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Cases where writ was issued under Article 226 of Constitution[click]

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Judicial review

Judicial review under Article 32 and 226 is a basic feature of the Constitution beyond the plea of amendability. While under Article 32 of the Constitution a person has a right to move before Supreme Court by appropriate proceedings for enforcement of the rights conferred by Part III of the Constitution, no fundament right can be claimed by any person to move before the High Court by appropriate proceedings under Article 226 for enforcement of the rights conferred by the Constitution or Statute. In L. Chandra kumar vs. Union of India, (1997)3 SCC 261 a Bench of seven-Judge while dealing with the essential and basic features of Constitution – power of review and jurisdiction conferred on the High Court under Article 226/227 and on the Supreme Court under Article 32 held:

“To express our opinion on the issue whether the power of judicial review vested in the High Courts and in the Supreme Court under Articles 226/227 and 32 is part of the basic structure of the Constitution, we must first attempt to understand what constitutes the basic structure of the Constitution. The doctrine of basic structure was evolved in Kesavananda Bharati case (1993 4 SCC 225). However, as already mentioned, that case did not lay down that the specific and particular features mentioned in that judgment alone would constitute the basic structure of our Constitution. Indeed, in the judgments of Shelat and Grover, JJ., Hegde and Mukherjea, JJ. and Jaganmohan Reddy, J., there are specific observations to the effect that their list of essential features comprising the basic structure of the Constitution are illustrative and are not intended to be exhaustive. In Indira Gandhi case, (1975 Supp SCC 1), Chandrachud, J. held that the proper approach for a Judge who is confronted with the question whether a particular facet of the Constitution is part of the basic structure, is to examine, in each individual case, the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of our Constitution as a fundamental instrument for the governance of the country. (supra at pp. 751- 752). This approach was specifically adopted by Bhagwati, J. in Minerva Mills case [(1980) 3 SCC 625] (at pp. 671-672) and is not regarded as the definitive test in this field of Constitutional Law.

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COMMENTWrit Court practice & Procedure

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Indian Judicial Structure

Supreme Court of India and  Jurisdiction of Indian Supreme Court

High Courts And Jurisdiction of High Courts

Constitutional Provisions and Writ  Jurisdiction

Subordinate Courts in India

Tribunals and Judicial Commissions In India

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Back Ground of Constitutional Courts

The Indian High Courts Act, 1861, empowered the crown to issue letter’s patent to erect and establish high court of Judicature at Calcutta, Madras and Bombay. After the establishment of the High Court, the Supreme Court, the Sadar Diwani Adalat and Sadar Nizamat Adalat at the concerned presidency were to be abolished and the records and documents of these courts so abolished were transfered and become the records and documents of High Courts newly constituted.  The High courts were allowed to use the principles of justice, equity and good conscience on the appellate side for the first time. 1st October, 1937, under section 200 of Government of India Act, the Federal Court came into being in India.

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COMMENTWrit Issued under the authority of article 32 Of the Indian Constitutionhot-anim

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Writ Issued under the authority of article 226/227 Of the Indian Constitution

Power of Writ and judicial Review was not available under [Government of India Act, 1935], this power was conferred by the Constituent Assembly 1950 for the first time even after they conferred the same power to Indian Supreme Court U/A 32, and thus the  concept of ‘heart of the Constitution’ under article 32 virtually faces a competitor in the form of article 226 .   

223. Subject to the provisions of this Part of this Act, to the provisions of any Order in Council made under this or any other Act and to the provisions of any Act of the appropriate Legislature enacted by virtue of powers conferred on that Legislature by this Act, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the judges thereof in relation to the administration of justice in the court, including any power to make rules of court and to regulate the sittings of the court and of members thereof sitting alone or in division courts, shall be the same as immediately before the commencement of Part III of this Act [Government of India Act, 1935]

224.-(1) Every High Court shall have superintendence over all courts in. India for the time being subject to its appellate jurisdiction, and may do any of the following things, that is to say,-
(a) call for returns;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts ;

(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts; and . (d) settle tables of fees to be allowed to the sheriff, attorneys, and all clerks and officers of courts : Provided that such rules, forms and tables shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(2) Nothing in this section shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior court which is not otherwise subject to appeal or revision. [Government of India Act, 1935]

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Comparative study

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Constitutional Writ in the United Kingdom

There exist no fundamental rules of law which can restrict the sovereign competence of the legislature and no legal organization has the power of judicial review in the line of United States over legislative acts. Constitutional jurisdiction in its most familiar sense as Indian or American Could Understand simply does not to exist. However, some legal rules which now exist might have some constitutional behaviour which is fundamentally has binding on both people and government. They are as below:

1. Legal rules deriving from both common law and statute which govern the manner in which legislative authority is exercised

2. Substantive common law and statutory rules which define the structure and powers of the executive machinery of government and the rights and duties of individuals

3. Non-legal rules practices and convention

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jUDGEIssues before granting Writ

BULLET 2Alternative remedy 

  • It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See: State of U.P. vs. Mohammad Nooh, AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433; Harbanslal Sahnia vs. Indian Oil Corpn. Ltd., (2003) 2 SCC 107; State of H.P. vs. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499).
  • In Kanaiyalal Lalchand and Sachdev and others vs. State of Maharasthra and others, (2011) 2 SCC 782, this Court considered the question of maintainability of the writ petition while analternative remedy is available. Supreme Court upheld the decision of the Bombay High Court dismissing the writ petition filed by the appellants therein on the ground of existence of an efficacious alternative remedy under Section 17 of SARFASI Act.

BULLET 2Adequate Remedy

  • The Constitution Benches of this Court in K.S. Rashid and Sons vs. Income Tax Investigation Commission, AIR 1954 SC 207; Sangram Singh vs. Election Tribunal, Kotah, AIR 1955 SC 425; Union of India vs. T.R. Varma, AIR 1957 SC 882; State of U.P. vs. Mohd. Nooh, AIR 1958 SC 86 and K.S. Venkataraman and Co. (P) Ltd. vs. State of
    Madras, AIR 1966 SC 1089 have held that though Article 226 confers a very wide powers in the matter of issuing writs on the High Court, the remedy of writ absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction.

BULLET 2Breach of principle of natural Justice

  • The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted. (See: N.T. Veluswami Thevar vs. G. Raja Nainar, AIR 1959 SC 422; Municipal Council, Khurai vs. Kamal Kumar, (1965) 2 SCR 653; Siliguri Municipality vs. Amalendu Das, (1984) 2 SCC 436; S.T. Muthusami vs. K. Natarajan, (1988) 1 SCC 572; Rajasthan SRTC vs. Krishna Kant, (1995) 5 SCC 75; Kerala SEB vs. Kurien E. Kalathil, (2000) 6 SCC 293; A. Venkatasubbiah Naidu vs. S. Chellappan, (2000) 7 SCC 695; L.L. Sudhakar Reddy vs. State of A.P., (2001) 6 SCC 634; Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra, (2001) 8 SCC 509; Pratap Singh vs. State of Haryana, (2002) 7 SCC 484 and GKN Driveshafts (India) Ltd. vs. ITO, (2003) 1 SCC 72).

BULLET 2 Party must exhaust the statutory remedies

In Nivedita Sharma vs. Cellular Operators Assn. of India, (2011) 14 SCC 337, this Court has held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction for relief and observed as follows:
“12. In Thansingh Nathmal v. Supdt. of Taxes, AIR 1964 SC 1419 this Court adverted to the rule of self-imposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed: (AIR p. 1423, para 7). “7. … The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.

BULLET 2Availability of Redressal Forum

When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field[COMMISSIONER OF INCOME TAX & ORS. VERSUS CHHABIL DASS AGARWAL AUGUST 08, 2013]

BULLET 2Provisions for Armed Forces

Article 33 empowers the Parliament to restrict or abrogate the application of fundamental rights in relation to Armed Forces, Para Military Forces, the Police etc. (refer: Ous Kutilingal Achudan Nair vs.Union of India, (1976) 2 SCC 780).There is a constitutional bar not only under Article 136(2) but also under Article 227(4) of the Constitution of India with regard to entertaining any determination or order passed by any court or Tribunal under law relating to Armed Forces

BULLET 2Power of High Court

This Court in L. Chandra and S.N. Mukherjee, we find that the power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including Armed Forces Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India. In Mafatlal Industries Ltd. and others vs.Union of India and others, (1997) 5 SCC 536, a nine-Judge Bench of this Court while considering the Excise Act and Customs Act held that the
jurisdiction of the High Court under Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act.

  • In Thansingh Nathmal v. Supt. of Taxes (AIR p. 1423, para 7), The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by the statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.[UNION OF INDIA & ORS. VERSUS MAJOR GENERAL SHRI KANT SHARMA & ANR MARCH 11, 2015]

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COMMENTCases where writ was issued under Article 226 of Constitution[click]hot-anim

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