Experts CornerShardul Amarchand Mangaldas

Introduction

A recent judgment of a two-Judge Bench of the Supreme Court of India in U.P. Power Transmission Corpn. Ltd. v. CG Power and Industrial Solutions Ltd.[1] (UPPTCL) has yet again thrown up the divergent approaches followed by writ courts in  India while dealing with disputes arising out of contracts having an arbitration clause.

 

As with all debates, this one has two sides. On the one hand,  High Courts undoubtedly possess extraordinary powers to issue prerogative writs under Article 226 of the Constitution of India,  subject to  judicially crafted and self-imposed limitations, one of them, especially  in the context of commercial matters, being the existence of an efficacious alternative remedy such as arbitration. On the other hand, it is universally acknowledged that existence of an alternative remedy cannot be an absolute bar to exercise of writ jurisdiction by High Courts.

 

Given this legal paradox, a practising lawyer must willy-nilly gaze into a crystal ball (figuratively, at least) and assess his/her chances of success in choosing to file a writ petition as against taking recourse to arbitration in such matters.

 

This article examines the principles laid down by constitutional courts which will help a practitioner make an informed assessment on the preferable course of action in such situations. Part A of this article discusses the judgment in UPPTCL and Part B examines judicial precedents on this subject.

The UPPTCL case

A certain framework agreement was entered into between UPPTCL (employer) and CG Power and Industrial Solutions Limited (contractor) for construction of 765/400 KV substations at Unnao, Uttar Pradesh. In the framework agreement, the scope of the construction work was divided into four contracts. The first contract was in the nature of a supply contract, while the other three contracts pertained to civil works. After the contractor completed the supply work as per the supply contract, it was found, on an audit objection, that UPPTCL had failed to deduct labour cess from the bills of the contractor, under the Building and Other Construction Workers’ (Regulation of Employment and Conditions of Service) Act, 1996 (BOCW Act). Consequently, a demand was raised by UPPTCL upon the contractor.

 

The contractor filed a writ petition in the Allahabad High Court and challenged the demand, stating that the first contract was a pure supply contract and would not attract levy of labour cess under the BOCW Act. The employer/UPPTCL did not raise the point of existence of an arbitration clause in the framework agreement before the High Court.

The High Court set aside the demand in exercise of its writ jurisdiction.

What the Supreme Court held

While affirming the judgment of the High Court on merits, the Supreme Court found that although there was an arbitration clause in the framework agreement, the employer did not raise an objection in that regard and the existence of an arbitration clause did not debar the High Court from entertaining the writ petition.

 

The Supreme Court further reiterated that availability of an alternative remedy, such as arbitration, would not prohibit the High Courts from entertaining a writ petition in an appropriate case. The Court referred, amongst others, to the judgments in Whirlpool Corpn. v. Registrar of Trade Marks[2] and Harbanslal Sahnia v. Indian Oil Corpn. Ltd.[3] and noted that, notwithstanding the availability of such an alternative remedy, a writ petition would nevertheless be maintainable under certain circumstances. The Supreme Court, however, struck a note of caution that since writ jurisdiction under Article 226 is discretionary in nature, courts should refrain from entertaining a writ petition which involves adjudication of disputed questions of fact and analysis of evidence of witnesses.

 

It appears that the Court’s attention was not drawn to the fact that over the years, the correctness of the decision in Harbanslal Sahnia[4] has been doubted in subsequent decisions, as discussed in Part B below.

 

The decisions in Whirlpool Corporation and Harbanslal Sahnia

In Whirlpool Corpn. v. Registrar of Trade Marks[5], the Bombay High Court dismissed a writ petition challenging a show cause notice for cancellation of the certificate of renewal for a trademark issued by the Registrar of Trade Marks. The issue for consideration was whether a writ could be maintained in view of existence of an alternative remedy before the Registrar under the Trade Marks Act, 1940.  In this case, the dispute neither arose out of a contract nor was otherwise agreed by the parties as being referable to arbitration.

 

A two-Judge Bench of the Supreme Court held that the power of the High Courts to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution and therefore, the High Courts, having regard to the facts of the case, have the discretion to entertain or not to entertain a writ petition. The Supreme Court stated that the High Courts have imposed upon themselves certain restrictions, including existence of an effective and efficacious alternative remedy. The Supreme Court further went on to hold that presence of an alternative remedy would not operate as a bar in at least three contingencies, namely (i) where the writ petition is filed for enforcement of any of the fundamental rights; or (ii) where there is a violation of the principle of natural justice; or (iii) where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.

 

This judgment was followed by a two-Judge Bench of the Supreme Court in Harbanslal Sahnia v. Indian Oil Corpn. Ltd.[6] where the Supreme Court reiterated that the rule of exclusion of writ jurisdiction, in view of availability of alternative remedy, is a rule of discretion and not one of compulsion and the court may interfere if it comes to the conclusion that the case falls within one of the contingencies enunciated in Whirlpool Corpn.[7].

 

The dispute in Harbanslal Sahnia[8] pertained to termination of a petroleum dealership agreement by the respondent Corporation. Here, a writ petition filed by the aggrieved dealer challenging the termination action was dismissed by the High Court, having regard to the contractual relationship between the parties and existence of an arbitration clause in the dealership agreement. The Supreme Court, however, overruled the judgment of the High Court, after concluding that the termination was vitiated by non-compliance with certain government orders.

