Tuesday, 10 April 2012

Writ Jurisdiction - Basic attributes

Article 226: (1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, Jurisdiction of existing High Courts. Power of High Courts to issue certain writs, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

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

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without— (a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and (b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.

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

Article 227. (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.]

(2) Without prejudice to the generality of the foregoing provision, the High Court may—
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein: Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.

(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces. Power of superintendence over all courts by he High Court.

  1. Writ implies Power of the Constitutional Courts like the High Courts and the Supreme Court to give authoritative directions to any Public Authority / State Govts / Central Govt., or to private persons, to do something or refrain from doing something.

  1. Article 226 does not state that the Writ will not be issued only to “State”. It uses the expression, “any person or authority”. The question as to whether a Writ will be issued against a Non governmental entity, has been the subject matter of number of cases. It has been held that the person or authority on whom the Statutory duty is imposed, need not be a Public official or public authority. A mandamus could be issued to a Company or to an official of a Society to compel them to carry out their Statutory obligation or fulfill public responsibilities – AIR 1969 SC 1306

  1. The Supreme Court in the case of U.P. State Coop Land Dev Bank Ltd versus Chandra Bhan Dubey – AIR 1999 SC 753, held that “no limit could be put on the jurisdiction of the High Courts. When any Citizen or person is wronged, the High Court will step in to protect him, be that be wrong done by the State, an instrumentality of the State, a Company, or the Coop Society, or Association or body of Individuals, whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution, or any other right, which the law validly made, might confer upon him.

  1. The true scope of Writ Jurisdiction of High Courts under Article 226 of the Constitution of India was so beautifully and neatly explained by Hon’ble Supreme Court in the case of Mohammed Hanif versus State of Assam (1969) 2 SCC 782- The Court said- In a proceeding under Article 226, the High Court is not concerned merely with the determination of private rights of the parties; the only object of such a proceeding under Article 226 is to ensure that law of the land is implicitly obeyed and that various authorities and tribunals act within the limits of their respective jurisdiction.

  1. The Writ Petition is kind of a remedy given to people of India for enforcement of their fundamental and Statutory rights against the Govt and its various agencies, and in certain circumstances, the Writ Jurisdiction may be invoked against private persons.

  1. In the exercise of Writ Jurisdiction, Writ of mandamus (Constitutional Courts gives authoritative directions to the State agencies to do something or refrain from doing something) which forms 90% of our Writ cases.

  1. High Courts, in the exercise of Writ Jurisdiction, ordinarily doesn’t resolve any dispute between parties to the case, but on palpable and striking establishment of (1) violation of fundamental rights; or (2) violation or disregard of any provision of the Constitution or of Statutory provision; or (3) of Illegal acts and Omissions of Public Officials/Authorities, or serious illegal acts and Omissions of private persons,  gives direction to the public authorities concerned. Mandamus is a very wide remedy to reach injustice wherever it is found.

  1. Unlike Lower Courts, in Writ cases, High Courts are not obliged to follow strict procedure that has to be followed in conventional Suit proceedings.

  1. The High Courts in India are superior Courts of Record and have Original and Appellate Jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate and discretionary jurisdiction of the Supreme Court, High Courts have unlimited jurisdiction, including the jurisdiction to decide their own jurisdiction, thus, they are repository of all judicial powers under the circumstances, except what is excluded – AIR 1993 SC 1014, 1033.

  1. The Writs under Article 226 are known in English law as prerogative Writs. As our Constitution makers have borrowed the concept of prerogative Writs from English law, the essential principles relating to such Writs are applicable in India – (1969) 2 SCC 782.

  1. Article 226 is widely worded and does not place any restriction or restraint on the High Courts in the exercise of its jurisdiction under the Article – AIR 1962 SC 1044.

  1. The founding fathers placed no limitation or fetters on the powers of the High Courts under Article 226, except self imposed limitations. The arm of the Court is long enough to reach injustice wherever it is found; the Court as sentinel on the qui vive, is to mete out justice on the given facts – AIR 1997 SC 645.

  1. One of the self imposed limitation is that the Court will not exercise jurisdiction unless substantial injustice has ensued or likely to ensue – AIR 1955 SC 425.

  1. Elaborate guidelines as to exercise of jurisdiction under Article 226 – (1992) Supp (1) SCC 496; AIR 1993 SC 1082

  1. (2001) 10 SCC 461 : AIR 2000 SC 3602 (1);
  2. Binny Ltd – (2005) 6 SCC 657;
  3. (2005) 6 SCC 289

  1. The jurisdiction of High Court under Article 226 is also wider than jurisdiction of Supreme Court Article 136 of the Constitution, because the former is not conditioned, or limited by the requirement that it can be issued only against an Order of the Court or Tribunal – AIR 1963 SC 874.

