The purpose of this piece is to examine the law on this issue.

II. Section 141 CPC

To understand whether Section 148-A CPC applies to writ petitions under Article 226, it would be necessary to examine Section 141[5] CPC. Section 141 states that the procedure provided in CPC regarding suits “shall be followed, as far as it can be made applicable in all proceedings in any court of civil jurisdiction”.

The question as to whether Section 141 CPC applies to writ petitions under Article 226 arose before a three-Judge Bench of the Supreme Court in Babubhai Muljibhai Patel v. Nandlal Khodidas Barot[6] (hereinafter referred to as “Babubhai”). The Supreme Court, however, felt that it was “not necessary for this case to express an opinion on the point as to whether the various provisions of the Code of Civil Procedure apply to petitions under Article 226 of the Constitution.”[7] The Court observed that the words  “as far as it can be made applicable” in Section 141 “make it clear that, in applying the various provisions of the Code to proceedings other than those of a suit, the court must take into account the nature of those proceedings and the relief sought.”[8] The Court further observed that since the object of Article 226 is to provide a quick and inexpensive remedy for aggrieved parties, if the procedure of a suit was followed in case of writs under Article 226, the entire purpose of this remedy would be defeated.[9] However, in a given case where the petition under Article 226 raises “complex questions of fact”, the High Court in its discretion may either decline to entertain the petition or may entertain the same in conformity with sound judicial principles.[10] The Court went onto to observe that in case “it is not possible for the court to arrive at a definite conclusion on account of there being affidavits of either side containing allegations and counter-allegations, it would not only be desirable but in the interest of justice the duty also of the court to summon a deponent for cross-examination in order to arrive at the truth.”[11] The Court relied on its previous judgment of the five-Judge Bench in Barium Chemicals Ltd. v. Company Law Board (hereinafter referred to as “Barium Chemicals”) that had taken a similar view.[12]

Though the Supreme Court did not give a definitive answer to whether Section 141 would apply to writ petitions under Article 226, certain High Courts have delivered divergent opinions on the question. While the Andhra Pradesh High Court had held that Section 141 applies to writ petitions under Article 226, the Allahabad, Calcutta, Madras and Punjab and Haryana High Courts had held to the contrary.[13] It is for this reason that CPC was amended by the Union Legislature by the Code of Civil Procedure (Amendment) Act, 1976. Section 47 of the Amendment Act added an Explanation to Section 141 clarifying that the expression “proceedings” includes proceedings under Order 9 CPC but does not include any proceeding under Article 226 of the Constitution.[14]

Pursuant to the amendment to Section 141, the Bombay High Court in Musaji Mohamadali Master and Sons v. Gulamali Dadabhai Amreliwala[15], interpreted the Explanation to Section 141 and has held that though the explanation will apply to writ petitions filed under Article 226 of the Constitution, it would not apply to a petition filed under Article 227[16] and therefore CPC would apply to proceedings under Article 227.[17]

III. The views of various High Courts

Having thus analysed the Explanation to Section 141 CPC, it would be apposite to examine the views taken by various High Courts on this question. The Kerala High Court in K.P. Harikrishnan v. C.K. Jacob[18], after interpreting the relevant rules of the Kerala High Court held that “no caveat petition is maintainable in proceedings under Article 226 of the Constitution of India.”[19] This judgment of the Kerala High Court was followed by the Delhi High Court in Deepak Khosla v. Union of India[20] in which the Delhi High Court went one step further to observe that Section 148-A CPC cannot even apply to petitions filed under Article 227 of the Constitution.[21] However, it is respectfully submitted that while making reference to the judgment of the Kerala High Court, the Delhi High Court has erroneously given the impression that the Kerala High Court has held that Section 148-A CPC will not apply to petitions filed under Article 227. The Kerala High Court had confined its examination only to petitions under Article 226.

The Rajasthan High Court in H.G. Shankar Narayan v. State of Rajasthan[22] interpreted Rule 159[23] of the Rajasthan High Court Rules, 1959 to hold that caveats can be filed in proceedings arising out of Article 226. Like Section 148-A CPC, Rule 159 of the Rajasthan High Court Rules provides for filing of caveats in civil proceedings.[24] The High Court held that in light of the Explanation to Section 141 CPC, Section 148-A CPC would not apply to petitions under Article 226, but Rule 159 of the High Court Rules would continue to apply.[25]

The Karnataka High Court in Apsara Theatre Bijapur, In re[26] on the other hand has held that since Rule 39 of Part IV of the High Court’s Writ Proceeding Rules, 1977[27] provides that the provisions of CPC would apply to petitions under Article 226 and Article 227, the provisions contained in Section 148-A CPC and the interpretation thereof would automatically apply to writ petitions as well.[28]

The Orissa High Court in Jogeswar Bhoi v. State of Odisha[29] has held that though the Explanation to Section 141 CPC excludes proceedings under Article 226, the procedure prescribed by CPC would apply to High Courts while exercising jurisdiction under Article 226 “not because of any compulsion to do so but because that procedure accords with the rules of natural justice.”[30] The High Court relies on the judgment of the Supreme Court in Babubhai[31] (referred to above) to come to this conclusion. With respect, the author submits that Babubhai[32] was delivered prior to the amendment of Section 141 and therefore cannot be relied on for the purpose of determining whether Section 148-A CPC applies to writ proceedings under Article 226. Therefore, the view of the High Court would not have been correct but for the fact that Part II, Chapter VI, Rule 5[33] of the Orissa High Court Rules provides for a caveat to be lodged where “a petition is lodged or expected to be lodged.” This rule has not been referred to by the Court in its judgment. Interestingly, Rule 17[34] in Chapter XV that is titled, “Applications under Articles 226, 227 and 228 of the Constitution and Rules for the issue of writs under the said articles (except writs in the nature of habeas corpus)” states that questions for determination under this chapter shall be decided on affidavit but the Court has the discretion to decide “such questions as it may consider necessary … on such other evidence as it may deem fit” in which case, “the procedure prescribed in the Code of Civil Procedure, 1908 for the trial of suits shall so far as applicable be followed.” This rule seems to be in consonance with the decisions of the Supreme Court in Babubhai[35] and Barium Chemicals[36], delivered prior to the amendment of Section 141 CPC.

