A Writ for unattended Complaints-- a simple remedy for Citizens.

I will begin with, to recall historic incident of Indian freedom struggle, occasioned with Mohandas Karamchand Gandhi (His Journey towards Mahatma). In the year 1893, when in South Africa, while holding a First Class Compartment ticket and traveling in, Mohandas was thrown out of the train, for in those times “Blacks” were not allowed to travel in the First Class Compartment, notwithstanding they hold a valid ticket. It was 9.00 in the chilled night. That designated “Black” sent a Telegram to the General Manager of the Railways and registered his complaint. The Complaint of that designated “Black” was attended forthwith, and the General Manager instructed the Station Master to secure that the complainant reaches his destination safely. The complainant was accommodated in the very next morning train to his destination.

And it is no exaggeration if I were to say that, here in the era of INDEPENDENCE and 21st Century of modern democracy, we the people of Sovereign India, whose complaints are ordinarily attended with avoidance, annoyance and sometimes with hostility.

A complaint to any public authority is the most legitimate incident of a democracy and giving of satisfactory reply is a healthy discipline for all who exercise powers over others.

The Apex Court in the case of Salem Advocate Bar Association, Tamil Nadu Vs. Union of India [2005], have ruled that all public authorities / public officials must make a reasoned reply to the notices received by it. In a case before it, the Bombay High Court took the judicial notice of the fact that Public authorities do not respond to the representations made to them, resulting in cases being filed in the Court. The Hon’ble Court directed that the representations made must be decided within 90 days from the date of making it. Notwithstanding these rulings, the Public authorities seldom make due replies to complaints / notices received by them.

And therefore, a Writ Petition may be filed for the limited purpose, and praying the court to direct the concerned public authority / official to make a “Reasoned reply” to the Petitioner’s complaint / Notice. If Writ is filed for this limited purpose, than it may be disposed of in two to three hearings; and, if any such order is passed, than that public authority / official is bound to make a reasoned and proper reply, in a time bound manner.

Nature of concerned Legal proceeding

1.      The legal process in the Court of law is initiated by the presentation / institution of a Case, whether in the form of a Suit, Petition, Application etc, in the competent court of jurisdiction.

2.      Every litigation presupposes the accrual of “cause of action”, that is to say, reason for initiating legal action in the Court of law.

3.      Accrual of cause of action implies and presupposes infringement of litigant’s some statutory right / fundamental right / equitable right / contractual right / or any other right recognized under the statutes or customs.

4.      In order to commence a legal action, the person must have some real grievance, which is the foundation of any legal action. For having right to move the court of law, the right sought to be enforced should have already come into existence, and there should be an infringement of it, or at least a serious and imminent threat exist of its infringement.

5.      Writ implies the Powers of the Constitutional Courts like the High Courts and the Supreme Court to give authoritative directions to any Public Authority, or to private persons discharging public functions, to do something or refrain from doing something. Writ jurisdiction is essentially a Judicial Review of Administrative / Executive / Legislative actions / omissions.

6.      Writ jurisdiction under Article 226 of the Constitution, including powers of superintendence of High Courts recognized under Article 227 of the Constitution, may also be invoked in cases where the subordinate Courts and tribunals or administrative bodies or officers have acted wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or have refused to exercised the jurisdiction vested in them, or where there is an error apparent on the fact of the record, and such act, omission, error or excess has resulted in manifest injustice.

A tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the rules of procedure or where no particular procedure is prescribed, it may violate the principles of natural justice. A writ of certiorari may be available in such cases. An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings, e. g. when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision. Basappa versus Nagappa [1954].

7.      In India during the British days, the three chartered High Courts of Calcutta, Bombay and Madras, were alone competent to issue Writs and that too within specified limits and the power was not exercisable by the other High Courts as all “In that situation” as this court observed in 'Election Commission, India V/s. Saka Venkata Rao'.

"the makers of the Constitution having decided to provide for certain basic safeguards for the people in the new set up which they called fundamental rights, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and finding that the prerogative writs which the Courts in England had developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they conferred in the States' sphere, new and wide powers on the High Courts of issuing directions, orders or writs primarily for the enforcement of fundamental rights, the power to issue such directions, “for any other purpose” being also included with a view apparently to place all the High Courts in this country in somewhat the same position as the Court of King’s Bench in England”.

The language used in Articles 32 and 226 of our Constitution of India is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders, writs or directions including Writs in the nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well. Basappa versus Nagappa [1954].