  1. The scope of Writ jurisdiction is widened by use of the expression, “nature of…..”, enabling High Courts to issue Writs in addition to prerogative Writs as understood in England. High Courts can also issue Writs, order or directions, other than prerogative Writs; they can mould reliefs to meet the peculiar and complicated requirement of this country – AIR 1966 SC 81

  1. AIR 1950 SC 163;
  2. AIR 1976 SC 578

  1. The Supreme Court has held that there is no hard and fast rule on the issue of interference under Article 226 in contractual matters. If the dispute has the effect of giving rise to a claim for damages, the appropriate remedy would be a Civil Court. But where the facts are not complicated or do not require elaborate investigation, the High could exercise Writ jurisdiction under Article 226 – (1999) 4 SCC 450

  1. The Courts should always keep the larger public interest in mind, in order to decide whether its invention is called for or not; only when it comes to a conclusion that overwhelming public interest requires interference, the Court should intervene – (2000) 2 SCC 617

  1. The High Courts have the power to issue Writs, order or direction, not only for the enforcement of fundamental rights but for “any other purposes” as well – AIR 1962 SC 1044

  1. The powers are deliberately wide which enables the High Courts to mould relief as may be required in cases. The expression, “for any other purpose” was included with a view apparently to place all the High Courts in this country in somewhat the same position as the Courts of King’s Bench in England – AIR 1976 SC 1207

  1. High Courts has under Article 226 of Constitution of India and Supreme Court has under Article 32 of Constitution of India, possess powers and obligations to issue Writ (authoritative directions) to the Govt/any Public Authority. The Jurisdiction ambit of High Courts is much wider than Supreme Court, in that, High Courts under Article 226 has Jurisdiction to entertain cases of violation of fundamental rights as well as of statutory rights, sometimes even contractual rights, whereas Jurisdiction of Supreme Court under Article 32 can be invoked only for enforcement of fundamental rights.

  1. In AIR 1999 SC 1723 at page 1734, the SC observed thus - “27..... Article 226 of the Constitution is couched in widest possible term and unless there is clear bar to jurisdiction of the High Court, its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief.

  1. In State of Himachal Pradesh V Raja Mahendra pal, the Apex court said as- “... the powers conferred upon the High Court under Article 226 of the Constitution are discretionary in nature which can be invoked for the enforcement of fundamental rights or legal rights but not for the mere contractual rights arising out of an agreement particularly in view of the efficacious alternative remedy. The Constitutional court should insist upon the party to avail of the same instead of invoking extraordinary writ jurisdiction of the court. This however does not debar the court from granting the appropriate relief to a citizen under peculiar and special circumstances notwithstanding the existence of alternative efficacious remedy.

  1. No Constitutional court should limit its powers under Article 226. It is a guarantee provided by the Constitution makers against arbitrary and discriminatory action. Wherever the injustice is large, a Writ petition should be entertained. The Rule of exhaustion of alternate remedy is only of caution and necessity but that rule does not control the plenary powers of this Court. Consequently. The reference should be answered by holding that writ Jurisdiction is permissible to be invoked but the extent of the interference would depend upon facts & circumstances of each case.

  1. There is no straight jacket formula which can be evolved for deciding as to whether the writ Jurisdiction of this court would be available or not. There are disputes and differences which are incapable of precise classification.

  1. The doors of this court cannot be shut to a Party unless - the Petitioner has a alternate remedy, which without being unduly onerous, provides an equally efficacious remedy. Again, the High court does not generally enter upon a determination of questions which demand an elaborate examination of evidences to establish the right to enforce for which the writ is claimed.

  1. There are self imposed restrictions on the exercise of plenary & constitutional powers. In other words, when the main relief is not sought against these bodies, yet, they have been impleaded as parties and the dispute is mainly and essentially private parties involving purely private law, then, writ petition is not a remedy.

  1. The parameters for exercise of supervisory jurisdiction of High Courts under Article 226, while examining the decision of an inferior tribunal, has no connection with the question whether an appeal is provided for against the said order of the tribunal under the Statute in question. Appropriate authority versus Sudha Patil, AIR 1999 SC 181

  1. The object of proceedings provided by Article 226 is to ensure that law of the land is implicitly obeyed and to see that various authorities and tribunals act within bounds of their respective jurisdiction, (1969) 2 SCC 782.