 

At this stage, it would be useful to look at certain decisions of the Supreme Court prior to the judgment in Harbanslal Sahnia[9].

 

In Titagarh Paper Mills Ltd. v. Orissa SEB[10], a three-Judge Bench of the Supreme Court upheld a Orissa High Court order dismissing a writ petition on the basis that the issue(s) in question pertained to disputes which were arbitrable under a contract.  In this case, the levy of a coal surcharge on the consumers of the Electricity Board concerned was challenged before the High Court. The High Court dismissed the petition on a preliminary ground that a specific remedy of arbitration was available to the parties. The Supreme Court upheld the High Court’s order and relegated the parties to arbitration, after finding that the claims relating to levy of coal surcharge would be covered by the arbitration agreement.

 

The approach in Titagarh Paper Mills Ltd.[11] was followed in several later judgments of the Supreme Court, such as State of U.P. v. Bridge & Roof Co. (India) Ltd.[12], Kerala SEB v. Kurien E. Kalathil[13] and State of Gujarat v. Meghji Pethraj Shah Charitable Trust[14].  In these judgments, the Supreme Court opined that factual disputes or disputes arising out of contractual terms or disputes pertaining to termination of the contract, without adherence to principles of natural justice, cannot be entertained in a writ petition and the suitable forum for adjudication may be a civil court or arbitration.     

 

Correctness of Harbanslal Sahnia doubted

Since the aforesaid prior judgments were not considered by the Supreme Court in Harbanslal Sahnia[15], its correctness was doubted in subsequent decisions of the Supreme Court. In Sanjana M. Wig v. Hindustan Petroleum Corpn. Ltd.[16] a two-Judge Bench of the Supreme Court noted that the Benches which decided Harbanslal Sahnia[17] and Whirlpool Corpn.[18] did not notice the prior decision in Titagarh Paper Mills Ltd.[19].  Nevertheless, the Court went on to hold that since the discretionary writ jurisdiction of the High Court will be determined on the facts and circumstances of each case, no hard and fast rule could be laid down. The Court held that a writ petition may be maintainable in situations where the impugned action is de hors the terms of the contract and also beyond the ambit and scope of the domestic forum created therefor; the Court qualified its finding by stating that such a case has to be indubitably pleaded.

 

Another two-Judge Bench of the Supreme Court opined in Ankur Filling Station v. Hindustan Petroleum Corpn. Ltd.[20] that the decision in Harbanslal Sahnia[21] requires reconsideration by a larger Bench. However, this issue was not considered in detail by the larger Bench in its final order[22], which focused on whether an arbitrator would have the power to order restoration of a licence. The three-Judge Bench went on to hold in the final order that there may not be an absolute bar for the arbitrator to order such restoration based on the facts and circumstances of the case and ultimately permitted the aggrieved party to invoke the arbitration clause. The Court stated that the larger question of law pertaining to powers of the arbitrator to grant appropriate relief could only be answered by a larger Bench of five Judges.

Conclusion

 In view of the above situation, a writ could credibly be maintained in a contractual matter in the following alternative scenarios, despite existence of an arbitration clause:

 

(i) the lis involves a public law character[23] or requires a judicial determination in rem[24];

(ii) the alternate forum chosen by the parties would not be in a position to grant appropriate relief[25];

(iii) a statutory contract is in question[26] or the action of a State or its instrumentality is demonstrably arbitrary, unreasonable[27] or violative of the fundamental rights of a party;[28]

(iv) the matter does not relate only to the interpretation of a contract which is within the domain of an arbitrator[29].

 

An authoritative pronouncement by a larger Bench of the Supreme Court on this issue would provide much needed clarity to litigants and practising lawyers alike.


† Partner, Shardul Amarchand Mangaldas & Co.

†† Associate, Shardul Amarchand Mangaldas & Co.

††† Associate, Shardul Amarchand Mangaldas & Co.

[1] 2021 SCC Online SC 383.

[2] (1998) 8 SCC 1.

[3] (2003) 2 SCC 107.

[4] (2003) 2 SCC 107.

[5] (1998) 8 SCC 1.

[6] (2003) 2 SCC 107.

[7] (1998) 8 SCC 1.

[8] (2003) 2 SCC 107.

[9] (2003) 2 SCC 107.

[10] (1975) 2 SCC 436.

[11] (1975) 2 SCC 436.

[12] (1996) 6 SCC 22.

[13] (2000) 6 SCC 293.

[14] (1994) 3 SCC 552.

[15] (2003) 2 SCC 107.

[16] (2005) 8 SCC 242.

[17] (2003) 2 SCC 107.

[18] (1998) 8 SCC 1.

[19] (1975) 2 SCC 436.

[20] (2011) 12 SCC 749.

[21] (2003) 2 SCC 107.

[22] Ankur Filling Station v. Hindustan Petroleum Corpn., Civil Appeal Nos. 10855 of 2018 arising out of SLP (Civil) No. 11193 of 2009, order dated 31-10-2018 (SC).

[23] Civil Appeal Nos. 10855 of 2018 arising out of SLP (Civil) No. 11193 of 2009, order dated 31-10-2018 (SC).

[24] Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532.

[25] Sanjana M. Wig, (2005) 8 SCC 242.

[26] Meghji Pethraj Trust, (2000) 6 SCC 293.