8.      The Writ Petition is kind of a remedy given to people of India for enforcement of their fundamental and statutory rights against the Govt and its various agencies, and in exceptional circumstances, the Writ Jurisdiction may be invoked against private persons, who are either discharging pubic functions, or if they are acting in collusion with Public authorities. Apart from this, as stated hereinabove, Writ jurisdiction and Article 227 jurisdiction of High Courts may also be invoked against judicial, quasi judicial bodies and administrative bodies discharging quasi judicial functions where they have acted wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or have refused to exercised the jurisdiction vested in them, or where there is an error apparent on the fact of the record, and such act, omission, error or excess has resulted in manifest injustice.

9.      The true scope of Writ Jurisdiction of High Courts under Article 226 of the Constitution of India may be summarized, to ensure that law of the land is implicitly obeyed and that various authorities and tribunals act within the limits of their respective jurisdiction.

10. Writ remedy is an effective tool to protect a person from being subjected to a flagrant violation of law by the acts and omissions of the administrative / executive authorities / Public officials / judicial / quasi judicial bodies.

11. Writ jurisdiction is a special jurisdiction of High Court; and High Courts may refuse to exercise this special jurisdiction when it is found that the Petitioner had equally efficacious remedy available before other courts / tribunal or other competent authority. Therefore, in every Writ Petition, the maintainability of Writ Petition is challenged either by the Respondents or questioned by the Court itself, on the premise of “availability of alternative remedy of Suit / Appeal / any other Statutory remedy”. Therefore, it is essential to satisfy the Court as why it is a fit case where the Hon’ble Court should exercise its extra-ordinary Writ jurisdiction.

12. In my limited understanding of things, I have formulated a test / parameter, on the basis of which the Writ Court may exercise the Writ jurisdiction.

13. Whereas number of judgments of Apex Court or of High Courts, in respect of exercise of extra-ordinary Writ jurisdiction by High Courts, may be cited, the rational test for the exercise of this extra-ordinary jurisdiction could be, wherein the conscience of the Writ Court is satisfied that the case before it, is a fit case for intervention, wherein the Petitioners are being harassed or being seriously prejudiced, by the patent illegal acts or omissions on the part of “State” Respondents, and the Hon’ble Court may interfere, to the limited extent, so as to remove the said patent illegality, without touching upon the merits of the case.

14. Further, there are many Apex Court rulings which have laid down that where fundamental rights are alleged to have been infringed, or where principles of natural justice are alleged to have been infringed or where the subordinate courts or tribunals alleged to have acted without jurisdiction, the Writ jurisdiction should be exercised by High Courts.

The Apex Court in the case of M.P. State Agro Industries Development Corporation Ltd Versus Jahan Khan [2007] have said, Para 10: (i) where the Writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar. (See: Whirpool Corporation V/s. Registrar of Trade Marks, Harbanslal Sahnia & Anr. V/s. Indian Oil Corporation Ltd. & Ors., State of H.P. V/s. Gujarat Ambuja Cement Ltd. and Sanjana M. Wig V/s. Hindustan Petroleum Corporation Ltd.).

The Apex Court in the case of Satwati Deswal Versus State Of Haryana [2010], while dealing with a Service matter, inter alia, observed as Para 5: ….It is well settled that a Writ petition can be held to be maintainable even if an alternative remedy available to an aggrieved party where the court or the tribunal lacks inherent jurisdiction or for enforcement of a fundamental right; or if there had been a violation of a principle of natural justice; or where vires of the act were in question.

15. There had always been confusion amongst the lawyers as whilst challenging the Orders passed by Civil Courts, Criminal Courts, Tribunals and quasi Judicial bodies, whether Writ jurisdiction is to be invoked under Article 226 or Supervisory jurisdiction of High Court under Article 227 is to be invoked. The judgment of Apex court in the case of Radhey Shyam Versus Chhabi Nath [2015] appears to have settled this controversy. The essence of the judgment is, all Orders passed by Civil and Criminal Courts may only be challenged under Art.227 of the Constitution and not under Article 226. And, all Orders passed by Tribunals or by any other Quasi judicial bodies may be challenged under Article 226, or preferably may be under Revisional Jurisdiction of High Courts under Section 115 of CPC, 1908.