  1. Article 226 is a remedy against the violation of a right of a citizen by the State or Statutory authority. It is a remedy in public law. (1969) 2 SCC 782.

  1. The existence of a right and the infringement thereof are the foundation of the exercise of the jurisdiction of the High Courts under Article 226, AIR 1963 SC 507.

  1. A petitioner who seeks to file an application under Article 226 should ordinarily be the one who has a personal or individual right in the subject matter of the Petition. In exceptional cases, a person who have been prejudicially affected by an act or omission of an authority can file a Writ even though he has no proprietary or even fiduciary interest in the subject matter thereof, AIR 1966 SC 828.

  1. The powers conferred under Article 226/227 is designed to effectuate the law, to enforce the rule of law and to ensure that several authorities and organs of the State act in accordance with law, AIR 1996 SC 3285.

  1. In  a case, reported in AIR 2003 SC 1115, relating to grievance of the Public servant, the Hon’ble SC held that the “inaction” on the part of the authority can be challenged in the High Court by filing a WP under Article 226 of the COI. Inaction by itself is an independent cause of action and the High Courts can effectively deal with the same.. It cannot be said that the Public servant is left without a remedy to challenge any omission or inaction on the part of the authority.

  1. The very purpose of conferring powers under Article 226 on High Courts is that no man subjected to injustice. The look out of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law.

  1. The arm of the Court is long enough to reach the injustice wherever it is found.
  2. AIR 1997 SC 645.

  1. Power under Article 226 has to be exercised to effectuate the regime of law.
  2. Mafatlal versus UOI, (1997) 5 SCC 536.

  1. In every proceeding under Article 226, the Court has the power to mould the remedy to suit the facts of the case. AIR 1975 SC 67; AIR 1983 SC 351.

  1. Fundamental rights are available to citizens only and not to legal persons. AIR 1970 SC 564; AIR 1973 SC 106

  1. The Courts are regarded as the interpreter as well as the guardian of the Constitution. It is for the Court to scrutinize every act of the government with a view to ensure that it is in conformity to the Constitution. If a law is passed by the legislature or an act done by the executive is inconsistent with a Constitutional mandate, the Courts will say so and declare the law or the act as unconstitutional and void.

  1. In K N Guruswamy's case (1955) 1 SCR 305; AIR 1954 SC 592, the Apex Court said that there can be no doubt that the Writ is maintainable even if the right to relief arose out of an alleged breach of contract where the action challenged was of a public authority invested with Statutory powers.

  1. Constitutional court should not limit its powers under Article 226. It is a guarantee provided by the Constitution makers against arbitrary and discriminatory action of the “State”. Wherever the injustice is large, a Writ petition should be entertained. The Rule of exhaustion of alternate remedy is only of caution and necessity but that rule does not control the plenary powers of this Court.

  1. Writ Petitions are definitely maintainable upon the Petitioners demonstrating perversity on the part of the statutory authority, so also their orders were being vitiated on account of arbitrariness and malafides, then intervention by this court is always permissible.

  1. In the case of Dwarka Nath versus ITO, Kanpur, AIR 1966 SC 91, the Hon’ble SC observed that the High Courts in India can issue Writs in the nature of prerogative Writs. High Courts can also issue directions, Orders other than prerogative Writs. They are empowered to mould relief to meet the peculiar and complicated requirements of the country.

  1. The Courts have made it clear that they cannot refuse to entertain for an appropriate Constitutional remedy where a fundamental right has been infringed. Basappa versus Nagappa AIR 1954 SC 440

  1. “Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly”, the Bench said. (State of West Bengal & Ors. v. The Committee for Protection of Democratic Rights, West Bengal & Ors [C.A. No. 6249-6250 of 2001] )

  1. The power conferred on on the HC by virtue of Article 226 is to enforce the rule of law and ensure that the State and other Statutory authorities act in accordance with law. Justice V N Khare in K S Bhoir versus State of Maharashtra – AIR 2002 SC 444, Page 451.

  1. The scope of Writ Jurisdiction under Article 226 – in the words of Chief Justice Pasayat, of the Orissa HC – the language of Article 226 does not admit of any limitation on the pwers of the HC for exercise of jurisdiction, hereunder, though by various decisions of the Apex court with varying and divergent views, it has been held that jurisdiction under Article 226 can be exercised only when body or authority, decision of which is complained, was exercising its powers in discharge of public duty and that Writ is a Public law remedy.