[27]Sanjana M. Wig, (2005) 8 SCC 242.

[28] Whirlpool Corpn., (1998) 8 SCC 1; Harbanslal Sahnia, (2003) 2 SCC 107.

[29] Bisra Stone Lime Co. Ltd. v. Orissa SEB, (1976) 2 SCC 167.


DisclaimerThe content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Further, the views in this article are the personal views of the authors.

Case BriefsHigh Courts

Telangana High Court: P. Naveen Rao J., while dismissing the present petition, reiterated that the scope of interference under Article 226 is restricted and cannot be put to action where an alternate remedy is available under the concerned statute.

The present writ petition was filed alleging that even though a cognizable crime was reported on 03-11-2020, no crime was registered by the concerned police authority.

Court reiterating the position in such cases, said, “If the petitioner had grievance against non-registration of crime, he has an effective and efficacious remedy under the Criminal Procedure Code. Therefore, petitioner has to avail the remedy as available in law before invoking the jurisdiction of this Court.”

 Reliance was placed on, Sakiri Vasu v. State of U.P., (2008) 2 SCC 409, where the Supreme Court said, “In our opinion Section 156(3) CrPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) CrPC, though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation”

 Following the above law, present petition stood dismissed granting liberty to the petitioner to work out his remedies as available in law on the issue of non-registration of crime stated to have been reported on 03-11-2020.[Masuna Satheesh Kumar v. State of Telangana, 2021 SCC OnLine TS 40, decided on 06-01-2021]


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Case BriefsHigh Courts

Himachal Pradesh High Court: Tarlok Singh Chauhan, J., while dismissing the present petition on lack of merits, said, “… election process has already begun and final voter list has also been published, therefore, entertaining this petition at this stage would amount to obstructing the election process, which is not permissible.”

Petitioner in the present case, are aggrieved by non-inclusion of their names in the voter list and have moved the present petition seeking relief for (i) revision of electoral roll of the gram panchayat (ii) impugned order to be set aside.

With respect to interference by the Court under Article 226, Court said, “It is a well-settled proposition of law that inclusion or exclusion of name in the voter list cannot be termed as an extraordinary circumstance warranting interference of the High Court in exercise of the jurisdiction under Article 226 of the Constitution. However, it is always open to a person whose name is not included in the voter list to avail the benefit by filing election petition as the authorities constituted have wide powers to cancel, confirm and amend the election and it can also direct to hold fresh election, in case, the election is eventually set aside.”

Court further observed that only in extraordinary and exceptional circumstances, the High Court can entertain writ petition under Article 226 of the Constitution where the order is ultra vires or nullity and/or ex facie without jurisdiction. Reliance was placed on Rule 14 and 24 of the Himachal Pradesh Panchayati Raj (Election) Rules, 1994 in addition to the case of Union of India v. Dudh Nath Prasad, (2000) 2 SCC 20 and Bhagwan Dass v. Kamal Abrol, (2005) 11 SCC 66.

Dismissing the petition, Court noted, “The present petition filed after commencement of the election process, that too, with a view to stall election, therefore, cannot be entertained, when the petitioner has an alternate efficacious remedy of filing an election petition under Rules.”[Akhtar Hussain v. HP State Commission, 2021 SCC OnLine HP 125, decided on 02-01-2021]


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Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Sanjay Kishan Kaul, DInesh Maheshwari and Hrishikesh Roy, JJ has refused to interfere with the termination of Chanda Kochhar as the Managing Director and CEO of ICICI Bank. The bench said,

“We are not inclined to interfere with the impugned order for the reason that the only controversy in these proceedings is whether the resignation of the petitioner having earlier been accepted and thereafter her services been terminated, the latter could take place or not. This would fall within the realm of contractual relationship between the petitioner and the private bank.”

Chanda Kochhar, the Ex- Managing Director and CEO of ICICI Bank, was terminated from her service and same was approved by the Reserve Bank of India (RBI). ICICI, in its meeting held on 29 May 2018, constituted an enquiry by a retired Judge of the Supreme Court of India. In June 2018 the Petitioner informed ICICI that Petitioner would go on leave till the enquiry is completed. By letter dated 3 October 2018, the Petitioner sought early retirement. ICICI, by the communication dated 4 October 2018 accepted the request for early retirement subject to certain conditions. On 27 January 2019, the report of the enquiry was submitted. The report was adverse to the Petitioner. In the meeting held on 30 January 2019, the Board of the ICICI treated the separation of the Petitioner’s service as a Termination for Cause. A communication to that effect was issued to the Petitioner. By further communication dated 1 February 2019, ICICI revoked the retirement benefits of the Petitioner. Correspondence ensued between the parties. The Petitioner called upon the ICICI to restore to the Petitioner the existing and future entitlements, including unpaid amounts, stock options, medical benefits. ICICI refused the request.

On 05.03.2020, the Bombay High Court had, in Chanda Deepak Kochhar v. ICICI Bank Ltd., 2020 SCC OnLine Bom 374, refused to interfere with Kochhar’s termination and had said,

“… merely because the approval under Section 35B(1)(b) is questioned, that cannot infuse a public law element in this dispute, which remains a contractual dispute. For the contractual remedies, the Petitioner will have to approach the appropriate forum and not writ jurisdiction.”

