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the cognizance of the courts has been the writ system. Innumerable
cases have taken place in this area and hundreds of cases continue
to be filed against the administration every year for seeking writs and
it may be no exaggeration to say that the writ process has, over
shadowed all other techniques of judicial review of administrative
action. The purpose of this chapter is to discuss machinery
provisions of writ jurisdiction which may be invoked for the purpose
of bringing matter before the Supreme Court and the High Courts. It
however needs to be remembered that the system of judicial review
has been inherited from Britain. It is on this foundation that the
Indian courts have built the superstructure of control mechanism.
The whole law of judicial review of administrative action has been
developed by judges on case to case basis. Consequently, a thicket
of technicality and inconsistency surrounds it.
B. Writ Jurisdiction and Administrative Actions
Although the term “prerogative writ” is well known wherever
the language of the common law is spoken, no lawyer has been able
to give a satisfactory answer to the question : what is a prerogative
writ? However, as the name indicates, it is a writ especially
associated with the king. Prerogative writs are writs which originally
were issued only, at the suit of the king but which were, later made
available, to the subject. They were called prerogative because they
were conceived as being intimately connected with the lights of the
Crown.5 The common law regards the sovereign as the source of
fountain of justice, and certain ancient remedial process of an
extraordinary nature which are known as prerogative writ have from
De Smith, Judicial Review of Administrative Action 4th Edn. (1990) pp. 584-95;
Wade, Administrative Law (1988) pp. 616-17.
the earliest time issued from the court of Queen’s Bench Division in
which the Sovereign was always prebent in contemplation of law.
In English law, the expression ‘prerogative remedies’ has
reference to the writs of habeas corpus, certiorari, prohibition,
mandamus and quo warranto. The writ of quo warranto has been
abolished and injunction may now be issued from Queen’s bench
Division in similar circumstances.6 All other writs, except habeas
corpus, have been displaced by a modified procedure of orders7of
the same name. The High Court can also issue in application for
judicial review, declarations and injunctions having regard to the
nature of the matters in respect of which relief may be granted by
orders of mandamus, prohibition or certiorari.8 This is, however
distinct from ordinary actions for declarations or injunctions where
the procedures are entire different.
In India, the 'prerogative remedies’ derive their authority from
the constitutional provisions. Thus, Article 32 and 226 of the Indian
Constitution have empowered the Supreme Court and the High
Courts respectively to issue directions, orders or writs including writs
in the of nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari’
Article 32 and 226 are expressed in broad language. Then
the question that deserves investigation is whether the powers under
the aforesaid provisions of the constitution are wider than the
'prerogative remedies’ as understood in English law, and if they are
wider, then to what extent they permit resort to the private-law
remedies in proceedings for the prerogative remedies. While the
Supreme Court has refused to make any categorical pronouncement
on the above question9 both the Supreme Court and the High Courts
went on granting relief under the aforesaid powers which are by no
means confined to the scope of the prerogative writs as known in
English law. In India, the High Courts, faced with the objection that
certiorari does not lie to quash administrative orders, began to assert
wider powers under Article 226 of the constitution, which speaks not
only of the writs but also of directions’ and ‘orders’ in order to assert
their jurisdiction. The Supreme Court also encouraged this policy,
and held that while the writs of certiorari and prohibition cannot be
issued against any administrative authority, the High Court have
ample powers under Article 226 of the constitution to issue an order
or direction to prohibit an executive authority from acting without
jurisdiction.10 In Iram v. State of Madras,11 the High Court quashed
an order of exemption made by the Government from the operation
of a certain statute. On appeal, it was contended that the order of
the Govt, was executive or administrative and not quasi-judicial as
wrongly held by the High Court and was therefore not amendable to
the writ of certiorari. The Supreme Court upheld the reasoning of the
High Court that the exemption was granted on considerations not
germane to the purpose for which the statutory power of exemption
had been vested in the State Government. It was therefore a case
of ultra-vires for which certiorari would lie. But faced with the
objection that the impugned order was administrative and not quasi
judicial a contention that the Supreme Court apparently accepted
Ayyanger J. made the following observations.
“We do not consider that immunity from
interference by the courts could be sought for
Ahmad Hussain v. State of M.P., AIR 1951 SC. 138; Ram Charan v. State of
U.P., AIR 1952 All. 752.
Calcutta Discount Co, v. Income Tax Officer, AIR 1961 SC 372,
AIR 1961 SC 1731.
orders which are plainly ultra-vires merely
because they were passed bonafide in the
sense of being without indirect motive
particularly so when the power of the court
under Article 226 of the constitution is not limited
to the issue of writs falling under the particular
grouping, such as certiorari, mandamus, etc. as
these writs have been understood in England
but the power is general to issue any direction to
the authorities viz. for enforcement of
fundamental rights as well as for other
purposes”.12
The Supreme Court has also asserted wider power under
Article 32 of the constitution for itself13 and issued in one case an
‘order’ (i) directing the Municipal Board not to prohibit the petitioner
from carrying on the trade of wholesale dealer and (ii) directing the
Municipal Board to withdraw the pending prosecution of the
petitioner on the ground that the petitioner’s fundamental right was
infringed. Similarly, administrative order, in respect of which
certiorari does not lie have been set aside under Article 226 of the
constitution on the ground that the order was obtained by fraud.14
The Supreme Court nevertheless ruled that in reviewing
administrative action, the courts would keep to broad and
fundamental principles underlying the prerogative writs in English
law without however importing all its technicalities.15
The policy of invoking wider powers under the constitutional
provisions in the place of the prerogative writs in order to tide over
the technical difficulties of the latter was pregnant with a number of
consequences. The courts have asserted that ‘where there is a right
there is a remedy.’ Thus, in B. Ramabhadriah v. Secretary, Food
Id. at 1738.
Rashid Ahmad v. Municipal Board, AIR 1950 SC 163.
Partap Singh v. State of Punjab, AIR 1964 SC 72.
Bassappa v. Nagappa AIR 1954 SC 440: (1982)1 SCR 159.
and Agriculture Dept. Andhra Pradesh, the Supreme Court stated
that as for as possible the anxiety and endeavor of the court ought to
be to remedy an injustice rather than deny relief on purely technical
and procedural grounds. Thus where a petitioner seeks a larger
relief, it is always open to the court to grant him a smaller relief.
Thus under Article 32 and 226, the courts enjoy a broad
discretion in the matter of giving proper relief if warranted by the
circumstances of the case before them. The courts may not only
issue a writ but also make any order, or give any direction as it may
consider appropriate in the circumstances to give proper relief to the
petitioner.16 It can grant declarations or injunctions as well if that be
the proper remedy. It would not through out the petitioner’s petition
simply on the ground that the proper writ or direction has not been
prayed for.17 In practice, it has become customary not to pray any
particular writ in the petition filed before the court, but merely to
make a general request to the court to issue appropriate order
direction or writ. In making the final order, the court may not mention
any specific writ but merely quash18 or pass declaratory order19 or
give any other appropriate order.20 There, thus, exists a good deal
of flexibility to suit the specific circumstances of each case.
