Writ Petition

It has been observed by the author that there lies some confusion in the mind of the assessee as to whether to seek remedy by filing an appeal or by making a writ petition in the High Court. The circumstances, under which Article 226 of the Constitution of India can be invoked, are summarized herein. Further, the Article provides synopsis of some relevant judgments under the subject matter.

Writ is the extraordinary power of the Courts called in to the party’s assistance. Writ is a watchdog to stop perversity and to redress manifest injustice whenever it is found. The writ power is exercised sparingly and only in appropriate cases where judicial conscience of the High Court dictates it to act, otherwise, a gross failure of justice or grave injustice shall occasion. The writ petition does not confer any inherent right to the petitioner. It is only a power vested with the Court without any corresponding right to the party

The Constitution under Article 32 empowers the Supreme Court and similarly under Article 226 the High Court to enforce fundamental rights by passing appropriate writs as per the provision. Only the Supreme Court or High Court can pass a writ. Their writ jurisdiction is concurrent. The Article 226 is reproduced hereunder for the benefit of the readers.

• Article 226 of the Constitution

1. Notwithstanding anything in Article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

2. The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

3. Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without-

1. furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

2. giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.

4. The power conferred on a High Court by this Article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32.

• Types of writ

As can be observed in clause No. 1 in the Article 226 above, types of writ are:

1. Mandamus writ is issued to a public servant to perform some public or quasi-public legal duty, which he has refused to perform and the performance of which cannot be enforced by any other adequate legal remedy. This writ is also available against inferior courts where they have refused to exercise their jurisdiction when they are bound to do so.

2. Certiorari writ is also issued against inferior courts in order to quash their order or decisions which have been issued without having competent jurisdiction to do so.

3. Prohibition writ is issued to compel inferior courts to keep themselves within the limit of their jurisdiction.

4. Haobeas corpus writ is issued by a superior court to safeguard against arbitrary acts of private persons and executives.

5. Writ of Quo warranto is issued to inquire in to the legality of the claim that a party asserts to a public office and to oust him from its enjoyment if the claim is not well founded.

• Circumstances under which Article 226 can be invoked

1. where there is inherent illegality in the proceedings or where the provision of law under which the order was passed is itself unconstitutional;

2. where the impugned order infringes the fundamental rights of the party;

3. where the statutory authority has failed to carry out its statutory duty;

4. where the order or decision is actuated by extraneous or mala fide considerations;

5. where a decision of quasi-judicial authority is vitiated by error of law apparent on the face of the record;

6. where there is contravention of requirements of principles of natural justice;

7. where there is inherent lack of jurisdiction;

8. where no alternate remedy is provided by the statute;

9. where the statutory remedy is not adequate or is onerous or resort to statutory remedy would cause irreparable injury to the petitioner.

Mere existence of alternative remedy is not enough to deny the maintainability of writ. The alternative remedy must be efficacious. If it is shown to the satisfaction of the Court that though the remedy is available, it is onerous, the Court may invoke its writ jurisdiction. The question of efficacious alternative remedy therefore, has to be considered by the Court before going into the merits of the case.

• Limitations under Article 226

Article 226 places two limitations upon the exercise of these powers by the High Court-

1. The writ issued by the court cannot run beyond territory subject to its jurisdiction.

2. The authority to whom High Court is empowered to issue the writs must be amenable to the jurisdiction of the court either by residence or by location.

It was held that the Madras High Court has no jurisdiction to entertain writ petition irrespective of the fact that president of the petitioner is resident of Chennai as the Registered office of the petitioner is located in Mumbai.

Indian Institute of Architects vs. Union of India 2000 (121) ELT 609 (Mad.)

• Some relevant judgments

1. Petitioner bound by the terms of contract to refer dispute, if any, to the arbitrator – Approached High Court to invoke extra-ordinary powers of the Court under Article 226 of the Constitution of India. It was held that the writ petition not maintainable as alternative remedy is available – Naresh Kumar Gupta vs. Union of India (2001) 1 J & K Law Reporter 464.

2. Even when fundamental rights have been infringed, a High Court cannot grant relief against the authority is located outside its territory – Election Commission vs. Saka Venkata 1953 SCR 1144 (1158).

3. The powers of the High Court under Article 226 are discretionary and no limits are placed on the discretion. However, it must be exercised along recognized lines and not arbitrarily, and subject to certain self imposed limitations – Sangram vs. Election Tribunal (1955) I SCR (18)

4. High Court jurisdiction is supervisory in nature – Chandigarh Administration vs. Manpreet Singh (1192) I SCC 380

5. High Court is not be interfere in the matter when appeal filed by the assessee himself is pending before the Tribunal – Suttons & Sons (India) P. Ltd. vs. Union of India 1995(75) ELT 229 (Cal).

6. The Court sits in judgment only on the correctness of the decision making process and not on the correctness of the decision itself – H.B. Gandhi vs. Gopinath 1992 Supp. 2 SCC 312.

7. 7. It is settled position of law that the High Court has the power to entertain a petition under Article 226 of the Constitution of India, where the impugned action of the executive authority is without jurisdiction or is likely to subject a person to lengthy proceedings and unnecessary harassment – S.B Construction Company vs. Union of India D B Civil Writ Petition No. 4089 of 2005, HC Raj, Guljag Industries Ltd. vs. State of Rajasthan & Anr. 129 STC 3.

8. Article 226 of Constitution of India – Natural justice – show cause notice dated 1-11-2004 was received by petitioner under letter dated
   27-10-2005 – relied upon docu-ments were received on 23-11-2005 – unrelied upon documents were received on 21-12-2005 - petitioner sought one month’s time for filing reply and adjournment of hearing fixed on 26-12-2005 - case decided ex parte on 28-12-2005 – invocation of writ jurisdiction is warranted – Commissioner’s order is set aside and case remanded – if no reply is filed within 3 weeks, impugned order shall stand restored – Silicon Graphic System (India) P. Ltd. vs. Union of India & Anr. 2006 (74) RLT 229 (Bom.)