[Chandra Deepak Kochhar v. ICICI Bank Ltd., 2020 SCC OnLine SC 969, order dated 01.12.2020]


For Petitioner: Senior Advocate Mukul Rohatgi

For Respondent: Senior Advocate  Darius Khambata

 

Case BriefsHigh Courts

Karnataka High Court: S. G. Pandit J., rejected the petition on the ground of delay and latches.

The facts of the case are such that the father of the petitioners are the owners/ landlords of the property situated at Unachageri of Ron Taluk, Gadag district. The lands were inam land and on abolition of inam saranjam and in view of Inam Abolition Act, the name of the father of the petitioners was removed and the name of the Government was entered which was rectified later pursuant to filing of an application under Rule 6(1) of Inam Resumption Rules by the father of the petitioners. The grievance of the petitioners is that on 26-08-1974 the husband of respondent 2 filed form No. 7 seeking occupancy rights on grounds being that he was cultivating or tenant of the said land which was ex parte granted by the Special Tahsildar, Land Reforms. Challenging the said order, petitioners have preferred this petition under Articles 226 and 227 of the Constitution of India to quash the impugned order.

The Court observed that the petitioners have approached this Court belatedly and there is an inordinate delay of more than 40 years in preferring this writ petition challenging the order dated 28-03-1977 without any explanation to the effect.

The Court relied on Santhosh V. Rai v. Legory Saldhana 2015 (1) Kar. L.J. 429 and observed

“10. That apart, the impugned order in the instant case is of the year 1981. Petitioner has assailed the impugned order after a lapse of 32 years. It is difficult to believe that the petitioner or his father were unaware of the impugned order. They are residents of Attavar Village. In fact, residents of villages would be aware with regard to occupation, possession and cultivation of agricultural lands, particularly when Tribunal has granted occupancy rights. Therefore, the petitioner cannot contend that the impugned order is a nullity as it is in violation of principles of natural justice as there is no service of notice on the legal representatives of the petitioners mother Ramaramba. Therefore the writ petition would have to be dismissed on the ground of delay and latches and as being a speculative exercise.”

 The Court further relied on Municipal Council, Ahmednagar v. Shah Hyder Beig, (2000) 2 SCC 48 and observed that

 “The real test for sound exercise of discretion by High Court in this regard is not the physical running of time such but the test is whether by reason of delay, there is such negligence on the part pf the p[petitioner so as to infer that he has given up his claim or whether the petitioner has moved the Writ court, the rights of the third parties have come into being which should not be allowed to disturb unless there is reasonable explanation for the delay.”

The Court in S.S. Balu v. State of Kerala, (2009) 2 SCC 479 held that Delay defeats equity and that relief can be denied on the ground of delay alone even though relief is granted to other similarly situated persons who approach the Courts in time.

The Court held that it is well-settled position cannot be unsettled after decades.

In view of the above, petition stands rejected.[Shiddanagouda v. Special Tahsildar, WP No. 105092 of 2017, decided on 10-01-2020]


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Case BriefsSupreme Court

Supreme Court: The bench of Indira Banjerjee and Indu Malhotra, JJ that the Courts are duty bound to issue a writ of Mandamus for enforcement of a public duty.

“The High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the Government or has exercised such discretion malafide, or on irrelevant consideration.”

The Court was hearing the case pertaining to a private road in Pune being declared as being owned by Pune Municipal Corporation whilst in the property records, there was no private road.  In 1970, by an order of the Pune Municipal Corporation, a Plot was divided into 4 plots and a private road admeasuring 414.14 square meters. Read more

“There is no whisper as to how the road came to be shown as in possession of Pune Municipal Commissioner nor of the procedure adopted for effecting changes, if any, in the property records.”

Considering the issue at hand, the Court noticed in case of dispossession except under the authority of law, the owner might obtain restoration of possession by a proceeding for Mandamus against the Government. It said that in all such cases, the High Court must issue a Writ of Mandamus and give directions to compel performance in an appropriate and lawful manner of the discretion conferred upon the Government or a public authority.”

“In appropriate cases, in order to prevent injustice to the parties, the Court may itself pass an order or give directions which the government or the public authorities should have passed, had it properly and lawfully exercised its discretion.”

Stating that the Court is duty bound to issue a writ of Mandamus for enforcement of a public duty, the bench said that there can be no doubt that an important requisite for issue of Mandamus is that Mandamus lies to enforce a legal duty. This duty must be shown to exist towards the applicant.

“A statutory duty must exist before it can be enforced through Mandamus. Unless a statutory duty or right can be read in the provision, Mandamus cannot be issued to enforce the same.”

It further said that High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner’s right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles.

[Hari Krishna Mandir Trust v. State of Maharashtra,  2020 SCC OnLine SC 631, decided on 07.08.2020]


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Case BriefsHigh Courts

Orissa High Court: A Division Bench of Mohammad Rafiq and Debabrata Dash JJ. disposed off the petition on merits.