(i) Jurisdiction of the Supreme Court: Scope of Article 32.
Article 32(1) guarantees the rights to move the Supreme Court
by appropriate proceedings for enforcement of the fundamental
rights and.Article 32(2) invests the power to issue directions orders
or writs for the enforcement, of these rights. Thus, Article 32
provides a guaranteed quick and summary remedy for the
Rights and would not go into any other question, yet if there is a
clear abuse of process of the court, petition is maintainable even if
no violation of any fundamental right is involved. Thus when a
person manipulated facts in order to. get a decree by a court to
defeat the ends of justice in such a situation petition under article 32
is maintainable.26 While exercising jurisdiction the court will not go
into the questions of policy of the State which is required to be dealt
with by the legislature. On this basis the court declined jurisdiction
where the personal laws of Hindus, Muslims and Christians were
Challenged as violative of Fundamental rights of women.27 The court
also cannot issue direction which would result in amendment of
government existing policy.28 Similarly, increase of members in
stock exchange is a matter of policy, court would not issue directions
in such matters.29
Article 32 cannot be invoked even if an administrative action is
illegal unless petitioner's fundamental right is infringed. Thus, a
petition merely against an illegal collection of Income Tax is not
maintainable under Article 32, for the protection against imposition
and collection of taxes except by authority of law falls under Article
265 which is not a fundamental right.30 Similarly, the freedom of
inter-state or intra-state trade embodied in Article 301 is not a
fundamental right and hence cannot be enforced by way of a petition
under Article 32.31 But when an illegal action infringes a
fundamental right then the remedy under Article 32 would be
available. In Tata Iron and Steel Co. v. S.R. Sarkar,32 the company
paid tax under the Central Sales Tax Act to the State of Bihar. The
State of West Bengal also sought to levy sales tax under the same
act on the same turnover. In such a fact situation, a petition under
Article 32 was entertained by the supreme Court because, the Act in
question imposes only a single liability to pay tax on interstate sales.
The company having paid the tax to Bihar (on behalf of the Central
Govt.) the threat by the West Bengal to recover sales tax (again on
behalf of Central Government) in respect of the same sales prima
facie infringed the Fundamental Right to carry on trade and
commerce guaranteed by Article 19(1)(g).
The question whether a particular administrative action
infringes a Fundamental Right or not, and, therefore a petition under
Article 32 to challenge it is maintainable or not, does at times raise
complex issues. The classic case on the point is Ujjam Bai v. state
of Uttar Pradesh.33 A petition was filed in the Supreme Court under
Article 32 on the ground that a sales tax by misconstruing a
provision in a taxing statute had imposed sales tax on the petitioner
and thereby affected his Fundamental Right under Art. 19(1 )(g). The
Supreme Court held that since the order of assessment was made
by the officer concerned within his jurisdiction, a mere
misconstruction of a statutory provision by him would not justify a
petition under Article 32 even though a fundamental right may be
involved. The court stated that under Article 32 it would quash an
order of a quasi-judicial body affecting a fundamental right if it acts
under an ultra-vires law or without jurisdiction or if it wrongly assume
jurisdiction by committing an error on a collateral fact or if it fails to
32
AIR 1961 SC 65.
33
AIR 1962 SC 1621.
lib
34
Ujjan Bai case has been followed in Coffee Board v. Jr. C.T.O. AIR 1971 SC 870;
J. Farnadez and Co. v. Dy Chief Collector of Import and Export, AIR 1975 SC
1208.
137
D. K. Basu v. State of W.B. (1997)1 SCC 416; Tirath Ram v. State of-Punjab
(1997)11 SCC 623.
Badhisttva Gautam v. Subhra Chakraborty (1996)1 SCC 490.
Common cause v. Union of India, (1996)6 SCC 593 (Petrol pumps matter).
State of Punjab v. Ram Lubhaya Bagga (1998)4 SCC 117.
1995 Supp. (4) SCC 469 (Per. Ramas'wamy).
139
44
Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 667.
45
Article 226(2)
46
Ramesh Thapar v. State of Madras, AIR 1959 SC 725.
140
Manjula v. Director of Public Instructions, AIR 1952 Ori 344 See also-Kailash
Chander v. State of Haryana, 1989 Supp. (2) SCC 696.
48
Kihato Hollohan v. Zachillhu, 1992 Supp. (2) SCC 651.
49
AIR 1971 SC 1093.
50
Id. at 1106.
The jurisdiction of the High Courts over these tribunals under article
226 and 227 had been taken away as these tribunals had been
given substitutional role to the High Courts. However, now the Apex
Court in C. Chandra Kumar v. Union of India51 has restored the
power of the High Courts under Article 226 and 227 by declaring
article 323-A(2) and 323-B(d) of the constitution as unconstitutional.
The court held that the power of Judicial Review of High Courts
under Article 226 and 227 is a basic feature of the constitution which
cannot be abridged or ousted. High Court is bound to follow the
technical procedure of the English law in the matters of issuing a
writ, hence a petition will not be thrown out because the proper writ
has not been prayed for.52 High Court can issue a writ even when
the person has not prayed for. The High Court can issue a writ to a
person or authority having its location or residence within the
territorial jurisdiction of the High Court; or if the cause of action either
wholly or partly arises within its territorial jurisdiction. Therefore,
High Court can issue a writ even when the person or authority is
located outside its territorial jurisdiction.
The power of the High Court under Article 226 is
discretionary53 and the power cannot be exercised as a court of
appeal.54 The jurisdiction is supervisory in nature. It can strike
down an impugned rule and direct the authority to reframe it but it
cannot itself frame it.55 The power of judicial review under Article
226 is not directed against the decision but is confined to the
f
142
H.B. Gandhi v. Gopinath, 1992 Supp.(2) SCC 312; Haryana Urban Development
Authority v. Roochira Ceramics, (1996)6 SCC 584.
57
B.C. Chaturvedi v. Union of India, (1995)6 SCC 749.
58
Air India Statutory Corpn. V. United Labour Union (1997)9 SCC 377.
59
Lieweliyn Fortado v. Govt, of Goa, (1997)7 SCC 533.
143
60
S. R. Bommai v. Union of India (1994)3 SCC 376.
61
Ibid.
t 144
regulated by the well self established principles of law, while the writ
of Habeas corpus is issued as 'of right’ i.e. when detention is illegal,
all other writs, which are called orders by the same names in English
law, are discretionary in the sense that even when grounds for
issuing these writs exist, the court may refuse them in appropriate
circumstances.62 Some of them are discussed here :
(i) Alternative Remedies or Exhausion of Remedies;
(ii) Laches or unreasonable delay
(iii) Res judicata;
(iv) Authorities against whom writs may be issued; and
(v) Who can apply for a writ: Locus Standi
(i) Alternative Remedies or Exhausion of Remedies and control
of Administrative Action.
