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CHAPTER-IV

JUDICIAL REVIEW OF ADMINISTRATIVE ACTION


THROUGH WRITS
A. Introduction
The most significant, fascinating but complex segment of
administrative law is that pertaining to judicial control of
administrative actions. In modern democratic societies, the
administration has acquired an immense accession of power and
has come to discharge functions which are varied and multifarious in
scope, nature and ambit. In the words of Robson1, the hegemony of
the executive is now an accomplished fact. Extension in functions
and powers of the administration has become a desideratum as
most of the contemporary complex socio-economic problems could
be tackled best from a practical point of view, only by administrative
process instead of normal legislative or judicial process. The modern
administration impinges more and more on individual; it has
assumed a tremendous capacity to effect the rights and liberties of
the people. There thus arises the need for constantly adjusting the
relationship between the government and the governed so that a
proper balance may be evolved between private interest and public
interest. It is the demand of the prudence that when sweeping
powers are conferred on administrative organ, effective control
mechanism be also evolved so as to ensure that the officers do not
use their powers in an undue manner or for an unwarranted
purpose. “The powerful engine of authority must be prevented from
running amok.”2 As rightly observed by Lord Denning, “If exercised
properly, the vast powers of the administration may iead to the
welfare state; but if abused, they may lead to administrative

1 Robson, Justice and Administrative Law (1951) p. 34.


2 Wade HWR, Administrative Law, (1977) p. 5.
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despotism and a totalitarian state”3 without proper and effective


control an individual would be without remedy even though injustice
is done to him. This would be contrary to the fundamental concept
of Indian legal system in which the maxim *ubi jus ibi remedium’
(wherever there is a right there is a remedy) has been accepted
since long. In fact right and remedy are but two sides of the same
coin and they cannot be disassociated from each other.
Administrative, Law thus provides for control over the administration
by an outside agency strong enough to prevent injustice to the
individual while leaving the administration adequate freedom to
enable it to carry on effective government4.
An important question thus, which needs to be discussed is,
what are the techniques available to the individual to bring his
complaint or grievance against an administrative action within the
cognizance of the courts, and what tools, subject to what conditions
and on what basis will the courts employ to afford relief to the
complainant? In what cases do the courts feel that redress to a
complaint is called for?
In India, where the codified statute laws govern most fields of
law, judicial control of the administrative authorities has been least
affected by legislation. As a result, the remedies of English common
law have found their way into the Indian legal system. Private law
remedies, viz actions for damages, injunctions and declarations,
played a predominant role during British rule, when the public law
remedies i.e. prerogative writs, had for historic reasons a very limited
application. In England the availability of the writs rendered the
ordinary law remedies less useful than in British India, where the

Lord Denning, Freedom under the Law (1949) p.126.


Garner, Administrative Law (1963) p. 63.
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writs were confined to three presidency towns. Due to the restricted


use of the writs the courts used much more frequent use of the
private law remedies during British rule. After the adoption of the
republican constitution incorporating the provisions of the
prerogative remedies, the writs have become more popular than
other remedies in India.
The techniques commonly used for the purpose are writs,
appeals, reference to the courts, injunctions, declarations, suits for
damages for tortious actions of the administration and civil servants,
and for breach of contracts between the state and private persons
etc. Writs are issued by the supreme Court and High Courts under
the provisions of Article 32 and 226 respectively. Under Article 227,
the High Courts exercise the power of supervision over tribunals
within their territorial jurisdiction. Provisions for appeal to the
supreme court from decisions of the tribunals has been made by
Article 136. Provisions for appeal to the courts from the decisions of
various administrative bodies are also made by several statutes.
The Technique of reference is employed for enabling administrative
bodies to seek opinions of courts on questions of law. Injunctions
and declarations can be granted under the relevant provisions of the
Specific Relief Act, 1963. Damages for tortious actions can be
claimed partly under the constitutional provisions and partly under
the law of torts which is mainly the English law administered in India
as justice, equity and good conscience. The constitution prescribes
the conditions for formation of a binding contractual obligation
between the government and private individuals, but principles of
quasi-contract have also been introduced in this area by the courts.
Since the commencement of the constitution,' the most
commonly used technique to bring on administrative action within
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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

6 Section 31(1 )(1) of the Supreme Court Act, 1981.


7 Section 31 of the Supreme Court Act, 1981; R.S.C. Order 53.
8 Section 31 (2)(9) of the Supreme Court Act, 1981.
.130

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

K.K. Kochuni v. State of Madras, AIR 1959 SC 725,


Charanjitlal v. Union of India, AIR 1951 SC 41.
A.L. Arora v. State of UP, AIR 1962 SC 764.
19
B.B.L. & T. Merchant’s Association v. State of Bombay, AIR 1962 SC 486.
20
Himmat Lai v. State of MP, AIR 1954 SC 403.
enforcement of fundamental rights. Any person complaining of
infraction of any of his fundamental rights by an administrative action
can go to the Supreme Court for vindication of his right, without
being required to undergo the dilatory proceedings from the lower to
a higher court as one has to do in any ordinary litigation. The
Supreme Court has thus been constituted as the protector and
guarantor of Fundamental Rights.
The right to move the Supreme Court for enforcement of any
fundamental right is itself a Fundamental Right and cannot therefore,
be diluted or whittled down by legislation. The implication of this
position is that the court has no power to refuse in its discretion to
grant appropriate remedy if the violation of any fundamental right is
proved.21 Therefore, it is not only the right and power but the duty of
the Supreme Court to protect and safeguard the Fundamental
Rights of the people.22 Where no fundamental right of a person is
violated, court can decline jurisdiction. It is for this reason in
Federation of Bar Association Karnataka v. Union of India,23 the
court declined relief in a PIL petition for the establishment of High
Court benches at other places in Karnataka. Thus, a notable aspect
of Article 32 is that it cannot be invoked unless there has been an
infringement of fundamental right and not otherwise.24 Thus, the
obligation of the State is to ensure that no citizen is deprived of his
livelihood does not extend to provide employment to every member
of each family displaced in consequence of acquisition of Land.25
Though while dealing with a petition under Article 32 the court
would confine itself to the question of infringement of Fundamental

Masthan Sahib v. Chief Commr. Pondichery, AIR 1962 SC 797 at 804.


Takkar C.K., Administrative Law (1992) pp. 378-79,
23
(2000)6 SCC 715.
24
State of Rajasthan v. Union of India; 1978(1) SC. 78.
25
Buta Prasad v. Steel Authority of India, Ltd., (1995)3 SCC 257.
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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

Jhamman Singh v. C.B.I., (1995)3 SCC 420.


Ahmadabad Women's Action Committee v. Union of India (1997)3 SCC 573.
Principal, Madhav Institute of Science & Technology v. R.S. Yadav, (2000)6 SCC
608. s
Om Parkash v. Delhi Stock Exchange Association, (1994)1. JT 114.
Ramjilal v. I.T.O., AIR 1951 SC 97.
Ramchandra v. State of Orissa, AIR 1956 SC 298’.
135

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

follow the principles of natural justice or to observe mandatory


procedural provisions prescribes in the relevant statue. But a mere
error of law committed by a quasi-judicial body cannot be cured
under Article 32.34 This ruling has come in far a good deal of
criticism as it dilutes the efficacy of Article 32 and is rather difficult to
justify. It is difficult to comprehend as to why the court should
refused to give relief in a case of misconstruction of law when a
fundamental right is involved. The ruling becomes all the more
incomprehensible when it is remembered that while the Supreme
Court would issue a writ under article 32 if a quasi-judicial body does
not follow principles of natural justice, of it refuses to give relief in the
case of misconstruction of law by it. Further, the court probably
would have quashed the order if the authority had been
administrative and not quasi-judicial.
The question involved in Ujjan Bai case was whether an
unauthorised tax can be allowed to stand so as to affect a
fundamental right. Instead of looking at the situation in this
perspective in UjjamBai the court took into account the nature of the
body involved which element hardly appears to be relevant to the
facts and circumstances of the case. The ruling in Ujjan Bai may be
characterized as a judicial attempt to restrict Supreme Court’s review
jurisdiction over quasi-judicial bodies under Article 32. The case
also given rise to distinctions, sometimes very hard to draw, between
“misconstruction of law”, pure and simple and a “mistake of law
amounting to a jurisdictional error", for while the court would correct
the latter under Article 32, it would not correct the former. This made
the law of judicial review unnecessarily complicated.

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

A circumstance which might have been present in the minds


of the judges deciding Ujjan Bai could be the need to curtail the
number of writ petitions flowing to the Supreme Court under Article
32. But it is open to doubt whether the decision would give any
effective relief to the court in terms of the totality of work. For a
quasi-judicial decision in a similar circumstance can certainly be
challenged under Article 226 on ground of patent error of law, and
thereafter an appeal could be taken to the Supreme Court from the
High Court’s decision, or an appeal could be filed in the Supreme
Court itself from the tribunal decision under Article 136. Thus, the
case still reach the Supreme Court. From all the considerations, the
Ujjan Bai case appears to be anomalous.35 The Ujjan Bai ruling will
not apply if the function is not quasi-judicial but executive. An
executive order is amenable to Article 32 jurisdiction of the Supreme
Court, and it is immaterial whether.error of law or error of jurisdiction
is involved.36
The nature and purpose of judicial review is not the review of
the decision of the administrative authority, but of the decision
making process. Therefore, the Supreme Court cannot assume
appellate jurisdiction re-appreciate the primary or perceptive facts
found by the fact finding authority.37 The right of seeking judicial
review depends on the facts of each individual case, however, there
cannot be a review of an abstract proposition of law.38
It has been firmly established that the court can grant
compensation for established breach of fundamental rights and

35 Jain MP & S.N. Principles of Administrative Law (1997'tp. 431.


36 Gulam Abbas v. State of U.P., AIR 1981 SC 2198.
37 H.B. Gandhi Excise & Taxation Officer cum Assessing Authority v. Gopinath and
Sons, 1992 Supp. (2) SC 312; See also Apparel Export Profnotion Council v.
A.K. Chopra, (1999)1 SCC 579; Union of India v. Lt. Gen. R.S.. Kadyan, (2000)6
SCC 698.
38
Sarojini Ramaswami (Mrs.) v. Union of India, (1992)4 SCC 506.
138

abuse of power while exercising jurisdiction under Article 32 of the


constitution.39 For this purpose the court can enforce Fundamental
Rights even against private bodies or individuals the court can
exercise jurisdiction suo motu or on the basis of a PIL in the absence
of personal approach by the victim.40 In order to enforce the concept
of accountability the court can also award exemplary damages for
apperceive, arbitrary and unconstitutional action of Government
Servants while exercising jurisdiction under Article 32 of the
constitution.41 The state has a right to change its policy from time to
time in public interest under the changing circumstances and
therefore, generally the court would not interfere unless the change
of policy is arbitrary or violative of law and the constitution.42
In order to reach justice to the deprived and dis-empowered
section of the society the Apex Court in State of Karnataka v. A.B.
Ingale43 held that the power of judicial review under Article 32, 136
and 226 can be exercised to supplement changing social needs and
values and felt necessities of the time having regard to social
inequalities, inequities and imbalances the law intended to remove.
However, the jurisdiction of the court cannot be invoked lightly.
(ii) Jurisdiction of the High Court: Scope of Article 226 :
Article 226 empowers the High Courts to issue directions,
orders or writs for the enforcement of Fundamental Rights and for
any other purpose‘also. Thus, the writ jurisdiction conferred on the
High Courts by Art. 226 can be invoked to enforce not only a
Fundamental Right but a non-fundamental right as well. The

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

jurisdiction conferred on the High Courts under Article 226 is broader


in range than that conferred on the Supreme Court under Article 32,
for while the Supreme Court acts only when there is an infraction of
a Fundamental Right, a High Court may act when a Fundamental
Right or any other legal right is violated. The words “for any other
purpose” enable the High Courts to exercise their power of judicial
review for the enforcement of ordinary legal rights which are not
Fundamental Rights. For example, when a tax levied without
authority of law infringes a Fundamental Right, action against it can
be taken both under Article 32 as well as Article 226; but when it
does not infringe a Fundamental Right, only Article 226 can be taken
recourse to.44 For the enforcement of Fundamental Rights,
therefore, a parallel writ jurisdiction has been conferred on the High
Courts and the Supreme Court.
As regards the inter-relation of Article 32 and 226, it is to be
noted that the jurisdiction of the Supreme Court is independent of,
and is in no way curtailed or qualified by, the High Courts45
jurisdiction. Therefore, a person complaining of an infraction of his
Fundamental Right may go straight to the Supreme Court for relief
and he is not obligated to go to the High Court first.46 But if a
person first approaches a High Court for relief against an
infringement of a Fundamental Right, and his petition is dismissed
there on merits, he can go to the Supreme Court only by way of
appeal and cannot seek to move that court under Article 32,
because of the principle of res judicata (a concept just discussed).
However, the jurisdiction of the High Court under Article 226
for the enforcement of Fundamental Rights is mandatory whereas

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

for the enforcement of ordinary legal rights, it is discretionary.47


Being a constitutional provision, the ambit of Article 226 cannot be
curtailed or whittled down by legislation, and even if a statute were
to declare an administrative action as final, Article 226 could still be
invoked to challenge the same,48 because in India, the constitutional
provisions guaranteeing judicial review are immune from any
legislative action. These constitutional remedies may, of course, be
excluded in specific matters by other constitutional provisions. But
the tendency of the judiciary is to strictly construe the exclusionary
provisions and to hold that it would have some review power inspite
of the exclusion. For example, Article 217(3) declares “final” the
decision of the President on the question of the age of a High Court
Judge. Nevertheless, the Supreme Court held in Union of India v.
J.P. Mitter49 that “Notwithstanding the declared finality of the order of
the President the court has jurisdiction in appropriate cases to set
aside the order, if it appears that it was passed on collateral
considerations or the rules of natural justice were not observed or
that the President’s judgement was coloured by the advice or
representation made by the executive or it was found on no
evidence”.50
The Constitution Forty Second Amendment Act had added
Articles 323-A and 323-B to the constitution which had authorised
the Parliament to establish special courts to perform substitutional
role to the High Courts. In 1985, The Administrative Tribunals Act
was passed by the Parliament and service tribunals were
established to determine service matters of government servants.

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

(1997)3 SCC 261.