IV. Concluding comments

From a reading of the aforementioned judgments, one can conclude that though the Explanation to Section 141 CPC excludes the application of its procedure to proceedings under Article 226 of the Constitution, where the rules of a particular High Court provide for filing of caveats for petitions under Article 226, such rules have been held to take precedence over CPC. As has been seen above, some High Courts have retained its rules to file caveats for petitions under Article 226. However, the Bombay High Court through its amendment to the Original and Appellate Side Rules has clarified that Section 148-A CPC will not apply to petitions under Article 226. This discrepancy across different jurisdictions results in a lack of uniformity in practice. Therefore, in an appropriate proceeding, it would be necessary for the Supreme Court to lay down the law on this issue in order to bring about a certain degree of uniformity, consistency and clarity.


*The author is a practicing advocate in the Bombay High Court and NCLT, Mumbai. He can be contacted on <twitter @DormaanD>.

[1]<https://bombayhighcourt.nic.in/writereaddata/notifications/PDF/noticebom20210524131828.pdf> (last visited on 21-6-2021 at 11.44 a.m.).

[2] 225. Jurisdiction of existing High Courts.—Subject to the provisions of this Constitution and to the provisions of any law of the appropriate legislature made by virtue of powers conferred on that legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution:

        Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction.

[3] 226. Power of High Courts to issue certain writs.―(1)–(2)   *                             *                            *

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without—

       (a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

       (b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.

(4)                                    *                            *                          *

[4] 148-A. Right to lodge a caveat.—(1) Where an application is expected to be made, or has been made, in a suit or proceeding instituted, or about to be instituted, in a court, any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof.

(2) Where a caveat has been lodged under sub-section (1), the person by whom the caveat has been lodged (hereinafter referred to as “the caveator”) shall serve a notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been, or is expected to be, made, under sub-section (1).

(3) Where, after a caveat has been lodged under sub-section (1), any application is filed in any suit or proceeding, the Court shall serve a notice of the application on the caveator.

(4) Where a notice of any caveat has been served on the applicant, he shall forthwith furnish the caveator, at the caveator’s expense, with a copy of the application made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the application.

(5) Where a caveat has been lodged under sub-section (1), such caveat shall not remain in force after the expiry of ninety days from the date on which it was lodged unless the application referred to in sub-section (1) has been made before the expiry of the said period.

[5] 141. Miscellaneous proceedings.—The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction.

Explanation.— In this section, the expression “proceedings” includes proceedings under Order 9, but does not include any proceedings under Article 226 of the Constitution.

[6] (1974) 2 SCC 706.

[7] (1974) 2 SCC 706, 715 at para 10.

[8] (1974) 2 SCC 706, 715 at para 10. 

[9] (1974) 2 SCC 706, 715 at para 10.  

[10] (1974) 2 SCC 706, 715 at para 10.   

[11] (1974) 2 SCC 706, 716 at para 11.

[12]  1966 Supp SCR 311, para 26.

[13] Statement of Objects and Reasons (Bill), Gazette of India, Ext, dt. 8-4-1974, Part II., S. 2, p. 310 as referred to in Professionals Code of Civil Procedure, Manual with Short Comments, Professional Book Publishers, 2013 at p. 73. Also see Puran Singh v. State of Punjab, (1996) 2 SCC 205, 211 para 5 for the specific citations of the various High Court decisions.

[14] S. 47 of the Code of Civil Procedure (Amendment) Act, 1976 (w.e.f. 1-2-1977).

[15] 2004 SCC OnLine Bom 1169.

[16]227. Power of superintendence over all courts by the High Court.—(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

(2) Without prejudice to the generality of the foregoing provision, the High Court may—

      (a) call for returns from such courts;

      (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

      (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:

      Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.

(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the armed forces.

[17] 2004 SCC OnLine Bom 1169, para 29.

[18] 2005 SCC OnLine Ker 157.

[19] 2005 SCC OnLine Ker 157, para 3.

[20] 2011 SCC OnLine Del 2200.

[21] 2011 SCC OnLine Del 2200, paras 9 and 10.

[22] 1983 SCC OnLine Raj 49 .

[23] <https://hcraj.nic.in/hcraj/Allfiles/RHCRules1952.pdf> (last visited on 22-6-2021 at 6.47 p.m.).

[24] 1983 SCC OnLine Raj 49,  para 4.

[25] 1983 SCC OnLine Raj 49,  para 5.

[26] 2000 SCC OnLine Kar 514.

[27] <https://karnatakajudiciary.kar.nic.in/hcklibrary/PDF/HC_Writ_1977.pdf> (last visited on 22-7-2021 at 7.15 p.m.).

[28] 2000 SCC OnLine Kar 514, para 12.

[29] 2016 SCC OnLine Ori 653.

[30] 2016 SCC OnLine Ori 653, para 13.

[31] (1974) 2 SCC 706.

[32] (1974) 2 SCC 706.