When an alternative and equally efficacious remedy is open to
a litigant, he should be required to pursue that remedy and not
invoke the writ jurisdiction. High Court may refuse to exercise its
jurisdiction under Article 226 on the ground that an alternative
remedy is available to the petitioner.63 But this principle does not
apply to the enforcement of Fundamental Right either under Article
32 or 226. Thus, the law is that the Supreme Court and High Court
cannot refuse relief under Article 32 and 226 on the ground of
alternative remedy if the person complains of violation of his
fundamental rights. However, if the person invokes the jurisdiction
of the High Court for any other purpose, in exercise of its discretion
the High Court may refuse relief. The Supreme Court has stated in
a number of cases that Article 32 being itself a Fundamental Right,
mere existence of an alternative remedy is not a good and sufficient
62
Union of India v. T.R. Verma, AIR 1957 SC 882.
63
Steel Ltd. v. Kalyan, 1973(1) SCC 273; Har Shankar v. Dy. Excise
Commissioner, 1975(1) SCC 737.
145
64 K.K. Kochunni v. State of Madras. 1959 SC 725; Daryav Singh v. State of U.P.,
AIR 1961 SC 1457; Kharak Singh v. State of UP., AIR 1963 SC 1295.
65 State of Bombay v. United Motors, AIR 1953 SC 252; Himmatlal v. State of M.P.,
AIR 1954 SC 403 See Also Thakkar C.K., Administrative Law (1992) pp. 400-
405.
66 Rashid v. I.T.I. Commr,, AIR 1954 SC 207; Jay Engg. Works v. State of West
Bengal, AIR 1968 SC 407. ,
146
67
AIR 1952 SC 192.
68
Rashid v. I.T.I., AIR 1954 SC 207; Shivram v. I.T.O., AIR 1964 SC 1095;
Champalal v. C.I.T., 1971(3) SCC 20.
69
1998(6) ALT 588.
70
AIR 1998 SC 1125.
71
1998(2) LLJ 1248.
147
regular remedy and rush to the High Court by making a hue and cry.
Hence, in Khadar Mohiuddin v. Central bank of India,72 it was held
that where the petitioner has an alternative remedy by way of
Industrial Dispute writ petition is not maintainable. Similarly, where
the petitioner has already filed an application against the orders of
employer deducting their wages before the authorities under
Payment of Wages Act, writ petition is not maintainable in view of
the alternative remedy.73 In Chairman Coal India Ltd. v. Madan
Prasad Sinha74 it was held that where the party is entitled to
alternative remedy available under Industrial Law, party may be
directed to seek appropriate remedy.
Writ petition for refund of earnest money is not maintainable
since civil suit is the proper remedy.75 Where direction is sought for
against revenue authorities not to disposses from agricultural lands,
what is prayed for, is declaration, of title and injunction and hence
civil suit is the proper remedy.76 In Textile Corporation (Maharashtra
South) Ltd. v. Standard Chartered Bank,77 it was held that where
proper remedy under order 21, Rule 97 CPC is available, filing a writ
petition in this regard is not sustainable and hence a misconceived
one. In maters relating to immovable property governed by ordinary
civil law, High Court should not exercise its writ jurisdiction except in
exceptional cases.78 In case of Election petition, the Supreme Court
in S.K. Mahaboob Bai v. State Election Commissioner79 held that
Municiapl Council v. Kamal Kumar, AIR 1965 SC 1321; Zila Parishad v. Kundan
Sugar Mills, AIR 1968 SC 98; Union of India v. Verma, AIR 1957 SC 882.
Veraju v. M.R.O. Gollaprolu, 1998(1) ALT 25.
U.P. Vidyut Mzdoor Sangh v. U.P. State Electricity Board, 1998(2) LLJ. 419.
Haryana Urban Development Authority v. Smt. Raj Duthari, AIR 1998 P & H 283.
Supra note 1.
95
AIR 2001 Bom. 361.
96
United India Insurance Co. v. Rajendra Singh, AIR 2000 SC 1165.
97
C.V. V. Reddy v. Team Leader, Army Team Bharat Dynamics Ltd. 1992(2) An.
LT 363.
Leather Development and Marketing Corporation,98 the law has
been laid down with clarity that the writ jurisdiction is not intended to
provide an additional remedy which is otherwise available and is
adequate to meet the needs of the case. In case, however, where
on irrefutable or uncontrovertible facts brought on record, the
conclusion even in the alternative proceedings if initiated has to be
the same, then in such a case in view of inescapable conclusion it
will be futile to relegate the petitioner to seek redressal availing the
alternative remedy which will only result in the postponement of the
grant of relief prolonging the continuation of breach of law and in
such a case it will not be appropriate to decline the entertainment of
the writ petition for consideration on merit.
It is also necessary that, alternative remedy must be
efficacious, unless it is equally efficacious, it is no bar for the
exercise of writ jurisdiction.99
(ii) Laches or unreasonable delay and control of Administrative
Action
A person who intends to invoke the extra ordinary jurisdiction
under Article 32 or Article 226 of the constitution must approach the
courts at the earliest possible time. Relief can be refused on the
ground of inordinate delay or laches. The court helps the vigilant and
not the indolent. The petitioner should be diligent in pursuing his
remedy, and file his writ petition within a reasonable time from the
date of the order challenged, and an undue delay on his part will
debar him from getting the relief.100
Though writ issuing power of the Supreme Court and High
Courts for the enforcement of fundamental rights is mandatory, the
Buttu Prasad Kumbhar v. Steel Authority of India 1995 Supp. (2) SCC 225.
Durga Prasad v. Chief Controller of Imports, AIR 1970 SC 769 at 770.
Ibid.
Kamini Kumar v. State of West Bengal, (1972)2 SCC 420 : AIR 1972 SC 2060.
Jagdish Lai v. State of Haryana, AIR 1997 SC 2366;
AIR 2000 SC 671; See also Netai Bag v. State of West Bengal, (2000) 8 SCC
262; Municipal Corpn. Delhi v. Female Workers (Muster Roll) AIR 2000 SC-1274.
155
124
Keshav Pal v. State of Bihar, AIR 1985 Pat. 70.
125
2000(7) SCC 618.
126
Krishna Kumar v. State of U.P., AIR 1981 All 287.
127
AIR 1981 Delhi 241.
128
AIR 1982 Raj. 100.
129
AIR 1972 SC 2060.
157
Begum Bazar Fish Market Assn. V. Hyderabad Municipality, AIR 1983 A.P. 278.
2000(8) SCC 895.
Rup Diamonds M/s v. Union of India, 1984(2) SCC 356.
2000(9) SCC 484; AIR 1999 SC 974.
2000(9) SCC 275; See also Sudarshan Nath v. State of Punjab, AIR 2000 SC
1762. Adarsh Sabzi Mandi Samiti v. State of Haryana, AIR 2000 SC 1884; state
of Maharashtra v. N.R. Chawan 2000(9) SCC 5529.
(1975)1 SCC 152; See also Thakkar, C.K. Administrative Law (1992) pp. 395-
400.
(1993)3 SCC 591. i
(2000)6 SCC 562.
158
138
AIR 2004 Del. 379.
159
See also Halsbury’s Law of England, 3rd Edn. Vol. 15, p. 185.
AIR 1960 SC 1186.
