writ jurisdiction

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]

Case BriefsHigh Courts

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]

Case BriefsHigh Courts

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]

Case BriefsHigh Courts

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]

Case BriefsHigh Courts

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]

Case BriefsHigh Courts

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]

Case BriefsHigh Courts

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]

Case BriefsHigh Courts

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]

Case BriefsHigh Courts

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]

Case BriefsHigh Courts

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]

 

Case BriefsHigh Courts

Madhya Pradesh High Court: A petitioner approached the High Court under its writ jurisdiction, when the petition was earlier filed before the learned Single Bench in 2016 and the petition was withdrawn with liberty to take recourse to the remedy available under the Family Disputes Redressal System or the Criminal Procedure Code. However, before the Court, he presently brought on record an agreement of marriage and by producing certain telephonic conversation, tried to indicate  that by an agreement, the petitioner and the corpus have been married, she is being illegally detained and, therefore, the Writ Court committed an error in dismissing the writ petition and insisting upon the petitioner to withdraw the writ petition with liberty to take recourse to the remedy available under the Family Disputes Redressal System or the Criminal Procedure Code.

On such representations, the Court directed the Superintendent of Police Satna to produce the corpus and the corpus was accordingly produced along with the three officers of the State. But the assertions were clearly denied by the corpus stating that she did not know the petitioner and was willingly living with her parents. On finding this, the Court observed that its writ jurisdiction was blatantly misused as after the petition was dismissed by the learned Writ Court, instead of taking recourse to the remedy available, the petitioner approached the Court compelling it to call the corpus from Satna. The Court said that it wasted the valuable time of the Court. On finding the act of petitioner incorrect and falsified, the Division Bench dismissed the writ petition and directed him to pay cost of Rs. 25,000. [Chooramani @ Sheru Prajapati v. State of MP, 2017 SCC OnLine MP 196, WA No. 32 of 2017, decided on 22.02.2017]

Case BriefsHigh Courts

Calcutta High Court: Citing the concept of ‘co-extensive’ rights as laid down in Delhi Cloth and General Mills Co. Limited v. Union of India (1986) 2 SCC 288, the bench comprising of I.P. Mukerji J., allowed the writ petition by the Indian Oil Officers’ Association impugning various clauses in a Memorandum of Understanding  between them and the Indian Oil Corporation (Respondents) on grounds of unconstitutionality, arbitrariness, illegality and mala fide intent, through violation of rights to freedom of demonstration, association, etc. under Article 19 of the Petitioner-Association.

The said agreement, governing the IOAA, a Trade Union registered under section 13 of the Trade Unions Act, 1926, was allegedly signed on 24th April 2009 by office-bearers of the IOAA who were then suspended or dismissed employees of the Corporation, and rejected by the All India Central Executive Committee of the IOAA on 29th July 2011. The impugned clauses 4, 11, 13, 16 and 18, sought to:

  1. Bar the Association from membership of any other federation or collective forum (clause 4)
  2. Prevent officers of Grade G and above from membership in the Association. (clause 11)
  3. Bar interference of Association in any manner in rights of Management in employment, non-employment, terms of employment and service conditions (clause 13)
  4. Prevent Officers in the position of Head of Department and Location Head, irrespective of grade, from participation in agitation of any kind. (clause 16)
  5. Stipulate that any violation of the code, reported or observed, would occasion loss of recognition of Association (clause 18)

The Court stated that it could not adjudicate upon questions of fact under its writ jurisdiction, nor upon the private law matter of authority to form contract. Assuming existence of agreement, the Court, while recognising that a company or body corporate could not enforce rights under Article 19 as held in The Tata Engineering and Locomotive Co. Ltd. v. State of Bihar, (1997) 7 SCC 155, and also stated that there may be causes of action common to a body corporate as well as the shareholders or members, or ‘co-extensive’ rights; in which a writ may be maintained by a body corporate or  registered trade union or its members. Further, section 15 (d) of the Trade Unions Act provides for the expenditure of funds by a trade union for conduct of trade disputes on behalf of its members, in effect an espousal of members’ causes. The Court declared its jurisdiction over the public law element, whether it arose from contract or not, and adjudged the impugned clauses as void ab initio and illegal. The Court ordered the supersession of the agreement within 6 months, or else its termination by operation of this order. The Court stated that the writ, filed 6 years after the events, could not be barred by delay, as something non-existent did not trigger a cause of action capable of limitation. Indian Oil Officers’ Association. v. Indian Oil Corporation Ltd, 2016 SCC OnLine Cal 2301 , decided on June 15, 2016.