[33] <https://www.orissahighcourt.nic.in/rules/orissa-highcourt-rules/orissa-highcourt-rules-pdf-view/6/> (last visited on 22-6-2021 at 8.19 p.m.).

[34] <https://www.orissahighcourt.nic.in/rules/orissa-highcourt-rules/orissa-highcourt-rules-pdf-view/16/> (last visited on 22-6-2021 at 8.29 p.m.).

[35] (1974) 2 SCC 706.

[36]  1966 Supp SCR 311, para 26.

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Sanjay Kumar Dwivedi, J. dismissed the petition being devoid of merits.

The instant writ petition under Article 226 of the Constitution of India was filed for direction upon the respondents to lodge F.I.R. on the basis of written complaint made by the petitioner.

Counsel for the petitioner Mr. Afaque Rashidi submitted that submits that it is right of the petitioner to lodge F.I.R. and the respondents are liable to lodge F.I.R, which has not been done in the hand in hand.

Counsel for respondents Ms. Shivani Kapoor submitted that filing application under Article 226 of the Constitution is not an appropriate remedy. She submits that a proceeding under Section 107 CrPC has already been initiated. He submits that in this type of cases there is remedy under Code of Criminal Procedure. He submits that if an FIR has not been registered, proposed informant should approach before the Magistrate in terms of the Code of Criminal Procedure.

 The Court relied on judgment Sakiri Vasu v. State of Uttar Pradesh, (2008) 2 SCC 409 wherein it was held “the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police”

The Court further observed that if police is not registering the FIR, the remedy lies with the complainant to approach the Magistrate in terms of Code of Criminal Procedure. This alternative remedy is available to the complainant.

The Court held “since an alternative remedy is available to the petitioner, the Court is not inclined to exercise its power under Article 226 of the Constitution of India.”

[Agha Sahnawaz v. State of Jharkhand, 2021 SCC OnLine Jhar 330, decided on 08-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Muralidhar CJ. and B. P Routray J. dismissed the petition on grounds discussed below.

The facts of the case are such that the Food Corporation of India i.e. `FCI (Opposite 1 and 2) being the nodal organization of the Government of India, delivers food grains to different parts of the State of Odisha and for such purpose it uses the space available in different warehouses under OSWC for storing and facilitating movement of the food grains on contract basis. The Petitioner executed a contract with Odisha State Warehousing Corporation i.e. OSWC (Opposite Party 1 and 2) effective for a period of two years for Handling and Transportation (H & T) of foodgrains and other allied materials at OSWC as per the quoted rate of contract. The said contract was extendable for a further period of three months. The contract was extended twice before the expiration of their respective previous contracts as the tender issued for the purpose could not be materialized. Those two extensions were granted with the same rate of contract but on further extension, FCI expressed dissatisfaction and put a condition that, the rate applicable for the extended period would be the existing rate or the new rate, whichever is lower. The new agreement was executed and the rate of contract was much lesser than the earlier rate of contract fixed as per the original contract. Thus, for the bills raised by OSWC after 31st March 2017, FCI deducted the amount calculated on the differential rate between the rate of contract existed as per the 2013 agreement and 2017 agreement. As a result, OSWC realized the differential amount from the bill of the Petitioner and this is the subject matter of the dispute in the present petition.

Counsel for the petitioners Mr. P.K.Roy submitted that realization of differential amount from its bill with retrospective effect is grossly illegal and the same is violation of statutory rules as no opportunity of showing any cause or hearing has been granted. It is further contended that in the absence of any agreement after 31st October, 2015 till 31st March 2017, the rate applicable would be the existing rate as per the 2013 agreement.

Counsel for the respondents Mr. P.K. Rath, Mr. Bijay Kumar Dash and Mr. Debasish Nayak submitted that the Petitioner has not come with clean hands as the entire dispute has emanated from contractual obligations and, therefore, the writ petition under Article 226 would not be maintainable. It is further contended that the petitioner continued H & T work with OSWC having been aware of the stipulation of change in rate of contract, is estopped from raising the dispute at realization stage.

The Court observed that realization of the differential amount at a lower rate in absence of any existing contract is not contentious as it is clear that being fully aware of the lower rate, which may be stipulated in the new contract, the Petitioner continued with the work for the extended period.

The Court observed “Once the Petitioner has accepted the condition with a lower rate than the existing rate which may be effected for the period it continued with the work on extension, it hardly makes any difference whether a written contract on specific term is executed or not. Thus, the Petitioner now cannot claim that such a stipulation at the lower rate to realize the differential amount was without his knowledge.”

The Court relied on judgment Kerala State Electricity Board v. Kurien E. Kalathil (2000) 6 SCC 293 wherein it was held that

“11. A statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions. Dispute arising out of the terms of such contracts or alleged breaches have to be settled by the ordinary principles of law of contract. The fact that one of the parties to the agreement is a statutory or public body will not by itself affect the principles to be applied. The disputes about the meaning of a covenant in a contract or its enforceability have to be determined according to the usual principles of the Contract Act.

The Court observed that the petitioner is unable to point out the violation of any statutory rule in its favour. The rate on which work is to be performed, flows from the contract executed between the Petitioner and OSWC.

The Court thus held “….Therefore, adjudication of the dispute in the writ jurisdiction in the present form is neither appropriate nor feasible.”[Jayasingh Bhoi v. OSWC, 2021 SCC OnLine Ori 630, decided on 31-05-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, CJ and Alok Kumar Verma, J., dismissed a petition filed seeking laying of a road connecting the petitioner’s village with the district headquarters.

It was stated that though construction of the road had commenced, the said work was stopped and an alternate road was being laid. The petitioner claimed that the absence of the road had made the lives of the villagers extremely difficult.