AIR 1961 SC 1457.
162
151
Id. at 1462.
152
AIR 1965 SC 1153.
153
Id. at. 1167.
163
High Court under Article 226 or the Supreme Court under Article 32
for the enforcement of Fundamental Rights. If such person has
made a choice of the forum and his petition has been heard and
dismissed or accepted, he cannot agitate the same matter before
another court in a writ proceeding.154 But the petition has been
dismissed otherwise than on merits, the person may file a fresh writ
in another forum. Therefore, if the petition under Article 136 has
been dismissed in lemine by the Supreme Court by a non-speaking
order it will not preclude the party from seeking the same relief under
Article 226 from the High Court on identical, grounds.155
Res judicata shall apply even if the petition has been
dismissed without giving notice to the other party.156 Similarly, if a
petition has been dismissed as withdrawn res judicata shall not
apply.157 Principle of res judicata shall also not apply if the court
incidentally records findings on issues not raised before it.158
(b) Summary dismissal and res judicata :
Summary dismissal of a petition without recording reasons
does not attract res judicata and a fresh petition on the same ground
can be entertained.159 Sometimes, a peculiar situation arises. A
petition may be dismissed by the court in lemine without admitting it
for final hearing. The question may arise whether such a dismissal
of a petition operates res judicata. No hard and fast rule can be laid
down, and whether or not such an order of dismissal would
constitute a bar would depend upon the facts and circumstances of
the each case and upon the nature of the order. If the order is on
the merits, it would be a bar; if the order shows that the dismissal
was for the reason that the petitioner was guilty of laches or that he
had alternative remedy it would not.160 If the petition is dismissed in
lemine without passing a speaking order than such dismissal cannot
be treated as creating a bar of res judicata. It is true that, prima
facie, dismissal in lemine even without passing a speaking order in
that behalf may strongly suggest that the court took the view that
there was no substance in the petition at all; but in the absence of a
speaking order it would not be easy to decide what factors weighed
in the mind of the court and that makes it difficult and unsafe to hold
that such a summary dismissal is a dismissal on merits and as such
constitutes a bar of res judicata under a similar petition filed under
Article 32. Summary dismissal without recording reasons does not
affect the jurisdiction of the court to entertain fresh petition.161
(c) No dismissal of petition without speaking order;
In the immediate past a tendency was growing amongst High
Courts to dismiss petitions under Article 226 and 227 in lemine
without a speaking order. Deprecating this practice, the Supreme
Court in Arun v. Addl. Inspector General of Police,162 observed that
High Courts should not dismiss petitions in lemine without a
speaking order just by the use of a laconic, word ‘rejected’ or
‘dismissed’ because a speaking order would help the Supreme Court
in understanding the thought process of the High Court which in turn
would facilitate a quick and satisfactory disposal of special leave
petitions. No matter this practice will certainly inspire public
confidence in the judicial administration but it has started giving rise
to the accumulation of cases before High Courts. High Courts now
160
B.P. Rao v. State of A.P., AIR 1986 SC 210 at 227.
161
Daryao Singh v. State of U.P., AIR 1961 SC 1957 at 1436.
162
AIR 1986 SC 1497.
165
163
D.C. Saxena v. Chief Justice of India, (1996)5 SCC 216.
164
(1987)4 SCC 609.
165
AIR 1964 SC 1013.
166
The High Court dismissed the petitions holding that it was barred by
res judicata. Allowing the appeal. Supreme Court Observed :
“It is significant that the attack against the
validity of the notices in the present proceedings
is based on grounds different and distinct from
the grounds raised on the earlier occasion. It is
not as if the same ground which was urged on
the earlier occasion is placed before the court in
another form. The grounds now urged are
entirely distinct and so, the decision of the High
Court can be upheld only if the principle of
constructive res judicata can be said to apply to
writ petitions filed under Article 32 or 226. In our
opinion, constructive res judicata which is a
special and artificial form of res judicata enacted
by Section 11 of the Civil Procedure Code
should not generally be applied to writ petitions
filed under article 226.”166
Again in Devialal v. S.T.O.,167 discussing the applicability of
constructive res judicata, the Supreme Court observed :
“This rule postulates that if a plea could have
been taken by a party in a proceeding between
him and his opponent, he would not be
permitted to take that plea against the same
party in a subsequent proceeding which is
based on the same cause of action, but
basically, even this view is founded on the same
considerations of public policy, because, if the
doctrine of constructive res judicata is not
applied to writ proceedings, it would be open to
the party to take one proceeding after another
and urge new grounds every time; and that
plainly is inconsistent with considerations bf
public policy"168
The question of applicability of constructive res judicata
considered by the Supreme Court which arose directly in. the case of
Id. at 1020.
AIR 1965 SC 1150.
Id. at 1152.
167
169
(1977)2 SCC 80b; AIR 1977 SC 1680.
170
Nand Kishore v. State of Punjab, (1995)6 SCC 614.
171
Union of India v. Ranchi Municipal Corpn., (1996)7 SCC 542.
168
Id. at 733 ; see also Sarguja Transport Service v. S.T.A.T. AIR 1987 SC 88; Ram
Kumar v. District Magistrate, AIR 1966 Punj. 51.
178
Direct Recruit Class II Engineering officers Association v. State of Maharashtra,
(1990)2 SCC 715.
170
The judicial opinion has been undergoing some shifts. The over-all
picture is that the judiciary has expanded over time the range of
persons or bodies to whom writs can be issued. The reason
underlying the judicial approach is that centres of powers should be
restrained from arbitrary application of power against individuals.
The eternal principle of modern democratic government is : “The
■:V
governing power wherever located must be subject to the
fundamental constitutional limitations”.179, Ordinarily, a writ will lie
against the state and statutory bodies and persons charged with
public duties. Though private persons are not immune from the writs
jurisdiction of the Supreme Court as well as High Courts, issuance of
a writ to them would require exceptional circumstances. Therefore,
as a general rule a writ lies against the “State” as defined in Article
12 of the constitution. Article 12 reads as under:
“In this part, unless the context otherwise
requires, “the state” includes the Government
and Parliament of India and the Government
and the Legislature of each states and all local
or other authorities within the territory of India or
under the control of the Government of India”.
Article 12 thus gives an expansive definition of “State”.
Fundamental Rights can be claimed against this extended “state”.
Since writs can be issued for the enforcement of Fundamental
Rights under Article 32 and 226, it follows that they can be issued for
that purpose to all the bodies covered by Article 12. As regards writs
for other purposes “under Article 226, they can certainly be issued to
the various bodies covered by Article 12, but it is a moot point
whether this part of the jurisdiction of a High Court covers a broader
v
179
Mathew J., in Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331 at 1352.
171
,8° See for instance, Rajasthan State Electricity Board v, Mohan Lai, AIR 1967 SC
1857; Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331.
181 R.D. Shetty v. International Airport Authority, AIR 1979 1979 SC 1628.
182 AIR 1963 SC 996.
183 Writ of habeas corpus being the exception.
173
Nageshwar Rao v. APSRTC, AIR 1959 SC 308; Madhav Rao Scindia v. Union of
India AIR 1971 SC 530; Mohinder Singh Gill v. Chief Election Commr. AIR 1978
SC 851.
