Skip to main content

Writ remedy: we the Peoples’ only hope !! aiming to retrieve !!


Special remedy against Administration: The Writ Petition is a special remedy provided 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 remedy may be invoked against private bodies, who are either discharging pubic functions, or if they are acting contrary to law and in collusion with Administration.

Against whom Writ can be invoked: Writ jurisdiction under Article 226 and Article 227 jurisdiction of High Courts may also be invoked against decisions and Orders passed by 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.

The nature of rights which can be protected under Writ: The very purpose of introducing this special remedy is to safeguard peoples’ certain fundamental and key rights recognized under our Constitution, like the (i) Life and personal liberty, (ii) protection of rights conferred under various statutes and laws (that is – protection of law as guaranteed under Article 14 of the Constitution) (iii) protection against arbitrary and discriminatory laws (that is – equality before law as guaranteed under Article 14 of the Constitution) (iv) freedom of speech and expression, (v) right to practice his religion, (vi) his profession of choice, carry on business, (vii) right to assemble peaceably etc.;

And for the protection of these valuable rights, the remedy has to be speedy and inexpensive.

Object of Writ: The procedure prescribed for Writ is summary in nature and the Courts are empowered to grant relief at the threshold, on prima facie satisfaction of infringement or even threat of infringement of aforesaid valuable rights. The idea behind furnishing this summary remedy is to secure that law of the land is implicitly obeyed and that various authorities and tribunals act within the limits of their respective jurisdiction.

Types of Writ: There are five types of Writs being contemplated. They are, Habeas Corpus, Mandamus, Certiorari, prohibition and Quo warranto. The Habeas Corpus is invoked to challenge unlawful detention by Police or by any other person; Mandamus is invoked to ask for directions to any Public Authority, Govt, or to private persons discharging public functions, to do something or refrain from doing something; Certiorary is invoked challenging flagrant illegal Orders of the Courts, Tribunals or of Administrative bodies; prohibition is invoked to prevent Courts and Tribunals from passing flagrant illegal Orders; and Quo warranto is invoked to remove such persons from Public office who lacks requisite qualifications to hold that Public office. Apart from these Writs, the High Courts are empowered to issue any other Order or directions as the circumstances of the case warrants, and can mould reliefs to meet the peculiar and complicated requirement of the case.

Discretionary Writ Jurisdiction: 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 Person has 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. 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.

Prayer for exercise of Writ jurisdiction: Whereas number of judgments of Apex Court or of 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.

Other grounds on which Writ jurisdiction may be exercised: 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 jurisdictional errors are one of the most important grounds on which the High Courts exercise their plenary and discretionary Writ jurisdiction under Article 226 & 227 of the Constitution of India.

Jurisdiction ordinarily signifies the competence of a court/ tribunals to entertain the dispute presented before it, and grant reliefs prayed / claimed for. However, the concept of jurisdiction is not confined in its application to Courts, but is also applied to every Statutory / Administrative or Constitutional body, to every Public servant / instrumentality of the State, as contemplated under Article 12 of the Constitution.

To put it more simple, jurisdiction implies the authority of the Court / Tribunals / statutory or administrative bodies, to “invoke” their powers, on a subject matter which comes before them, in the regular discharge of their duties, and take action or pass Orders in that behalf.

The errors of Jurisdiction, or to say Jurisdictional error arises, broadly, for reasons of (i) Want of Jurisdiction / without jurisdiction, that is to say, the Court/ Tribunals / statutory or administrative bodies did not had the powers to “enter upon” the subject matter which had come before it in the regular discharge of their duties; and will include instances where the Court / Authorities etc. have usurped the powers of another; and will also include instances where the condition precedents, for the exercise of powers, were not complied with; (ii) Excess of jurisdiction would imply such actions / Order where the Court / Authorities etc. although have lawfully assumed and exercised their vested powers, but in the course of exercise of their powers, they travelled beyond their powers, and have done acts or have passed Orders which they were not empowered under the law to act or to pass; (iii) Failure of jurisdiction would include such cases where the Courts / Authorities, in a given situation, have neglected / failed to exercise the discretion / powers conferred upon them. If a law confers a public Officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of powers and authority are shown to exist. [AIR 1971 SC 33]

Grounds on which Writ jurisdiction may be exercised: The Apex Court have consistently held that, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies : (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice AIR 2010 SCW 7184; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. [AIR 1970 SC 645; AIR 2010 SCW 7184; AIR 1999 SC 22; AIR 2012 SCW 616; AIR 2003 SC 2120; AIR 2005 SC 3936; AIR 1958 SC 86 (Constitution Bench Judg); (2011) 5 SCC 697; AIR 1969 SC 556; (2015) 6 All MR 35 (BHC)].