The factual matrix of the case is that the petitioner is a registered cooperative society, involved in supply/sale of different products including fertilizers, who participated in the e-auction made by the Steel Authority of India Limited, Rourkela Steel Plant for the purpose of sale of Ammonium Sulphate by depositing the required EMD. The auction was conducted and the petitioner’s name appeared in the bid sheet under rank-1 being the sole bidder. Despite the petitioner being the successful bidder no supply of the stock was made instead another open sale dated 19-12-2019 was published by the opposite parties. Being apprehensive that in the subsequent open sale, the entire stock would be sold wholly to the detriment of the petitioner; bid was given by the petitioner for purchase of small quantity of Ammonium Sulphate.  Hence the instant writ of mandamus has been filed to command the opposite parties to deliver the stock and direct the opposite party to consider and dispose of the petitioner’s representation dated 21-12-2019 as the action of the opposite party in holding the second auction is arbitrary and illegal.

B. K. Mohanty and S S Rao, Counsel for the petitioner submitted that as there was no response towards representation dated 19.12.2019 given by the petitioner, it is clear that there was no prior intimation regarding cancellation of the first auction process been given and it is a fit case for judicial review in annulling the second auction and for restoration of the result of the first auction.

B. Dasmohapatra and B.N Bhol, Counsel for the opposite parties highlighted the scope of writ jurisdiction in contractual dealings of the State. He further highlighted that in the first auction; the petitioner was the only participant and had applied for the quantity quoting the fixed bid price making the first auction not competitive at all. Hence the present case is not fir for judicial review.

The Court after hearing both sides relied on the judgment titled Maa Binda Express Carrier v. North-East Frontier Railway (2014) 3 SCC 760 and observed that there is a certain public interest at stake in the decision of cancellation of the first auction as petitioner being the sole participant in an auction reduces competition and hinders public interest. It also stated that judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides. Its purpose is to check whether choice or decision is made ‘lawfully’ and not to check whether choice or decision is ‘sound’.

In view of the above, petitioner is estopped from questioning the validity/legality of the cancellation of the first auction and the petition is disposed off. [Maa Sarala Multipurpose Co-operative Ltd. v. Steel Authority of India, 2020 SCC OnLine Ori 536, decided on 20-07-2020]

Case BriefsSupreme Court

Supreme Court: In the case where the bench of Dr. DY Chandrachud and Indira Banerjee, JJ was called upon to decide whether the existence of an alternate remedy would create a bar on High Court’s writ jurisdiction, it held,

“The existence of an alternate remedy, whether adequate or not, does not alter the fundamentally discretionary nature of the High Court’s writ jurisdiction and therefore does not create an absolute legal bar on the exercise of the writ jurisdiction by a High Court.”

Explaining that the court added that courts had themselves imposed certain constraints on the exercise of their writ jurisdiction to ensure that the jurisdiction did not become an appellate mechanism for all disputes within a High Court’s territorial jurisdiction, the bench said,

“The intention behind this self-imposed rule is clear. If High Courts were to exercise their writ jurisdiction so widely as to regularly override statutory appellate procedures, they would themselves become inundated with a vast number of cases to the detriment of the litigants in those cases.”

This would also defeat the legislature’s intention in enacting statutory appeal mechanisms to ensure the speedy disposal of cases.

On the argument that if, by the self-imposed rule, the writ jurisdiction of High Courts is circumscribed by the existence of a suitable alternate remedy, whether constitutional, statutory, or contractual, then a High Court should not exercise its writ jurisdiction where such an alternate remedy exists, the bench said that it is a misconceived argument and that,

“The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken into consideration by the High Court amongst several factors.”

[Maharashtra Chess Association v. Union of India, 2019 SCC OnLine SC 932, decided on 29.07.2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Subodh Abhyankar, J. dismissed a writ petition filed under Article 226 of the Constitution of India by the petitioners who were the ex-employees of the Union Carbide, Bhopal. The petition was filed against the order passed by the Sessions Judge, Bhopal, in the Criminal Appeals of 2010 against the order of conviction. 

The petitioners were convicted under Sections 304-A, 336 and 34 IPC for Bhopal Gas Tragedy in 1984. The appeals for the said convictions are still pending with the Sessions Court. The main issue in the instant writ was that the petitioners’ sought directions to the Central Bureau of Investigation for production of case diary, the petitioner alleged that the investigation conducted by CBI was malafide, malicious and fraudulent. 

Anirben Ray, Rajesh Sahani and Rajeev Mishra, counsels for the petitioners submitted that the truth was deliberately suppressed in the case and in fact, no investigation was carried out by the CBI and the charge sheet was drafted as per the directives of the Government of India without application of mind by the Investigating Officer, who had no knowledge or understanding of most of its contents. It was further submitted that under Section 172(3) of CrPC, case diary could not be summoned by the accused but the non-production of the same led to prejudice to the Fundamental Rights of the accused. It is submitted that for the proper disposal of the criminal appeals and for doing the justice, it was incumbent for the lower appellate court to call for the case diary and ascertain the truth which had been deliberately suppressed.

The Sessions Judge rejected the said contentions earlier in appeal on the ground that there was a clear bar under CrPC for the use of case diary but the same can be availed by the writ jurisdiction. 

The counsel for the State, Vikram Singh, opposed the prayer of the petitioners and submitted that no interference in the impugned order was made out, as the aforesaid objection was never raised by the petitioners during the course of trial despite having ample opportunities to do so. It was submitted that the petitioners had refrained from raising aforesaid ground at the time when they had the opportunity to do the same and the application had been filed by the petitioners only to drag the matter before the Sessions Court. It was further submitted that there was a clear bar under Section 172(3) of CrPC for use of case diary by an accused.