The Court while dismissing the petition explained that it cannot undertake the task of determining whether and where a road should be laid, for these were all matters in the executive realm though the villagers facing difficulty has merit and these claims could only be addressed by the state government and they do not fall under the judicial review proceedings under Article 226 of the Constitution of India. The Court, however, directed the respondents to examine the matter and take a considered decision regarding the laying of the road. [Pushkar Singh v. State of Uttarakhand, 2020 SCC OnLine Utt 74, decided on 17-02-2020]

Patna High Court
Case BriefsHigh Courts

Patna High Court:  A Division Bench of Dinesh Kumar Singh and Anil Kumar Sinha, JJ. allowed a civil writ application that was filed for quashing of an order passed by the District Magistrate, Bhagalpur in Misc (Excise) Case No. 159 of 2018-19, whereby the petitioner’s vehicle had been confiscated.

In the present matter, the writ application was filed to quash an order passed by the District Magistrate, Bhagalpur, whereby the petitioner’s vehicle was confiscated. The vehicle was confiscated in relation to a case registered under, Section 30(a) of the Bihar Prohibition and Excise Act, 2016, as amended by Amendment Act 8 of 2018, on charges of transporting illicit liquor.

Counsel for the petitioner, Vyash Kumar Mishra submitted that, petitioner was bona fide owner of the vehicle in question, confiscation proceeding had been initiated on 04-09-2018 and now vide the impugned order dated 26-07-2019, the vehicle of the petitioner had been confiscated. It was directed that the vehicle was to be sold by an open auction sale and after that deposition of the sale money in the treasury, hence, the petitioner had prayed for the quashing of the final order.

Counsel for the respondent, Rewati Kant Raman stated that the vehicle in question had already been confiscated, vide order dated 26-07-2019, passed by the District Magistrate, Bhagalpur, and there was provision of appeal against the final order passed by the District Magistrate, within ninety days before the Excise Commissioner by virtue of Section 92(2) under Chapter IX of the  Act.

High Court held that the Act provided an alternative efficacious remedy of appeal against the order passed by the Collector, so the court was not inclined to interfere in the matter. Relying on Whirlpool Corpn. v. Registrar of Trade Marks, Mumbai, (1998) 8 SCC 1, it was further held that discretionary jurisdiction under Article 226 of the Constitution of India was subject to self-imposed restriction and such discretion could be normally exercised when there was no alternative efficacious remedy available or writ petition had been filed for the enforcement of any of the fundamental rights or where there had been a violation of the principle of natural justice or where the order or proceedings were wholly without jurisdiction or the vires of an Act was under challenge.

The Writ Application was disposed of with a liberty to the petitioner to prefer an appeal within a period of four weeks. [Shobha Singh v. State of Bihar, 2020 SCC OnLine Pat 80, decided on 16-01-2020]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: C.S. Dias, J. disposed of a writ petition filed under Article 226 of the Constitution of India.

The petitioner is the wife of one Senthil Kumar, accused under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The husband of the petitioner took a loan of Rs 30,000,00 from the State Bank of India (Respondent 1). The husband also created an equitable mortgage in respect of his property in favour of the respondent 1.

The petitioner contends that due to the financial crisis experienced by the husband, they were unable to pay off the monthly installments. But due to the delay in repayments, the Bank has declared the petitioner’s loan account as Non-Performing Asset and has already sent a possession notice under Section 13(4) of the SARFAESI Act.  The present petition is against the measures initiated under SARFAESI for recovery of the loan amount by the Bank. This Act enables the secured creditors to take possession of the securities of the defaulters, without any intervention of the Court and also alternatively to authorize any Securitization or Reconstruction Company to acquire financial assets of any Bank or Financial Institutions.

The petitioner also made representations to the Bank seeking time to settle the outstanding amounts in installments. In spite of the representations made, the Bank threatened to take possession of the mortgaged property on or before 31-12-2019.

The Court referred to the judgments in Union Bank of India v. Stayawati Tandon, (2010) 8 SCC 110 and State Bank of Travancore v. Mathew, ILR 2018(1) Ker 479. The judgment in the above-mentioned case was that, where any alternate remedy is available, the petition under Article 226 should not be entertained by the High Court. Section 17 of the SARFAESI Act provides for the right to appeal. It enumerates that any person who is aggrieved by the measures referred in Section 13(4) of the Act shall make an application to the Debt Recovery Tribunal within 45 days from the date on which measures have been taken. Though the rule of exhaustion of alternate remedy is a rule of discretion and not one of compulsion.

The counsel for the petitioner, Alexander George, contended that the petitioner is ready to pay the amount claimed by the respondent, in the possession notice, but he is just pleading to pay the amount in easy installments. He also pleads to regularize his loan account once he has repaid the said amount.

The counsel for the respondents, Jawahar George, affirmed that the Bank is ready to accept the defaulted amount towards the loan account in 4 monthly installments. The total amount due to that day was Rs 4,000,00.