  1. The power conferred on the HC under Articles 226 and 227 was to advance justice and not to throttle it. The very purpose of such Constitutional powers being conferred on the HC was that no man should be subjected to injustice by violating the law. The outlook of the HC is, therefore, not merely to pick up any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. AIR 2002 SC 33


  1. Breach of Contract by State and alleged misuse / abuse of the exercise of Statutory power, Writ jurisdiction may be invoked – AIR 1977 SC 1496, Page 1500.

  1. A person cannot be rendered remediless – (2010) 14 SCC 274 – Para 11
  2. Limits of legislative powers – Article 245 – (2011) 4 SCC 36 – Para 63.

  1. Article 226 – damages – AIR 2012 Pat 55 – Paras 10, 11, 16

  1. Article 226 – CBI Inquiry – 2012 (2) All MR 640 – Para 19

  1. AIR 1954 SC 440;
  2. AIR 1954 SC 253;
  3. AIR 1955 SC 233(*****)(Jurisdiction)

  1. Refund of Excise duty paid under mistake of law
(1997) 5 SCC 536

  1. Power of HC to convert Revision or Writ to Appeal and vice versa;
(2009) 5 SCC 162, Para 48;

  1. Article 226 – Maha Coop Soc Act Sections 13(1)(a) and 73 FF – Dinkarrao Uttam rao Patil versus State of Maharashtra – 2010 (5) All MR 133 – Paras 6, 7, 9; Relied on 2006 (4) All MR 580; 1993 (3) All MR 643 (SC)

  1. Article 226 – Section 354 of MMC Act – dilapidated building – the Court can exercise Writ jurisdiction to set aside order of Appellate Coop Court – gode kamgar Griha Sanstha versus Jerry Thomas Cherian – 2010 (5) All MR 91

  1. Article 226 – Section 152 A of Coop Society Act – Interference with Election process is permissible if the same is not in conformity with relevant statutory provisions – Chandrakant Mahadev Patole – versus State of Maharashtra – 2010 All MR (Supp) 457 – Paras 7, 8; Relied on 2005 (5) All MR (SC) 1082;

  1. One Bench of the High Court has no jurisdiction to sit in judgment on the decision of another division Bench – AIR 1958 SC 143, 145.

  1. Writ Jurisdiction of HC – Summary of –
AIR 1981 SC 487
AIR 2003 SC 4325 : (2003) 10 SCC 733

  1. Post facto permission of RBI – LIC versus Escorts – AIR 1986 SC 1370, Paras 101, 102 – (Five Judges Bench)

  1. Monitoring of its order by HC – Vineet Narain versus UOI, AIR 1998 SC 889.

  1. Scrupulous adherence to constitutional dictates is our obligation for they are the longings of our freedom fighters to whom we owe our. Independence. The people of India after independence are not free, they are bound by the dictates of the constitution of India


Writ Jurisdiction - Issuance of Writ at the threat of Breach of Fundamental Rights
  1. Tata Iron & Steel Co Ltd versus sarkar AIR 1961 SC 65 (68);
  2. AIR 1965 SC 1321
  3. AIR 1961 SC 1615 (1620)
  4. Threat of infringement of fundamental right is enough to justify the issue of writ. Simranjit Singh versus UOI 1993 1 UJ SC 32 para 7 : (1992) 4 SCC 653.
  5. K K Kochhuni versus State of Madras, AIR 1959 SC 725 (page 731);
  6. Roopchand versus State of Punjab, AIR 1963 SC 1503 (page 1508)
  7. Coffee Board Bangalore versus Jt CTO, Madras, AIR 1971 SC 870 : (1969) 3 SCC 349 (page 358)
  8. Kiran Pasha versus State of A.P., (1990) 1 SCC 328 (page 336)
  9. S L Narayan Row versus Ishwarlal Bhagwandas, AIR 1965 SC 1818 (page 1822)

Writ Jurisdiction - Interpretation of Statutory Provisions
  1. Article 226 – Consumer Protection Act – Writ jurisdiction can be exercised to decide maintainability of Application u/s 27 of the Act – R B Upadhyay versus State Commission for Consumer Disputes – 2010 (5) All MR 238 – Para 9

  1. Question of law when arises – (2011) 1 SCC 429; (2011) 2 SCC 758

  1. In S. P. Sampat Kumar v. Union of India, (1987) 1 SCR 435 : (AIR 1987 SC 386), this Court held that the primary duty of the judiciary is to interpret the Constitution and the laws and this would prominently be a matter fit to be decided by the judiciary, as judiciary alone would be possessed of experience in this field and secondly the constitutional and legal protection afforded to the citizen would become illusory, if it were left to the executive to determine the legality of its own action.