Kanu Sanya! v. Distt. Magistrate, A!R 1973 SC 2684.
State of Maharashtra v. Digambar, (1995)5 SCC. 730.
State of UP. v. Committee of Management of S.K.M. Inter College, 1995 Supp.
(2) SCC 535.
Swapan Kumar Chaudhary v. Tapas.Chakraborty, (1995)4 SCC 478.

f
142

decision making process.56 High Court would generally not re­


appreciate evidence or enter into determination of questions which
demand an elaborate examination or evidence or interfere in the
punishment imposed unless the administrative determination is
Mala, fide, or made in contravention of principles of natural justice,
or prompted by extraneous consideration or is in violation of any
constitutional provision, or is such that shocks the conscience of the
court.57 The constitution places no limitation or fetters on the power
of the High Courts except self imposed limitation, therefore, the arms
of the court are long enough to reach injustice, whenever, it is found.
It is for this reason that the distinction between public law and private
law is being obliterated, and a person can enforce a legal right
founded upon a contract or a statute or instrument having the force
of law.58 While dismissing a petition in limine/summary dismissal the
High Court must record reasons so that in appeal the Apex Court is
not denied opportunity of testing and weighing those reasons.59
i
C. Limitations for exercising writ jurisdiction
Judicial Review has certain inherent limitations. It is suited
more for adjudication of disputes than for performing administrative
functions. It is for the administration to administer the law and the
functions of the judiciary is to ensure that the government carries out
its duties in accordance with the provisions of the constitution.
The duty of the court is to confine itself to the question of
legality. It has to consider whether a decision making-authority
exceeded its powers, committed an error of law, violated rules of
natural justice, reached a decision which no reasonable man would

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

have reached or otherwise abused its powers. Though the court is


not expected to act. as a court of appeal, nevertheless it can
examine whether the decision-making process was reasonable,
rational, not arbitrary or not violative of provisions of constitution.
The parameters of judicial review must be clearly defined and never
exceeded. If the authority has faltered in its wisdom the court cannot
act as a super auditor.60
Unless the orders passed by an administrative authority is
unlawful or unconstitutional, power of judicial review cannot be
exercised. An order of administration may be wrong or right. It is
the administrator’s right to trial and error so long as it is bonafide and
within the limits of the authority, no interference is called for. In short
power of judicial review is supervisory in nature unless this
restriction is observed, the court under the guise of preventing abuse
of power by administrative authority, will itself be guilty of usurping
power.61
Powers of the Supreme Court under Article 32 and High
Courts under Article 226 of the Constitution are independent and
discretionary in issuing any direction order or writs. However, where
question of Fundamental Right is involved, the jurisdiction of both
Supreme Court under Article 32 and High Courts under Article 226 is
mandatory, but for other purposes the power of High Court under
Article 226 is discretionary. The constitution places no limitations or
fetters on the powers of the High Court except seif imposed
limitations. But these limitations are not a rule of law, but a matter of
convenience for judges to dispose of the cases and to indicate as to
how discretion will be exercised. Thus, the discretion of the courts is

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

ground for it to throw out a petition for the enforcement of a


Fundamental Right. Once, the Supreme Court is satisfied that the
Petitioner’s Fundamental Right is infringed, it is not only its right, but
its duty as well to afford relief to him; the issue of an appropriate writ
in such a case under Article 32 is not a matter of court’s discretion; it
cannot refuse to give relief to him; and the petitioner need not
establish that he had no other adequate remedy or that he has
exhausted all such remedies as the law provides without obtaining
redress.64 Similarly, it has been held that an alternative remedy is
not a bar to move a writ petition in the High Court to enforce a
Fundamental Right.65 Where no Fundamental Right is involved, it
has been ruied that normally speaking, a High Court would not
exercise its jurisdiction under article 226 when an alternative,
adequate and efficacious legal remedy is available and the petitioner
has not availed of the same before coming to the High Court.66
However, Article 226 is silent on this point, it does not say in many
words anything about this matter, but the courts have 'themselves
evolved this rule as a kind of self-imposed restriction on their writ
jurisdiction under article 226. The rule has been justified on the
ground that persons should not be encouraged to circumvent the
provisions made by a statute providing for a mechanism and
procedure to challenge administrative action taken thereunder. The
courts have also stressed the point that the remedy under Article
226 being discretionary. The High Court could refuse to grant a writ
if it is satisfied that the petitioner could have an adequate or suitable

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

relief elsewhere. For instance, in Veerappa v, Raman67, it was held


that the Motor Vehicles Act, 1939 contains a complete and precise
scheme for regulating the issue of permits and provides remedies for
redressal of grievances and correction of errors, therefore, a person
aggrieved by the refusal of a permit to him should first take recourse
to the remedies provided under the Act and not straight way invoke
Article 226.
Similar was the ruling with reference to the Income Tax and
Sales Tax. In a number of cases, the Supreme Court has held that
where an action lies to the authorities under the Income Tax Act and
Sales Tax Act, High Court may decline to interfere under Article 226
of the constitution.68 Similarly in Annapurna Industries Rice Mill v.
S.E. Operation circle APSEB, Hyderabad,69 it was held that where
there is a statutory appeal relating to A.P. State Electricity Board,
writ petition is not maintainable.
Similar, was the ruling with reference to Industrial Disputes Act
and Payment of Wages Act. Remedy by way of Reference has been
held an alternative remedy in C.l.T. vs. U.P Forest Corporation.70 In
case of Indian Oxygen Employees union v. B.O.C. India Ltd.,71 it
was held that there is no dispute that the workers employees have
the effective remedy under the Industrial Disputes act, which is a
regular remedy, which is available to the employees in case of
change in conditions of Service and the remedy under Article 226 of
the constitution is not the regular remedy which is available to the
employees. It is fundamental that employees cannot by pass the

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

(1998)6 ALT 468.


Hammantu v. Ampro Food Products, 1991(1) An. WR 431; N. Ch. Mouli v.
A.P.S.R.T.C., 1991(1) ALT 492.
(2000)1 SCC 597.
Marudhara conductors m/s v. Haryana State Electricity Boaraj'AIR 1998 Raj.
322.
Hemachalam v. District Collector, Chittoor 1998(6) ALT 506.
2000(10) SCC 592.
Parvati Bai v. Anwar Ali, (1992) 1 SCC 414.
2000(10) SCC 512.
148

where a statutory remedy of filing election petition is provided for, the


legality or otherwise of recounting and declaration of certain votes as
invalid can be gone into by the Tribunal, thus allowing writ petition
was held to be bad. The Patna High Court in Bihar School
Education Board v. Union of India80 held that where on a complaint
relating to revaluation of result, compensation was granted by
District Forum, appeal is the proper remedy against that order and
not writ petition.
Where a notice was issued by executive authority for removal
of encroachment on forest land, writ petition without giving answer to
such notice is not maintainable.81
But this is not an absolute rule and some flexibility is practiced
by the courts in this matter depending upon the circumstances of the
case in which the writ jurisdiction is invoked. The High Courts
emphasize repeatedly that existence of an alternative legal remedy
does not affect their writ jurisdiction as such; it is only a factor to be
taken into consideration by them in the exercise of their discretion.
The rule of exhausion of remedy before invoking jurisdiction under
Article 226 has been characterised as a rule of policy convenience
and discretion rather than a rule of law.82 The law was laid down
with sufficient clarity by the Supreme Court in Venkateswaran v. R.S.
Wadhwan.83 In this case, the petitioners had imported Schaeffer
pens with gold plating from Australia. The customs authorities
charged higher rate of duty than was fixed for ordinary pens. Thus
action was challenged in a writ proceeding. The main contention
before the court was that the petitioner has not exhausted the

AIR 2001 Pat. 166.


T.N. Gadavaram Thirumalpad, v. Union of India, 2000(10) SCC 494.
State of U.P. v. Md. Nooh, AIR 1958 SC 86.
AIR 1961 SC 1506.
149

alternative remedy of review by the Central Government before


coming to the court. The court observed that the rule of exhausion
of alternative remedy is not one that bars the jurisdiction of the court,
but it is a rule which courts have laid down for the exercise of their
discretion.84 Even in the face of alternative remedy, the discretion
lies with the High Court to entertain the petition. No inflexible rule
can be laid down for the exercise for discretion in this regard. Even
then the broad policy behind the doctrine is that the writ jurisdiction
is not meant to short-circuit or circumvent statutory procedures. It is
only where statutory remedies are entirely ill-suited to meet the
demands of extra-ordinary situations, as for instance, where the very
vires of the statute is in question or where private or public wrongs
are so intricably mixed up and the prevention of public injury and the
vindication of public justice require that recourse may be had to
extra-ordinary remedy. However, even than the court must have
sufficient reasons to by pass the alternative remedy provided by
statute.85 Therefore, if the alternative remedy is either not
adequate86 or was lost for no fault of the person,87 or is illusory,88 or
involves delay,89 the High Court may grant relief.
Thus, existence of an alternative remedy is not regarded per
se bar to issuing a writ, and the court is not obligated, as a rigid
norm to always relegate the petitioner to the alternative remedy.
This is more a matter of self-imposed restriction by the courts on
themselves. The Courts recoginse that there could be circumstances
justifying the issue of a writ without exhausion of alternative

84 State of U.P. v. Indian Hume Pipe, AIR 1977 SC 1132.


85 Assistant Collector Central Excise v. Dunlop India Ltd. AIR 1985 SC 330 at 332.
86 Himmat lal v. state of MP, AIR 1954 SC 403.
87 Zila Parishad v. Kundan Sugar Mills, AIR 1968 SC 98.
88 B.E.S. Co. Ltd. v. Commrl. Tax Officer, AIR 1956 Cal. 299; Ram & Shyam Co. v.
State of Haryana, AIR 1985 SC 1147.
89 Bhagirath Singh, v. State of Punjab, AIR 1965 Punj. 170.
150

remedy.90 Therefore, alternative remedy is not a rule of law, but it is


a matter of convenience for judges to dispose of the cases. The
duty of the court is to see that justice is not only done but seemed to
be done,91 there may be circumstances which may justify the
entertaining of a writ petition even if there is an alternative remedy.92
Where the order of District consumer form giving direction to the
authorities to allot plot was found to be patently erroneous and
without jurisdiction, the existence of alternative remedy, is not a
ground to dismiss writ petition,93 and when the court comes to know
that manifest illegality has been crept in or proceedings without
jurisdiction to render, justice and avoid multiplicity of proceedings the
High Court can exercise powers under Article 226 instead of driving
the parties to exhaust alternative remedy.94 The Bombay High Court
in Rajan Ramnath Patil v. State of Maharabhtra95 that where an
order disqualifying Municipal councillor was without jurisdiction,
remedy of appeal under Maharashtra Municipal Councils Nagar
Panchayats and Industrial Townships Act, 1965 would not be a bar
to maintain writ petition. Where a party complains of fraud, such
party can avail remedy by way of writ in the absence of alternative
remedy.96 Doctrine of alternative remedy will not be a bar to
maintain writ petition on the facts and circumstances; of a case.
There must be circumstances and justification for departure from
ordinary procedure for maintaining writ.97 In Ashok Kumar v. U.P.

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

98 1998(1) l£j 789.


99
Sarda Bai bai v. Shakunthala Bai, 1992(2) An. LT 660.
100
Durga Prasad v. Chief Controller, AIR 1970 SC 769.
152

doctrine of laches applies even to writ petitions complaining violation


of Fundamental Rights.101 In M/s Trilokchand Motichand v. H.B.
Manshi,102 it was observed on this aspect : “The party claiming
Fundamental Rights must move the court before other rights Mis
Lordhsip Hidayatullah is come into existence. The action of court
cannot harm innocent parties of their rights emerge by reason of
delay on the part of the person moving the court”. However, unlike
• limitation, there is no fixed period of delay, No hard and fast rule can
be laid down in this regard and court has to decide each matter
depending upon facts and circumstances whether a writ petition can
be thrown out on the ground of delay or laches or not.103

Can laches extinguish fundamental rights? Following Trilok


Chand104 and Rabindra Bose,105 the Supreme Court in R.S. Makashi
v. I.M. Menon106 reiterated the same principle that laches applies to
writ petitions under Articles 32 and 226 for the enforcement of
fundamental rights, hence laches would extinguish fundamental
rights. In this case, a writ petition was filed in the High Court
complaining of infraction of Article 14 and 16, eight years after the
impugned governmental action. The bone of contention was the
seniority between two groups of government employees. The High
Court overruled the preliminary objection based on laches against
the maintainability of the writ petition. The Supreme Court held that
the writ petition was “highly belated" and was liable to be dismissed
on the ground of “laches and delay”. The court said that the High
Court’s view that a writ petition” seeking redress on the ground of

101 Trilok Chand Motichand v. H.B. Munshi AIR 1970 SC 898;


102 Ibid.
103 Mahadev Kalkar v. State Bank of Hyderabad, 1990(4) SCC 174; Vimla Sharma v.
State of U.P., (1990) Suppl. SCC 770.
104 Supra note 101.
105 Supra note 101.
106 (1982)1 SCC>379 ; AIR 1982 SC 100.
153

alleged infringement of fundamental rights cannot be dismissed by


the court on the ground of laches, under any circumstances" could
not be accepted as it was inconsistent with earlier cases. The court
asserted that a person seeking enforcement of his fundamental
rights should exercise due diligence and approach the court within a
reasonable time after the cause of action arises. In an appropriate
case, the court may condone the delay,107 for as the Supreme Court
has stated that “the court may not enquire into belated and state
claims is not a rule of law, but a rule of practice based on sound and
proper exercise of discretion, and there is no inviolable rule that
whenever there is a delay, the court must necessarily refuse to
entertain the petition". For instance in Ramachandra Shankar
Deodhar v. State of Maharashtra.108 A writ petition under Article 32
filed after twelve years of the accrual of the cause of cofnplaint was
still entertained by the Supreme Court. Unfortunately, the decision
of Menon case,109 which was a three-judge decision, did not even
refer to a five judges decision in Deodhar case,110 in which speaking
for the majority, Justice Bhagwati said that the claim for the
enforcement of fundamental right of equal opportunity under Article
15 is itself a fundamental right guaranteed under Article 32 and the
Supreme Court which has been assigned the role of a sentinel on
the qui vive for protection of the fundamental rights cannot easily
allow itself to be persuaded to refuse relief solely on the ground of
laches delay or the like.111 Moving in the same direction, the court
allowed a writ petition of persons displaced due to acquisition of land
for Steel Plant for seeking employment in the plant after 38 years of

107 Moon Mills v. Mehar, AIR 1967 SC 1450.


108 (1974)1 SCC 317; AIR 1974 SC 259.
109 Supra note 106.
1.0 Supra 108.
1.1 Supra note 108 at 325-327SCC
154

acquisition of iand and 33 years after the setting up of plant in view


of the nature of the problem and the decision taken by the
government just about four years ago to provide employment to
displaced persons.112
Article 32 or 226 does not prescribe any period of limitation.
What is the measure of delay? According to the Supreme Court:
No hard and fast rule can be laid down as to
when the High Court should refuse to exercise
its jurisdiction in favour of a party who moves it
after considerable delay and is otherwise guilty
of laches. That is a matter which must be left to
the discretion to the High Court and like all
matter ieft to the discretion, of the court, in this
matter too discretion must be exercised
judiciously and reasonably.113
As regards, the power of the High Court to issue writs for any
other purpose, if the period of limitation as laid down in the limitation
Act, 1963 has expired, the High Court will decline jurisdiction. The
rationale is that if the relief cannot be claimed in the ordinary manner
because the limitation period has expired, the same will not be
granted by the High court in exercise of its extraordinary power.114
However, the High Court is not bound by the limitation law in the
sense that a petition even if within limitation may still be refused on
the ground of unreasonable delay,115 because the extra-ordinary
remedy is discretionary. Thus, delay disentitles the party to the
discretionary relief under Article 226 and 32.116 The Supreme Court
in Municipal Corporation Ahmedanagar v. Shah Hyder Baig,117
explaining the doctrine has held that delay defeats equity. In 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

Industrial Development and Investment Co; v. State of


Maharashtra,118 the Bombay High Court while dealing' with this
aspect held that the court may also legitimately take into
consideration whether by reason of lapse of time any equity had
arisen in favour of either of the respondents or third parties which
ought not to be disturbed. Applying these principles, the Supreme
Court held in Arun Kumar v. S.E. Railway;119 that when the appellant
made a representation against the seniority list to the administration
in 1967 which was replied in 1973, there is no ordinate delay in filing
the petition in view of the fact that the railway administration was
itself guilty of delay. However, petitioner is expected to approach the
court seeking the relief as early as possible though no hard and fast
rule can be laid down in this regard.120 Likewise, a delay of four
years was ignored by the Karnataka High Court in view of the
serious consequences to the petitioner.121 Where the petitioner
approaching different courts being unaware of correct position has
not been considered delay on the part of petitioner. The Allahabad
High Court in Chandrika v. State of U.P.122 held that where the
petitioner had been approaching different courts as advised by his
counsel and directed by courts being unaware of correct position,
there was no undue laches on the part of the petitioner so as to
refuse the relief. Similarly, the Rajasthan High Court in Rawat v.
State of Rajasthan123 held that time taken while pursuing a wrong
remedy cannot be taken as delay or laches in filing writ petition.

