Scope Of Article 226 Of The Constitution Of India: Important Judgments [Part-1]

SARVEPALLI RAMAIAH (D) THR. LRS. & ORS. V/s DISTRICTCOLLECTOR CHITTOOR DIST. & ORS., CIVIL APPEAL NO. 7461 OF 2009, SUPREME COURT OF INDIA,DATE OF DECISION: 14.03.2019, CORAM: R. BANUMATHI & INDIRA BANERJEE, JJ.

"Judicial review under Article 226 of the Constitution of India, 1950 is directed, not against the decision, but the decision-making process."

It was held that:

1. Administrative decisions are subject to judicial review under Article 226 of the Constitution of India, 1950, only on grounds of perversity, patent illegality, irrationality, want of power to take the decision and procedural irregularity. Except on these grounds administrative decisions cannot be interfered with, in exercise of the extraordinary power of judicial review.
2. A decision is vitiated by irrationality if the decision is so outrageous, that it is in defiance of all logic; when no person acting reasonably could possibly have taken the decision, having regard to the materials on record.
3. A decision may sometimes be set aside and quashed under Article 226 of the Constitution of India, 1950 on the ground of illegality. This is when there is an apparent error of law on the face of the decision, which goes to the root of the decision and/or in other words an apparent error, but for which the decision would have been otherwise.
4. Judicial review under Article 226 of the Constitution of India, 1950 is directed, not against the decision, but the decision-making process. Of course, a patent illegality and/or error apparent on the face of the decision, which goes to the root of the decision may vitiate the decision-making process.
5. In exercise of power under Article 226 of the Constitution of India, 1950, the court does not sit in appeal over the decision impugned, nor does it adjudicate hotly disputed questions of fact.

ROSHINA T V/s ABDUL AZEEZ K.T. & ORS., CIVIL APPEAL NO. 11759 OF 2018, SUPREME COURT OFINDIA, DATE OF DECISION: 03.12.2018, CORAM: ABHAY MANOHAR SAPRE & INDUMALHOTRA, JJ.

"The remedy under Article 226 of the Constitution of India, 1950 is not available except where violation of some statutory duty on the part of statutory authority is alleged."

It was held that:

1. A regular suit is the appropriate remedy for settlement of the disputes relating to property rights between the private persons. The remedy under Article 226 of the Constitution of India, 1950 is not available except where violation of some statutory duty on the part of statutory authority is alleged; in such cases, the court has jurisdiction to issue appropriate directions to the authority concerned.
2. The High Court cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal are available. The jurisdiction under Article 226 of the Constitution of India, 1950 being special and extraordinary, it should not be exercised casually or lightly on mere asking by the litigant.
3. In Para 18 of the Judgment it was observed that:

"… In our opinion, the High Court, therefore, while so directing exceeded its extraordinary jurisdiction conferred under Article 226 of the Constitution. Indeed, the High Court in granting such relief, had virtually converted the writ petition into a civil suit and itself to a Civil Court. In our view, it was not permissible…"

4. A dispute regarding possession of flat between two private individuals can be decided only by the civil court in civil suit or by the criminal court in Section 145 of the Criminal Procedure Code, 1973 but not in the writ petition under Article 226 of the Constitution of India, 1950.

SMT. PANPATI DEVI & ANR. V/s RAM BARATRAM & ORS., W.P. (C) NO. 2617 OF 2018, HIGH COURT OF JHARKHAND(RANCHI), DATE OF DECISION: 07.03.2019, CORAM: SUJIT NARAYAN PRASAD, J.

"Under Article 226 of the Constitution of India, 1950 the High Court normally annuls or quashes an order or proceedings, but, in exercise of its jurisdiction under Article 227 of the Constitution of India, 1950, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior court or tribunal should have passed."