  1. What do the words in a Constitutional document or in a Statute actually mean ?  Whenever such question arises, it is ultimately for the Courts to decide.

    Serious point of law arises during the course of judicial proceedings – the matter should be referred to HC – AIR 1923 PC 138; AIR 1998 SC 1891; AIR 1950 SC 218; AIR 1968 SC 497

  1. Article 226 – O.39 R.2A – violation of court order – No mandamus lie – AIR 2011 Cal 26, Paras 3, 4, 5.

  1. Nalini Naicker versus Sethi Manghraj – AIR 1969 SC 1344, 1346

Writ Jurisdiction - Civil Service disputes

  1. Chandra versus UOI (1997) SCC 261 (para 99) No Service matter directly to HC / SC.

  1. If however, the cause of action is an order of the tribunal which offends a fundamental right, not being a service matter. Zahir versus UOI (1993) 23 ATC 812

  1. CIVIL SERVANT HELD GUILTY OF MISCONDUCT AND DISMISSED FROM SERVICE, BASED ON SUSPICION, CONJECTURES AND SURMISES. ***** UOI versus H C Goel, AIR 1964 SC 364 (page 369-70); DISMISSAL ON THE BASIS OF DOUBTFUL INTEGRITY – Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probabilities for the reasonable man to entertain doubt regarding that possibility. M s Bindra versus Union of India, AIR 1998 SC 3058 (page 3061).

  1. DOCTRINE OF PROPORTIONALITY – It is impossible to think that any reasonable employer would have imposed the extreme punishment of dismissal on its entire permanent staff in this manner. The workman may have been warned and fined. Hind Cons Co. versus Workmen, AIR 1965 SC 917 (page 919-20); ***** Ranjit Thakur versus UOI, AIR 1987 SC 2186 (page 2392) – All powers have legal limits, the sentence has to suit the offence and the offender.

  1. Ajay Hasis and Ors. Vs. Khalid Mujib Sehravardi and Ors. AIR 1981 SC 487
  2. AK Kraipak and Ors Vs UOI AIR 1970 SC 150
  3. Ashok Kumar Yadav and Ors. Vs. State o f Haryana 1985 (4) SCC 417
  4. Devaki Nandan Prasad V St of Bihar & Ors AIR 1983 SC 1134
  5. Jasvinder Singh and Ors. etc Vs. State of J and K 2003 2 SCC 132
  6. K. Manjusree Vs. State of AP 2008(3) SCC 512
  7. Lila Dhar Vs. State of Rajasthan and Ors 2008(3) SCC 512
  8. Ram Chander Vs UOI AIR 1986 SC 1173
  9. Vijay Syal and Anr. Vs State of Punjab AIR 2003 SC 4023

Recall of Order dismissing WP – (2012) 5 SCC 621, Paras 2, 3

Writ against Private persons –
  1. AIR 1957 SC 529
  2. AIR 2005 3202 : (2005) 6 SCC 657
  3. (2005) 8 SCC 428 : AIR 2008 SC 1951
  4. AIR 1959 SC 725
  5. AIR 1984 SC 1621
  6. AIR 1990 SC 423

  1. The maintainability of Writ against Coop Societies has been the subject matter of conflicting decision. Writ against Coop Soc – when its action is violative of mandatory statutory provision. (2004) 7 SCC 112 : AIR 2004 SC 4504; AIR 2005 SC 1638 : (2004) 8 SCC 312; AIR 1999 SC 2402 : (1999) 6 SCC 141.

Disputed question of fact –
  1. this extraordinary power of the Court is to correct the defects of law. The Court, in the exercise of Writ jurisdiction, does not declare the rights and title; and thus where disputed question of facts are involved, such matter cannot be decided in a summary proceeding based on the pleadings of the parties; and such disputed matters must be decided by the Civil Courts after recording of due evidence in the matter. However, mere assertion of existence of disputed facts does not deny the remedy under Writ jurisdiction. The Court has to specifically arrive at such conclusion. Moreover, if the fact of violation of fundamental right is proved, even a disputed question of fact can be entertained and decided under Writ jurisdiction. AIR 1959 SC 725, Page 734

