Writ of certiorari

Bela Rani Bhattcharyya vs Union of India

The issue before Court in the present appeal was the maintainability of a writ petition under
Article 226 of the Constitution of India against the order of the Competition Appellate Tribunal
(Tribunal), otherwise is appealable to the Supreme Court under Section 53T of the Competition
Act, 2002.

It was held that the power of the High Courts to issue directions, orders or writs including writs
like habeas corpus, certiorari, mandamus, quo warranto and prohibition under Article 226 of the
Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary
legislation. However, when a statutory forum is created by law for the redressal of grievances, a
writ petition should not be entertained.

The maintainability of the writ petition was sought to be justified on the ground that the order of
the Tribunal dismissing the appeal in limine was contrary to the principles of natural justice and
amounted to refusal by the Tribunal to exercise jurisdiction vested in it.

The Court observed that if writ petitions on such grounds are entertained, the same would negate
the provision of the statutory appeal. Availability of alternative remedy of appeal under Section
53T is not an absolute bar to the maintainability of the writ petition in the following three
circumstances:

 Writ petition is filed for the enforcement of any Fundamental Rights;

 There is a violation of the principles of natural justice; or

 Where the order or proceedings are whole without jurisdiction or the vires of an Act.

Hari Vishnu Kamath v. Syed Ahmed Ishaque (1954)

In this case, both the appellant and respondent were two election candidates from the
constituency of Hoshangabad for the election to the House of the People. When the result came
out, the respondent secured more votes than the appellant and the Returning Officer declared the
former as the winner. The appellant then filed a writ petition challenging the election and setting
it aside as 301 ballot papers marked in favour of the respondent were not valid as they did not
have the distinguishing marks. The Election Tribunal dismissed the petition on the ground that
the result was not affected by the wrong acceptance of votes. The appellant then moved to the
High Court for a writ of certiorari to get the order passed by the Election Tribunal quashed
because it was invalid and the Tribunal had overstepped its jurisdiction. It was held that the
petition was maintainable and the decision of the Tribunal came under the writ jurisdiction of the
High Court. The decision by the Election Tribunal was also quashed.

Also, it firmly established the following principles:

(i) The writ can be issued for correcting the errors of jurisdiction committed by the lower courts.

(ii) It is a part of the court’s supervisory jurisdiction and not the appellate jurisdiction. If the law
does not allow an appeal in a particular case, then giving it a back-door entry via the writ of
certiorari amounts to defeating the purpose of the law.

(iii) The aim here is not to re-hear the case and consider the facts once again. It can only be
invoked in cases of error of law.

Syed Yakoob v. K.S. Radhakrishnan & Ors. (1964)

The State Transport Authority had called for applications for the grant of two-stage carriage
permits via a notification under the Motor Vehicles Act, of 1939. After receiving several
applications, the first permit was granted to one of the applicants while fresh applications were
called for the second one. Following this, the appellant appealed to the State Transport Appellate
Tribunal. The Tribunal in its decision confirmed the first permit and in the second it allowed the
appellant’s appeal and held that it should be given to him. The respondent then moved to the
High Court with a writ of certiorari. It contended that the Tribunal had overlooked several
material considerations. When the previous order was affirmed, the appellant then moved to the
Supreme Court under a special leave petition.
It was held that the High Court did exceed its jurisdiction by issuing the writ of certiorari in the
present case. It was observed that this writ is issued to correct instances where a court has
exceeded its jurisdiction. Under the powers granted by the writ, the court cannot act as a court of
appeal or check an error of fact. It can be employed in cases where there is an error of law, or
when it can be shown that there has been a violation of the principles of natural justice. But not
based on an error of fact solely. However, whether there has been such an error or not is a matter
of the court’s discretion.

Collector of Customs vs. A.H.A. Rahman

 The collector of customs, in this case, passed an order of confiscation of goods without
any notice and inquiry.
 The Madras High Court held that the order passed by the collector was without hearing
and knowing all the case’s key points.
 It held that the same is contrary to the principles of natural justice and thus issued a writ
of certiorari under Article 226 to quash the collector's order.