AIR 1989 Bom. 156 at 161,


AIR 1985 SC 482.
Odyssey Communication v. Lok Vidayam Sangathana, AIR 1988 SC 1642.
Mohd. Ismail v. State of Karnataka; AIR 1985 SC 123.
1968 All WR (HC) 326.
AIR 1957 Raj. 343; See also Chetu Singh v. Jai Narain Singh, 1966 All LJ 684.
156

But on the other hand an unexplained delay of two years after


the completion of acquisition process was found fatal for the
maintainability of the writ petition.124 A writ of mandamus was
refused after a delay of six years in L. Muthukumar v. State of Tamil
Nadu.125 Again, even a delay of a few days was considered as fatal
because it involved upsetting the admission of others by Allahabad
High Court.126 But in Alka Garg v. Delhi University,127 the petitioner
seeking admission filed the petition within six months was held that
there was no delay as during that period she was trying to seek
justice from the university authorities. It seems that in this case, the
ultimate relief of grating admission to the petitioner would not have
effected any other admission.
A petition filed against the cancellation of an auction sale by
the railways after two years was held to be not maintainable on
account of laches, by Rajasthan High Court in Mohammacl Usman v.
Union of India128. The ruling is justified on the ground that the
intervention by the court at that late stage would have prejudicially
affected the railways. In Kamini Kumar v. State of West Bengal,129
the petitioner filed a writ petition in the High Court to challenge his
dismissal from civil post within two years of his dismissal. The
petition was rejected on account of laches.
Laches do not apply where the illegality is continuous giving
•?

rise to new cause of action from time to time. Thus, a procedure


which is ultra-vires theJ statute or the constitution, even though
followed for long, can be challenged at any time, but of course,

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

within a reasonable time of the fresh cause of action.130 A new plea


on controverted facts can be permitted.131 But a petitioner who had
not agitated his claim for several years, cannot ask the court to grant
relief to him on the basis of law declared in some other case.132
However, in continental chemicals ltd. v. STO133 it was held that
dismissal of writ petition without dealing with contentions raised
therein was to be improper. At the same time in Fali Firoz Shah
Bomangi v. State of Maharashtra,134 it was held that courts while
dismissing a petition are expected to make speaking orders. The
Supreme Court in P.S. Sadasivaswamy v. State of Tamil Nadu,135
also observed that it would be sound and wise exercise of discretion
for the courts to refuse to exercise their extraordinary powers under
article 226 in the case of persons who do not approach it
expeditiously for relief and who stand by and allow things to happen
and then approach the court to put forward state claims and try to
unsettle settled matters. Therefore in M.S. Mudhol (Dr.) v. S. D.
Halegar,136 the Apex Court ruled that the challenge to the
appointment of principal after a period of nine years on the ground
that he did not fulfil the requisite qualification, cannot be allowed.
Similarly, in LIC v. Jyoti Chander Biswas,137 the court did not allow
petition filed after a lapse of six years against dismissal from service
for long absence from duty.

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

Recently, the question of delay in filing writ petition came


before the Delhi High Court in Smt. Krishna Chobe v. Delhi
Administration.138 : In the instant case, Dr. P.K Chobe died while
swimming in the Swimming Pool of Indian Ayurveda Institute. Smt.
Krishna Chobe wife of the deceased filed a writ petition claiming
compensation of Rs. 57 lakhs on the basis of negligency on the part
of the administration. The petition was filed after three years of the
death. If such a suit is filed in civil court, the same is not
maintainable due to limitation. Similarly, if reasonable satisfactory
explanation is not given, the writ petition is also not maintainable. It
is true that no time limit has been prescribed for writ petition, yet a
person who invoke writ jurisdiction must approach the court at the
earliest. As a general principle, the period of limitation as laid down
in Limitation Act, 1963, is made applicable by the courts in
exercising writ jurisdiction, but the courts are not bound by the
limitation Act. It is also true that in certain cases where reasonable
explanation has been given, writ petitions have been entertained
after the lapse of the limitation period, but in the instant case, the
petitioner had been taking continuous legal advice and even in
November, 2000, the petitioner had filed a suit, yet the court held
that the petitioner is an educated person and had the knowledge of
her rights. In these circumstances, filing of writ petition after the time
limit is not maintainable.
From these decisions it appears that laches or delay is a
matter of discretion of the courts which must be exercised judicially
and reasonably on the basis of the fact situation of each case.

138
AIR 2004 Del. 379.
159

(iii) Res judicata and control of Administrative Actions.


Res judicata means a matter adjudicated upon <or a matter
upon which judgment has been pronounced. This doctrine has been
accepted in all civilized legal systems Under the Roman Law, a
defendant could successfully contest a suit filed by plaintiff on the
pleas of “ex captio res judicata”. It was said “one suit and one
decision is enough for any single dispute”. In words of Spencer
Bower, res judicata means,” a final judicial decision pronounced by a
judicial tribunal having competent jurisdiction over the cause or
matter in litigation, and over the parties thereto”. The doctrine of res
judicata has been explained in the simplest possible manner by Das
J. in the case of Satyadham v. Deorajin Debi139 in the following
words.
The Principle of, res judicata is based on the
need of giving a finality to judicial decisions.
What it says is that once a res judicata, it shall
not be adjudged again. Primarily it applies as
between past litigation and future litigation.
When a matter whether on a question of facts or
a question of law has been decided between two
parties in one suit or proceeding and the
decision is final, either because no appeal was
taken to a higher court or because the appeal
was dismissed, or no appeal lies, neither party
will be allowed in a future suit or proceeding
between the same parties to convass the mater
again"140
Doctrine of res judicata is based on three maxims -
1. nemo debt lis vexari pro una et eaden causa : No man should be
vexed twice over for the same cause;
2. interest republical ut sit finis litium : It is in the interest of the state
that there should be an end to a litigation; and

AIR I960 SC 941.


Id. at 943.
160

3. res judicata pro veritate occipitur : a judicial decision must be


accepted as correct.
As observed by Sir Lawrence Jenkins,141 “the rule of res
judicata, while founded on account of precedent, is dictated by a
wisdom which is for all time.”142
Thus, the doctrine of res judicata has been put on two
grounds, the one the hardship to the individual that he should not be
vexed twice for the same cause and the other public policy i.e. in the
interest of the state that there should be an end of litigation.143 The
doctrine is founded on justice, equity and good conscience.144 In
leading case Duches of Kingstone,145 Sir William de Grey made the
following remarkable observations on the doctrine of res judicata :
“From the variety of cases relative to
judgements being given in evidence in civil suits;
these two deductions seem to follow as
generally true, first, that judgement of a court of
concurrent jurisdiction, directly upon the point, is
as a plea, a bar, or as evidence conclusive;
between the same parties, upon the same
matter, directly in question in another court;
secondly, that the judgment of a court of
exclusive jurisdiction, directly on the point, is, in
like manner, conclusive upon the same matter
between the same parties, commonly
incidentally in question on another court, for a
different purpose.146
In Corpus juris147 also, it has been stated :
“Res judicata is a rule of universal law prevailing
every well regulated system of jurisprudence
and is put upon two grounds, embodied in
various maxims of the common law; the one,
Sheopursan Singh v. Ramanandan Prasad, AIR 1916 PC 78.
Id. at 80.
Digambar Rap v. Ranga Rao, AIR 1949 Bom. 367.
Lai Chand v. Radha Kishan, AIR 1977 SC 789 at 796.
Smith's Leading cases ; 13th Edn. P. 644,
Id. at. 645.
Vol. 34 p. 743.
161

public policy and necessity which makes it to the


interest of the state that there should be an end
to litigation; the other, the hardship to the
individual that he should not be vexed twice for
the same cause”148
Thus doctrine of res judicata is the combined result of public policy
and private justice and apply to all judicial proceedings whether civil
or criminal.
(a) writ proceedings and res judicata :
The principle of res judicata which is grounded on public policy
applies in the public law review also. It has been settled since long
that though section 11 of the code of civil Procedure does not, in
terms, apply to writ petitions, there is no good ground to preclude
decisions in matters in controversy in writ proceedings under Article
32 or Article 226 of the constitution from operating as res judicata in
subsequent petitions or regular suits on the same matters in
controversy between the same parties and thus to give limited effect
to the principle of finality of decision after full context. In M.S.M.
Sharma v. Krishan Sinha,149 for the first time the Supreme Court
held that the general principles of res judicata apply even to writ
petitions filed under Article 32 of the constitution of India. The
position therefore, is that when once a writ petition has been moved
in a High Court or Supreme Court, and rejected there on merits, then
a subsequent petition cannot be challenged on the same cause of
action.
In the leading case of Daryao Singh v. state of U.P.150 the
Supreme Court ‘has placed the doctrine of res judicata on higher
footing considering and treating the binding character of judgements

See also Halsbury’s Law of England, 3rd Edn. Vol. 15, p. 185.
AIR 1960 SC 1186.
AIR 1961 SC 1457.
162

pronounced by competent courts as an essential part of the rule of


law. Gajendergadkar (as he then was) observed :
“It is in the interest of the public at large than a
finality should attach to the binding decisions
pronounced by courts of competent jurisdiction,
and it is also in the public interest that
individuals should not be vexed twice over with
the same kind of litigations. If these two
principles form the foundation, of the general
rule of res judicata they can not be treated as
irrelevant and inadmissible even in dealing with
fundamental rights in petitions filed under Article
32” ^ ^

Again in Gulabchand v. State of Gujarat,152 the Supreme


Court observed :
“We are of opinion that the provisions of section
11 CPC : are not exhaustive with respect to an
earlier decision operating as res judicata
between the same parties on the same matter in
controversy in a subsequent regular suit and
that on the general principle of res judicata, any
previous decision on a matter in controversy,
decided after full contest or after affording fair
opportunity to the parties to prove their case by
a court competent to decide it, will operate s res
judicata in a subsequent regular suit. It is not
necessary that the court deciding the matter
formerly be competent to decide the subsequent
suit or that the former proceeding and the
subsequent suit have the same subject matter.
The nature of the former proceeding is
immaterial.”153
Thus, if a petition has been heard and dismissed, the same
petition on the same ground cannot be filed in the same court again.
The principle of res judicata also applies in cases for the
enforcement of Fundamental Rights. A person is free to reach the

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

Daryao Singh v. State of U.P., AIR 1961 SC 1457.


Indian Oil Corpn. Ltd. v. State of Bihar, AIR 1986 SC 1780.
Virudhunagar Steel Roling Mills v. Govt, of Madras, AIR 1968 SC 1780.
Ahmedabad Mfg. Co. v. Workmen (1981) 2 SCC 663,
Madhvi Amma Bhawani Amma v. Kanjkutti Pillai, (2000)6 SCC 301.
Workmen v. Board of Trustees Port trust, AIR 1978 SC 1283.
164

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

feel it convenient to admit a petition rather than writing reasons for


dismissal. However, this does not apply to the Apex Court which
can dismiss a petition in lemine without recording of reasons
because being the highest court there is no appeal thereafter.163
Recording of reasons is not only necessary for appeal but is also
necessary for generating public confidence, hence the need to
record reasons can never be obviated. High Court must be
approached first:
There is a growing tendency to file the petitions before the
Supreme Court even in a case where it could have been filed before
the High Court. Discouraging this tendency the Supreme Court in
P.N. Kumar v. Municipal Corpn. of Delhi,164 held that in cases, where
writ can be filed before the High Court parties should not approach
the Supreme Court.
(d) Constructive res judicata
The question of applicability of constructive res judicata to
writs arose for the first time before the Supreme Court in the case of
Amalgamated Coal fields Ltd. v. Janpada Sabha.165 In that case,
earlier the notices issued by respondent Sabha against the
companies calling upon them to pay tax were challenged on certain
grounds. At the time of hearing of the petitions, an additional ground
was also taken and the authority of Sabha to increase the rate of tax
was challenged. However, since there was no pleading, the said
point was not allowed to be argued and the petitions were
dismissed. Thereafter, once again when the notices were issued in
respect of different period, they were challenged on that additional
ground, which was not permitted to be argued in previous litigation.

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

State of U.P. v. Nawab Hussain.169 In that case a PSI challenged


his dismissal by the DIG on the ground that he was not given a fair
hearing. The High Court, however, dismissed his petition. He filed a
suit thereafter, and raised an additional plea that he was appointed
by IG so cannot be dismissed by the DIG who is a subordinate
officer. The Supreme Court held that the additional plea is barred by
constructive res judicata.
Thus, now the position appears to be well settled that the
principle of constructive res judicata also applies to writ petitions.
However, raising the question of constitutionality of a provision of
law stands on different footing than raising a matter on a bare
question of law, or mixed question of law and facts or on fact. There
is a presumption always in favour of the constitutionality of the law.
Onus is heavy on the person challenging it. When a person enters a
court for relief and does not challenge the constitutionality of law
governing the matters directly and substantially in issue, it only
means and implies that he goes by the presumption of
constitutionality. He cannot on this instance be deemed to have
raised the question of constitutionality and the question of
constitutionality to have been decided against him and such a matter
to have been directly and substantially in issue. Therefore, if the
question of constitutionality is raised in another writ proceeding the
principle of constructive res judicata shall not be attracted.170
Further where a recurring liability has been held to be ultra-vires the
power, earlier summary disposal of the case would not operate res
judicata.171 In the same manner once an order passed on merit by
the Supreme Court exercising the power under Article 136 has

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

became final no writ petition under Art. 32 on the selfsame issue is


maintainable.172
(e) Habeas corpus and res judicata
The doctrine of res judicata does not apply in the case of
Habeas corpus petitions. In Ghulam Sarwar v. union of India,173
rejecting the plea of application of constructive res judicata, the
Supreme Court observed :
“If the doctrine of constructive res judicata be
applied, this court, though is enjoined by the
constitution to protect the right of a person
illegally detained, will become powerless to do
so. That would be whittling down the wide
sweep of the constitutional protection’’174
Thus, if the petition has been dismissed on merits by the High
Court, it can again be filed in the Supreme Court.175 In Lallubhai
Jogibhai Patel v. Union of India,176 the petitioner was detained and
the petition filed against the said order was dismissed by the
Supreme Court by an order dated May 9, 1980, but the reasons
were given on August 4, 1980. After the dismissal of his petition, the
petitioner filed additional grounds on July 21, 1980. However, on
July 30, 1980 he was informed that he may, if so advised file a fresh
petition on those additional grounds, which he did. The question
arose before the Supreme Court was whether the principle of
constructive res judicata could apply to a writ of habeas corpus.
After considering the leading judgements on the points Sarkaria J.
made the following remarkable observations, which, it is submitted,
lay down correct law :

Babu Singh v. Union of India, (1996)6 SCC 565.


AIR 1967 SC 1335.
Id. at 1338.
Niranjan Singh v. State of M.P., AIR 1972 SC 2215; See also Nazul Ali v. State
of W.B., AIR 1969 SC 182.
176
AIR 1981 Sc 728.
169

“The position that emerges from a survey of the


above, decisions is that the application of the
doctrine of constructive res judicata is confined
to civil actions and civil proceedings. This
principle of public policy is entirely inapplicable
to illegal detention and does not bar a
subsequent petition for a writ of habeas corpus
under Article 32 of the constitution on fresh
grounds, which were not taken in the earlier
petition for the same relief.”177
Thus, courts in India have taken the view that the principle of
res judicata is not applicable to a writ of habeas corpus. ;
Thus, it can be concluded that principles of res judicata and
constructive res judicata apply to writs also as they apply in case of
civil suits. Therefore, if a dispute has already been decided by a
competent court which has become final any petition under Article
32 or 226 will be barred.178
(iv) Authorities who exercise Administrative Powers against
whom writs may be issued :
Under the provisions of Article 32 and 226 of the Indian
Constitution, the Supreme Court and the High Courts have the rights
to issue writs in the nature of habeas corpus, mandamus, quo-
warranto, certiorari and prohibition. The jurisdiction of the Supreme
Court is limited only to the enforcement of fundamental rights while
the High Courts can issue writs not only for the enforcement of
fundamental rights but for other purposes also.
While deciding whether a writ would lie in given
circumstances, the first inquiry to be made is against whom a writ
can be issued. The law in this area is in the process of evolution.