  1. Article 226, 227 – disputed question of facts – that doesn’t completely oust the jurisdiction of court – Ravikiran Aba Saheb versus Additional Commissioner – 2010 (2) All MR 5 – Para 14

Exclusion of jurisdiction of HC
  1. Even a provision in the Constitution conferring finality to the decision of an Authority, is not construed as completely excluding judicial review under Article 136, 226, 227, but limiting it to the jurisdictional errors, viz. infirmities based on violations based on Constitutional mandates, malafides, non compliance to rules of natural justice and perversity – AIR 1994 SC 1558; (2004) 8 SCC 747; (2007) 4 SCC 270, Paras 29, 40, 41

  1. There can be no doubt that if the Legislature states that the decision or Order of a Court or Tribunal shall be final and conclusive, the remedies available under the Constitution remains unfettered – AIR 1954 SC 202

  1. Exclusion of jurisdiction of HC – not readily inferred – even jurisdiction of Revision is not ousted – AIR 1966 SC 1449

Writ Jurisdiction - Judicial Review

  1. Judicial Review of Adm actions – Wenesbury principle of reasonableness – 2011 (1) AIR Bom R 633 (SC) – Paras – 42, 43, 44, 50 – CA Nos – 2147-48/2004 – Judg date: 11.11.2010.

  1. Article 226 – Judicial Review – Adm actions – irrationality – if decision under challenge is so outrageous in its defiance of logic – test of wednesbury unreasonableness enumerated – Article 226 – A benefit allowed to be enjoyed by a person ought not to be withdrawn without communicating reasons for the proposed withdrawal – Beejay Contracts versus Hind Petro – 2010 (4) All MR 120 – Para 11.

  1. It is pertinent to mention here the landmark judgment of Hon’ble SC in State Of Rajasthan Vs Union Of India- AIR 1977 SC 1361, pp. 1390,1391,1401,1414,1415; (1977) 4 SCC 599. The Hon Court held that if the satisfaction of the President (with ref. to Article 356) is based on wholly extraneous grounds which have no nexus with the action taken, the proclamation can be challenged in a court of Law on the ground that the President acted without the required satisfaction in issuing the Proclamation, for satisfaction based on wholly irrelevant grounds amounts to no satisfaction. Judicial Review – Court not powerless to interfere with ultra vires Order.

  1. Judicial Review is the most potent weapon in the hands of Judiciary to maintain rule of Constitution. Sampath Kumar versus UOI AIR 1987 SC 386.

  1. State is to obey the law, more so the Constitution. Judicial Review of administrative action is an essential part of the rule of law. (1997) 4 SCC 430.

  1. Judicial Review is the heart and Soul of the Constitutional Scheme. (2000) 8 SCC 437

  1. Judicial Review: Only the decision making process is subject to judicial review. The decision itself cannot be assailed unless it has violated any statutory or constitutional provision. (2003) 9 SCC 592.

  1. A Reference made by the Govt under section 10 of the Industrial Disputes Act 1947 may be examined by the HC to ensure whether the relevant consideration has been duly taken note of. Moolchand Khairati versusRam Hospital (2002) 10 SCC 708.

  1. Mere assertion or allegations are not enough. He who seeks judicial review must also establish illegality, irrationality and procedural improprietory. Indian Railway Construction Co Ltd AIR 2003 SC 1843.
  2. CIT versus Mahindra & Mahindra 1983 (4) SCC 392
  3. (1974) 4 SCC 3
  4. (1988) 4 SCC 59

  1. It has always been said that judicial review, generally speaking, is not directed against a decision, but is directed against a decision making process. UOI versus Upendra Singh (1994) 3 SCC 357.

Irrationality / Illegality / Procedural improprietory / Disproportionality
  1. B C Chaturvedi versus UOI (1995) 6 SCC 749
  2. Ranjit Thakur versus UOI (1987) SC 2386
  3. UOI versus Upendra Singh (1994) 3 SCC 357
  4. Delhi Science Forum versus UOI (1996) 2 SCC 405

  1. Judicial review is an unavoidable necessity when there is a constant danger of legislative and executive lapses and appalling erosion of ethical standards in the society. Judicial review is a moral guarantee wrapped in legal command.

  1. Uncontrolled and arbitrary power in regulating trade or business – AIR 1954 SC 224.

  1. JUDICIAL REVIEW – AIR 2004 SC 3800; AIR 1997 SC 3387; AIR 1996 SC 11

  1. A legislation once suitable may be arbitrary or unreasonable subsequently with the passage of time. (1998) 2 SCC 1.

  1. Act of commission if irrational is subject to judicial review, and thus act of omission if irrational should also suffer judicial review. The irrationality has direct nexus with the perception of the society.