The Court carefully observed that petitioners were represented by senior counsel during their trial as well as in appeal. It was rather intriguing as to what made these advocates who represented the petitioners not to file such application during the course of the trial despite having many opportunities and the fact that the trial itself took around 14 long years to conclude and as if it was not enough even the application for summoning the case diary had been filed by the petitioners after a period of six years after their appeal was filed against the judgment. It was held by the Court that “petitioners cannot cry foul at this stage of the proceedings and try to open a Pandora box in the name of their fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India.” The Court further observed that the application filed by the petitioners was clearly filed with malafide intention to further prolong the criminal appeals which practice was deprecated. Court found that no error was committed by the Sessions Judge in rejecting the said application hence the writ petition was found to be devoid of merits. [S.P. Choudhary v. Union of India, 2019 SCC OnLine MP 1228, decided on 25-06-2019]

Case BriefsHigh Courts

Rajasthan High Court: Veerendr Singh Siradhana, J. dismissed the writ appeal on the ground that the assessment done for the crop production estimation was according to the scheme and there was no illegality in the order passed by Permanent Lok Adalat.

A writ petition was made against the order made by Permanent Lok Adalat, the General Insurance Corporation of India Ltd.

Gajendra Singh Chauhan, counsel for the petitioner submits that National Agriculture Insurance Company (NAIS) was introduced and launched in the country. The respondent-farmer suffered loss on the account of the fire to the crop and the claim was awarded to the tune of Rs 2,40,000 along with the interest. It was submitted that quantum of claim determined by the Permanent Lok Adalat was bad in eye of law in the view that general guidelines of the scheme contemplates that claim to be settled only on yield data furnished by Directorate of Economics and Statistics arrived through regular crop estimation surveys for production estimates and in the present case it was done on the basis of the report of tehsildar who opined that respondent-farmer suffered from a minimum loss, which was bad in eye of law as the production estimation was to be transmitted to Agriculture Insurance Company of India, New Delhi as per the notification. Thus the writ was filed.

The Court opined that a  glance of National Agriculture Scheme would reflect that the loss assessment in the case of localized calamities is to be assessed on individual basis and the district Revenue Administration will assist Revenue Administration in assessing the extent of crop loss and thus the estimate by the tehsildar cannot be brushed away. Thus, dismissed the writ.[General Insurance Corpn. of India Ltd. v. Bhoop Singh, 2019 SCC OnLine Raj 963, decided on 14-05-2019]

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: Mahinda Samayawardhena, J. contemplated an application which was contended to be of national importance. It involved the construction of 220 Kv Electricity Transmission Line, which according to the petitioner, was illegal and arbitrary.

The petitioner sought to quash the decision of Ceylon Electricity Board who issues wayleave over the land of the petitioner and to compel them to draw the Transmission Line through route depicted in plan marked or any other route so to avoid the petitioner’s premises. The petitioner further requested the Court to issue mandamus against the Central Environmental Authority, to carry out another environmental impact assessment. It was the complaint of the petitioner that the deviation from the original position was unreasonable and irrational and was done for collateral purposes. The petitioner stressed that the route suggested in fact avoided residential areas and predominantly traversed paddy and bare lands. The petitioner stated that no proper inquiry was held in respect of recommending wayleave over the petitioner’s residential premises.

The Board gave a vivid description as to why the plan was redrafted and the contention of the petitioner was baseless and unjustified.

Court stated that in the exercise of writ jurisdiction was not competent to decide on the administrative or judicial decisions of in-disputed facts. Further, it held that, “Also it is not the task of this Court in exercising writ jurisdiction to consider whether the decision is right or wrong but whether the decision is legal or illegal.” Construction of high-tension power lines and its impact, both positive and negative, was a very specialized subject which the Courts were ill-equipped to handle in a writ application. It further held that, prerogative writs not be issued as a matter of routine, as a matter of course or as a matter of right. It is purely a discretionary remedy to be granted or denied in the unique facts and circumstances of each individual case. Even if the party applying the writ was entitled to that relief, still it can be denied if the other factors stand against granting of that relief. Other factors will include matters of common benefit as opposed to individual benefit.[K.M. Denawaka v. Ceylon Electricity Board, CA/Writ/No. 330 of 2016, decided on 03-06-2019]

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Punjab and Haryana High Court: This petition was filed before the Bench of Rajiv Narain Raina, J., where allegation of submission of false certificates were made.

Facts of the case were such that petitioner and respondent both were selected on the post of Anganwadi Worker. Petitioner had alleged respondent of furnishing a false education certificate showing her to be 8th class pass. Respondent contended that petitioner herself had procured a false resident certificate of Haryana according to which she was not qualified to lay claim to the post of Anganwadi Worker.

High Court was of the view that on these recent developments in the case petitioner had no relief since her claim is based on falsehood. Court is not to exercise its discretionary writ jurisdiction in favour of a party who had relied on false documents, thereby misleading the authorities to obtain resident status. The Court, therefore, dismissed this petition with a view that it is for the State Government to consider if the respondent can be continued on the post of Anganwadi Worker. [Jeenat v. State of Haryana, 2019 SCC OnLine P&H 233, dated 08-03-2019]

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Madhya Pradesh High Court: This petition was filed before the Bench of Prakash Shrivastava, J., under Article 226 of the Constitution where petitioner challenged an order by which the punishment of dismissal from service was imposed and also the order which dismissed the appeal and affirmed the order of punishment.