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

area than that covered by Article 12". ^

179
Mathew J., in Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331 at 1352.
171

The following discussion is relevant primarily to, the writs of


mandamus and certiorari. Habeas corpus and quo warranto fall in a
class by themselves. Habeas corpus can be issued to anyone, be
he a public official or a private person, who unlawfully detains a
person, the idea underlying habeas corpus being to secure the
freedom of the detenue. Quo warranto goes to the holder of a
substantive public office and not to the holder of any private office.
Difficult problem however, arise with regard to the persons or bodies
to whom certiorari or mandamus can be issued. We will discuss,
this concept in two parts; viz (i) Authorities amenable to the writ
jurisdiction of the Supreme Court; and (ii) Authorities amenable to
the writ jurisdiction of High Courts.
(a) Authorities amenable to the writ jurisdiction of the Supreme
Court.
The Supreme Court can issue writs under Article 32 of the
constitution. The main purpose of article 32 is to protect the
individual against the infringement of his fundamental rights. The
threat to fundamental rights may arise from the following sources :
(a) Government and Parliament of India ; Government and
legislatures of states and local governments;
(b) Government departmental undertakings;
(c) Agencies incorporated by statutes;
(d) Agencies registered under statutes, e.g. Companies Act and
Societies Registration Act;
(e) Courts
(f) Private individuals and bodies.
It is well settled through series of cases that the authorities
falling under the first three categories are amenable to the writ
172

jurisdiction of the Supreme Court and are included within the


definition of ‘state’ in Article 12.180
Agencies falling under the fourth category may be included
within the term ‘state’ and therefore, amenable to the writ jurisdiction
of the Supreme Court, if such authorities are instrumentalities of or
agencies of the Government,181
Courts of law are not mentioned as such in Article 12, but they
may pose a threat to the fundamental rights of the people in exercise
of their administrative powers. In Prem Chand Garg v. Excise
Commissioner,182 the Supreme Court struck down certain rules
frame by it as violative of fundamental rights.
Some of the fundamental rights given under Article 15(2), 17,
23(1) and 24 can be claimed against private individuals also. The
judicial opinion is that these rights though belong to private
individuals cannot be enforced by private individuals. Therefore, as
the law stands to-day, such private individuals and bodies are not
amenable to the jurisdiction of the Supreme Court, no matter they
violates fundamental rights.183 There seems to be no valid reason
for this kind of a judicial exclusion.
The approach of the court in the area of fundamental rights
must not be whether the authority is “state” within the meaning of
Article 12. The correct approach should be that every authority or
person who poses a threat to a fundamental right should be
amenable to the jurisdiction of the court. Therefore, not the “type of
agency” but “the threat to the fundamental rights” rri'ust be the
determining factor for the issue of writs under Article 32.

,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

(b) Authorities amenable to the writ jurisdiction of the High


Courts :
The High Courts have a wider power to issue writs against
“any person or authority” for the enforcement of fundamental rights
and any other legal right. As regards, the “person and authority"
against whom such writs can be issued, the law seems to be in a
thicket of inconsistencies. There is no controversy about the writs of
habeas corpus and quo-warranto which can be issued against
private individuals and public officers respectively. Therefore, the
discussion will mainly concentrate on writs of certiorari, prohibition
and mandamus.
It is gratifying to note that the area for the operation of these
writs has been extended, and rightly so, to cover various
administrative agencies exercising multifarious functions.
There is no dispute that all constitutional and administrative
authorities are amenable to the jurisdiction of the courts. Therefore
a writ can be issued against public acts of the President of India,
Governors, Union and State Governments, Ministers, Government
Officers and departments, and other bodies given in the constitution,
i.e. Union Public Service Commission, election Tribunal, Finance
Commission, Water. Dispute Authority, and Attorney General of
India184. The combined effect of In re Constitution of India185 and
state of Punjab v. Satyapal186 is that a writ can be issued in
appropriate cases, where there is a violation of the constitution or
any law, to Parliament and State Legislatures. It is now well
established by the Supreme Court decision in State of M.P. v.

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

Babulal187 that a writ of certiorari can be issued against a court to


correct the record if the court has usurped jurisdiction. The writ can
also be issued to any judge quashing an action taken in an
administrative capacity.188
The opinion of the courts is also decisive that writs can be
issued to statutory bodies irrespective of their functions and profit
orientations. Thus, writs can be issued to bodies like LIC., N.S.C.,
University. Dock Labour Board, State Transport Corporation, Steel
Authority of India etc.189
The law relating to the amenability of registered agencies, i.e.
companies registered under the Indian Companies Act, and
societies registered under the Societies Registration Act, is still in
developing stage and has not reached the stage of maturity.
However, some of the High Courts have taken the view that not only
government companies, but private companies also are amenable to
the writ jurisdiction because their bye laws have the force of law.
The Kerala High Court in K.L. Mathew v. Union of India,190 issued a
writ against the Cashew Corporation of India, a government
company, on the ground that it was performing a statutory function,
under the Imports and Exports Control Act, 1947 and Import Control
Order 1955, of Controlling import and export of cashewnuts.
Similarly, various High Courts have issued writs against societies
registered under the Societies Registration Act on the ground that

187 AIR 1977 SC 1718.


188 Pradyat Kumar Bose v. Chief Justice, Calcutta H.C., AIR 1956 SC 285 (However,
Supreme Court did not express any final opinion).
189 L.I.C. v. S.K. Mukherjee, AIR 1964 SC 847; Maffatlal N. Barat v. Divn Controller,
State Transport Corpn., AIR 1966 SC 1364; N.N. Mishra v. V.C. Gorakhpur
University, AIR 1975 All. 290; Hira Nath Mishra v. Rajendra Medical College, AIR
1973 SC 1260; Bihar State Harijan Kalyan Parshad v. Union of India, AIR 1985
SC 983.
190 AIR 1974 Ker. 4; See Prafuila Kumar v. Oil India Ltd., AIR 1971 A & N 19 Bohran
Kumar v. Indian Oil Corpn. AIR 1971 Pat. 174 Abani Bhushan v. Hindustan
Cable Ltd,, AIR 1968 Cal. 124.
175

their bye-laws have statutory force.191 However, the view of the


Supreme Court in Co-operative Central Bank Ltd. v. Addl. Industrial
Tribunal,192 does not favour this approach.
An authority may also be constituted under the executive
powers of government. Such authority though do not owe their
origin to any statute, are controlled and regulated by the
government. The question is whether such authority is amenable to
the writ jurisdiction. The Calcutta High Court in Bijay Ranjan v. .B.C.
Das Gupta,193 held that such agencies are amenable t5 the writ
jurisdiction, and it issued a writ against the State Medical Faculty, an
un-incorporated or non-statutory body, solely established by the
government, in exercise of its executive powers. However, the M.P.
High Court in S.K. Kalani Co. v. Iron and Steel Controller,194 took the
different view because in its opinion such bodies cannot be
classified as public authorities. As regards the amenability of private
institutions and private persons to the writ jurisdiction of the High
Courts, the trend of judicial decisions is wholesome. The courts
have broken new ground in order to redress the injury caused to a
private individual. The Apex Court has taken the view that a writ can
be issued against a private college affiliated to the University on the
ground that the university rules which are applied to the college
especially in disciplinary matters of the staff have the force of law.195
The Supreme Court in Rajsoni v. Air Officer-in-charge

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.

Administration,196 further held that a private body even if it is not a


state under Article 12 but if governed by a statute is bound to
provide the benefit under the statute and hence the benefit of writ
would be available. In the instant case, the Supreme Cburt issued
writ against an Air Force school which was unaided but recognised
and the Delhi Education Act and Rules governed it.
The core question in writ jurisdiction in India has always been
whether an administrative authority is included in the Category of
“other authorities” as contemplated by Article 12 within the definition
of the term "state". In Rajasthan Electricity Board v. Mohan Lai,197
the Supreme Court held that a constitutional or statutory authority
would be within the meaning of the expression “other authorities”, if it
has been invested with statutory power to issue binding directions to
third parties, the disobedience of which would entail penal
consequences or it has the sovereign power to make rules and
regulations having the force of law. This test was followed in
Sukhdev Singh v. Bhagatram.198 However, in this case, a broader
test, namely. Whether the administrative authority is an
instrumentality or agency of the government; if it is, it would fall
within the meaning of the expression “other authorities” and would
be “state”.
In R.D. Shetty v. International Airports Authority,199 the
Supreme Court found the test of “governmental instrumentality or
i'

agency” to be most satisfactory test. In this case, one of the


questions involved was whether the International Airport authority
constituted under the International Airports Authority Act, 1971 is

(1990)3 SCC 261.


AIR 1967 SC 1857.
AIR 1975 SC 1331.
(1979)3 SCC 489; AIR 1979 SC 1628.
177

State within the meaning of that expression in Article 12, Holding


the Airport Authority to be “state” by following the earlier judgments
in Rajasthan State Electricity Board and Sukhdev Singh, and
adopting the line of reasoning of Mathew J. in Sukhdev Singh,
Bhagwati J. (as he then was) laid down certain tests for determining
as to when a corporation can be said to be an instrumentality or
agency of government with the preface, “what than are the tests to
determine whether a corporation established by statue or
incorporated under law is an instrumentality or agency of
government? It is not possible to formulate an all inclusive or
exhaustive test which would adequately answer this question. There
is no cut and dried formula which would provide correct division of
corporations into those which are instrumentalities or agencies of
Government and those which are not.200 However, Bhagwati J.
attempted to particularise certain relevant factors which may provide
an answer to the above question, though such factors may not be
exhaustive. He observed that a finding of extensive and unusual
financial assistance plus as unusual degree of control over the
management and policies might lead one to characterise an
operation as state action. Moreover, the existence and deep and
pervasive state control may afford an indication that the corporation
is a state agency or instrumentality. It may also be a relevant factor
to consider whether the administrative authority enjoys monopoly
status which is state conferred or state protected, for there can be
little doubt that this type of monopoly status would tie the authority to
the state. Again, if the functions of the authority are of public
importance and closely related to governmental functions, it would

200
Id. at. 507 (SCC); 1639 (AIR).
178

be a relevant factor in classifying the authority as an instrumentality


or agency of the Government. However, it does not mean that an
agency which is otherwise a private entity, would be an
instrumentality of the government by reason of carrying the functions
of public importance. But the public nature of functions, if
impregnated with governmental character or tied or entwined with
government or fortified by some other additional factor may render
the authority an instrumentality or agency of the government.
Specifically, if a department of government is transferred to an
administrative authority. It would be a strong factor supportive of this
inference. The court will have to consider the cumulative effect of
these various factors and arrive at its decision on the basis of a
particularised inquiry into the facts and circumstances of each case.
It is not enough to examine seriatim each of the factors upon which
an administrative authority is claimed to be an instrumentality or
agency of the government and to dismiss each individually.as being
insufficient to support a finding to that effect. It is the aggregate or
commutative effect to all the relevant factors i.e. controlling.201
Therefore, in order to decide whether an administrative authority is
subject to the writ issuing jurisdiction of the court, the court test is not
the establishment of the authority by a statute or its incorporation
under the Companies Act, 1956, or Societies Registration Act, 1860,
but the relationship with the government. Thus, the Supreme Court
has rightly extended its reach in matters of issuing writs by
liberalizing the test which brings an administrative authority within
the gravitational orbit of the term “state" in Article 12 of the
constitution.

Id. at 510, 511 (SCC)


179

Picking up the same thread, the Supreme Court in Som


Prakash Rekhi v. Union of India,202 held that there was sufficient
material to hold Bharat Petroleum corporation, registered as a
company under the Indian Companies Act, 1956 as a “state" within
the meaning of Article 12. It is clearly a limb of the Government, an
agency of the state and recognised by and clothed with rights and
duties by the statute.
Applying the same “instrumentality or agency” test in Ajay
Hasia v. Khalid Mujib,203 the Supreme Court held that the Regional
Engineering College, Srinagar, established, administered and
managed by a society registered under the Jammu and Kashmir
Registration of Society Act, 1893 was a “state” within the meaning of
Article 12. Extending the principle laid down in earlier cases, it was
observed : “We may point out that it is immaterial for this purpose
whether the corporation is created by a statute or under a statute.
The test is whether it is an instrumentality or agency of the
government and not as to how it is created. The inquiry has to be
not as to how the juristic person is born but why it has been brought
into existence.204
Against the backdrop of these cases, now it has been
consistently held that government companies and co-operative
societies are "state” within the meaning of Article 12 of the
constitution. Therefore, now bodies such as food Corporation of
India,205 Oil and Natural Gas Commission,206 Life Insurance
Corporation,207 Industrial Finance Corporation,208 Railway

202 (1981)1 SCC 449 AIR 1981 SC 212.


203 AIR 1981 SC 487.
204 Id. 496. . <
205 State of Punjab v. Raja Ram, AIR 1981 SC 1694.
206 H.C. Joshi v. Union of India, AIR 1985 SC 1046.
207 LIC v. Manubhai (1992)3 SCC 637.
203 Sukhdev Singh v. Bhagat Ram (1975)1 SCC 421.
180

Board,209 Reserve Bank of India,210 Nationalised Banks,211 State


Finance Corporation,212 Bharat Petroleum Corporation.213 Industrial
Statistical Institute,214 Steal Authority of India,215 Hindustan Steels
Ltd.,216 Indian Council of Agricultural Research,217 Modern Bakery,218

School run by a Public Trust receiving full or substantial amount of


expenses by way of grant from Government,219 G B Pant
University220 etc. have been brought within the writ jurisdiction of the
courts. But applying the same instrumentality and agency test, the
Supreme Court in Tekraj Vasaudi v. Union of India, held that the
Institute of Constitutional and Parliamentary Studies, New Delhi is
not “state” for the purpose of writ jurisdiction.221

However, following the same liberal trend the Supreme Court


in Unni Kirshnan v. State of M.P.222 observed that the term ‘authority’

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

Supreme Court in , Kirshnamacharyula v. Sri Venkateshwara Hindu


College of Engineering,223 hold that a private engineering college
comes within the writ jurisdiction of the court irrespective of the
question of aid and affiliation. Therefore, where "public interest
element" is present writ is maintainable. The Apex Court thus
allowed, a writ against a non-aided private educational institution
where its employees were seeking parity in scale with employees of
government institutions. Recently the Delhi High Court has held that
the BCCI (Board of control for cricket in India) is open to judicial
review under the constitution in discharge of its public duties and a
writ can lie against it while it will not be so in the case of its private
functions. A PIL was filed by, two cricket lovers advocate Rahul
Mehra and Shantanu Sharma alleging that BCCI was functioning as
a private empire of some businessmen and traders, who have come
to control it and abuse it for their own interests, therefore they had
sought an independent probe into the functioning of it and its
accounts invoking huge public money.224
Within the area of public law review an interesting question
which came before the court was whether a society though not
sponsored by the government but taken over by the government
under the Cooperative Societies act, is "state” in order to be within
the jurisdictional reach of the writ jurisdiction. The matter is pending
before the Constitutional Bench of the Supreme Court.225
It is not denying the fact that though the extension of the
court's writ aid to companies and societies would make them more
responsible and responsive yet if it in any manner hampers the
corporate management viability it may adversely affect the economic

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

grounds and accountability. It is for this reason that the Supreme


Court has left the question open whether Air India Corporation is a
state, and therefore, bound by constitutional reservations under
Article 16(4) of the Constitution.226
Though, the trends in judicial behaviour as discussed above
are welcome, the whole approach has been halting and variegated.
The trend of the Indian Courts to take Shelter behind technicalities of
law makes the growth of law stultifying. The primary purpose of
jurisdiction of the High Courts as laid down under Article 226(1) is to
protect the ‘little man’ from any injury of a substantial nature or
substantial failure of justice bodies enforcing his fundamental rights.
Therefore, instead of being observed with the status of ‘person or
authority’, the court must exercise its power for the protection of the
'little man’. Threat of injustice may arise not only from the
constitutional or statutory agencies but also from private persons
and bodies commanding vast economic and political powers. It is
gratifying that the apex Court in Bodhisattva Gautam v. Subhra
Chakraborty227 held that the court can enforce fundamental rights
even against private bodies or individuals and , also award
vf,
compensation for violation of fundamental rights. The court may
exercise its jurisdiction suo motu or on the basis of PIL in the
absence of personal approach by the victim.
Generally speaking no writ can be issued to any constitutional
functionary to form an opinion about the eligibility and suitability of a
person for appointment as a judge of the superior court. In this case
allegedly a senior most District and session judge wanted his name

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

to be considered for appointment as a High Court judge which was


held not permissible.228
(v) Who can apply for a writ to control Administrative Action.
(a) Locus Standi
An important aspect which needs to be discussed is the
requirement of locus standi in application for judicial review. The
term ‘locus standi’ can be understood as a legal capacity to
challenge an act, an order or decision of the administration. This is
one of the most vexed question of administrative law. Where a party
who has no locus standi files a petition, it need not be heard on
merit.229 The justification for insisting that the petitioner must have
some standing to the case is that it enables the court to prevent
abuse of judicial process by busy bodies, cranks and other mischief
makers.230
In the case of writ of habeas corpus any person can file the
writ to secure the release of a person in illegal detention, public or
private. In the early days of 1979, a lawyer of the Supreme Court
filed a writ to secure the release of under trials in various jails in
Bihar.231 Similarly, a writ of quo-warranto can also be filed by any
person to challenge the appointment of a person to public office,
whether or not he has a personal interest in it. This is allowed
perhaps on the ground that every one has an interest that public
money must not be wasted on invalid appointments.232 The area of
writs of mandamus, certiorari and prohibition is discussed here.