185
AIR 1965 SC 745.
186
AIR 1969 SC 709.
174
Madan Mohan v. State of W.B., AIR 1966 Cal, 23; Rameshwaroop v. M.P. State
Co. op. Marketing Federation, AIR 1976 MP 152; Harbhajan Singh v. State of
Punjab, AIR 1973 P & H. 31; Amir Jamia v. Deshrath Raj, ILR 1969; Del 202;
Dukhooram v. Co. of Agrl. Assn., AIR 1961 MP 289.
AIR 1970 SC 245.
AIR 1953 Cal. 289.
AIR 1969 MP 25. See also Satkhosei Thangeo v. President, D. G.G;„ S.S. and A.
Board, AIR 1968 Mani. 68.
Executive Committee of Vaish Degree College v. Lakshmi Narain, AIR 1976 SC
888.
176
t.
200
Id. at. 507 (SCC); 1639 (AIR).
178
used in Article 226 must receive a liberal meaning unlike the term in
Article 12 because Article 12 is relevant only for enforcement of
Fundamental Rights under Article 32 but Article 226 confers powers
on the High Court not only for the Fundamental Rights but for non
fundamental right also. Therefore, the term authority as used in
Article 226 must not be confined only to statutory authorities and
instrumentalities of the state. It may cover any other person or body
performing public duty. Applying the test of ‘public duty’, the
209
Railway Board v. Observer Publication (1972)2 SCO 266.
210
.Reserve bank of India v. Paliwal, (1976)4 SCC 838.
211
K. Shephard, v. Union of India, (1987)4 SCC 431.
212
Gujarat Finance corpn. v. Lotus Hotel, (1983)3 SCC 379.
213
M.S. Desai v. Hindustan Petroleum Corpn. AIR 1987 Guj. 19.
214
Minhas v. Indian Statistical Institute, (1983)4 SCC 582.
215
Bihar State Harijan Kalyan Parishad v. Union of India, (1985)2 SCC 644.
216
Workmen v. Hindustan Steels Ltd., 1984 Supp. SCC 554.
217
P.. Ramachandra Iyer v. Union of India, (1984) 2 SCC 141.
218
Modern Food Industries v. Juwekar, AIR 1988, Guj 261.
219
Manmohan Singh v. U.T. Chandigarh, 1984 Supp. SCC 540.
220
Chairman Combined Entrance Exam. V. Orisis Das, (1992)3 SCC .-543.
221
Tekraj Vasandi v. Union of India, (1988)1 SCC 236. s
222
(1993)1 SCC 645.
181
223
(1997)3 SCC 571.
224
Times of India, New Delhi, October 5, 2004 p. 8.
225
See P. Vaidya Rajan v. State of T.N., 1992 Supp. (2) 104.
182
Air India v. B.R. Age (1995)6 SCC 539; See also Calcutta State Transport
Corporation v. C.I.T., (1996)8 SCC 758.
(1996)1 SCC 490.
183
R.K Mahajan v. Chief Justice of H.P. High Court, 1995 Suppl. (3) SCC 655.
Charanlal Shahu v. Giani Zail Singh, AIR 1984 SC 309.
Per Lord Scarman in I.R.C. v. National Federation of Self-employed, (1982) AC
617 at 653.
Hussainara Khatoon (1) to (VI) v. Home Secretary, State of Bihar, (1980)1 SCC
81.
232
Massey, I.P. Administrate Law (2003) p. 249.
184
live there nor did they have any property there. On the other hand
the Orissa High Court in Nabagahan v. Sadanamda239 held that a
member of public who has a right to worship in a particular temple
shall have locus standi to challenge the misapplication or
misappropriation of temple property and the appointment of trustees,
(b) Public Interest Litigation as a potent remedy to check
Administrative Action.
In India the test of locus standi was thought to be the
possession of a legal right or legally protected interests.240 Thus,
workers have locus standi in proceedings for the winding up of the
companies in which they are employed.241 Lawyers have standing in
a case concerning the appointment, transfer and extension of the
term of judges as this affects the independence of the judiciary.242
An organised body has a right to initiate proceedings on behalf of its
members.243 Thus, the Supreme Court by invoking wider powers
under the constitutional provisions has greatly liberalised the
technical doctrine of locus standi and has introduced what is known
as ‘public Interest Litigation’. Thus, letters, or even telegrams
addressed to the Supreme Court by an unknown person or by a
person acting pro bono publics for a disadvantaged class or a group
have been treated as writ petitions under Article 32.244 The High
Courts have also tried to follow suit. In a country where the
unthinkable does happen e.g. person can be unlawfully jailed for
over 14 years tortured and blinded in prison there is a case for such
relaxation in Locus Standi.
245
AIR 1981 SC 298.
246
Id. at 317.
247
AIR 1982 SC 149.
248
Id. at 185.
249
Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.
187
255
(1999)6 SCC 552.
256
Jagannath Reddy v. Chairman Vishakhapatnam Port trust, (1998)3 ALD 60.
257
(1998)1 SCC 449.
190
191
through PIL may be just straws floating in the air but one thing is
certain that they are floating in the right direction.
According to one opinion the misuse of PIL has reached
ridiculous limits and petitions are being filed all over the country for
matters like students and teachers strike, shortage of buses, painting
on road signs, Dengu fever, examinations and admissions in the
colleges and universities etc. one can go on but the list will not be
exhaustive. Classical cases came up when PIL filed for seeking
declaration to the United Front Government at the Centre to form a
coalition government with the congress, invalidating no confidence
vote against Vajpayee government. In most the situations, lawyers
file petition for themselves. Power and publicity apart, many judges
have to entertain PIL because of the concept of social justice for the
poor, oppressed and exploited sections of the society. This
indiscriminate use of this strategy is bringing it into disrepute
because it has become the privileged of the privilege to have access
to the court.267 In fact majority of petitions should not have been
filed or should not have been entertained. PIL must be confined to
cases where justice is to be reached to that section of the society
which cannot come to the court due to socio-economic handicap or
where a matter of grave public concern is involved.
Even if all these criticisms are valid, no one would suggest to
abolish the strategy of PIL which the courts have innovated to reach
justice to the deprived section of the society.
One solution is to adopt the approach of the House of Lords in
R.C. v. National Federation of self-employed,268 i.e. to merge the
issue of locus standi with the merits of the case. On this approach, if
267
Ahuia Sangeeta, "People Law and Justice (1997).
268
(1982) AC 617.
i.i
193
on its merit the case is appropriate for judicial review, the court
would accept the standing of the applicant. On the other hand if the
application is unmeritorious he would be deemed not to have
standing in the case. Thus, if a public authority patently acts
unlawfully, unconstitutionally or in breach of its legal obligations
causing injury to the public interest than that would be an
appropriate case for a public interest litigation. The Indian Supreme,
Court seems to have accepted this approach is S.P. Gupta v. Union
of India.269 the court also made it clear that it will look into the
motives of the petitioner to see if he was acting bonafide or for
personal gain or out of political motives. The court also indicated
that it would confine public interest litigation to cases of injury to a
determinate class or group of persons and that it would not entertain
cases of individual wrong where there was an effective legal aid
organisation which could take care of cases.