16. In so far as Public Interest Litigations (PILs) are concerned, they are filed in the High Courts under Article 226 of the Constitution and before Supreme Court under Article 32 of the Constitution. There is no distinction between a PIL or a Writ Petition, except to the fact that, in Writ Petition, the Petitioner is himself aggrieved and seeks relief for himself, whereas in PIL jurisdiction, the Petitioner does not seek any relief for himself, but raises issue of substantial public importance, and seeks relief for the society as a whole.

17. Coming to deliverance and dispensation of justice, the exercise of adjudicating and declaring rights and obligation of respective parties which are before the Court, by employing laws of the land, the principle of equity, and customs & usages, the Courts / Tribunals formulate its decision.

18. The principles of natural justice forms the corner stone of every judicial decision and it postulate that both the litigating parties must have equal and sufficient opportunity to deal with the allegations made against them.

19. A Judicial decision must be a self contained document from which it should appear as to what the facts of the case were and what was the controversy, which was tried to be settled by the Court / Tribunal.

20. The process of reasoning by which Court came to a particular conclusion and decreed or dismissed the case, should clearly be reflected in the decision.

21. The decision should be on the basis of evidence on record and in accordance with law.

22. The fate of Justice is tied to the thread of reason: Reasoned decisions are inescapable in the entire scheme of administration of Justice, as explained decision breathes life into court order. Reasons disclose how the mind was applied to the subject matter and reveals a rational nexus between the facts considered and conclusions reached.

Recording of reasons is also an assurance that the judicial authority has applied its mind to the facts on record. The reasons employed not only be logical / conceivable but which will also deal with the substantial points which have been raised.

An unreasoned Order presupposes the non consideration of evidences and submissions on record made by the Party therein and the opportunity of affording due hearing would be rendered meaningless and empty formality and thus in essence occasion the frustration of principles of natural justice for the prejudiced party.

The giving of satisfactory reasons is required by the ordinary man’s sense of justice. Reasoned decisions are vital for the purpose of showing that one is receiving justice.

23. Having said all this, and to say that reasons must be given for decisions, what we really expect from the judicial authority.

Reasons are appreciation of such facts and evidences which are on record, and from which the judicial authorities are entitled to draw inferences and results.

Then comes the question, what is appreciation of facts and evidences.

Appreciation of facts and evidences is, drawing natural and logical inferences, drawing natural and logical results, which necessarily flow from those facts and evidences [the facts would mean those facts which are self evident or are admitted, or facts which are reasonably proved, disproved or not proved].

Appreciation of facts and evidence is an exercise wherein the proved existence of certain facts, provokes or persuades the decision maker to reach a certain conclusion.

And to put it further straight, Reasons are those statements, whereby the decision maker will tell you, WHY your submissions to claim certain reliefs, or WHY your submissions to deny reliefs claimed, are meritorious or if are meritless; or to say, the decision maker will tell you, WHY you are entitled to the reliefs or WHY you are not entitled to the reliefs, claimed or prayed for.

24. I am hasten to add here the valuable observations of the Apex court in the case of State Of Uttaranchal Versus Sunil Kumar Vaish [2011].

Para 18: Judicial determination has to be seen as an outcome of a reasoned process of adjudication initiated and documented by a party based, on mainly events which happened in the past. Courts' clear reasoning and analysis are basic requirements in a judicial determination when parties demand it so that they can administer justice justly and correctly, in relation to the findings on law and facts. Judicial decision must be perceived by the parties and by the society at large, as being the result of a correct and proper application of legal rules, proper evaluation of the evidence adduced and application of legal procedure. The parties should be convinced that their case has been properly considered and decided.

Para 19: Judicial decisions must in principle be reasoned and the quality of a judicial decision depends principally on the quality of its reasoning. Proper reasoning is an imperative necessity which should not be sacrificed for expediency. The statement of reasons not only makes the decision easier for the parties to understand and many a times such decisions would be accepted with respect. The requirement of providing reasons obliges the judge to respond to the parties’ submissions and to specify the points that justify the decision and make it lawful and it enables the society to understand the functioning of the judicial system and it also enhances the faith and confidence of the people in the judicial system.

To read further,  or any other Legal issues !!

If you are facing any of these issues like (a) Recovery of Moneys (b) Immovable property disputes (c) grievances against Municipalities & Govts., including challenge to legitimacy of laws etc. (d) grievances against illegalities and highhandedness of Police like illegal arrests, refusal to register FIR, deliberately flawed investigations, etc (e) False FIRs (f) False Claims (g) False evidences (h) Grievances against Judges (i) Illegal or perverse Orders of the Courts / Tribunals, among others.

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Sandeep Jalan

Advocate

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Thank you.