Impugned action without Jurisdiction: Among other jurisdictional errors, the errors of “want of jurisdiction / without jurisdiction of the Court / Authorities” is the most commonly occurred phenomena in our land, Bharat, that is India; and these errors may take many shapes and forms, as enunciated by our Apex Court in their various rulings. The instances of acts of “without jurisdiction” may include –

a)     Breach of law: Where the Courts / Authorities, etc, have acted without complying with the essential requirements of law, which are aptly spelled out in the provision of law, and which forms the conditions precedent for the exercise of powers; or where the exercise of powers is in disregard of substantive and specific provision of law, which has immediate bearing on the controversy at hand; or where the exercise of powers was contrary to law of the land, in force, and that the said exercise of said powers were without any legal support or sanction.. [AIR 1964 SC 322; (1990) 4 SCC 90]

b)     Breach of procedure prescribed under the law: Where the Courts / Authorities, etc, have acted or have passed an Order without following the procedure / or in breach of the procedure established under the provision of law. [(1990) 4 SCC 90; AIR 2007 SC 3153; AIR 1964 SC 322]

c)     Breach of principles of natural justice: It may be noted that the principles of natural justice in many statutes forms part and parcel of procedure prescribed under that statute / law; and disregard of any of these statutory provisions would result in action / Order passed without following the procedure / or in breach of the procedure established under the provision of law, resulting in jurisdictional error.

d)     Disregarding Precedents: There are rulings of Apex Court which have laid down that, in the due exercise of powers, if the Courts / Authorities disregards the precedents / judgments of Apex Court, such action / Orders suffers from jurisdictional error. [AIR 2008 SCW 7153]. There is a Bombay High Court ruling on the same lines. (1998) 1 Bom.C.R.397. It also amounts to contravention of the fundamental policy of Indian law. [AIR 1994 SC 860; AIR 2015 SC 620]

e)     The Apex Court in a case have gone to the extent of holding that, a person has a “discretion to disobey” an Order of the Authority if in his view, the said Order was without jurisdiction and which resulted in infringement of his fundamental rights. [AIR 1974 SC 1471]

Other forms of Jurisdictional errors: The jurisdictional error may also arise due to errors of law as held by Apex Court in landmark Mafatlal Ruling. The Apex Court observed to say that the inferior court or tribunal lacks jurisdiction / exceeds jurisdiction if it enters upon such an inquiry or, having jurisdiction in the first place, it proceeds to arrogate an authority withheld from it by perpetrating a major error of substance, form or procedure, or by making an order or taking action outside its limited area of competence. The Apex Court further said, A tribunal lacks jurisdiction if (I) it is improperly constituted, or (2) the proceedings have been improperly instituted, or (3) authority to decide has been delegated to it unlawfully, or (4) it is without competence to deal with a matter by reason of the parties, the area in which the issue arose, the nature of the subject matter, the value of that subject matter, or the non-existence of any other prerequisite of a valid adjudication. Excess of jurisdiction is not materially distinguishable from lack of jurisdiction and the expressions may be used interchangeably. [(1997) 5 SCC 536]

Nevertheless, the fine distinction between the jurisdictional errors and non jurisdictional errors must be clearly understood. Jurisdictional errors are those errors which are committed whilst “entering into” the province of the exercise of powers. The non jurisdictional errors are those errors which are committed during the course of exercise of powers, amidst the lawful invocation and lawful assumption of powers. [AIR 1954 SC 340; AIR 2003 SC 3789]

How to determine whether error is jurisdictional or non jurisdictional:
The jurisdiction of the Court / Authority, although is an issue of law, but ultimately it has to be decided on the basis of facts of the case. Whether error in the Impugned action / Order is a jurisdictional error or otherwise, is to be decided on the basis of existence or the non existence of Jurisdictional facts.