It would be useful legislative reform to create a machinery for
public interest litigation comparable to the procedure of the “relator
action"270 in England. The Attorney-General as the custodian of the
public interest may commence proceedings. Very often, however,
he acts at the instance of the relator, a private person or a public
body. But he takes a wider view of the public interest in deciding
whether to grant leave in a relator action. Where appropriate he can
refuse to cut at the instance of the relator. In public interest litigation
creation of machinery of this nature coupled with the jurisdiction to
sort out meritorious cases from vexation claims for the purpose of
commencing legal proceedings would be a valuable piece of law
269
AIR 1982 SC 149.
270
Wade, H.W.R., Administrative Law p. 530.
194
decade where the court has not only betrayed a lack of sensitivity
towards the rights of the poor and disadvantaged section of society,
but has also made gratuitous and unmerited remarks regarding
abuse of public interest litigation. In this indeed so or has been a
change in the attitude of the Apex Court towards these cases,
therefore, it would be interesting to investigate whether one could
see change in the philosophy of the Apex Court with regard to public
interest litigation during the era of ‘economic reform’ as they are
called.
(i) Dis-investment cases
In BALCO Employees Union v. Union of India273 where the
employees’ union of the government company had challenged its
disinvestment on various grounds including the arbitrary and non
transparent fixation of its reserve price, the Supreme Court while
dismissing the petition on to make the following observations :
There is, in recent years a feeling which is not
without any foundation that public interest
litigation is now tending to become publicity
interest litigation or private interest litigation and
has a tendency to be counter productive. PIL is
not a pill or a panacea for all wrongs. It was
essentially meant to protect basic human rights
of the weak and the disadvantaged and was a
procedure which was evolved where a public
spirited person filed a petition in effect on behalf
of such persons who on account of poverty,
helplessness or economic and social disabilities
could not approach the court for relief. There
have been, in recent times increasing instances
of abuse of PIL. Therefore, there is a need to
re-emphasise the parameters within which PIL
can be resorted to by a petitioner and
entertained by the court.
273
(2002)2 SCC 343. AIR 2002 SC 350.
196
The petition was filed by Sh. B.L. Wadhera a lawyer, the court
refused to consider the petition on the ground that he was not
directly affected by the disinvestment of BALCO. It went on to
observe: f
it will be seen that whenever the court has
interfered and given directions while entertaining
PIL, it has mainly been where there has been an
element of violation of Article 21 or of human
rights or where litigation has been initiated for
the benefit of the poor and the underprivileged
who are unable to come to court due to some
disadvantage. In those cases also it is the legal
rights which were secured by the courts. We
may however, add that public interest litigation
was not meant to be a weapon to challenge the
financial or economic decisions which had been
taken by the government in exercise of their
administrative power. No doubt a person
personally aggrieved by such decisions which
he regards as illegal, can impugn the same in
the court of law, but, a public interest litigation at
the behest of a stranger could not to be ~
entertained. Such a litigation cannot per se be
on behalf of the poor and the downtrodden,
unless the court is satisfied that there has been
violation of Article 21 and the person adversely
affected are unable to approach the court. The
decision to disinvest and the implementation
thereof is purely an administrative decision
relating to the economic policy of the state and
challenge to the same at the instance of a busy
body cannot fall within the parameters of public
interest litigation. On this ground alone,; we
decline to entertain the writ petition filed by'B.L.
Wadhera.
This effectively meant that a citizen could not challenge by
way of PIL, the loot of the public exchequer, unless he/she was
personally affected. It is significant that these observations were
made in a case involving a challenge to an element of so-called
197
power plants of the company alone were worth more than the price
at which it was being sold. The court, however, refused to examine
this challenge by saying that the valuation was done by one of the
known methods of valuation.
In State of Karnataka v. Arun Kumar, Aggarwal274 the
Karnataka High Court had ordered a CBI investigation into the
circumstances in which a 1000 MW power project has been
approved in Karnatak. The High Court found a series of suspicious
circumstances, which warranted such investigation. But the
Supreme Court made short shrift of the elaborate high court
judgement, holding that, “Thus none of the 13 circumstances noticed
by the high court can be characterised by giving rise to any
suspicion, much less the basis for investigation by a criminal
investigating agency".
In the Centre for Public Interest Litigation v. Union ofjndia,275
the Supreme Court dismissed the plea for an independent
investigation into the government’s decision to sell off developed
offshore gas and oilfield from ONGC to a private joint venture. The
challenge was based on a large number of facts and circumstances
suggesting corruption in the deal.
However, despite the above host of highly suspicious
circumstances surrounding the deal, the report of the CBI, the court
did not think it fit to even order an investigation in the matter, though
it castigated and passed strictures against the CBI for the loss of the
file containing the special report and their false affidavits filed in the
High Court.
Again in Union of India v. Azadi Bachao Andolan276 the high
court had struck down a government circular which compelled "the IT
authorities to exempt post box companies registered in Mauritius as
'offshore companies’, from taxation in India on the ground that such
a direction violated the IT Act and prevented the IT authorities from
lifting the veil of these post box companies in order to examine their
real place of residence. But the Supreme Court, reversed the High
Court decision, holding that the government could in terms of its
economic policies grant a tax holiday to foreign investment. It
dismissed the argument that this would violate the Income tax Act
under which non-resident companies are taxable on their domestic
income and that any change in the tax regime would have to be
done by means of a finance act passed by parliament and could not
be made by the executive alone.
However, in CPU v. Union of India277 (Oil Companies Case),
the Supreme Court has allowed a challenge to any purported
implementation of the new economic policy. It held here that the
government oil companies nationalised by Acts of Parliament which
276
(2003)8 Scale 287.
277
(2003) Supp. 1 JT 515.
199
278
(2000)10 SCC 664.
200
279
(2003)7 Scale 54.
201
280
(2003)7 Scale 589.
202
281
(2003)3 SCC 575.
282
(2003)8 Scale 287.
203
Lord Denning, Freedom under the Law (1949) p. 126, quoted by Thakker C.K.,
Administrative Law (1992) p. 374.
204
284
(1980)4 SCC 382,
285
Supra Chapter IV.
286
Bassappa v. Naggappa, AIR 1954 SC 440.
205
the nature of“ are significant as they indicate that the Indian courts
are not bound to follow all the technicalities of the English law
surrounding these writs, or the changes of judicial opinion there from
time to time and case to case. What are the Indian Courts have to
do, therefore, is to keep to the broad and fundamental principles
underlying in the English law; the courts do not have to feel
1
287
Jain M.P. & S.N. Principles of Administrative Law (1997) p. 513.
288
Ghuiam Sarwar v. Union of India, AIR 1967 SC 1335.
289
See 4lh Edn.
206
293
Ranjit v. Pepsu, AIR 1959 SC 843.
294
Thomas Dale's case (1871)6 Q.B. 376.