After hearing both sides, the Court held that it will entertain this petition and the petitioner will be granted some time to pay off the loan amount and the defaulted amount. The Court directed the following-

  1. the petitioner is liable to pay Rs 4,000,00, due amount, with applicable charges and interest in six monthly installments commencing from 15-01-2020
  2. along with the defaulted amount, the petitioner will also pay the regular and equal monthly installments, as per the loan agreement
  3. when the above-mentioned payments are made in full by the petitioner, his loan amount will be regularized.
  4. in case of default, the benefit granted to him by this Court will stand to vacate and then the Bank will work according to the provisions of the SARFAESI Act and recover and auction the mortgaged property of the petitioner.
  5. the Court also made it clear that the judgment in this petition is peremptory in nature hence the petitioner should comply with the order. In case of non- compliance, the petitioner’s right to challenge the proceedings under the SARFAESI Act will stand foreclosed before any other alternative forum or Court.[Anu Senthil v. State Bank of India, 2019 SCC OnLine Ker 6018, decided on 31-12-2019]
Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Anu Sivaraman, J. dismissed a writ petition filed by the petitioner to direct the respondents to allow her to participate in the item ‘Folk Dance’ in the State Kalotsav for CBSE Schools.

The petitioner, who is a student of a CBSE School had secured an ‘A’ Grade and a second prize in Folk Dance in a District Level competition. Going by the Manual with regard to the conduct of CBSE Kalotsav, it was clearly specified that the top two positions at the District Level competition will be eligible to participate in the State Level Kalotsav. However, only the two first place holders were permitted to participate and the petitioner was included only on the waiting list. The petitioner contended that she had secured the second prize and was, therefore, entitled to participate in the State Level Kalotsav. She contended that this was against the provisions of the Manual and she should be permitted to participate in the State Level Kalotsav. The respondent argued that that Kalotsav was conducted by the Confederation of Sahodhaya Schools and that the CBSE had no role in the actual conduct of the Kalotsav.

The issue raised in the present case was with regard to the conduct of a State Level Kalotsav for students of CBSE Schools. The Manual had all the guidelines issued for the conduct of the Kalotsav.

The Court, therefore, held that the issue with regard to the participation of students in a School Level Kalotsav is not a matter which was liable to be considered by the Court in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. Moreover, it was clear that the Manual was not a binding statutory guideline which would permit the petitioner to approach the Court complaining of a violation of the same. The Manual was only a guideline issued with regard to the conduct of Kalotsav and even in case there was a violation of the same, no writ would lie for enforcement of the same. The Court went on to state that this matter did not require any interference from their side in exercise of its powers of judicial review. [Aiswarya P v. Convenor, 2019 SCC OnLine Ker 4370, decided on 13-11-2019]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Sujit Narayan Prasad, J. dismissed a writ petition under Article 226 of the Constitution of India whereby the petitioner sought for a direction upon the respondents to allot a shop situated at the Municipal Library in the name of the petitioner on the ground that he has been running the aforesaid shop since long. 

The petitioner was not the allottee of the shop, rather, the shop was sublet in his favour by the original allottee. As the period of lease of the original allottee had expired, the petitioner handed over the keys of the shop with an application for consideration for allotment of the shop in his favour, but the shop was allotted to someone else. The petitioner argued that he was not allotted the shop as he was not deemed fit or proper since he was a handicapped person. The petitioner further submitted that he has been running the shop for long, and therefore priority ought to have been given by the respondents in allotment of the said shop. Counsel for the State submitted that the petitioner had no right to claim the allotment of the said shop since the said shop was never allotted in his favour, rather, he was tenant of the original allottee and after expiry of the lease in favour of the original allottee, the petitioner had no right to remain in the said premises. Furthermore, the order of allotment made in favour of the other person was never assailed.

The Court heard both the parties and decided that the shop in question was never allotted in the favour of the petitioner, rather, he was claiming allotment of the said shop by virtue of the fact that he was in occupation by way of the tenant by the original allottee. The allotment of the shop by virtue of the expiry of the lease expired and therefore, the petitioner had no right to remain in possession of the said shop.  The petitioner had simply prayed in this writ petition for allotment of the said shop on the ground that he was handicapped and was running a shop in the said premises since long, but merely because the petitioner is handicapped, no sympathy could be shown by the Court ignoring the process of allotment of the shop. Also, the order of allotment was also never under challenge. The writ petition was dismissed. [Amarendra Kumar v. State of Jharkhand, 2019 SCC OnLine Jhar 1451, decided on 18-10-2019]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Sujit Narayan Prasad, J, dismissed the writ petition on the ground of availability of alternative remedy.

In the pertinent case, the petitioner moved to the High Court under Article 226 of the Constitution of India being aggrieved with the decision taken by the Ranchi Regional Development Authority (RRDA) of not sanctioning the map of the Building Construction Map vide Building Plan.

The counsel for the respondents raised the preliminary objection on the ground of availability of alternative remedy of appeal before the Tribunal stating that various factual aspect is to be adjudicated in this writ petition and as such, the same is fit to be appreciated by the Tribunal since the statute has created the remedy to file an appeal against the decision taken by the RRDA.

The Court held that it is evident that the petitioner is questioning the building map plan, on various ground and Court is of the considered view that although there is no absolute bar in entertaining the writ petition under Article 226 of the Constitution of India but where question of determination of the issues on factual aspect is involved, the writ Court should refrain from adjudicating the issues, if alternate remedy is available for adjudication of the issues after appreciating the factual aspect. Hence, the writ petition cannot be entertained on the ground of availability of the alternative remedy of appeal before the Tribunal of the RRDA is available.[Prakash Munjal v. State of Jharkhand, 2019 SCC OnLine Jhar 1153, decided on 06-09-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: G.S. Ahluwalia, J., dismissed a petition filed under Article 226 Constitution of India to direct the respondents to register an FIR on the basis of the complaint made by her.

The main question before the High Court to decide was ‘whether a writ petition under Article 226 of the Constitution of India for registration of the FIR is tenable or not?’