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

The general rule governing the writs of mandamus certiorari


and prohibition is that it is only the person whose rights have been
infringed can apply for the writ. The traditional view relating to locus
standi is that only an ‘aggrieved person’ who has personally suffered
a legal injury by reason of violation of his right or legally protected
interest can file a suit for redress to his grievances.233 Explaining the
meaning of ‘aggrieved person’, the Supreme Court in Jasbhai
Motibhai v. Roshan Kumar,234 observed that a person aggrieved
must be a person who has suffered a legal grievance or who is
affected by a decision pronounced against him. Thus, a person who
is not aggrieved by the complained of cannot maintain a writ
petition.235 Only a person who can show that his personal rights
have been directly and substantially affected adversely by the action
can sue.236 However, it is not necessary that it must be only his
personal right adversely affected. He may challenge an action even
when he has a right common with others. Therefore, a tax-payer
shall have standing to prevent a misapplication or misappropriation
of public funds by an authority.237 However, a mere interest would
not entitle a person to a writ unless he can show that his interest is
more than that of an ordinary member. It is on this count that the
Supreme Court in Magnbhai v. Union of India,238 where the
petitioners sought to restrain the government from giving effect to
Kutch Tribunal award by handing over certain territory in Rann of
Kutch to Pakistan. The Court found that no petitioner had any clear
interest in the action of the government, because neither did any one

233 S.P. Gupta v. Union of India, AIR 1982 SC 149 at 185,


234 AIR 1976 SC 578; See also Bangalore M,edical Trust v, Mudduppa, AIR 1991 SC
1902.
235 Nagraj v. State of Karnataka, AIR 1977 SC 876.
236 Dwarkadas v. Sholapur Spinning & Weaving Mills AIR 1954 SC 119.
237 Kalyan Singh v. State of Punjab, AIR 1962 SC 1783.
238 AIR 1969 SC 783.
185

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.

239 AIR 1979 SC 1628.


240 S.S. Sobti v. Union of India, AIR 1982 Del. 51 at 53.
241 National Textiles Worker's Union v. P.R. Rama Krishna, AIR 1983 SC 759;
Fertilisers Corpn. Kamgar Union v. Union of India, AIR 1981 SC 544. ~
242 S.P. Gupta v. Union of India, AIR 1982 SC 149. ;.
243 D.S. Nakara v. Union of India, AIR 1983 SC 730.
244 e.g. in Mukesh Advani v. State of MP, AIR 1985 SC 1363.
186

Mr. Justice Krishna Iyer of the Supreme Court expressed the


current attitude in A. B. S. K. v. Union of India245 as follows :
“Our current processual jurisprudence is not of
the individualistic Anglo-Indian mould. It is
broad based and people oriented, and envisions
access to justice through ‘class actions’, ‘public
interest litigation’ and representative
proceedings. Indeed, Indians in large numbers
seeking remedies in courts through collective
proceedings, instead of being driven to an
expensive plurality of litigations, is an affirmation
of participative justice in our democracy.”246
And Justice Bhagwati in S.P. Gupta v. Union of India,247 said that -
‘the basis of entitlement to judicial redress is
personal injury to property, body, mind or
reputation arising from violation, actual or
threatened of the legal right or legally protected
interest of the person seeking such redress’ was
the rule of ancient vintage which arose during an
era when private law dominated the legal scene,
public law being as yet unborn'.248
As alluded to in the above extracts parallel to the relaxation of
the locus standi requirement has been the emergence of what is
known as ‘public interest litigation’. This was explained,in the well-
known ‘bounded labour’ case249 as follows : where the fundamental
rights of a person or class of persons are violated but they cannot
have resort to the court on account of their poverty or disability or
socially or economically disadvantageous position any member of
the public can move the Supreme Court on their behalf. In People’s
Union for democratic right v. Union of India, an independent
organisation was held to be entitled to maintain proceedings, on
their behalf for the enforcement of the provisions of labour laws in

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

the construction work of various projects connected with,,the Asian


games. Mr. Justice Bhagwati said,” public interest litigation... is a
strategic arm of the legal aid movement and ... is intended to bring
justice within the reach of the poor masses, who constitute the low
visibility area of humanity”.
There have been many other examples of public interest
litigation proceedings before the High Courts and the Supreme
Court. As pointed out earlier the procedure for public interest
litigation has been simplified for the purpose of making it accessible
to the small man. Thus, even telegrams or letters addressed to the
court by a person acting pro bono public i.e. for a disadvantaged
class or groups can be treated as writ petition.
The scope and breadth of public interest litigation was
expanded from the initial environmental concern to others like
bonded labour, child labour, the rights of detenues, in matters of
various asylums, the rights of the poor to education, to shelter and
other essential amenities which could enable them to lead a life of
dignity. Article 21 was expansively interpreted to include all these
rights and the rule of locus standi has been relaxed to enable any
public spirited person to move the courts on behalf of a person or
persons who may not have the social or financial capacity to move
the courts themselves. Subsequently in early 1990s the'courts also
took up as public interest litigation, cases involving corruption in high
places and the accountability of public servants.
Thus, the strategy of PIL was devised for increasing citizens
participation in the judicial process for making access to the judicial
delivery system to one who could not otherwise reach court for
various reasons. Thus, any member of the public having sufficient
public interest can maintain an action for public injury. This is
188

absolutely necessary for maintaining rule of law, furthering the cause


of justice and accelerating the pace of realization of the
constitutional objectives.
Though the rule of locus standi has been relaxed and this
liberal trend in judicial behaviour is certainly welcome, but
unrestricted use of public interest litigation might open the pandora
box. To use the language of Lord Searman the locus standi
requirement enables the court to prevent busy bodies, cranks and
other mischief makers.250 One is not to forget the warning given by
Professor de Smith that in a developed legal system the professional
litigant and meddlesome interloper who invoke the jurisdiction of the
court in matters that do not concern them must be discouraged.251
Thus it is equally necessary that any busy body, meddlesome
interloper, wayfarer or officious inteveners who masquerades as
crusader for justice should not be allowed to abuse the process of
law by initiating frivolous litigation for personal or political gains or for
mere publicity or for other oblique reasons.252
An example of cranks attempting to an abuse of judicial
process occurred in Chandanmal Chopra v. State of West Bengal,253
where the petitioner sought mandamus to have the holy Koran
banned and forfeited. The High Court quite rightly stressed the need
for great caution in admitting public interest litigation. Indeed the
Supreme Court itself acknowledged the need for restraint and
caution.254 Locus standi in Public interest litigation, thus will not be
lightly allowed to anyone to litigate in the name of public interest to

I.R.C. v. National Federation of Self-employed (1982)AC 617 at 653.


de Smith, Judicial Review of Administrative Action (1980)p. 409.
S.P. Gupta v. Union of India, AIR 1982 SC 149; Krishna Bhat v. Union of India
(1990)3 SCC 65; Janta Dal v. H.S. Choudhary, (1992)4 SCC 305; Dr. Meera
massey v. Dr. S.R. Mehrotra, (1998)3 SCC 85.
253
AIR 1986 Cal. 104.
254
State of H.P. v. Students Parent, Medical College, Simla, AIR 1985 SC 910.
189

cause damages to others. Therefore the Supreme Court in Malik


Brothers v. Narander Dadhich255, clarified beyond doubt that
standing in PIL is to be judged keeping in view the purpose of the
petition. Purpose of the petition should be the betterment of the
society and not individual benefit, so that this strategy is not allowed
to degenerate into personal publicity or political interest litigation.
Thus real purpose of the PIL, according to the court is, (1)
vindication of Rule of law; (2) facilitating weaker section of society;
(3) meaningful realisation of fundamental rights. In other words PIL
can be entertained for redressing public injury, enforcing public duty,
protecting socio-economic rights of weaker sections and vindicating
public interest.
Public interest litigation is an instrument for the administration
of justice to be used in appropriate cases. It shall not be meant that
it is a process of setting disputes between individual parties.256 In
the case of PIL by organisations, without disclosing any material
regarding their nature, functions and findings they should not be
allowed lightly to undertake litigation in the name of public interest.
In Bhartiya Homeopathy College v. Students Council of Homeopathy
Medical College 257 where the union challenged the action of the
vice-chancellor who had allowed students to appear at the
examination through a PIL, the court held that such a union must
disclose; (i) whether it was authorised to file litigation, (ii) if so, by
whom; (iii) whether it has sufficient fund to indulge in such type of
litigation; and (iv) the basis of alleging public harm. This shows that
standing in PIL cannot be taken for granted. Where no public
interest is involved, PIL shall not be entertained. Thus, in Mohd.

255
(1999)6 SCC 552.
256
Jagannath Reddy v. Chairman Vishakhapatnam Port trust, (1998)3 ALD 60.
257
(1998)1 SCC 449.
190

Abdul Azez v. Inspector of Police258 it was held that where the


petition is filed in the nature of public interest seeking a personal
relief but not in the interest of public or under privileged or to take
vengeance against the rivals, the same should not be entertained.
Similarly is Daljit Singh Dalai v. Union of India259, the court refused
relief when in the petition no public interest was involved. In Vinay
Kumar v. State of U.P.,260 the Supreme Court held that Sec. 30 of
the Advocate Act, only entitles an advocate to practice the
profession of law and not to substitute himself for his client. Filing of
the writ petition in his own name is not a part of the professional
obligation. Thus unless circumstances are not mentioned in the writ
petition, petitioner advocate had no locus standi. However, in
Chariman Railway Board v. Mrs. Chandrimadas,261 a writ petition by
an advocate was allowed where it was found on facts that the
affected person was not in a position to approach the court for the
redressal of her grievances. In Federation of Bar Association in
Karnataka v. Union of India262 the Supreme Court held that a
Federation members of the Bar cannot be considered to be the
accredited representatives of the litigants and no litigant can claim a
i

fundamental right to get a court located within proximal distance of


his residence. Thus, the court laid down that a Bar. Asspciation has
no fundamental right to espouse a question of the nature raised in
the writ petition. Where in Jayalalitha v. Govt, of Tamil Nadu,263 the
Supreme Court held that a Tax-payer in a state has a right to

(1998)3 ALD 172.


(1997)4 SCC 62.
AIR 2001 SC 1739.
AIR 2000 SC 988.
AIR 2000 SC 2544; See also Rajasthan High Court Advocates Association v.
State of Rajasthan, AIR 2001 Raj. 232.
263
AIR 1999 SC 2330.
9

191

challenge misuse of any public money or property by anyone and


also the political party in power by way of PIL.
However, in Malik Brothers v. Narender Dadhich,264 the
Supreme Court has held that PIL or SAL cannot be filed in the first
instance unless ail the alternative remedies have been exhausted so
that the time of the court is not wasted. But the PIL cannot be
dismissed merely on the ground of laches.265
Thus, Justice V. S. Despande has rightly observed that a
petitioner will have standing to sustain a public action only if he fulfils
one of the two following conditions; he must either convince the
court that the direction of the law has such a real public significance
that it involves a public right and an injury to the public interest or he
must establish that he has a sufficient interest of his own over and
above the general interest of other members of the public in bringing
the action.266
Controversies and Apprehensions of PIL
One of the distinctive feature of PIL movement ftas been that
from its very inception, it became a hypersensitive area and
generated a lot of controversies and apprehension. One such
controversy is that the PIL strategy is a status quoist approach of the
court to avoid any change in the system and so it is a pain killing
strategy which does not treat the disease. It is argued that the
problems of the poor, disadvantaged and deprived cannot be solved
by any trickle down method, therefore, PIL is merely symbolic simply
to earn a legitimacy for itself which it has lost over the years. There
may be truth in this assertion and whatever little the courts are doing

(1999)6 SCC 552.


Vasudeva v. Govt, of Karnataka, AIR 1999 Kar. 74.
Deshpande, D.S., Standing and Jasticiability (1971)13 J/LI 153 at 178.
192

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

reform. Private persons and voluntary bodies could bring to the


attention of this body for commencement of proceedings.
Needless to emphasise that the strategy of PIL must be used
by the courts carefully, prudently and with discrimination because
any indiscriminate use of it would bring it into contempt bbth from the
public and the government. Therefore, the correct approach of the
court in PIL cases should be judicious mix of restraint and activism
determined by the dictates of existing realities. Any misuse of this
strategy must be strongly discouraged by the courts.271 It is also
true that independence of judiciary is the first concern of the
constitution but how for a judge can go is not without limits. Court is
called upon to dispense justice according to the constitution and the
law of the land. Therefore, in activity, it must not forget the limits of
its power that call for self-restraint and in periods of restraint it must
not be unmindful of its constitutional duty and obligation. Fact
remains that the judiciary in India has performed well, lapses
notwithstanding.272
(c) Public Interest Litigation in the changing Perspective under
Liberalisation.
This decade has been the decade of ‘economic reforms’.
Several public' interest cases were filed during ' this period
challenging alleged perversions, corruption and other illegalities
involved in the implementation of the new economic policies. Almost
all these cases were dismissed. In several of them, the court hinted
at and made remarks suggesting an abuse of public interest
litigation. There is now a large body of cases decided in the last

Mukherjee (J., in Chhetriya Pradushan Mukti Sangharsh samiti. V. State of U.P.,


(1990)4 SCC 449.
Noorani, A.G. Judicial Activism v. Judicial Restraint, SPAN, April/May, 1997 p.
150.
r
195

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

‘economic reforms' of the government. It will be seen that the


Supreme Court has almost without exception negated all challenges
to any element of the economic reforms package of the government,
even when such challenges were based on specific violation of law
or evidence of corruption.
In BALCO itself, the challenge to the sell off of the PSU, was
based inter alia on a completely non-transparent and arbitrary
valuation of the company conducted in less than a week by a valuer
of immovable property having no experience in the valuation of
companies. It had been pointed out that the valuation of the captive
*

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

(2000)1 SCC 210.