  1. A law creating a State Monopoly – Uday Singh Dagar versus UOI – AIR 2007 SC 2599.


  1. What is necessary element of rule of law is that the law must not be arbitrary or irrational and it must satisfy the test of reason – AIR 1982 SC 1325 .

Satisfaction of the President of India based on extraneous considerations –
  1. (1980) 3 SCC 625,
  2. (1994) 3 SCC 1;

  1. Sunderlal Patwa versus UOI – 1993 JabLJ 387 (FB)
  2. (2010) 14 SCC 1
  3. AIR 1951 Raj 23, 25.

  1. Judicial Review of Adm actions – Principle of Proportionality – well explained – Chairman, All India Railway rec Board versus K Shyam Sunder – 2010 AIR SCW 4240 ************

Legislative functions –
  1. (2002) 5 SCC 685
  2. AIR 1992 SC 118
  3. AIR 1970 SC 1542
  4. AIR 1958 SC 578
  5. (1999) 2 SCC 604

Delegated Legislation
  1. (1997) 5 SCC 516
  2. AIR 1949 FC 175
  3. AIR 1943 FC 36
  4. AIR 1951 SC 332

Essential legislative function and excessive delegation
  1. AIR 1954 SC 465, 468
  2. (1996) 3 SCC 741
  3. (2002) 7 SCC 425
  4. AIR 1970 SC 1453
  5. AIR 1954 SC 569
  6. (1982) 1 SCC 205
  7. AIR 1974 SC 960
  8. AI 1955 SC 25
  9. AIR 1960 SC 554
  10. AIR 1957 SC 478

Judicial Review of Delegated Legislation – ultra vires
Substantive Ultra vires
  1. (1988) 2 SCC 351
  2. (1990) 3 SCC 230, 254, 257
  3. AIR 1975 SC 1967
  4. AIR 1945 PC 156
  5. AIR 1971 SC 1920
  6. AIR 1971 SC 1650
  7. (2000) 3 SCC 40

Held Intra vires
  1. (1981) 2 SCC 205
  2. (1988) Supp SCC 176

Procedural ultra vires – Publication
  1. AIR 1951 SC 467
  2. AIR 1965 SC 722
  3. AIR 1976 SC 263
  4. AIR 1965 SC 895

Procedural ultra vires – consultation
  1. (1991) 3 SCC 299
  2. AIR 1953 SC 79
  3. AIR 1961 SC 849

Procedural ultra vires – Laying
  1. (1980) Supp SCC 249

Procedural ultra vires – retrospective operation of delegated legislation
  1. AIR 1997 SC 1288

Procedural ultra vires – exclusion of judicial review
  1. AIR 1965 SC 1585

Administrative instructions / directions
  1. (2003) 1 SCC 364
  2. AIR 1973 SC 303

Sub delegation of Legislative powers –
  1. AIR 1977 SC 322
  2. AIR 1960 SC 430

Disclosure of materials
  1. (1991) 1 SCC 588
  2. (1974) 4 SCC 374
  3. AIR 1988 SC 2060

Right of cross examination
  1. (1977) 2 SCC 153

Right to legal representation
  1. AIR 1976 SC 1686
  2. AIR 1968 All 270
  3. (1981) 4 SCC 327

  1. Anuj Garg & Ors V Hotel Association of India & Ors AIR 2008 SC 663
  2. Charan Lal Sahu v Union of India & Ors 1990 1 SCC 613
  3. Maneka Gandhi Vs UOI & Anr 1978 1 SCC 248
  4. Mithu Vs State of Punjab AIR 1983 SC 473
  5. NR Nair & Ors Vs Union of India AIR 2001 SC 2337
  6. Peoples Union for Civil Liberties & Anr v UOI AIR 2004 SC 456
  7. Pooran Mal V The Director of Inspection (Inv) New Delhi & Ors 1974 1 SCC 345
  8. Shanti Prasad Jain V The Director of Enforcement AIR 1962 SC 1764
  9. Vajravelu Mudaliar Vs Spl Dy Collector Madras AIR 1965 SC 1017

  1. Article 226 – Judicial review of orders passed by subordinate courts – AIR 2012 (NOC) AP 70 – Paras 13, 15.

  1. Policy matters: Matters of national security although in the nature of policy matter – extent of intervention by Courts – (2012) 5 SCC 275 – Paras 8, 9, 19, 20, 25, 28, 29

Writ Jurisdiction - What is "State" - Article 12

  1. Whether or not a body is “State” will have to be considered on the basis of the facts available, and considering whether the body is financially, functionally or administratively dominated by or under the control of the government. Mere regulatory control, whether under Statute or otherwise would not make a body “State”, AIR 2005 SC 2677.