The Supreme Court in the case of Divine Retreat Centre v. State of Kerala, (2008) 3 SCC 542 had held that the High Court in exercise of its power under Article 226 can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an investigating officer mala fide. That power is to be exercised in the rarest of the rare case where a clear case of abuse of power and non-compliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of the process as provided for in the Code. Even in cases where no action is taken by the police on the information given to them, the informant’s remedy would lie under Sections 190, 200 of CrPC, but a writ petition in such a case cannot be entertained.

Similarly, in the case of Lalita Kumari v. Government of U.P., (2014) 2 SCC 1, the Supreme Court held that cases like these do not pertain to issue of entitlement to writ of mandamus for compelling the police to perform statutory duty under Section 154 CrPC without availing alternative remedy under Sections 154(3), 156(3), 190 and 200 of CrPC.

Therefore, the Court finally dismissed the petition as the petitioner still had an efficacious and alternative remedy of filing a criminal complaint before the Court of competent jurisdiction.[Mamta Prajapati v. State of Madhya Pradesh, 2019 SCC OnLine MP 2477, decided on 06-09-2019]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Sujit Narayan Prasad, J., dismissed the writ petition as a writ petition after issuance of notice under Section 13 (4) of the SARFAESI Act, 2002 is not to be entertained.

The brief facts of the case of the petitioner is that the petitioner has extended with the credit facilities of an amount of Rs 80 Lakhs, a cash credit of Rs 70 Lakhs and a bank guarantee facility of Rs 10 Lakhs. The said account having been declared to be a non-performing asset, therefore, a proceeding has been initiated by issuing a notice under Section 13(2) of the SARFAESI Act, 2002, subsequent thereto, a notice under Section 13(4) of the SARFAESI Act, has also been issued. In course of that stage, the respondent-Bank has entered into a settlement under One Time Settlement Scheme by settling the account. The petitioner after entering into the settlement had started making a payment but the terms and conditions of the One Time Settlement were not been complied with, therefore, the One Time Settlement Scheme was cancelled by the impugned order, against which, the present writ petition has been filed by the petitioner.

The Counsel for the petitioner relied upon the judgement of A-One Mega Mart (P) Ltd. v. HDFC Bank, 2012 SCC OnLine P&H 17328, and submitted that the writ petition may be entertained and appropriate direction by quashing the One Time Settlement may be issued.

The Counsel for the respondent submitted that the proceeding has been initiated under the Debt Recovery Act, 1993 and subsequently the notice under Section 13(2) has also been issued now it is at the stage of the proceeding under Section 13(4) of the Act, 2002.

The Court held that the there is no absolute bar in entertaining the writ petition under Article 226 of the Constitution of India but simultaneously in numerous judgements of the Supreme Court it has been laid down that a writ petition after issuance of notice under Section 13(4) of the Act, 2002 is not to be entertained. In this regard, reliance was placed upon the judgement of State Bank of Travancore v. Mathew K.C., (2018) 3 SCC 85. On the basis of views expressed by the Supreme Court, this Court is of the view that this writ petition is not fit to be entertained, accordingly, dismissed.[Ace Sales & Logistics v. H.D.F.C. Bank Ltd.,  2019 SCC OnLine Jhar 1136, decided on 20-08-2019]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir High Court: Sanjay Kumar Gupta, J. dismissed a writ petition seeking a writ of mandamus against official respondents for restraining private persons from encroaching of the suit property of the petitioner.

The petitioner herein had filed a writ petition under Article 226 of the Constitution of India read with Article 103 of Constitution of Jammu & Kashmir, seeking mandamus commanding the official respondents to restrain certain private persons from interfering in the peaceful possession of petitioner’s suit property.

The Court noted that the petitioner was claiming relief for restraining the encroachment of his land by private persons. It was opined that this was not the function of official respondents, because they are executive functionaries of State. Since, the dispute involved the civil rights of the petitioner, it would be proper for him to seek a remedy before a civil court by filing a suit for injunction.

While determining the petition before it, the Court relied heavily on Roshina T v. Abdul Azeez, (2019) 2 SCC 329 where it was held that “a regular suit is an appropriate remedy for settlement of the disputes relating to property rights between the private persons. The remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of statutory authority is alleged.” In that case, the Supreme Court had held that a High Court cannot use its constitutional jurisdiction for deciding disputes, for which remedies under the general law, civil or criminal are available. The jurisdiction under Article 226 of the Constitution being special and extraordinary, it should not be exercised casually or lightly on mere asking by the litigant.

In view of the above, the petition was dismissed but liberty was granted to the petitioner to approach the civil court.[Paras Ram v. State of J&K, 2019 SCC OnLine J&K 479, decided on 24-05-2019]

Case BriefsHigh Courts

Rajasthan High Court: Alok Sharma, J. allowed a civil writ petition filed by a person against his transfer order. As a result of which, another order was passed regarding its transfer, quashing the previous transfer order.

 In the instant case, the petitioner was transferred to the post of RTO Alwar and respondent 3 herein who was posted as RTO earlier, was transferred to the Transport Department. Since the petitioner was due to retire in just six months, he challenged his transfer order before the Rajasthan Civil Services Appellate Tribunal, Jaipur. The Tribunal quashed his transfer order. Consequently, respondent 3 was transferred back to his original post of RTO and the petitioner was directed to join Parivahan Bhavan, Jaipur. Aggrieved by the said order of the Department, the instant petition was filed.

At the outset, the Court observed that the order passed by Tribunal was a well considered and replete with cogent reasons. It remarked that a transfer is an incident of service and the discretion of an employer in transferring an employee is quite wide. Ordinarily, no interference is to be made with an order of transfer unless it violates a statutory rule or is malafide. But it was opined that the same is not an iron-clad opinion in law. The Court relied on the case of Manjula Pathak v. State of Rajasthan, (SB CWP No. 14577 of 2016), which was also considered by the Tribunal, and held that transfer of an employee, within a year of his imminent superannuation, deserved interference.