It was held that:

1. There is no dispute about the proposition of law that the provision under Article 227 of the Constitution of India, 1950 is to be exercised by the High Court if there is error apparent on the face of record. However, Article 227 of the Constitution of India, 1950 does not vest the High Court with limitless power; power of superintendence conferred upon the High Court by virtue of Article 227 of the Constitution of India, 1950 is not to be exercised unless there has been:
   An unwarranted assumption of jurisdiction, not vested in the inferior court or tribunal; or,
   Gross abuse of jurisdiction by an inferior court or tribunal; or,
   An unjustifiable refusal to exercise jurisdiction vested in the inferior court or tribunal.
2. The High Court can set aside or reverse findings of an inferior court or tribunal only in cases where the findings of the inferior court or tribunal are either based on 'no evidence' or where no reasonable person could possibly have come to conclusion which the inferior court or tribunal came to.
3. The High Court under Article 227 of the Constitution of India, 1950 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions; its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice.
4. The jurisdiction which the High Court exercises under Article 227 of the Constitution of India, 1950 is neither original, nor appealable; it is administrative and supervisory in nature.
5. The powers conferred upon the High Court under Article 226 and Article 227 of the Constitution of India, 1950 are separate and distinct, and operate in different fields. Under Article 226 of the Constitution of India, 1950 the High Court normally annuls or quashes an order or proceedings, but, in exercise of its jurisdiction under Article 227 of the Constitution of India, 1950, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior court or tribunal should have passed.
6. The High Court, in the exercise of its jurisdiction of superintendence under Article 227 of the Constitution of India, 1950, can interfere in order only to keep the tribunals and courts subordinate to it within the confines of their respective authority/jurisdiction, in order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested with them and there is no exercise of the jurisdiction which is not so vested in them.
7. The High Court under Article 227 of the Constitution of India, 1950 can interfere in exercise of its power of superintendence when there is patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
8. In exercise of its power of superintendence, the High Court under Article 227 of the Constitution of India, 1950 cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. The jurisdiction of the High Court under Article 227 of the Constitution of India has to be exercised very sparingly.

"Under Article 226 of the Constitution of India, 1950, the High Court does not adjudicate, upon affidavits, disputed questions of fact."

It was held that:

1. It is well settled that in proceedings under Article 226 of the Constitution of India, 1950, the High Court does not adjudicate, upon affidavits, disputed questions of fact.
2. In Para 16 of the Judgment it was observed that:

"… It is well settled that in proceedings under Article 226 of the Constitution of India, the High Court cannot sit as a Court of Appeal over the findings recorded by a competent administrative authority, nor reappreciate evidence for itself to correct the error of fact, that does not go to the root of jurisdiction. The High Court does not ordinarily interfere with the findings of fact based on evidence and substitute its own findings, which the High Court has done in this case. Even assuming that there had been any error in the computation of marks in respect of fixed and movable assets, the High Court could, at best, have remitted the case of respondent Prakash Chandra Chaudhary to the concerned authorities for reconsideration…"

3. In exercise of discretionary power of judicial review under Article 226 of the Constitution of India, 1950, the High Court might interfere with administrative matters only if the decision is violative of fundamental or basic principles of justice and fair play or suffers from any patent or flagrant error. It is true that the High Court might rectify, in exercise of its power of judicial review, an error of law or even an error of fact, for sufficient reasons, if the error breaches fundamental or basic principles of justice or fair play or if the error is patent and/or flagrant, but not otherwise.
4. Even in cases where the High Court finds an apparent factual error which goes to the root of the decision, the appropriate course of action would be to give the opportunity to the authority concerned to rectify the error.
5. It is only in the rarest of cases, where the factual error is so obvious that it is rectifiable by the court itself, that the court might, to prevent delay and consequential denial and/or miscarriage of justice, rectify the error.

"Writ petition under Article 226 of the Constitution of India, 1950, solely praying for refund of money against the State is not maintainable."