In the Province of Bombay v. Khushaldas, A.I.R. 1950 S.C. 22 case, the Court speaking on the
scope of the writ held that whenever any body of persons, having legal authority to determine
questions affecting the rights of subjects and having the duty to act judicially, acts more than
their legal authority, a writ of certiorari lies. It does not lie to remove merely ministerial acts or
to remove or cancel executive administrative acts. For this purpose, the term “judicial” does not
necessarily mean the act of a judge or a legal tribunal sitting for the determination of matters of
law, but for this question, a judicial act seems to be an act done by the competent authority, upon
consideration of facts and circumstances imposing liability affecting the right of others.

In A.P.S.R.T Corpn. v. Satya Narayan Transports, A.I.R.1965 S.C.1303 case, the Court held
that a writ of ‘certiorari also lies against a court or tribunal when it acts in violation of the
principles of natural justice is generally accepted are the court or tribunal should be free from
bias and interest and audi alteram partem, i.e.; the parties must be heard before the decision is
given. The principle that the adjudicator should not have an interest or bias in the case is that no
man shall be a judge in his cause, justice should not be done but manifestly and undoubtedly
seen to be done. This rule enables the tribunal to act independently and 2 impartially without any
bias towards one side or the other.

Audi alteram partem

Further, CCI in the case of In re Alleged Cartelization by Cement Manufacturers while deciding
the contentions alleged by the Cement Manufacturing Association (CMA) that CCI's

denial to provide an opportunity for cross-examination of the said witnesses is in contravention

of the principles of natural justice, it had held that the act and conduct of the cement companies
establish that they are a cartel. The Commission holds that the cement companies acting as a
cartel has limited, controlled, and also attempted to control the production and price of cement in
the market in India and the allegations of the informant on these issues are substantiated. Also,
the penalty amounting to an approximate amount of Rs.6300 crores was levied under S.27 of the
Act

Similarly, in the case of Shree Cements & Anr vs CCI, a writ petition was filed by Shree
Cements Limited on the contention that CCI's order of imposing penalty violates the principles
of natural justice because the said order in its entirety relies upon the DG’s report and the such
report was not furnished to the informant Shree Cement Limited. The Delhi High Court believed
that both COMPAT and CCI have adhered to it and the parties have been given only liberal, but
full hearings even at the interlocutory stage. The issue as to whether two reports prepared by the
DG, namely Case no. 29/2010 and RTPE 52/200611 are practically identical, would be examined
by the COMPAT at the final hearing stage. Moreover, the COMPAT has also passed similar
orders requiring other cement manufacturers to pre-deposit ten per cent of the penalty imposed
on them by CCI.

Also in the case, MRF Limited v. Ministry of Corporate Affairs & air, one of the contentions of
the petitioner is that CCI’s failure to furnish the alleged information and the representation
despite a repeated request made by the petitioner would amount to a violation of the principles of
natural justice. Moreover, not allowing the petitioner to take part in the proceedings before
passing an order under S.26 (1) violates the principles of natural justice.
The Madras High Court had observed that

i. In the absence of mandatory statutory obligation for issuing such notice on the part of the
Commission and when such obligation is vested at the discretion of the Commission, the
contesting parties herein cannot seek such notice as a matter of right. Consequently, the question
of violation of principles of natural justice does not arise in this case.

ii. Even otherwise, the direction for the investigation itself is not a finding rendered against the
parties, more particularly, when a prima facie view or opinion need not necessarily be affirmed
in the final order, as it depends upon the outcome of the investigation and further consideration
of the Commission, based on the report of the DG.

iii. Therefore, at this stage, the parties cannot seek compliance with the principles of natural
justice. It is not in dispute that at the time of the investigation, the parties concerned will be given
proper notice and they will be allowed to take part in the investigation and thereafter before the
Commission as well during passing the final order.

iv. Therefore, the above contention of the parties in respect of their claim on principles of natural
justice was rejected.