It was observed that an employee, who is to retire within one year, should not be transferred if there is no obvious cause, as such a transfer would cause avoidable disruption at the end of a government servant’s career and create difficulties in a post-retiral settlement.

The Court was of the view that it was for the State Government to satisfy the Tribunal as to the circumstances which made it manifest that transferring the petitioner was founded upon a careful evaluation of public interest and/or administrative exigencies and that the impugned transfer was not a casual and mechanical exercise of discretion. The State should also have satisfied the Tribunal that while passing the impugned transfer order, the fact of the respondent 3 superannuating in six months was consciously taken into consideration. Neither of the above was admittedly done.

In view of the above, it was held that the order passed by the Tribunal required no interference by this Court under Article 226 of the Constitution of India. No manifest injustice can be said to have been caused to the petitioner by the impugned order of transfer. The consequential order passed by respondents had thus to be sustained.

The writ petition was dismissed for being bereft of merits.[Rani Jain v. Government of Rajasthan, 2019 SCC OnLine Raj 1615, decided on 13-05-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Subodh Abhyankar, J. allowed writ petition filed under Article 226 of the Constitution of India against the order issued by M.P. Public Service Commission. 

The petitioner contended that her name was kept in the waiting list at Serial 1 but despite the availability of post, she was not appointed. She appeared in the State Civil Services Exam, 2015, thereafter was selected under the waitlisted handicapped category. It was further contended that private-respondent had not been appointed on account of criminal cases registered against him and he was declared disqualified, the criminal cases registered against him were already decided by the Court against him. Thus it was submitted that the petitioner’s name cannot be kept in the waiting list for an unlimited period. 

Learned counsel for the respondents had submitted that although the petitioner was selected and her name was kept in the waiting list at Serial 1, but as the private-respondent had filed the petition, no order could be passed in favour of the petitioner due to the pendency of the said petition. 

The Court found that insofar the petition filed by the private-respondent was concerned, the said petition had been dismissed by the Court under a separate order and thus in its considered opinion the Court held, that there was no legal impediment in issuing the appointment order in favour of the petitioner, which difficulty has been expressed by the respondents in their reply. Hence, there was a direction to issue an appointment letter in favour of the petitioner. [Pooja Dwivedi v. State of M.P., 2019 SCC OnLine MP 1154, decided on 20-06-2019]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: The instant writ petition entertained by Sujit Narayan Prasad, J. was filed under Article 226 of the Constitution of India for quashing the Memo issued by the respondent whereby the water reservoirs in the urban area has been directed to be handed over in favor of the municipality.

The petitioner had contended that certain water reservoirs had been settled in favor of the petitioner for the year 2016-17 and in terms of the contract the petitioner carried out the fishing work in the aforesaid tanks but all of a sudden the impugned decision was taken on by which the tank was transferred in favor of the municipality therefore, the ground was raised that when the terms and conditions of the contract was in subsistence during the course when the impugned order was passed, the same cannot be done in the course of subsistence period of the contract, hence the impugned order was not sustainable in the eyes of law.

Counsel for the State-respondent Gautam Kumar, submitted that the impugned decision was taken in terms of the Cabinet decision which was issued by the appropriate authorities and the said Cabinet decision was taken in pursuance to the provision of Section 126 of the Jharkhand Municipal Act, 2011 wherein the provision was made about vesting of property which includes public tanks/reservoirs also, therefore, if the Cabinet took a decision to follow the statue and in terms thereof any decision which was taken, the same cannot be interfered with.

The Court observed that the tanks in question were settled in favor of the petitioner in the year 2016-17 by the order in that regard by the competent authority but in course of subsistence period of the contract the impugned decision was taken to transfer the tanks in favor of the municipality by taking aid of the decision by the State of Jharkhand. It further found no dispute about the settled position of law that if any Act has been acted upon, it was to be followed in its strict sense and there cannot be any deviation otherwise it will be said that the rule of law was not prevailing. It held, “It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect.” Hence, the petition was dismissed.[Somath Haldar v. State of Jharkhand, 2019 SCC OnLine Jhar 683, decided on 13-06-2019]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan and R.C. Khulbe, JJ. contemplated a writ petition, where the petitioner who was an Assistant Professor, sought certiorari to quash the order of recovery of money along with interest. The petitioner further sought mandamus to direct the respondent-State University to re-examine petitioner’s case and subsequently withdraw the order.

The factual matrix of the case are, that the petitioner had earlier invoked the jurisdiction of Court wherein the validity of the order passed by the respondent-University directing the petitioner to deposit a sum of Rs 1,75,000 was questioned. For the aforementioned case the Divisional Bench had observed that it was an admitted fact that, when the petitioner had proceeded on study leave, he had executed a bond with the State of Rajasthan although the petitioner was a temporary employee of the Government of Rajasthan. Finding no merit in the writ petition, the Division Bench dismissed the same. But in 2019 the concerned officer from the department issued an order for recovery of the amount of the bond with interest, executed at the time of study leave granted to the petitioner to secure the Ph.D. Degree, which was in question in the instant writ.

S.S. Yadav, counsel for the petitioner, submitted that the Division Bench had erred in holding that the petitioner was a temporary employee, and that the Rules were applicable to temporary employees only. Since the petitioner was a permanent employee, Rule 110 (1) would alone apply in which event, the petitioner need not pay the said amount for not complying with the bond; the cause of action for both the writ petitioners were different, though the petitioner had filed an application, seeking review of the order passed by the Division Bench earlier. It was further submitted that the impugned order of 2014 made no reference to the petitioner having invoked the review jurisdiction of the Court; and consequently, the petitioner was entitled to again invoke the jurisdiction of the Court under Article 226 of the Constitution.