It was held that:

1. Writ petition solely praying for refund of money against the State is not maintainable.
2. In the matter of: Suganmal V/s State of Madhya Pradesh, AIR 1965 SC 1740, it was observed that:

"… On the first point, we are of opinion that though the High Courts have power to pass any appropriate order in the exercise of the powers conferred under Article 226 of the Constitution, such a petition solely praying for the issue of a writ of mandamus directing the State to refund the money is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally collected the money as a tax. We have been referred to cases in which orders had been issued directing the State to refund taxes illegally collected, but all such cases had been those in which the petitions challenged the validity of the assessment and for consequential relief for the return of the tax illegally collected. We have not been referred to any case in which the Courts were moved by a petition under Article 226 simply for the purpose of obtaining refund of money due from the State on account of its having made illegal exactions… The parties had the right to question the illegal assessment orders on the ground of their illegality or unconstitutionality and therefore could take-action under Article 226 for the protection of their fundamental right, and the courts, on setting aside the assessment orders, exercised their jurisdiction in proper circumstances to order the consequential relief for the refund of the tax illegally realized. We do not find any good reason to extend this principle and therefore hold that no petition for the issue of a writ of mandamus will be normally entertained for the purpose of merely ordering a refund of money to the return of which the petitioner claims a right… We, therefore, hold that normally petitions solely praying for the refund of money against the State by a writ of mandamus are not to be entertained. The aggrieved party has the right of going to the Civil Court for claiming the amount and it is open to the State to raise all possible defences to the claim, defences which cannot, in most cases be appropriately raised and considered in the exercise of writ jurisdiction…"

"Whether a writ petition under Article 226 of the Constitution of India, 1950 can be filed by a power of attorney holder?"

It was held that:

1. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (See: Section 1-A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. [Suraj Lamp & Industries (P) Ltd. V/s State of Haryana, (2012) 1 SCC 656]
2. The power of attorney holder is the agent of the grantor. When the grantor authorizes the attorney holder to initiate legal proceedings and the attorney holder accordingly initiates such legal proceedings, he does so as the agent of the grantor and the initiation is by the grantor represented by his attorney holder and not by the attorney holder in his personal capacity. [A.C. Narayanan V/s State of Maharashtra, AIR 2014 SC 630]
3. The holder of the power of attorney represents the donor and does not act in his personal capacity.
4. There is no prohibition on an application seeking a writ under Article 226 or Article 227 of the Constitution of India, 1950 being pursued by a litigant through the holder of a power of attorney. The donee of a power of attorney is no more than an agent of the donor. The donee represents the donor and does not pursue the proceedings in his own independent capacity; he acts for and on behalf of the donor and is subject to the limitations which are contained in the instrument by which he is authorized to act on behalf of the donor.
5. The right which is sought to be pursued in the exercise of writ jurisdiction under Article 226 of the Constitution of India, 1950 is a right personal to the writ petitioner. The only exception which is contemplated, is in the case of a writ of habeas corpus or in a writ of quo warranto. The exception in the case of a writ of habeas corpus is necessitated in order to protect the value which the common law and the Constitution of India, 1950 places on personal liberty which enables a writ to be moved by a person other than a person whose right is sought to be espoused. Similarly, the object and purpose of a writ of quo warranto is to protect a public office from a usurper who is continuing in the office in breach of the qualifications or eligibility prescribed for holding such an office of a public nature.
6. The petitioner in exercise of the writ jurisdiction under Article 226 of the Constitution of India, 1950 must pursue a claim, right or cause of action personal to him or her. However, when the petitioner seeks to do so through the holder of a power of attorney, the donee of the power of attorney is no more than an agent who acts for and on behalf of the donor, for the reason that the donor is, for some reason, unable to present himself or herself before the court in order to pursue the proceedings.

The donor of the power of attorney may be incapacitated from doing so temporarily for reasons or exigencies, such as, exigencies of service or station or, for that matter, an ailment which immobilizes him or her from pursuing the proceedings personally.

The important point to be noted, as a matter of principle, is that when the donor authorizes the donee to act on his or her behalf, the donee acts as an agent and is subject to the limitations which are created by the instrument by which he is authorized. The donee does not pursue a claim or right personal to him but it is the donor who espouses his own personal right through the holder of a power of attorney.