The facts, the existence of which empowers the Court or Authority to enter upon the province of their exercise of powers over the subject matter, for adjudication or for any other legal action, are called jurisdictional facts.

Therefore, if the “jurisdictional fact” exists in the facts of the case, the Court / Tribunal / Authority had the jurisdiction; if it does not exist, the court, authority or officer cannot act.

If the Court / Authorities wrongly assume the existence of these jurisdictional facts, they commit jurisdictional error.

A “jurisdictional fact” is a fact which must exist before any Court, Tribunal or an Authority assumes jurisdiction over a particular subject matter. [AIR 1962 SC 1621; AIR 2009 SC 713] It has been held that the cause of action is a jurisdictional question of fact. [AIR 2008 SC 187]

Consequences of actions / Orders which are suffering from the jurisdictional errors: The actions /orders of Courts /Authorities suffering from jurisdictional errors may be declared as nullity, void-ab-initio, non est in law. Such actions / Orders may be challenged even in the execution proceedings. [AIR 1974 SC 1471; AIR 2010 SC 3823; AIR 2011 SC 514; AIR 1924 Cal 913; AIR 1954 SC 340; AIR 2003 SC 1475; AIR 2003 SC 3789; AIR 2009 SC (Supp) 923].

Declaration of law: One of the other ways to deal with plea of “availability of alternate remedy”, is to seek the prayer of “declaration of law” instead of direct relief. The High Courts being Court of Record have to decide the questions of law whenever raised before them.

PILs / Writs, same thing: In so far as Public Interest Litigations (PILs) are concerned, 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 PILs, the Petitioner raises issue of substantial public importance, and seeks relief for the society as a whole.

Failings of Writ remedy: Unfortunately, the Writ remedy is failing to give people a summary relief to their grievances against the Administration. By the means of this write up, I am anxious to propose a simple way to dispose of Writ cases quickly.

What is happening in the Writ Court is – the aggrieved Petitioner makes lot of arguments about the illegal action / inaction of the “State”; the “State” in turn makes lot lot lot of arguments justifying its action / inaction. All these can be avoided if the dispute / issue is crystallized, and stand of the “Respondent” is made clear, in advance.

In wealth of judgments, the Courts have insisted upon recording of reasons by Authorities on the premise that such a decision would be subject to judicial review and the courts cannot exercise their duty of review unless courts are duly informed of the consideration of the public / statutory authorities underlying the action under review.

The proposed remedy to infuse life in Writs: In my view, the bulk of Writ cases may be decided at the threshold, where there is articulated due reply by the “Respondent” to the representation made by the Petitioner therein; and where the Petitioner yet remained aggrieved by the stand of the “Respondent”, the Petitioner may approach the Writ Court, to decide the legitimacy / fairness / reasonableness, of the stand of the “Respondent”. The “stand” of the Respondent must be before the Writ Court at the threshold. This is precisely what the Writ Court do in the Writ Jurisdiction. Writ jurisdiction is essentially a Judicial Review of Administrative / Executive / Legislative actions / omissions of the “State”.

No replies to complaints / representations, judicial notice of this fact: There are judicial notice of facts by Hon’ble Bombay High Court that cases are being piled up in the Court because the authorities do not respond to the representations made to them. In two cases before Hon’ble Bombay High Court, it is ruled that the Public Authorities must Respond to the Representation / Complaint it receives from the people. [WP (C) 6731 / 2012; and WP (C) No. 8348 / 2009].

Obligation to make representation before invoking seeking Writ of Mandamus; and the reciprocal obligation of the State: When the law obliges the subject to make due representation before the concerned authority before he seeks Mandamus against them. Then, why, the Administration is not obliged to make its position clear. The Writ Court must compel the Administration to develop the habit of responding to the Representations received by them. AIR 1975 SC 538; AIR 1975 SC 460.

The Apex Court in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India [AIR 2005 SC 3353] have ruled that all public authorities / public officials must make a reasoned reply to the Notices received by it.