The Court, observed that petitioner’s contention that a new cause of action had arisen as a result of the Office Order of 2019 did not merit acceptance and, since it was the very same cause of action based on the order of 2014 whereby Rs 1,75,000 was sought to be recovered from the petitioner, on which the present writ petition was based, it is difficult to accept that the petitioner was again entitled to invoke the jurisdiction of Court, in effect, questioning the very same order of 2014. Further, it was stated that bare perusal of the order passed by the Division Bench clearly showed that, while dismissing the writ petition, liberty was not granted to the petitioner to again invoke the jurisdiction of this Court by way of a separate writ petition for the very same cause of action.

The Court held, “The judgment of a competent Court is binding inter-parties and cannot be re-agitated in collateral proceedings. An order or judgment of a Court/Tribunal, even if erroneous, is binding inter-parties. The binding character of judgments, of Courts of competent jurisdiction, is, in essence, a part of the rule of law on which administration of justice is founded.” Since a review petition was already filed by the petitioner the aforementioned writ was dismissed.[Vidya Sagar Singh v. G.B. Pant University of Agriculture and Technology, 2019 SCC OnLine Utt 473, decided on 16-05-2019]

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S.K. Mishra and Dr A.K. Mishra, JJ., dismissed the writ petition against the judgment declining interference in the disciplinary proceeding and order imposing the punishment of compulsory retirement.

The facts of the case were that appellant-petitioner was appointed as an officer of the Indian Bank as Inspecting Manager at Kolkata. He was entrusted with the inspection of banks at different places for which the bank had to pay the bill for lodging. The Deputy Manager General, on finding the irregularity asked for the explanation which was duly submitted but was not appreciated and appellant-petitioner alleged to be dishonest under the Indian Bank Officer Employees’ (Conduct) Regulations, 1976. A disciplinary authority thus imposed a major penalty of compulsory retirement. The appeal and review petition filed before the reviewing authority was dismissed and hence, this writ.

The Judgment of the Single Judge Court after submission held that the court had the jurisdiction to entertain the writ petition. The court further held that the court could not interfere with the enquiry, appellate and reviewing authority in absence of the procedural irregularities. The Court further held that “The power of judicial review to scan the evidence, which had reached finality on the basis of concurrent finding, was found uncalled for in the facts placed and law analyzed.”

The matter was then called for Division Bench which observed the Judgment of Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423 in which the court made it clear that the writ of certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. where lower courts either without jurisdiction, or in excess of jurisdiction or acting in flagrant disregard of law or rules of procedure or acting in violation of the principles of natural justice, pass an order thereby occasioning failure of justice. Thus, the impugned judgment of the learned single judge was found to have the support of law and facts. Thus, writ dismissed. [Abhiram Samal v. Indian Bank, 2019 SCC OnLine Ori 198, decided on 01-05-2019]

Uttarakhand High Court
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Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, CJ and N.S. Dhanik, J. entertained a PIL which sought mandamus to direct the respondents to constitute a Committee for management/trust of the affairs of the ‘Purnagiri Temple’; to prepare a list of important temples in terms of the order passed in Writ 2015; and a mandamus to direct the first respondent to appoint Commissioners in such important temples, where till date no management committee was appointed.

The learned counsel for the petitioner Ayush Negi and Amit Kapri, placed reliance on In the matter of ‘Constituting a Trust / Board at the Jageshwar Dham, (Jyotirlinga) Almora v. State of Uttarakhand, 2013 SCC OnLine Utt 4074,  whereby certain directions were issued regarding constitution of a Committee of Management for the Jageshwar Dham. The learned counsel also relied upon several judgments where recommendations to the State Government to frame suitable legislation for the proper functioning of Hindu Public Religious Institutions and Charitable Endowments were given, and had directed the State Government to prepare a list of all the public temples throughout the State to bring them within the Schedule. Counsel submitted that power was conferred both on Parliament and State Legislature under Article 246 of the Constitution of India. In the absence of any legislation (plenary or subordinate), power was also conferred on the Executive, under Article 162 of the Constitution of India, to issue administrative instructions.

The Court relied upon various judgments of the Supreme Court and stated that, no court can issue a mandate to a legislature to enact a particular law. Similarly, no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact. The Court further stated that, while they had the power to strike down a law on the ground of want of authority, not necessarily Court would not sit in appeal over the policy of Parliament or the State Legislature in enacting a law. The executive authority of the State must be held to be within its competence to frame a policy for the administration of the State.

It was held by the Court that, “As the duty to formulate policies is entrusted to the executive, which is accountable to the legislature, the Court would not direct the executive to adopt a particular policy or the legislature to convert it into enacted law.” Court further relied upon the judgment in, Census Commr. v. R. Krishnamurthy, (2015) 2 SCC 796, where it was rightly held that, the exercise of making policy must be left to the discretion of the executive and legislative authorities. The Court is called upon to consider the validity of a public policy only when a challenge is made that such policy decision infringes the fundamental rights guaranteed by the Constitution of India or any other statutory right. As the petitioner had highlighted various illegalities in the manner in which the subject temple is being managed, the Court directed the respondent to consider it appropriate to examine the specific allegations made in the said representation.[Narendra Kumar v. State of Uttrakhand, 2019 SCC OnLine Utt 406, decided on 30-05-2019]