7. When a writ petition under Article 226 of the Constitution of India, 1950 is instituted through a power of attorney holder, the holder of the power of attorney does not espouse a right or claim personal to him but acts as an agent of the donor of the instrument. The petition which is instituted, is always instituted in the name of the principal who is the donor of the power of attorney and through whom the donee acts as his agent. In other words, the petition which is instituted under Article 226 of the Constitution of India, 1950 is not by the power of attorney holder independently for himself but as an agent acting for and on behalf of the principal in whose name the writ proceedings are instituted before the court.
8. The necessary safeguards that are required to be observed where a writ petition is filed through the holder of a power of attorney:
1. The power of attorney by which the donor authorizes the donee, must be brought on the record and must be filed together with the petition or application;
2. The affidavit which is executed by the holder of a power of attorney must contain a statement that the donor is alive and specify the reasons for the inability of the donor to remain present before the court to swear the affidavit; and,
3. The donee must be confined to those acts which he is authorized by the power of attorney to discharge.
9. Whether a writ petition under Article 226 of the Constitution of India, 1950 can be filed by a power of attorney holder? "Yes"

"Single Judge is not subordinate to Division Bench in intra court appeal (arising from the decision rendered in writ petition filed under Article 226 of the Constitution of India, 1950), both exercise same jurisdiction."

It was held that:

"… We have very serious reservations whether the Division Bench in an intra court appeal could have remitted a writ petition in the matter of moulding the relief. It is the exercise of jurisdiction of the High Court under Article 226 of the Constitution of India. The learned Single Judge as well as the Division Bench exercised the same jurisdiction. Only to avoid inconvenience to the litigants, another tier of screening by the Division Bench is provided in terms of the power of the High Court but that does not mean that the Single Judge is subordinate to the Division Bench. Being a writ proceeding, the Division Bench was called upon, in the intra court appeal, primarily and mostly to consider the correctness or otherwise of the view taken by the learned Single Judge. Hence, in our view, the Division Bench needs to consider the appeal(s) on merits by deciding on the correctness of the judgment of the learned Single Judge, instead of remitting the matter to the learned Single Judge…"

"The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution of India, 1950 and any legislation including the Armed Forces Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India, 1950."

It was held that:

1. The court while exercising its jurisdiction under Article 226 of the Constitution of India, 1950 is duty bound to consider whether:
1. Adjudication of the writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;
2. The petition reveals all material facts;
3. The petitioner has any alternate or effective remedy for the resolution of the dispute;
4. The person invoking the jurisdiction is guilty of unexplained delay or laches;
5. The relief claimed is ex facie barred by any law (or limitation); and/or,
6. The grant of relief is against public policy or is barred by any law for time being in force.

                                                   [Kanaiyalal Lalchand and Sachdev & Ors V/s State of Maharashtra & Ors, (2011) 2 SCC 782]

2. When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. It is settled law that a writ petition under Article 226 of the Constitution of India, 1950 is not to be entertained if an effective alternate remedy is available to the aggrieved person. [Nivedita Sharma V/s Cellular Operators Association India & Ors, (2011) 14 SCC 337]
3. The High Court does not act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 of the Constitution of India, 1950 trench upon an alternative remedy provided by the statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution of India, 1950, the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.
4. The power of judicial review vested in the High Court under Article 226 of the Constitution of India, 1950 is one of the basic essential features of the Constitution of India, 1950 and any legislation including the Armed Forces Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India, 1950.
5. The jurisdiction of the High Court under Article 226 of the Constitution of India, 1950 and the Supreme Court under Article 32 of the Constitution of India, 1950 though cannot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by the provisions of the statutes and would exercise their jurisdiction consistent with the provisions of the statute.
6. When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.
7. The High Court will not entertain a petition under Article 226 of the Constitution of India, 1950 if an effective alternate remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance.
8. An order passed by the Armed Forces Tribunal under the Armed Forces Tribunal Act, 2007 can be challenged under Section 30 read with Section 31 of the Armed Forces Tribunal Act, 2007, thus, the order passed by the Armed Forces Tribunal is not amenable to challenge under Article 226 of the Constitution of India, 1950 as alternate statutory remedy is available in form of Section 30 read with Section 31 of the Armed Forces Tribunal Act, 2007.