Facts of the case were that petitioner, a Clerk-cum-Cashier in Bank was charge-sheeted for misconduct for unauthorized absence for a period of 537 days and was issued show cause notice and thus was dismissed from his post challenged by petitioner in the appeal which was also dismissed. Petitioner submitted that he was ill and could not have attended the office thus when he joined he had submitted medical documents. He stated that he was ready to forego the backwages and prayed for his reinstatement. In terms of Regulation 22 of Nimar Kshetriya Gramin Bank (Officers & Employees) Service Regulation, 2001 the unauthorized absence of an officer or employee was misconduct liable for disciplinary action and in terms of the Regulation 38 dismissal is one of the major penalty if the misconduct is proved.

High Court was of the view that enquiry officer had applied all due process and given petitioner reasonable opportunity. It was found that petitioner had not submitted any medical documents and charge against him was duly proved. Hence, the punishment of dismissal from the post of Clerk was a reasoned order where petitioner was given opportunity. Since, misconduct by petitioner was proved his dismissal from his post was rightly imposed on him as a penalty. The Court, it was observed, under its writ jurisdiction does not act as an appellate body but examines only the illegality in the decision-making process. Therefore, this petition was dismissed. [Pushpa Shukla v. State of M.P., WP No. 2819 of 2005, dated 28-02-2019]

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Madhya Pradesh High Court: An application filed before a Bench of Sheel Nagu, J., by petitioner for grant of permit for the corridor route, i.e. Narsinghgarh to Barai via specified places was dismissed by respondent, i.e. Secretary, State Transport Authority. Hence, petitioner filed this petition under Article 227 of the Constitution invoking supervisory jurisdiction.

It was found that petitioner had an alternative statutory remedy of approaching the State Transport Appellate Authority at Gwalior. Petitioner had referred to the case of Waheed Khan v. Transport Department, WP No. 7703 of 2018, and submitted that there are no disputed questions of fact involved and since the order of the Secretary, STA, Gwalior is passed in violation of the statutory provision, the High Court can interfere.

High Court was of the view that the right interpretation of the Gazette is through the attending facts and circumstances of this case and the question to be decided which in the considered opinion of the Court involves disputed questions of fact, cannot be gone into under the writ jurisdiction. Since the statutory remedy was available the Court refused to exercise its writ jurisdiction and relegated the matter to the State Transport Appellate Authority at Gwalior. [Harish Kumar v. State of M.P., 2019 SCC OnLine MP 198, dated 24-01-2019]

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Jammu and Kashmir High Court: A Single Judge Bench of Sanjeev Kumar, J., dismissed this writ petition, claiming relief by private parties, in respect to the possession and title of the immovable property.

The facts of the case were that the petitioner had a dispute over possession with the respondents, her stepsons, with regard to some property.  She approached the Tehsildar Khansahib for redressal and the matter reached to the Dy. Commissioner. The Dy. Commissioner ordered in her favor but the respondents did not oblige to this order. The petitioner thus approached this court to seek relief.

The Court reiterated the settled law and relied on the Supreme Court decision in Roshina T v. Abdul Azeez K.T.,2018 SCC OnLine SC 2654, where the Court cautioned against the entertainment of the writ petitions involving adjudication of disputed questions of facts relating to possession and title of immovable property between the private parties.

Thus, the writ petition was dismissed. [Khati v. State of J&K,2018 SCC OnLine J&K 979, decided on 14-12-2018]

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Jammu and Kashmir High Court: A Single Judge Bench comprising of Sanjeev Kumar, J., dismissed the current writ petition invoked for quashing the order of the district judge whereby the appeal of the petitioner was held as non maintainable and the order passed by the Assistant Labour Commissioner regarding the payment of wages to the employees was upheld.

The facts of the case are that a few employees had filed for payment of their withheld wages. The application was filed much after the period of limitation, prescribed under the Payment of Wages Act. The application was accompanied by an application for condonation of delay. The Assistant Labour Commissioner while exercising the discretionary powers allowed the condonation application. The petitioner thus filed an appeal which was dismissed. The impugned order dismissing the appeal was under question here.

The Court upholding the decision of the District Judge and Assistant Labour Commissioner said that condonation of the delay is a discretionary order and had been passed by the Authority after considering the stand taken by the rival parties. It has taken note of the social welfare nature of the legislation, i.e., the Payment of Wages Act, which is enacted for the benefit of workers who are denied wages for the work they render by the employer by misusing their higher bargaining powers and fiduciary relationship. The petition was thus dismissed. [Division Forest Officer, Bandipora v. Assistant Labour Commissioner,2018 SCC OnLine J&K 955, decided on 04-12-2018]

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Punjab and Haryana High Court: A petition was filed before a Single Judge Bench of Tejinder Singh Dhindsa, J. wherein extraordinary jurisdiction of the High Court was invoked.

Petitioner had invoked the extraordinary writ jurisdiction of the High Court in order to seek issuance of directions to respondent not to forcibly and illegally interfere with the peaceful possession of the land. The land was alleged to be under the ownership of the petitioner. Petitioner, in addition to the above, sought directions praying for restraining the respondent from making changes in the revenue record and to restore possession of 2 marlas of land. Whereas the respondent submitted that the civil proceedings that had already initiated were in respect of the same land which the petitioner seeks directions for in this writ petition.