295
Id. at 461.'
296
(1953) SCR 652.
I
208
id. at 655.
Makhan Singh v. State of Punjab, AIR 1952 SC 27.
B.R. Rao v. State of Orissa, AIR 1971 SC 2197.
O'Bren, ex parte (1923)2 K. B. 361.
Habib v. Crown, AIR 1950 Nag. 161.
209
302
Dicey, Law of the Constitution, p. 219.
303
(1980)3 SCC 488; AIR 1980 SC 1579.
304
Id. pp. 501-5Q2(SCC)
210
giving relief through the writ against inhuman and cruel treatment
■t
305
Sunil Batra v. Delhi Administration, AIR 1978 SC 1675 at 1582.
306
(1978)1 See 248; AIR 1978 SC 597.
307
A.V. Chandel v. Delhi University, AIR 1978 Del. 308.
with long loss of liberty;308 (b) the court imported the element of
!
person in its custody. A prayer for the writ may be made by the
prisoner himself or in case he is unable to do so, by someone else
on his behalf. However, every petition must be supported by an
affidavit stating the facts and circumstances of detention and where
relevant, the reasons as to why the petitioner is unable to make an
application. In the case of minor, any person entitled to the minor’s
custody can file a petition. If no such person is available, any other
person may file such petition. In Ichhu Devi v. Union of India,312 the
Supreme Court held that in case of writ of habeas corpus the court
does not, as a matter of practice, follow strict rules of pleadings nor
does it place undue emphasis on the strict observance of the rules
of burden of proof. Even a postcard by a pro bono public is
sufficient to galvanize the court into examining the legality of
detention. When on a petition for the writ, the court considers that a
prima facie case for the issue of the writ has been made out, then it
issues a “rule nisi” calling upon the authority concerned to show
cause why the writ should not be issued. The writ is issued setting
the prisoner free if the cause shown is considered by the court to be
insufficient. The writ will not be issued if the prisoner is not under
unlawful restraint e.g. when he is undergoing a sentence of
imprisonment on a criminal charge pronounced by a court of
competent jurisdiction.
As personal liberty of an individual is a cherished value the
court has consistently shown great anxiety for the same and refused
to dismiss a petition merely on ground that it does not disclose a
prima facie case invalidating the order of detention. Whenever a
petition for the writ of habeas corpus come before the court, it has
312
AIR 1980 SC 1983; See also Veena Sethi v. State of Bihar, AIR 1983 SC 339.
213
almost invariably issued a rule (rule nisi) calling upon the detaining
authority to justify the detention. When a rule is issued by the court,
it becomes incumbent on the detaining authority to satisfy the court
that the detention of the petitioner is legal and in conformity with the
mandatory provisions of the law authorising such detention.313 The
court has also insisted that in answer to this rule, the detaining
authority must place all the relevant facts before the court which
would show that detention is in accordance with the provisions of
law. The detaining authority cannot take plea that a particular
ground is not taken in the petition.314 The detaining authority is not
only to meet the specific grounds on which the petitioner challenges
the detention, but it is under an obligation to show that the detention
in question is in accordance with the procedure established by law
as required by article 21.315
When a writ of habeas corpus is moved ordinarily, the court
would not issue, ex parte, a writ of habeas corpus unless the
urgency of the situation so demands or issuing of a notice of motion
was likely to result in defeat of justice.316 Recently, in Ropesh
Kantilal Savla v. State of Gujarat,317 the court held that the habeas
corpus petition should be disposed of as expeditiously as possible.
An important question is that which date with reference to
which the legality of detention of a person may be examined on a
habeas corpus petition. In Gopalan v. Govt, of India,318 the Supreme
Court ruled that the earliest date with reference to which the legality
of detention may be examined is the date, on which the application
for the same is made to the court. In some earlier cases such as
Naranjan Singh v. State of Punjab,319 the Supreme Court had taken
the view that the legality was to be determined at the time of return
and not with reference to the institution of the proceedings. In
another case of Talib Hussain v. State of J & K,320 the Supreme
stated that the legality of detention is to be determined on the date of
hearing. Thus, three views had been expressed. The Supreme
Court in Kanu Sanyal v. Distt. Magistrate (11)321 took note of these
three views and pointed out that the second view is more in
accordance with the law and practice in England gnd largely
accepted in India. The third view also has some relevance for if the
detention at the hearing is legal, the court cannot order release of
the person detained by issuing habeas corpus. Thus, the court did
not express any definitive view as to which of the three views
correct. In any case, the court has ruled that the earliest date with
reference to which the legality of detention could be examined is the
date of filing of the petition for habeas corpus and the court is not
concerned with a date prior to that. In the instant case, the court
refused to go into the validity of detention before the date of petition.
Kanu Sanyal v. District Magistrate (1 ),322 disposes of an
important point of practice and procedure concerning habeas
corpus, viz., whether it is essential to produce the person alleged to
be unlawfully detained before an application for a writ of habeas
corpus can be finally heard and disposed of by the court. The
Supreme Court, tracing the course of development of the writ in
England, concluded that habeas corpus is essentially a procedural
writ. It deals with the machinery of justice, not substantive law. The
object of the writ is to secure the release of a person who is illegally
restrained of his liberty. It provides a speedy and effective remedy
to a person under unlawful detention. The most important feature of
the writ is its peremptoriness.323 The production of body of the
person alleged to be wrongfully detained is ancillary to the main
purpose of the a writ. Thus, it is not essential to produce the body of
the person alleged to be unlawfully detained. However, this does
not seem to be an inflexible rule, and the court may issue the writ
and direction to the authority to produce the body before it in a
suitable case.324
As in England, in India, applications to different judges and
benches of the same court are not allowed, if the order on the first
application has been made on merit.325 However, if the petition has
been heard and rejected by High Court a fresh petition under Article
32 can still be filed in the Supreme Court.326 Therefore, this is an
exception to the principle of res judicata applies to other writs.327
In England no appeal lies against the order if the petition of
habeas corpus has been accepted. In India, there is no such
restriction and appeal would lie to the Supreme Court under Article
136 against the order of the High Court granting or rejecting the
petition for the writ.
In a habeas corpus writ proceeding not only the fact of
detention but the constitutionality of the law can also be challenged.
328
AIR 1950 SC 27; See also Kanu Sanyal v. D. M„ AIR 1973 SC 2684.
329
Justice Narayana, P.S., Law of Writs (2002) p. 411.
330
Lakanpal v. Ajit Nath Ray, AIR 1975 Del. 66.
217
331
University of Mysore v. Govind Rao, alR 1965 SC 491.
332
Amarender v. Narender, AIR 1953 Cal. 114.
333
AIR 1952 Mad. 31.
334
AIR 1952 nag. 333.
335
Shiam Sunder v. State of Punjab, AIR 1958 Punj. 128.
336
Rajender Kumar v. State of MP., AIR 1957 MP 60.
337
AIR 1975 SC 1852.
338
AIR 1973 Pat. 85;
218
Smaj Pratinidhi Sabha339 is not a public office but a private office not
created by law, hence quo warranto would not lie.