(2000)8 SCC 606.
198

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

specifically mandated the companies to remain government


companies could not be privatised without amending the acts and
thus taking the approval of Parliament.
Thus, we see that barring the oil companies case, the court
dismissed all other petitions challenging any executive act taken
under the cover of economic reforms. While it may be possible to
take the view that all these decisions are technically correct, it is
difficult not to get the feeling that the court's decision were
influenced by its own approval of the new policies of liberalisation,
privatization and globalization.
(ii) Activism on Environment
The activism of the Supreme Court in the last decade is most
evident is environmental cases, particularly cases involving the
urban environment or deforestation. Thus, the court has taken
sweeping and bold steps to move polluting industries out of Delhi, to
improve the air quality of Delhi by forcing commercial vehicle to
convert into CNG, and to stop deforestation across the country. But
it must be noted that in a number of cases where the cause of the
environment was pitted against ‘development projects’, such as
large dams, or even hotels and housing colonies, the cause of the
environment gave way to the interest of such development. It is
important to note that in many of these cases, the legal soundness
of the case was also evident from the fact that the court went against
the advice of its own expert committee.
In Narmada Bachao Andolan v. Union of India,278 despite the
strong dissenting judgement of justice Bharucha, pointing out that
the Sardar Sarovar Project was proceeding without a comprehensive
environmental appraisal and without even the ■' necessary

278
(2000)10 SCC 664.
200

environmental impact studies having been done, as was evident


from the documents of the government itself, the majority judges still
went on to approve the project and allowed it to go on without any
comprehensive environmental impact assessment which was
necessary even according to the government own rules and
notifications. The underlying reasons and ideology behind the
subordination of the cause of the environment to the cause of
‘development’, is also evident from the majority judgement. These
are several passages in the majority judgement, extolling the virtues
of the kind of development brought in by large dams. The judgment
even goes on to gratuitously emphasise the myth that the Bhakra
dam was responsible for the green revolution in the country. This,
despite the fact that the court had specifically restrained the
Narmada Bachao Andolan from making any submission on the pros
and cons of large dams. The court also goes on to make
disparaging remarks against the NBA as being an anti-development
organisation.
In N.D. Jayal v. Union of India279 (Tehri Dam Case), the same
subordination of environmental interests to the cause of
‘development’ is evident, where the government’s own expert
committee known as the Hanumantha Rao committee .had given an
elaborate report pointing out a series of violations of the conditions
on which environmental clearance to the project had been given by
the Ministry of Environment. The Committee had pointed out that a
number of studies which were necessary to evaluate the
environmental impact of the project had not been conducted and
had recommended these be immediately conducted. However,
despite this, though Justice Dharmadhikari held that in order to

279
(2003)7 Scale 54.
201

ensure compliance with the conditions of environmental clearance, it


was necessary to constitute an independent expert committee which
would monitor the compliance and further construction of the dam
could only proceed on the green signal of this expert committee, the
majority judgment did not even bother to ensure compliance with the
conditions of environmental clearance of the project. Again, the
judgment makes remarks extolling the virtues of development project
like such large dams.
This attitude showing the court favouring ‘development’ over
the rights of out settees or the environment’ over is most clearly
evident in the manner in which the court has sought to push the
mega project called ‘inter linking or rivers’. In Tata Housing
Development Company v. Goa Foundation,280 the court went against
the report of its own expert committee in allowing the construction of
a housing colony on land which had been held by the committee to
be forest land. The court held that the committee had wrongly
classified this land as forest land, by holding that the committee had
deviated from its own norms. The court also relied on the reports of
some other private experts filed by the Tata Housing Development
Company. Without entering into an elaborate discussion of the
merits of the judgement, it may only be noted, that such microscopic
examination of a report of the courts own expert committee has
never been done at the instance of a poor or weak petition. For
example, the court did not critically examine or interfere with the
report and recommendations of the centrally empowered committee
appointed by the court, regarding fishing by poor local fishermen, in
the Jambudvip islands. The courts orders based on the committee’s

280
(2003)7 Scale 589.
202

report had effectively deprived hundreds of poor fishermen of their


livelihood who were using the Jambudvip Islands.
The period of economic reforms also appear to have coincided
with an apparently decreased sensitivity of the courts to the rights of
the poor. This is evident from the attitude that the court has
displayed towards slum dwellers, oustees and workmen.
In Almitra Patel v. Union of India,281 the court while adversely
commenting upon the governments policy to rehabilitate slum
dwellers, remarked that, “the promise of free land, at the taxpayers
cost, in place of a jhuggi, is a proposal which attracts more land
grabbers. Rewarding an encroacher on public land with the free
alternative sites is like giving a reward to a pickpocket”. This,
despite that the court was aware of the fact that most of the dwellers
live in sub human conditions and do not have access to other
houses, and the court had earlier repeatedly pronounced that the
right to shelter and housing is a fundamental right of every citizen of
the country.
In Azadi Bachao Andolan v. Union of India,282 the Supreme
Court even refused to examine the question whether the land
Acquisition Act in so far as it allowed compulsory acquisition of land
from persons who are dependent upon and that land for their
livelihood is violative of their fundamental rights, since the act does
not obligate the government to provide them with alternative land or
an alternative means of livelihood. The challenge to the validity of
the act was made in the circumstances that, the monetary
compensation given under the act does not enable the outstees to
recover what they lose by their displacement as a result of

281
(2003)3 SCC 575.
282
(2003)8 Scale 287.
203

compulsory acquisition of the land, and that they are in effect


deprived of their livelihood by such compulsory acquisition.
The above cases provide more than anecdotal evidence for
the propositions that, (a) The Supreme Court as an institution has
frowned up on challenges to any action of the executive taken in the
purported furtherance of ‘economic reforms’, even when such
challenges were based on violations of statute and evidence of
corruption, and (b) the court appears to have diluted its interpretation
of Article 21, in the recent past. At the very least, it has often not
acted to enforce the rights that it had declared earlier in favour of the
poor and the weak.
In these circumstances, it is indeed tempting to argue that the
recent drawing back of the court in Public Interest Litigation, and the
fears expressed by it of the possible abuse of PIL is because the
court has in fact bought the ideology underlying the economic
reforms an ideology which venerates the virtues of the free market
and undermines the role of the state in providing education jobs, and
the basic amenities of life to its citizens. Such an ideology runs
counter to the court’s earlier expansive interpretation of Article 21.
This hypothesis does seem to offer the simplest explanation for the
above decision of the court.
D. Review of Administrative Actions Through Different Writs.
It is no denying the fact that today due to the intensive form of
government there is a tremendous increase in the functions of the
administration. Therefore, if these new found powers are properly
exercised these may lead to a real welfare state and if abused these
may lead to a totalitarian state.283 Against this backdrop, the prime

Lord Denning, Freedom under the Law (1949) p. 126, quoted by Thakker C.K.,
Administrative Law (1992) p. 374.
204

function of judiciali review is to check the abuse of administrative


powers and to enforce accountability on the operators of these
powers. An important aspect of public law review is not only the
enforcement of private rights but to keep the administrative and
quasi-administrative machinery within proper control. The;Supreme
Court in S.L. Kapoor v. Jagmohan,284 has also stressed this aspect
of public law review. In the instant case two non official members of
the New Delhi Municipal Committee had filed a petition under article
136 before the Supreme Court against the governmental action of
superseding the Municipal committee without complying with the
principles of natural justice. During the pendency of the case the
term of the office of the petitioners expired. It was argued that since
the petition had become infructuous the court has no power to
continue with the appeal. Rejecting the contention, the Apex court
held that since the petition involves an issue of public importance the
court can still decide the issue even in the face of loss of standing of
the petitioners.
The power of judicial review is exercised by the Supreme
Court and High Courts through writs under Article 32 and 226 and
also through the exercise of power under Articles 136 and 227 of the
constitution. As has already been stated,285 the Supreme Court and
the High Courts has power to issue writs in the nature of habeas
corpus, quo warranto, mandamus, certiorari and prohibition under
Article 32 and 226 respectively. In India these writs have been
borrowed from England, where they have had a long and chequered
history of development and consequently, have gathered a number
of technicalities.286 In Indian Constitutional provisions, the words “in

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

completely circumscribed by those principles. Thus the courts in


India have generally, been prone to follow the principles developed
in England with some deviations here and there, except that in
recent years some bold departures have been made from English
position.287
While the administration expands and perfects new
techniques to interfere with individual freedom under the impulse of
the concept of socialistic society, the tools at the disposal of courts
to control the same remain somewhat antiquated. Quite a few
aspects of administrative functioning fall outside judicial scrutiny.
The result is the anomalous position that an individual aggrieved by
administrative action may not always get relief through courts action.
This point will become clear after the discussion on the nature of the
writs and the grounds on which they can be issued. The essential
characteristics of the writs and the grounds on which they can be
issued may now be discussed in detail.
(i) Writ of Habeas Corpus and Review of Administrative Action.
May in his constitutional History of England described writ of
habeas corpus as “the first security of civil liberty”. . It is also
recognised as “a great constitutional privilege”.288 In Halsbury’s
Laws of England289 while dealing with this writ, it is stated as follows:

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

“The writ of Habeas corpus ad subjicendum


which is commonly known as the writ of Habeas
corpus is a prerogative process for securing the
liberty of the subject by affording an effective
means of immediate release from unlawful or
unjustifiable detention whether in prison or in
private custody. It is a prerogative writ by which
the queen has right to inquire into the causes for
which any of her subjects are deprived of their
liberty.”
In fact Habeas Corpus is a Latin term which may be translated
into English in some such form as “you must. have the body”.
However, recent developments of law indicate that in a writ of
habeas corpus the production of the body of the person alleged to
be unlawfully detained is not essential.290 The true origin of the writ
in the common law is still to be traced, but it is certairV that the
present writ developed out of the prerogative writ of ad subjiciendum
by which people could secure their release from illegal detention in
jails.
Writ of habeas corpus is used primarily to secure the release
of a person who has been detained unlawfully or without any legal
justification. By means of this writ an individual, who has been
deprived of his personal liberty by any executive act, may have the
validity of such act tested, before a superior court. The object of the
wi;it is to ascertain whether there is any legal justification for the
detention of the person in custody.291 The merit of the case or the
moral justification for imprisoning the petitioner is no relevant
consideration in a proceeding for habeas corpus. Thus, a person
charged with high treason or murder is entitled to be set at liberty, if
his imprisonment has not taken place in due course of law.292 Its

Kanu Sanyal v. Distt. Magistrate, AIR 1974 SC 510.


King v. Greenhill (1836)4 A & E. 629.
Exparte O'Brien (1923)2 KB 361 at 382.
object is not the punishment of the wrongdoer but to secure the
release of the petitioner without which he may not be in a position to
pursue his legal remedies against the wrongdoer. It is essentially a
procedural writ and its proceeding is summary. The great value of
the writ is that it enables immediate determination of the right of a
person as to his freedom.293
A detention becomes unlawful not only where there is no law
to justify it but also where procedure prescribed by the law which
authorities the detention has not been followed, and, in determining
whether such procedure has been complied with, the court applies a
strict standard not only in interpreting the terms of the statute but
also in exacting a strict compliance with the requirements, so
interpreted, infact. The need for this strict standard was explained in
the celebrated dictum of Brett, L.J., in Thomas Dale’s case294:
"It is a general rule which has always been acted
upon by the courts in England that if any person
procures the imprisonment of another he must
take care of to do so by steps, all of which are
entirely regular and if he fails to follow every
step in the process with extreme regularity the
court will not allow the imprisonment to
continue.”295
These words are echoed in the observation of Shastri C.J. for
our Supreme Court in Ram Narayan v. State of Delhi.296
“Those who feel called upon to deprive other
persons of their personal liberty in the discharge
of what they conceive to be their duty, must
strictly and scrupulously observe the form and
rules of the law. That has not been done in this
case. The petitioners now before us are,

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

therefore, entitled to be released, and they are


set at liberty forthwith.297
In India, detention may be unlawful if inter alia, it is not in
accordance with the law, or the procedure established by law has
not been followed in detaining a person, or there is no valid authority
of law to detain a person, or the law is invalid because it infringes a
Fundamental Right, or the legislature in enacting the law exceeds its
limits.298 Under article 22, a person arrested is required to be
produced before a magistrate within 24 hours of his arrest, and
failure to do so would entitle the arrested person to be released.
The efficacy of the writ of habeas corpus, depends to a large extent,
on the operative part of the law under which the freedom of an
individual has been curtailed. As for example, the preventive
detention law gives power to the executive to detain a person in
preventive detention in its discretion and thus the scope left for the
coCirts to review the validity of such a detention is very restricted.
Habeas corpus cannot be granted where a person has been
committed to custody under an order from a competent' court when
prima facie the order does not appear to be without jurisdiction or
wholly illegal.299 In order to maintain a petition of habeas corpus a
person has been arrested” or detained, by placing a physical
restraint, actual or constructive,300 upon the liberty of movements of
the petitioner.301 However, a physical confinement is not necessary.
It is sufficient if some kind of control, custody or restraint is exercised
over the person. Thus, if a child is forcibly kept away from his
parents, if a man is wrongly kept in confinement as a lunatic, if a nun

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

is alleged to be prevented from leaving from her convent the court


will always issue the writ of habeas corpus.302
The purpose for which the writ of habeas corpus may be
issued may include; (i) testing the regularity of detention under
preventive detention laws and any other law; (ii) securing the
custody of a minor; (iii) securing the custody of a person alleged to
be a lunatic; (iv) securing the custody of a marriage partner; (v)
testing the regularity of detention for a breach of privilege by the
House; (vi) testing the regularity of detention under court martial; (vii)
testing the regularity of detention by the executive during
emergency, etc.
Besides, these traditional grounds for which the writ of habeas
corpus may be issued, Krishna Iyer J. in Sunil Batra II v. Delhi
Administration,303 opened new vistas for the issuance of this writ.
Batra II case arose out of a letter written by a convict to one of the
judges of the Supreme Court alleging inhuman torture to a fellow
convict. Krishna Iyer J. treated this letter as a petition of habeas
corpus filed on behalf of Prem Chand though the letter had not
demanded his release from the jail. The learned judge followed a
series of American cases,304 employing the writ of habeas corpus for
the neglect of state penal facilities like over crowding, understaffing,
in sanitary facilities, brutality, constant fear of violence, lack of
adequate medical and mental health, censorship of mail, inhuman
isolation, segregation, inadequate or non-existent rehabilitative or
educational opportunities. The writ was also issued when a ban was
imposed on law students to conduct interviews with prisoners for
affording them legal relief. Thus, this new dynamics of the writ of

302
Dicey, Law of the Constitution, p. 219.
303
(1980)3 SCC 488; AIR 1980 SC 1579.
304
Id. pp. 501-5Q2(SCC)
210

habeas corpus is a high bench-mark of judicial creativity in India


which has made the writ co-extensive with growing human rights
jurisprudence. Thus, the Supreme Court widened the scope by 'I

giving relief through the writ against inhuman and cruel treatment
■t

meted out to prisoners in jail. The Supreme Court stated that:


the dynamic role of judicial remedies ...imparts
to the habeas corpus writ a versatile vitality and'
operational utility that makes the healing
presence of the law live up to its reputation as
bastion of liberty even within the secrecy of the
hidden cell.305
The court has thus permitted the use of the writ for protecting
the various personal liberties to which the arrested persons or
prisoners are entitled to under the law and the constitution. The writ
of habeas corpus gives meaning and colour to the rights of personal
liberty guaranteed under Article 21 of the constitution. Without the
remedy of habeas corpus, the right to personal liberty would be
merely a tale told by an idiot full of sound and fury but signifying
nothing. Judicial behaviour before 1978 gave not only a restricted
meaning to the term personal liberty but did not allow the importation
of the principles of natural justice or procedural due process into the
words procedure established by law. The decision of the Supreme
Court in Maneka Gandhi v. Union of India306 electrified the whole
concept of liberty by making two significant innovations with far
reaching consequences; (a) the court gave a wide^ extended
meaning to the term personal liberty; as included everything that
makes life worthwhile including the right to education involving right
to participate in the activities and the corporate life of the
university307 and right to legal aid in cases of criminal convictions

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
!

fairness and justness in the "procedure established by law” depriving


a person of his liberty. Therefore, now a writ of habeas corpus
would lie if the law which deprives a person of his liberty is not fair,
just and equitable.
Another development in judicial behaviour is that whenever a
question arises before court pertaining to the custody of a minor
child the matter is to be decided not on the considerations of the
legal rights of the parties but on the sole and predominant criterion
of what would best serve the interest and welfare of the minor.309 In
a recent case Syed Saleemuddin v. Dr. Rukshana,310 the court held
that in an application of habeas corpus for custody of minor children
the principal consideration for the court is to ascertain whether the
custody of the children can be said to be unlawful or illegal and
whether the welfare of the child requires that present custody should
be changed and the children should be left in care and custody of
some body else. The principle is well settled that in a matter of
custody of a child the welfare of the child is of paramount
consideration of the court. In this case, the court allowed the
children in the custody of mother with the right of the father to visit
them till the family court disposes of the petition filed by the appellant
for custody of his children. Thus, in Idrish Mohd. V. Meman,311 while
dealing with habeas corpus petition for production of wife of
petitioner a minor detained by her parents against her will, it was
directed that she be placed in Nari Niketan until further orders.