The High Court after perusing the submissions of both the parties observed that the petitioner himself brought to notice of the Court that a suit had been instituted praying for permanent injunction in respect of the land restraining gram panchayat and others from digging in the land and to change the nature of the agricultural land. Therefore, the Court refused to interfere in the instant writ petition. [Harbhajan Singh v. State of Punjab,2018 SCC OnLine P&H 1693, dated 02-11-2018]

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Karnataka High Court: A Single judge bench comprising of N.K. Sudhindrarao, J. while hearing a civil writ petition praying for quashing of criminal proceedings pending against the petitioner, held that relief under writ jurisdiction cannot be used to scuttle the investigation of a case.

The present petition had been filed praying for quashing of criminal proceedings instituted against the petitioner in the trial court. Background of the matter is that the complainant (who had filed the case in trial court) alleged that the petitioner had falsely promised him to double a certain sum of money and on that pretext sent two people to obtain Rs. 15 lakhs from the complainant. It was alleged that those two people had fled away with the said money. On realizing that he had been duped, the complainant registered a criminal case for cheating against the petitioner for offence punishable under Section 420 of the  Penal Code, 1860.

Submission on behalf of the petitioner was that neither a complaint was filed nor an FIR was registered against him, but the petitioner was directly arrested and proceedings were started against him. The respondent submitted that since the matter was still under investigation, the proceedings against petitioner need not be quashed at this stage.

The High Court noted that a criminal proceeding starts with a complaint to set the criminal law in motion. Thereafter, an FIR is registered to register the commission of offence. However, it is not mandatory to mention the identity of accused in the FIR. It was observed that the scope of investigation and steps for investigation cannot be guided, controlled or stalled by filing a writ petition. Thus the Court held that a writ remedy cannot be resorted to in order to scuttle the investigation of a criminal case. [Ravi M.V. v. Amruthur Police, WP No. 49297 of 2018, decided on 16-10-2018]

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Patna High Court: A Single judge bench comprising of Birendra Kumar, J. while hearing a civil writ petition against an Arbitrator’s order held that since the statutory remedy provided under Arbitration and Conciliation Act, 1996 had not been exhausted, the High Court could not exercise its writ jurisdiction.

The respondent had acquired petitioner’s land for construction of ‘Dedicated Freight Corridor Project’ under the Railways Act, 1989. The dispute involved was regarding the nature of acquired land – while the petitioner claimed it to a residential-cum-commercial land, the respondent treated it as agricultural land while deciding the payable compensation. Petitioner challenged the said order of the respondent authority before an Arbitrator under Section 20-F (6) of the Railways Act; but his claim was rejected by the Arbitral Tribunal. Aggrieved by the said order, petitioner preferred the present petition before the Hon’ble High Court praying for a direction to the respondent authority to treat the acquired land as a commercial land and to quash the Arbitrator’s order.

The High Court noted that Section 20-F (7) of the Railways Act provides that the provisions of the Arbitration Act would be applicable in respect of all arbitration proceedings instituted under the Railways Act. Further, Section 34 of Arbitration Act provides a detailed provision to challenge an Arbitrator’s award before Court. In view of a statutory remedy being available to the petitioner, the Court refused to exercise its writ jurisdiction. Further, it was also observed that the question as to whether the nature of acquired land was commercial or agricultural, would be a question of fact requiring an appreciation of evidence; and the said exercise lay outside the jurisdiction of a writ court.

Therefore, the petition was disposed of granting liberty to the petitioner to approach the appropriate forum under Section 34 of Arbitration Act. [Dilip Kumar v Union of India,2018 SCC OnLine Pat 1906, decided on 11-09-2018]

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Karnataka High Court: While passing the order in a writ petition filed under Article 226 and 227 of the Constitution, a Single Judge Bench of Vineet Kothari, J. dismissed the petition holding that the petitioner has not allowed the respondent Authorities to consider the case on merits and proceed further in accordance with law and this amounted to abuse of process of law.

The petitioner was aggrieved by the Occupancy Certificate issued by the respondent Authorities in favor of the 5th respondent to develop and construct a building on the site owned by the petitioner. The petitioner alleged that the 5th respondent deviated from the sanctioned plan and thus the Occupancy Certificate needs to be cancelled and the building be demolished. It was also brought to the notice of the Court that the respondent Authorities had already withdrawn the impugned certificate.

The Court held the petition to be misconceived. There were various remedies available to the petitioner under the KMC Act, 1976. The main relief prayed for in the petition- withdrawal of the certificate- stood granted by the respondent, already. As regards the further process, the Court held that it was premature for the Court to direct the respondent Authorities at this stage.

The Court was of the opinion that even if the public bodies do not take appropriate step in the matter, the only remedy available to the complainant is to avail the remedy by way of civil suits in the competent Civil Court under Section 9, CPC. The complainant has to make specific factual averments and lead appropriate evidence in such Civil Courts before claiming any relief. The complainant should first pursue their remedy before the Departmental Authorities under the KMC Act and then the Civil Courts. Initiating such legal process from the top by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution is an abuse of process of law and bypassing the relevant remedies could not be appreciated. Accordingly the petition was dismissed without any order as to costs. [H.K. Chanchala Devi v. State of Karnataka,  2017 SCC OnLine Kar 1829, decided on August 16, 2017]