2. Public office must be substantive in nature :
The writ of quo warranto lies in respect of a public office of a
substantive character. A substantive office is one which is
permanent in character and is not terminable at will. In R.V.
Speyer,340 the word ‘substantive’ was interpreted to mean an “office
independent of title". Therefore, quo warranto would be granted
even when the office is held at the pleasure of the state provided it is
permanent in character. In other words, the official must be an
independent and not merely one discharging the functions of a
deputy or servant at the pleasure of another officer.341
3. The Person must be in actual possession of the office :
Mere declaration that a person is elected to an office or mere
appointment to a particular office is not sufficient for the issue of quo
warranto unless such person actually accepts such office.342
4. The office must be held in contravention of Law :
(.
court found the transfer and posting of two district judges contrary to
law, but did not issue quo warranto as it was a case of mere
irregularity that not make the occupation of office wrongful. But in
Krishnajah v. District Collector, Nellor344 the court held that where
the office of the Sarpanch of a Gram Panchayat is reserved for
339
jamalpur Arya Smaj v. Dr. D. Ram, AIR 1954 Pat 297.
340
(1916)1 K B 595.
341
Ibid.
342
Paranial v. P.C. Ghosh, AIR 1970 Cal. 118.
343
AIR 1967 SC 903.
344
(1997)1 ALT 350.
backward class and a candidate got himself elected to the office
claiming that he belongs to backward class but infact it is not so, he
cannot continue in office and the same can be challenged by filing
quo warranto,
When Quo warranto may be refused :
Like any other extraordinary remedy, quo warranto is also a
discretionary remedy. It can be refused according to the facts and
circumstances of the case. In Joginder Nath v. State of Assam,345
the Gauchati High Court, rejected a quo-warranto challenging the
appointment of the chief minister saying that this question was best
left to the Assembly as to who should have been appointed to this
office by the Governor. In the first place, writ of quo-warranto can be
refused on the ground of unreasonable delay. Therefore, when a
person has held office for a long time without challenge the writ may
be refused. However, in K. Bheema Raju v Govt, of A.P.,346 the
court remarked that in a matter which involves a fundamental right to
a public office and violation of legal procedure to be adopted in the
matter of public appointment to the public office the delay should not
deter the court in granting the relief and rendering justice because
the usurper's continuance in office gives cause of action each day
and every hour till he ousted. Further more a usurper does not
cease to be one by lapse of times.347 Secondly, in cases, where the
issue of writ would be futile in its result, the court may refuse it. In
P.L. Lakhanpal v. A.N. Ray, chief Justice of India,348 the Delhi High
Court refused the writ against the former chief justice of India. In this
case, A.N. Ray J (who was fourth in order of seniority) was
345
AIR 1982 Gau, 25;
346
AIR 1981 AP 24.
347
Pushpadevi v. M.L. Wadhwan, Addl. Secretary, Govt, of India, (1987)3 SCC 367.
348
AIR 1975 Del. 66.
220
349
AlsoG. Mohapatra v. Chairman, N.A.C., AIR 1976 Orissa 181.
350
See also S,C. Malik v. P.P. Sharma, AIR 1982 Del. 83.
351
AIR 1955 Hyd. 36.
221
352
AIR 1977 SC 237.
353
AIR 1981 Sc 1473
354
Id. at 1475.
222
Applying the de facto doctrine, the court did not set aside the order
of additional sessions judge, as otherwise it would create an
intolerable situations, if the acts of such a persons were to be
considered as invalid. The court made a distinction between a
“person who holds office under colour of lawful authority, though his
appointment is defective’ and a “person who is merely an intruder or
usurper of office,” the de facto doctrine to apply only in the former
situation.355 In the state of Haryana v. Haryana co-op. Transport
case, the court seems to take the view that the person holding the
post of presiding officer was a usurper as he did not possess the
basic qualifications for the post. Whereas the statute had laid down
the qualification of “holding of judicial post for seven years" for the
post in question, the presiding officer concerned did not hold any
judicial post but had only clerical post (which went to the root of his
competence). This is how the two cases are reconcilable.
(iii) Writ of Mandamus and Review of administrative Action.
Mandamus literally means a command. Halsbury’s Laws of
England on mandamus says,356
“The order of mandamus is of a most
extensive remedial nature and is in form a
command issuing from the high court of justice,
directed to any person, corporation or inferior
tribunal, requiring him or then to do some
particular thing therein specified which
appertains to his or their office and is in the
nature of a public duty.”
“It commands the person to whom it is addressed 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
Short & Mellor, 2nd Ed. P. 197, Quoted by Basu D.D., Administrative Law (1998)
p. 550
R. V. Metropolitan Police Commr. (1953)2 All E.R. 717 at 719.
R.V. Baker, (1762)3 Burr. 1265 at 1267.
224
f'
V
227
AIR 1980 Raj. 207; See also R.K. Dalmia v. Justice Tendulkar, AIR 1958 538;
Rajandran v. Home Secretary, 1983 Ker. 59.
Mansukhlal Vithaldas v. State of Gujarat, (1997)7 SCC 622.
(1997)6 SCC 241.
228
391
AIR 1971 SC 2399.
392
Prage Tools Corpn. v. C. A. Imannal, AIR 1969 SC 1306.
393
AIR 1976 SC 425.
394
AIR 1973 Del. 108 at 510.
395
Hochief Gammon v. State of Orissa, AIR 1975 SC 2226.
396
AIR 1962 SC 1210.
230
405
(2000)9 SCC 477.
406
State of Rajasthan v. Dr. Vijay Kumar Agarwal, AIR 2001, Raj. 358.
407
AIR 2001 Kar. 135.
232
AIR 1957 AP 833; AIR 1956 Cal. 490; AIR 1981 Pat. 332; AIR11970 Mys. 210
AIR 1975 Cal. 14; AIR 1991 All. 52.
AIR 2001 Kar. 135.
AIR 1975 SC 460.
AIR 1953 Punj. 137.
AIR 1975 SC 538 ; See also R.X.A. de Monte Furtado v. Administrator Goa AIR
1982 Goa, 34; Rajendra Home Seey. AIR 1983, Ker. 59.
234
422
Narayan Singh v. State of Rajasthan,
423
Chhetriya Pradushan Mukti Samiti v. State of U.P., AIR 1990 SC 2060.
424
(1995)1 GLR255 at 259.
236
425 Hope Textile Corpn. v. Union, of India, (1995) Supp. 3 SCC 199.
426 State of Maharasthra v. Pooja Brew-chemicals Industries (1995) supp. 4 SCC
179.
427 State of U.P. v. Harish Chandra, (1996)9 SCC 309; State of Bihar v. Ramdeo
Yadav, (1996)3 SCC 493,
428 Mansukhlal Vithal das v. State of Gujarat, (1997)7 SCC 622.
429 Ibid.
430 V.C. UtkalUniversity v. S.K. Ghosh,AIR 1954 SC 217.
431 Ibid.
237
432
AIR 1975 Del. 184.
238
433
AIR 1970 SC 150.
239