M.H. Hoskot v. State of Maharshtra, AIR 1978 SC 1548.


Eligabeth Dinshaw v. A.M. Dinshaw, AIR 1978 SC 3 at 4; see also Poonam Datta
v Krishan lal Datta, AIR 1989 SC 401; Surinder Kaur Sandhu v. Harbare Singh
Sandhu, AIR 1984 SC 1224.
310
AIR 2001 SC 2172 at 2175.
311
(2000)10 SCC 333.
The writ is issued to the authority which has the aggrieved
‘r

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

Niranjan Singh v. State of M.P., AIR 1972 SC 2215.


Nazamudin v. State of W.B., AIR 1974 SC 2253.
Ichhu Devi v. Union of India, AIR 1975 SC 1983.
Hargray v. Union of India, AIR 1984 SC 571.
(2000)9 SCC 201.
AIR 1966 SC 816.
214

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

AIR 1952 SC 106.


AIR 1971 SC 62.
AIR 1974 SC 510.
AIR 1973 SC 26.
215

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.

Secretary of State v. O’Brien, (1923) A.C. 603.


See Hongray v. Union of India, AIR 1984 SC 571.
Bansi v. Addl. Director, Consolidation of Holdings, AIR 1967 Punj. 28.
Ghulam Sarwar v. Union of India, AIR 1967 SC 1335.
See supra, under the Heading Res judicata.
In A.K. Gopalan v. State of Madras,328 the court examined the
constitutionality of the Preventive Detention Act.
(ii) Writ of Quo-Warranto and Review of Administrative Action.
Quo Warmato means, “by warrant or authority". Writ of quo
warranto is a common law process of great antiquity, a writ of right
for the king against one who claimed or usurped any office,
franchise or liberty. Holsbury’s Laws of England says that an
information in the nature of quo warranto took the place of the
absolute writ of quo warranto which lay against a person who
claimed or usurped an office franchise or liberty to enquire by what
authority he supported his claim, in order that the right to the office
or franchise might be determined.329 The well established principles
relating to writ of quo warranto in England are followed in our country
too.330
In India, it is a judicial order issued by the Supreme Court or a
High Court by which any person who occupies or usurps an
independent public office or franchise or liberty, is asked to show by
what right he claims it, so that the title to the office, franchise or
liberty may be settled and any unauthorised person ousted. The writ
of quo warrant is used to judicially control executive action in the
matter of making appointments to public offices under relevant
statutory provisions. The writ is also used to protect a citizen from
the holder of a public office to which he has no right. Furthermore, it
tunes the administration by removing inefficient and unqualified
personal and imposters from public offices. Thus, the writ of quo
warranto gives personal and imposters from public officers Thus,
the writ of quo warranto gives the judiciary a weapon to control the

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

executive, the legislature statutory and non statutory bodies in


matters of appointments to public officers. Conversely, it protects a
citizen from being deprived of a public office to which he had a right.
The writ calls upon the holder of a public office to show to the court
under what authority he is holding the office, the court may restrain
him from acting in the office and may also declare the office to be
vacant.331 Conditions for the grant of Quo-Warranto
(i) Office must be a public office :
The writ of quo warranto lies in respect of a public office and
not a private office such as membership of a school managing
committee.332 The Madras High Court in Anand Bihari v. Ram
Sahai,333 held that a public office is one which is created by the
constitution or a statute and the duties of which must' be such in
which the public is interested. In this case, it was held that the office
of the speaker of the Legislative Assembly is a public office. In G.D.
Karkare v. Shavde,334 it was held that the office of the Advocate
General is a public office. In the some manner, the office of
members of a municipal board335 or the office of a university
official336 are public offices. In Ram Singh Saini v. H.N. Bhargava,337
the post of a university Professor was held to be a public office. But
in Niranjan Kumar v. University of Bihar,338 the Patna High Court
held that the office of the Principal of a private college is not a public
office. Similarly, a member of the working committee of the Arya

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 :
(.

There must be a clear violation of law in the appointment of a


person to the public office. If there is a mere irregularity, quo
warranto will not lie. In State of Assam v. Ranga Muhammad,343 the
■}

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

appointed as chief, Justice of India superseding his three Senior


Colleagues who immediately resigned from the Supreme Court. A
petition for the writ of quo-warranto was filed in the Delhi High Court,
challenging the appointment of Ray J., as Chief Justice but the court
dismissed the petition. The court argued that the writ would not be
issued if it is futile to do so, or where a mere irregularity can be
cured in appointment. Thus, even if it were assumed that the
appointment of Chief Justice should be on the basis of seniority,
issued, for he was by then the senior most judge of the court after
resignation of three judges. It follows from this that if a holder of a
public office is not qualified to hold the office initially but
subsequently acquires the necessary qualifications during the
pendency of the writ petition, the writ of quo warranto will not be
issued.349 Thirdly, the court ruled that the motive of the appointing
authority is not relevant for the grant of the writ, thus mala fides of
the appointing authority is not relevant to the question of issuing
quo-warranto as the writ is issued against the usurper of the office
and not against the appointing authority.350 Quo warranto ,would not
be issued even if the appointment was made for a collateral purpose
if the appointment did not violate any mandatory rule.
The writ may also be refused if there is an adequate
alternative remedy. Therefore, in V.D. Deshpande v. State of
Hyderabad,351 the court refused the writ against members of
legislatures who had become disqualified since they held offices of
profit as Article 192 of the constitution provided an adequate
remedy.

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

An appointment to a public office cannot be challenged in a


collateral proceeding. However, in State of Haryana v. Haryana co­
op. Transport Ltd.,352 The Supreme Court held that a person can
challenge an award of a labour court under Article 226 by
challenging the appointment of the presiding officer thereof on the
ground that he was not qualified under the law to hold the office.
The court ruled that the appointment was not being challenged
collaterally in proceeding taken to challenge the award, but directly
in substantive proceedings. This is artificial logic. The petitioner had
not asked specifically in so many words that quo-warranto be issued,
but the court ignored the defe'ct, saying that there was no magic in
the use of a formula. In this case the court not only quashed the
appointment of the presiding officer (being not possessed the
prescribed qualification) but also set aside the award. This raises
the question : How for will quashing an appointment to a public
officer invalidate < the orders passed by the person holding that
office? In this connection, the court applied the de facto doctrine in
its subsequent decision, in Gokaraju Rangaraju v. State of A.P.353
According to this doctrine : >
... the acts of the officers de facto performed by
them within, the scope of their assumed official
authority, in the interest of the public or third
persons and not for their own benefits, are
generally as valid and binding, as if they were
the acts of officers de jure.354
The court upheld the order against the petitioner passed by an
additional sessions judge, even though the Supreme Court in
another case had invalidated the appointment of some additional
session judges included the judge who decided the petitioner’s case.

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

See Alice Jacols, Invalidity of the Appointment of a Judge : De Facto Doctrine,


(1981)23 J.I.L.I 584.
Quoted by Justice Narayan P.S., Law of Writs, (2002) p. 384.
223

other adequate legal remedy...” where any tribunal inferior court or


body of persons charged with the performance of a public duty do
not discharge that duty, mandamus lies to compel him to do it.”357
Thus, “mandamus will lie to any person who is under a duty
imposed by statute or by the common law to do a particular act. If
that person refrains from doing the act or refrains from wrong
motives from exercising a power which it his duty to exercise, this
court will by order of mandamus direct him to do what he should do.
Mandamus may go to individuals. It may go to corporations and it
goes quite independently of whether the individual or body to which
it is addressed is not a court”358
It is considered as a residuary remedy of public law. It is a
general remedy whenever justice has been denied to any person.359
English Writers trace the development of the writ from the Norman
conquest; however it was only in the early part of the eighteenth
century that the writ came to be frequently used in public law to
compel the performance of public duties.
In India Mandamus is a judicial remedy issued iathe form of
an order from the Supreme Court or a High Court to any
constitutional statutory or a non-statutory agency to do or to forbear
from doing some specific act which that agency is obliged to do or
refrain from doing under the law and which is in the nature of a
public duty or a statutory duty. It can be issued to undo what has
already been done in contravention of a statute, or to enforce a duty
to abstain from acting unlawfully. For example mandamus can be
issued to restrain the government from superseding, a reference

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

made by it earlier of an industrial dispute for adjudication to a labour


tribunal because under the law the government has no authority to
do so.360 Similarly, where there is threat or apprehension of
demolition of house by state officials without legal authority writ of
mandamus directing them not to do so can be issued.361 Mandamus,
is a command issued by a court to an authority directing it to perform
a public duty imposed upon it by law. For example, when a body
omits to decide a matter which it is bound to decide, it can be
commanded to decide the same.362 It can be issued when the
government denies to itself a jurisdiction, which it undoubtedly has
under the law363 or where an authority vested with a power
improperly refuses to exercise it.364
Thus, the function of the mandamus is to keep the public
authorities within the limits of their jurisdiction while exercising public
functions. However, a writ of mandamus cannot be issued to direct
the government to refrain from enforcing the provisions of law or to
do something which is contrary to law.365
Mandamus can be issued to any kind of authority is respect of
any kind of function administrative, legislative, quasi-judicial, judicial.
The Supreme Court in Mansukhlal Vithaldas v. State of Gujarat,366
has observed that mandamus which is a discretionary relief under
Article 226 is requested to be issued inter alia, to compel
performance of public duties which may be administrative, ministerial
or statutory in nature. Thus, in Birender Kumar v. Union of India,367

State of Bihar v. D.N. Ganguly, AIR 1958 SC 1018.


Bhuvaneshwar Prasad v. state of Bihar, AIR 1995 Pat. 1.
State of Mysore v. Chanderasekhar, AIR 1965 SC 532.
E.A. Co. op. society v. State of Maharashtra, AIR 1966 SC 1449.
Corborandum Universal v. Union of India, AIR 1966 Mad. 365.
State of U.P. v. Harish Chandra, AIR 1996 SC 2173.
AIR 1997 SC'3400.
AIR 1983 Cal, 273.
225

when the Telephone of the applicant was wrongly disconnected in


spite of his paying his dues regularly, the Calcutta High Court
directed the telephone authorities to restore the connection within a
week.
Conditions precedent to issue Mandamus :
The following conditions must exist in order to obtain a writ of
mandamus or any writ or order in the nature of mandamus :
(i) There must be public law duty :
Mandamus is used to enforce the performance of public duties
by public authorities. Mandamus is not issued when the government
is under no duty under the law.368 In Narsimha v. A.P. Dairy
Development Co.-op. Federation,369 the court held that the
respondent have to discharge public duty and where an authority
who has a public duty to discharge the same, a writ of mandamus
under Article 226 is available to such parties seeking redressal.
Thus, a duty private in nature and arising out of a contract was not
enforceable though writ of mandamus. It was on this basis that in C
1T v. State of Madras, the court refused to issue mandamus where
the petitioners wanted the government to fulfil its obligation arising
out of a contract. Similarly in Jogender Singh v. Asstt. Registrar Co­
operative societies370 the J. & K. High Court has also held that a
mandamus cannot be issued for enforcing contractual rights and
obligations. In the same, manner, the Supreme Court in union of
India v. Graphic Industries Co.371 has also held that writ of
mandamus to enforce a contract, is not maintainable. However, in
Gujarat State Financial Corporation v. Lotus Hotel,372 the Supreme

368 State of Bihar v. Sri Chandradip Rai, AIR 1981 SC 2071.


369 (1998)1 ALT 275.
370 AIR 1965 J&K39.
371 (1994)5 SCC 398; (1994)5 JT 237.
372 AIR 1983 SC 848.
Court issued writ of mandamus for the specific performance of a
contract to advance money. In this case, the Gujarat Financial
Corporation a government instrumentality, had sanctioned a loan of
Rs. 30 lakhs to Lotus Hotel for the construction but later on refused
to pay the amount.
The public duty that may be enjoined by mandamus may be
one imposed by constitution,373 a statute,374 or rules or orders having
the force of law.375
Mandamus is employed to enforce a duty the performance of
which is imperative, therefore it is also necessary that the public duty
must be an absolute duty. Absolute is one which is mandatory and
not optional or discretionary. A writ of mandamus cannot be issued
in the case of administrative discretion.376 Similarly in state of
Karnataka v. State of A.P.,377 it was held that directions cannot be

issued to compel an authority to exercise discretion, legislative in


character. It was on this basis in Manjula Manjari v. Director of
Public Instructions compelling him to include the petitioner’s text
book in the list of approved books because it was a matter at the
complete discretion of the Authority. Similarly, in state of Madhya
Pradesh v. Mandavar,378 the Supreme Court held that mandamus

could not be issued directing the government to grant the dearness


allowance to its employees it is on the discretion of the government.
Under the Commission of Inquiry, Act, the power of the government
to appoint a commission is discretionary except when the legislature
passes a solution to appoint an enquiry commission, therefore, in

WazirChandy. State of .P., (1955)1 SCR 408.


State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610,
Commr. of Police v. Gordhandars, AIR 1952 SC 16.
Comptroller and Auditor General v. Jagannath, AIR 1987 SC 537.
(2000)9 SCC 572.
AIR 1954 SC 493.

f'
V
227

Vijay Mehta v. State of Rajashtan379, the Rajasthan High Court held


that mandamus cannot be issued directing the state government to
appoint a commission to enquire into changes in climate cycle,
floods in the state etc. However, if the authority is under law obliged
to exercise a discretion mandamus would lie to exercise it is one
way or the other. Mandamus would also lie if the public authority
invested with discretionary powers abuse the powers or exceeds it
or act mala fide.
A statutory duty may be either mandatory or directory. A
statutory duty, if intended to be mandatory in character, is indicated
by the use of the words “shall” or “must” but this is not conclusive as
“shall” and “must” have sometimes been interpreted as ‘may’.
Therefore, what is determinative of the nature of duty, whether it is
obligatory, mandatory or directory, is the scheme of the statute in
which'the duty has been set out. Even if the duty is not set out
clearly and specifically in the statute, it may be implied as co-relative
‘.'ri

to a right. If in the performance of this duty, the authority in whom


the discretion is vested under the statute, does not act
independently and passes an order under the instructions and
orders of the another authority, the court may issue mandamus to
that authority to exercise its own discretion.380 Writ of mandamus
along with suitable directions can be issued by the court for the
protection and enforcement of fundamental rights, e.g. in Vishakha
v. State of Rajasthan,381 the court issued mandamus with directions
to protect women against sexual harassment at workplace.
However, mere apprehension that the petitioner may be deprived of

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

his fundamental rights in future may not be a ground for issuing


mandamus.382
Mandamus 1 cannot be issued to enforce administrative
direction which do not have the force of law, hence it is discretionary
that the authority accept it or reject it.383 But where the
administrative instructions are binding mandamus would lie to
enforce them.384 However, in State of U.P. v. Ramana Pehar,385 it
was held that an interim direction in a mandatory form which is
contrary to the policy of the government is deprecated. In the same
manner, in Union of India v. Pardip Kumar Day,386 it was held that a
mandamus cannot be issued to enforce only a recommendation.
High Courts no doubt have very wide powers under Article
226 but however such powers are to be exercised with
circumspection and in accordance with the judicial consideration and
well established principles.387 Thus, while exercising powers under
Article 226, it is open to the High Court to mould the relief to meet
with peculiar and complicated requirements so as to make granting
relief effective and wide powers have been conferred on the High
Court to reach injustice whenever it is found.388 But High Court will
not issue any writ or order in the nature of mandamus directing the
parliament or rule making authority to bring into force a particular
enactment.389 Similarly, in madras Citizens Progressive Council v.
Hon’ble President of India,390 the Madras High Court held that in a
writ proceeding there cannot be a direction to the President of India,