Writ jurisdiction can be invoked in cases of (a) Police illegalities of unlawful arrests / detentions (including compensation), refusal to register FIR, investigation of crime, etc; (b) Private entity / persons blatantly makes the mockery of provisions of laws and authorities turning a blind eye to it; (c) Public Nuisance; (d) Actions contrary to law by Public authorities; (e) Gross misuse of discretionary powers by Public authorities; (f) Usurpation / Exercise of powers by Public authorities when there is none; (g) Issuance of Notice by Public authorities without justifiable reasons; (h) No reply to just complaints / representations made before Public authorities; (i) Failure in discharge of duties by Public authorities obligated under the law; (j) Refusal of exercise of powers by Public authorities when the circumstances exists for due exercise of it; (k) Preventing authorities from taking any unlawful action; (l) Flagrant illegal orders passed by Courts, Administrative authorities, Quasi judicial bodies, etc. (m) Mischievous frustration of contractual obligations by Administration; (n) Denial of Policy benefits / withdrawal of; (o) Perjury Applications u/s 195(4) of CrPC, 1973 r/w Article 227 of the Constitution of India; (p) Challenge to discriminatory / offensive / vague / oppressive / irrational laws.

The summary procedure of Writ: The procedure contemplated for Writ cases is purposely kept simple and short. After making due representation, the Writ Petition may be filed in the concerned High Court; and in case of extreme urgency, the case may be mentioned before the concerned Bench of the High Court by submitting a small Application called “Praceipe”; and the concerned Bench, on satisfaction of the urgency being shown, may grant urgent hearing to the case and may grant immediate interim reliefs.

Sandeep Jalan
Advocate


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.
or
If you are looking for draft of any legal proceeding; or if you want to know the nature and attribute of any legal proceeding; or if you want to know the procedure followed in any legal proceeding; or if you want to know the grounds on which any order of the court / tribunal is challenged; or if you are facing any frivolous litigation.

https://www.litigationplatform.com/



Thank you.

Comments

Unknown said…
Great work sandeep

Popular posts from this blog

The Commercial Courts / Suits - Pleadings and Procedure

The Commercial Courts, Act, 2015 – A broad framework In order to ensure speedy disposal of disputes which arises from commercial transactions involving high value, the Parliament of India has come out with a unique legislation namely, The Commercial Courts, Act, 2015; wherein Commercial Courts / Divisions are to be constituted in the existing district Courts and in High Courts; and wherein disputes arising from specified commercial dealings involving claim of Rs.1.00 Crore or above would be adjudicated by these newly constituted commercial Courts / Divisions. By virtue of recent Amendments, the limit of Rs.1.00 crore has been reduced to Rs.3.00 Lakhs; and accordingly claims relating to commercial disputes involving Rs.3.00 Lakhs could now be maintainable under this special regime.  And accordingly, the Code of Civil Procedure, 1908, is substantially amended, wherein new Order XIII-A and XV-A are inserted, apart from new Order XI, Sections 35 for costs, Verification of ...

Leading Evidence during trial

1.       In case where the accused refused to plead guilty of the offence to which he is charged with, and claims to be tried, the Court calls upon the Prosecution / Complainant to lead all the evidences he has in support of his case. 2.       In criminal trial, the evidence are required to be led by the complainant and / or their witnesses by stepping into the witness box and illustrating / demonstrating to what they have witnessed. The Complainant is to examine before the Court, himself, and all other witnesses, who are “witness” to the crime, which is alleged to have been committed by the accused named in the complaint. This examination of himself and other prosecution witnesses is called “Examination – in – Chief. 3.       Giving evidence of facts is critical to any trial, be it civil trial or criminal trial. And therefore, it becomes imperative to understand the dynamics of evidence in legal sens...

Form II under Rule 6 of Rules, 2006, framed under the impugned Act

Impugned Provision / other anomaly Breach of Section / Article FORM II [See Rule 6(1)] Application to the Magistrate under Section 12 of the impugned Act Section 3 – Explanation II; Section 18, 19, 20, 22 and 23 of the impugned Act. Principles of natural justice. FORM II [See Rule 6(1)] Application to the Magistrate under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (43 of 2005)     To The Court of Magistrate .................................... .................................... .................................... .................................... Application under section ........................ of the Protection of Women from Domestic Violence Act, 2005 (43 of 2005)            SHOWETH: That the application under section.................of Protection of Women from Domestic Violence Act, 2005 is b...