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 BriefsForeign Courts

Supreme Court of Pakistan: The three-judge Bench of Mian Saqib Nisar, Ijaz Ul Ahsan and Sajjad Ali Shah, JJ. hearing a civil review petition was seized with the question as to whether Pakistan Olympic Association (POA) is a ‘person’ performing public functions in connection with the affairs of Federation of Pakistan under Article 199(1)(a) of the Constitution of Islamic Republic of Pakistan. 

POA is an autonomous society registered under the Societies Registration Act, 1860; affiliated under the Olympic Charter with the International Olympics Committee as the National Olympic Committee for Pakistan. It is not controlled by the Federal Government; isn’t a statutory body, and has no affiliation from the Pakistan Sports Board (PSB).

The Court relied on Abdul Wahab v. HBL, 2013 SCC OnLine Pak SC 84 where it was held that two important factors for ‘function test’ are: (i) the extent of financial interest of the State/Federation in an institution, and (ii) State’s dominance in controlling affairs thereof.

It was opined that none of the functions of POA involved exercise of sovereign power or public power. While the Federal Government did approve the selection of contingents and gave its consent to POA, such an act did not amount to executive control. Federal Government did not exercise decision-making authority even if PSB was involved in scrutinising and approving teams. Bulk of the activities carried out by POA were privately funded; only the activity of sending teams to Olympics was funded by the federal government; and while it was an expensive undertaking, it was only part of what POA did. Further, the State had no financial interest in the functions of POA.

In view of the above, it was held that POA did not satisfy the ‘function test’ and therefore, was not exercising public functions and was not a ‘person’ as per Article 199(5) of the Constitution. As such, no writ of quo warranto could lie against its office holders, nor could a writ lie against the Association in terms of Article 199(1)(a) of the Constitution.[Pakistan Olympic Association v. Nadeem Aftab Sindhu, CRP No. 412 of 2014, Order dated 01-01-2019]

Case BriefsHigh Courts

Patna High Court: A Division Bench comprising of Ravi Ranjan and Madhuresh Prasad, JJ. while hearing a criminal writ petition filed by husband seeking habeas corpus for his wife, ruled that the writ could not be issued if the wife did not want to go back to her matrimonial home.

In the instant case, the petitioner-husband filed a writ seeking habeas corpus for his wife who had left him. On the date of hearing, the petitioner’s wife entered an appearance before the court along with her parents and submitted that the petitioner had assaulted due to which she had left her matrimonial home. She further submitted that she did not wish to go back to her matrimonial house along with the petitioner.

The Court noted the submissions of petitioner’s wife and held that since petitioner’s wife had already been produced before the Court, a writ of habeas corpus could not be issued to the petitioner. On that holding, the writ petition was dismissed.[Virat Arya v. State of Bihar,2018 SCC OnLine Pat 1987, decided on 01-11-2018]