382 Maganbhai, Eshwarbhai Patel v. Union of India, AIR 1969 SC 783.


383 G.J. Femadez v. State of Mysore, AIR 1967 SC 1753.
384 Jagjit Singh v. State of Punjab, AIR 1978 SC 988.
385 (1994)6 SCC 1; (1994)5 JT 632. 1
386 (2000)8 SCC 580.
387 Kartar Singh v. State of Punjab, (1994)SCC. 569
388 Reserve Bank of India v. Chauhan, (1994)2 Civil LJ. 212. „
389 Vasudeva Shenoy v. Govt of India, (1994)1 KLT 389.
390 AIR 1995 Mad. 16.
229

to act in a particular manner and in Narender v. Union Territory of


H.P.,391 the Supreme Court held that no court can issue a mandate
to a legislature to enact a particular law. Similarly no court can direct
a subordinate legislative body to enact or not to enact a law which it
may be competent to enact.
The expression public duty does not imply that the person or
body whose duty it is must be a public official or an official body.
Therefore, mandamus would lie against a company constituted
under a statue for the purpose of compelling it to fulfil its public
responsibilities.392 Writ can be issued against a private individual
also for the enforcement of public duties. Thus, in Rohtas Industries
v. Workers Union393 writ was issued against the award of an
arbitrator appointed under Section 10(1) of the Industrial Disputes
Act, 1947. However, Delhi High court in Balkishan Gulzarilal v.
Pannalal,394 held that a writ of mandamus cannot be issued against
a private arbitrator.
(2) Petitioner must have a right to enforce the duty :
To maintain a petition for mandamus, the petitioner must show
that he has a right to compel the government to act in a particular
manner. In the absence of any such right, mandamus cannot be
issued. The existence of such a right is the sine quo non for the
issuance of the writ.395 Thus in Shivendra v. Nalanda College,396
when the governing body appointed a new Principal after
interviewing the candidates and considering their applications,
mandamus would not be issued on the petition of a unsuccessful

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

candidate as he has no legal right to be appointed. However, in


Ayurvidya Prasarak Mandal v. Gita Bhaskar,397 where a teacher was
appointed without complying with the procedure prescribed by
Government resolution and direction by university, such appointment
was held to be illegal. In the same manner, in S.P. Manocha v.
State of M.P.,398the court refused to issue mandamus, to the college
to admit the petitioner because he could not establish a clear right to
admission in the college, and in P.K. Jaiswal v. Ms. Debi
Mukherjee,399 it was held that a candidate who was called for
interview by Public Service Commission does not have a -vested
right. In Union of India v. Orient Enterprises,400 the court did not
grant mandamus for payment of interest by delayed refund under
the customs Act as the claim was not backed by a statutory right at
the relevant time. However, writ court is competent to order of
refund of tax paid under mistake of law.401
In the same way in Union of India v. Pradip Kumar,402 it was
held that a mandamus cannot be issued to enforce only a
recommendation. But in Kurukshetra University v. Ramesh Gupta,403
it was held that where chancellor had not annulled the resolution
relating to salary to employee as recommended by the committee
and accepted by the executive council by a resolution, a writ of
mandamus can be issued. Where examinees had no right to appear
at the examination, a writ of mandamus to publish their results
cannot be issued.404 Similarly, in Dental Council of India v. Subharti

397 (1991) 3 SCC 246.


398 AIR 1973 M.P.84; See also Shabi Construction Co. v. city and Industrial
Development Corpn. (1995)4 SCC 301.
399 AIR 1992 SC 749 at 751.
400 (1998)3 SCC 501.
401 Salonath Tea Co. v. Supdt. of Taxes, AIR 1990 SC 772.
402 (2000)8 SCC 580.
403 (2000)10 SCC 97.
404 Anand Mishra v, Bihar School Examination Board, AIR 1972 Pat. 239.
231

K.K.B. Charitable trust.405 But where a person has a right to benefit


of reservation, it can be enforced by issuing mandamus whether
there are rules or ho rules framed by the university.406
The right to enforce a duty must subsist till the day of the
petition. If the right has been lawfully terminated before filing the
petition, mandamus cannot be issued. Thus for obtaining the
remedy by way of writ of mandamus, the petitioner must have a legal
right. Recently, the Karnataka High Court in Dr. A.B. Vidya v. Union
of India407 has observed that the issuance of a writ of mandamus
must be preceded by an executive order passed, on consideration of
the claim to a certain right by the person aggrieved. In the absence
of such consideration there is a vacuum in so far as the basis on
which the court could decide whether the person is entitled to a right
claimed by him or not and the writ of mandamus cannot be issued in
favour of such a person who has not laid his claim before the
executive. The precondition is existence of statutory right on the
part of the person claiming the relief and corresponding statutory
duty, on the part of the authority against whom the relief is sought.
It, therefore, necessarily follows that the authority concerned must
have declined to perform his legal duty to enable the petitioner to
approach the court seeking a writ of mandamus. Unless such a
denial is there, no: petition seeking a writ of mandamus can lie.
The right to enforce the duty must belong to the petitioner.
Therefore, a shareholder cannot enforce the right of the company
which is itself a person capable of enforcing its own rights, unless
the petitioner can show that in the infringement of the; company’s

405
(2000)9 SCC 477.
406
State of Rajasthan v. Dr. Vijay Kumar Agarwal, AIR 2001, Raj. 358.
407
AIR 2001 Kar. 135.
232

right his own personal right have been adversely affected.408


However, this does not mean that a person can never enforce a
public right which; does not specifically belong to any individual.
Mandamus can be issued on the petition of a tax-payer to restrain a
municipality from misallocation or misappropriation of public funds.
In Guruswamy v. State of Mysore,409 the court held that in the case
of lack of power and abuse of power by the administrative authority,
anybody who is affected by the action, though he may not have a
substantive, enforceable right, can claim mandamus.
Formerly, the rule was that only a person having a specific
legal right to the performance of the duty by the concerned public
authority had a right to seek mandamus. This meant a very strict
legal standing rule and laid emphasis on individual right rather than
public interest. As explained earlier,410 the standing rule has now
been very much relaxed and emphasis has come to be shifted from
vindication of “individual right” to ‘public interest”. The principle has
come to be that public authorities should be made “to perform their
duties, as a matter of public interest, at the instance of any person
genuinely interested; subject always to the discretion of the court.”411
(3) There had been a demand and refusal :
For the issue of mandamus against an administrative authority
the affected individual must demand justice and only on refusal he
has a right to approach the court. Thus a writ of mandamus does
not lie in the absence of demand and justice. In State of Haryana v.
Channan Mai,412 the Supreme Court has held that it is well known
rule of practice that ordinarily petitioner shall call upon tfie authority

408 R.C. Cooper v. Union of India, AIR 1970 SC 564.


409 AIR 1954 SC 592.
410 Supra, under PIL/SAL.
4,1 Wade, Administrative Law, (1982) p. 640.
412 AIR 1976 SC 1654.
ZOJ

concerned to discharge its legal obligation and show that it has


refused or neglected to carry it out within a reasonable time before
applying to a court even where the obligation is established. Thus,
demand for justice and its refusal is a condition precedent for issuing
a writ of mandamus413 Recently in Dr. A.B. Vidya v. Union of
India,414 the Karnataka High Court has held that for issuance of
mandamus precondition is existence of statuary right on the part of
the person claiming relief and a corresponding duty on the part of
the authority against whom the relief is sought. It, therefore,
necessarily follows that the authority concerned must have declined
to perform his legal duty to enable the petitioner to approach the
court seeking a writ of mandamus. Unless such a denial is there, no
petition seeking a writ of mandamus can lie.
Thus, a party seeking mandamus show that he demanded
justice from the authority concerned by performing his duty and that
the demand was refused. In S.l. Syndicate v. Union of India,415 the
court refused to grant mandamus as there was no such demand or
refusal. In Naubat Rai v. Union of India,416 the court refused
mandamus because the petitioner who was illegally dismissed from
the military farm never applied to the authority for reinstatement.
Similarly in Amrit Lai v. Collector, C.F.C. Revenue,417 where a civil
servant approached the court for mandamus against wrongful denial
of promotion, he was denied the relief because of his failure to make
representation to government against injustice.

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

The demand for justice is not a matter of form but a matter of


substance and it is necessary that a “proper and sufficient demand
has to be made”.418 However, the specific demand for the
performance of a duty may not be necessary where it appears that
the demand would be unavailing or where the respondent by his
own conduct has made the demand impossible, or where the duty
sought to be enforced is of a public nature and no one is specially
empowered to demand performance, or where the duty is
imperatively required by law of ministerial officer, or where a person
has by inadvertence omitted to do some act which he was under a
duty to do and the time within which he can do it has expired.419
However, express demand and refusal are not necessary. Demand
and refusal can be inferred from the circumstances also. Therefore,
in Venugopalan v. Commr., Vijayawada Municipality,420 the court
inferred demand and refusal from the situation in which the petitioner
filed a suit for injunction restraining the municipality from holding
elections and the suit was contested by municipality.
But it is necessary that the demand must be made to the
proper authority and not to an authority which is not in a position to
perform its duty in the manner demanded. It is suggested that the
courts should not fossilize this rule into something rigid and inflexible
but keep it as flexible. As Wade suggests, “these formalities are
usually fulfilled by the conduct of the parties prior to the application,
and refusal to perform the duty is readily implied from conduct”421
Demand may also not be necessary “where it is obvious that the

The Statesman v. Fact Finding Committee AIR 1975 Cal. 14.


Guru Charan v. Belonia Vidyapith, AIR 1955 Tri. 33.
AIR 1957 AP 833.
Wade Supra at 640.
respondent would not comply with it and therefore it would be but an
idle formality”422
(4) The Writ petition is filed bonafide and is good faith :
It is also necessary that there must be good faith in making an
application for issuing writ of mandamus.423 Therefore, court has
held that the law is well settled that the High Court in exercise of its
ordinary jurisdiction under Article 226 of the constitution of India will
not interfere at the instance of a person who does not approach the
court with clean hands an abuse the process of the court, the High
Court will not interfere and exercise its extraordinary jurisdiction
under Article 226 at the behest of such a person who has abused
the process of the court.424
Mandamus can be issued on various grounds such as error of
jurisdiction, error of law apparent on the face of record, violation of
principles of natural justice etc. Gust discussed). Mandamus may be
issued not only to compel the authority to do something but also to
restrain it from doing something. Therefore, it is both negative and
positive and hence can do the work of all other writs. It provides a
general remedy in administrative Law. But like any other extra
ordinary remedy, the grant of mandamus is discretionary. The court
may refuse if there is unreasonable delay in filing petition; or if there
is adequate alternative remedy; or if it is pre-mature; or if its
issuance would be infractuous and futile. It may also be refused on
equitable consideration, i.e. where there is a misstatement or
suppression of facts in the petition.
Writ of mandamus cannot be issued to compel an authority to
pass an order in violation of statutory provision. Where the Income

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

Tax Officer has no power to make assessment beyond the


prescribed period, mandamus cannot be issued to make him extend
his assessment order beyond that period 425 Where the
administrative authority refused an application for licence without
any notice and hearing the High Court is not justified in issuing
mandamus to grarpt licence to the company.426 Mandamus can also
not be issued to refrain an authority from enforcing the law.427 In the
same manner mandamus cannot be issued to compel the authority
to reach a particular decision.428
In hearing the petition for mandamus, the court does not sit as
a court of appeal, or substitute its own discretion for that of authority
in which the statute had vested the discretion,429 unless the exercise
of discretion is illegal.430 The court will not also examine the
correctness or otherwise of the decision on merit. In Union Bank of
India, v. Chandrakant Gordhandas Shah 431 it was held that High
Court is not expected to disturb concurrent findings of fact under writ
jurisdiction.
(iv) Writ of Certiorari and Prohibition and Review of
Administrative Action.
‘Certiorari' is a late Latin word, being the passive form of the
word ‘certiorare’ meaning to 'inform'. It was essentially a royal
demand for information. The king wishing to be certified of some
matter, ordered that the necessary information be provided for him.
Thus certiorari may be defined as a judicial order operating by the

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

Supreme Court or High Court to any constitutional, statutory, or non-


statutory body or person, requiring the records of any action to be
certified by the court and dealt with according to law. It is a remedy
operating in personam, therefore, writ can be issued even where the
authority has become functus offico, to the keeper of the records.
Similarly, writ of prohibition is a judicial order issued by the
Supreme Court or a High Court to any constitutional, statutory or non
statutory agency to prevent these agencies from continuing their
proceedings in excess or abuse of their jurisdiction or in violation of
the principles natural justice or in contravention of the law of the .
land.
These writs are designed to prevent the excess of powers by
public authorities. Therefore, these writs are corrective in nature,
thus, the constituency within which these writs can be operative has
been tremendously enlarged. These writs now can be issued
against constitutional bodies (legislature, executive^ and
administrative or their officers), statutory bodies like corporations
and other authorities created under a statute, non-statutory bodies
like companies and cooperative societies and private bodies and
persons. Formerly, these writs were issued only to judicial and
quasi-judicial bodies. For example, in Brij Khandelwal v. Union of
India,432 the Delhi High Court refused to issue Prohibition to the
Central Government to prevent it from entering into an agreement
with Sri Lanka regarding a boundary dispute. The decision was
based on the principle that prohibition does not ! lie against
government discharging executive functions and that prohibition is
intended to control quasi-judicial and not executive functions. But
this view is no longer tenable and these writs can be issued even

432
AIR 1975 Del. 184.
238

action is administrative in nature. In A. K. Kriapak v.‘ Union of


India,433 the writ of certiorari was issued to quash the action of the
Selection Board. With the expansion of the concept of natural justice
and the emergence of the concept of fairness even in administrative
functions, the rigidity about certiorari and prohibition has been
relaxed. Now these writs can be issue to anybody, irrespective of
the nature of the function discharged by it, if any of the grounds on
which the writs are issued is present certiorari and prohibition are
now regarded as general remedies for the judicial control of both
quasi-judicial and administrative decisions affecting rights.
Certiorari and Prohibition are much in common, both in scope
and the rules by which they are governed. Both are issued on
similar grounds. But there is no fundamental difference between the
two. Certiorari is issued to quash a decision already made and so it
is issued at a stage when the proceedings have terminated and the
authority has given a final decision to quash the decision.
Prohibition is issued when the matter has not been disposed of but
is being considered by the body concerned. The function of
prohibition is to prohibit the body concerned from proceeding with
the matter further. Thus, prohibition is issued at a stage when the
proceedings are in progress to forbid the authority from continuing
the proceedings.
Both Certiorari and prohibition are issued on similar grounds.
These writs are issued on the following grounds : when the authority
is acting or has acted under an invalid law; jurisdictional error; error
apparent on the face of the record; findings of fact not supported by
evidence; failure of natural justice. These grounds are discussed in
this chapter.

433
AIR 1970 SC 150.
239

A court-material constituted under the Army Act has been held


subject to Certiorari and prohibition.434
The courts have insisted again and again that certiorari will not
issue as a cloak for an appeal in disguise. Certiorari does not lie to
bring up an order or decision for hearing on merits. The function of
certiorari is supervisory. Accordingly, in P. Kasilingam v. P.O.
College of Technology2 the Supreme Court quashed the High Court
decision as it had transgressed the limits of its jurisdiction under
article 226 by entering upon the merits of the controversy. However,
the Rajasthan High Court in Mohan Lai v. Lai Chand,435 held that on
perusal of the averments of the pleadings of a petition, if it is found
that a petition is maintainable under Article 226 against the order of
the subordinate court or the tribunal, it can be treated to have
originated before the High Court in its original jurisdiction.

Subhash Chander v. Union of india, AIR 1973 MP 191.


AIR.20Q1 Raj 87.