  1. (1991) 4 SCC 406

  1. Article 12 – Insurance company is a “State” – Writ maintainable – Srichand Mohan Saha versus National Insurance Co – WP 18057/ 2006 – AIR 2011 (NOC) 33 Cal.

  1. Article 226, 12 – Arun Vasantrao Betkekar versus Govt of India – 2009 (6) All MR 883 – relied on (2002) 5 SCC 111

  1. Article 12 – State – The SC in Federal Bank Case – AIR 2003 SC 4325, Para 17, identified the following person’s / authorities against whom Writ may be maintainable under Article 226 of the COI. They are –
    • The State Govt
    • Authority
    • Statutory Body
    • An instrumentality of agency of the State
    • A Company which is financed or owned by the State
    • A Private body run substantially on State funding
    • A private body discharging public duty or positive obligation of public nature
    • A Person or a body under liability to discharge any function under any Statut, to control it to perform such a statutory function.

Disputed question of fact – No Writ – (2012) 9 SCC 729
Writ Remedy – residuary in nature – AIR 1996 SC 523
Article 226 – proper mode of disposal – (2012) 10 SCC 215A; 353M; 290.
Article 32, 226, 136 – Parties, mode of Service – (2012) 10 SCC 352A
Article 226 – Res Judicata – finality of judgment given by HC;
Article 226 – general maintainability – (2012) 10 SCC 424
Recall of Order passed in WP – (2012) 9 SCC 714B

Article 14

  1. Where there is arbitrariness in State action, Article 14 springs in and judicial review strikes it down. Every action of executive authority must be subject to rule of law and must be informed by reason. So whatever be the activity of Public authorities, it should meet the test of Article 14. Dwarkadas Marfatia versus Port Trust, Bombay – AIR 1989 SC 1642 (1648).

  1. Absence of arbitrariness is first essential of rule of law – AIR 1991 SC 101.

  1. Writ Jurisdiction – driven by Equity – AIR 2000 SC 1151; AIR 1998 SC 948

  1. Article 14 – Circular of State – imposing mandatory conditions – Not even in Rules – Change could have been done by placing before State Legislature – 2011 (1) AIR Bom R 729 – Paras 12 to 20 – Cr WP 2343/2009 – Judg date: 07.09.2010

  1. Article 14 – Admissions to degree college prohibited for want of appointment of Principal – not proper – it is judicial legislation – moreover – the colleges were not parties before the court – AIR 2011 SC 1912 – Paras 12, 13.

  1. Article 19: Ramlila Maidan Judgment – COI – Pg.1 – May 2012

  1. Right to Life and Safety – (2012) 5 SCC 321 – Paras 1 to 7, 8, 18, 21, 24 to 29, 32 to 41; Interpretation of Statutes – Para 28

  1. Article 14 – AIR 2012 Gau 53 – Paras 43, 45, 46

  1. Article 14 – Municipal properties – AIR 2012 SC 1649 (B) – Para 10

  1. Fundamental rights – AIR 2012 SC 1774(A) – Para 7

  1. Article 14 – Natural justice – AIR 2012 SC 1339 – Paras 14, 15, 23, 24, 28, 37

  1. An assessment of terminal tax, which was questioned on the ground that the municipality applied a wrong rate of tax, by wrongly determining the character of taxable commodity, was not open to challenge to the Civil Courts; but it was pointed out that if a municipality levied a tax on a commodity which was not taxable at all, a Civil Suit will lie – AIR 1963 SC 1547; AIR 1965 SC 555; AIR 1979 SC 246; AIR 1971 SC 97; (1996) 9 SCC 495; AIR 1966 SC 249; AIR 1977 SC 955; (1997) 5 SCC 536

Balancing of individual rights with Societal or collective rights is part of mandate under Article 14 – (2012) 10 SCC 1E
Right to Equality – (2012) 10 SCC 1O
Article 14 and 19 – (2012) 10 SCC 1C, 1P (Imp)
Arbitrariness doctrine – (2012) 10 SCC 1A
Classification doctrine – (2012) 10 SCC 1A
Violation of Article 14 – (2012) 10 SCC 1A

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