"Whether a petition for a writ in the nature of habeas corpus, under Article 226 of the Constitution of India, 1950, can be entertained against the order of preventive detention passed under any enactment authorizing preventive detention?"

It was held that:

1. There is nothing in Article 32 of the Constitution of India, 1950 which requires that the body of a person detained must be produced before an application or writ of habeas corpus can be heard and decided by the court.
2. Writ of habeas corpus is essentially a procedural writ. It deals with the machinery of justice, not the substantive law. The object of the writ is to secure release of a person who is illegally restrained of his liberty. The writ is, no doubt, a command addressed to a person who is alleged to have another person unlawfully in his custody requiring him to bring the body of such person before the court, but the production of the body of the person detained is directed in order that the circumstances of his detention may be inquired into, or to put it differently, in order that appropriate judgment be rendered on judicial enquiry into the alleged unlawful restraint.
3. Article 21 of the Constitution of India, 1950, declares that no person shall be deprived of life and liberty except in accordance with the procedure established by law, thus it is essential that in every case, the question of illegal detention must be decided with utmost promptitude. Blackstone called the writ of habeas corpus as the great and efficacious writ which takes within its sweep any manner of illegal confinement. The writ of habeas corpus has been described as a writ of right which is granted ex debito justitiae. Though a writ of right, it is not a writ of course, thus, the applicant must show a prima facie case of his unlawful detention. Once, however, he shows such a cause and the return is not good and sufficient, he is entitled to this writ as of right.
4. A writ of habeas corpus may be prayed for in case of actual detention or imprisonment of a person if it is illegal or unconstitutional. But if a person is not actually detained, obviously a writ of habeas corpus would not lie.
5. Normally and as a general rule, an order of detention can be challenged by the detenu after such order as also the grounds of detention have been received by him and the order is executed. In exceptional cases, however, the High Court or the Supreme Court may exercise extraordinary powers (under Article 226 and Article 32 of the Constitution of India, 1950 respectively) to protect a person against an illegal invasion of his right to freedom by protecting him while still he is free by issuing an appropriate writ, direction or order including a writ in the nature of mandamus questioning an order of detention and restraining authorities from interfering with the right of liberty of an individual against whom such order is made.
6. If a person under detention files a writ of habeas corpus under Article 226 of the Constitution of India, 1950 before the High Court and the writ petition is dismissed, whether by a detailed order after considering the case on merits or by a non-speaking order, and the said detention is not challenged by preferring a special leave petition under Article 136 of the Constitution of India, 1950, and is allowed to become final, it would still be open to him to file an independent petition under Article 32 of the Constitution of India, 1950 seeking a writ of habeas corpus.
7. A person in detention by virtue of the order of detention under any enactment authorizing preventive detention or is in illegal detention of any private individual has a right to approach the High Court under Article 226 of the Constitution of India, 1950 in a habeas corpus petition.
8. The object of the writ of habeas corpus is to secure release of a person who is illegally restrained of his liberty. Where the detenu is not in detention, he may pray for a writ in the nature of certiorari to quash the impugned detention and/or writ in the nature of mandamus for restraining the authorities from arresting him but once he is arrested a writ of habeas corpus is the only remedy available against the illegal detention. The liberty of a citizen is a precious right, which cannot be transgressed by anyone, including the detaining authorities.
9. Writ of habeas corpus provides a prompt and effective remedy against illegal detention carried out under any enactment authorizing preventive detention.

The jurisdiction under Article 227 of the Constitution of India, 1950 is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India, 1950.

It was held that:

1. The maintainability of writ petition in a matter of landlord-tenant dispute was considered by the Hon'ble Supreme Court of India in the matter of: Shalini Shyam Shetty & Anr. V/s Rajendra Shankar Patil, (2010) 8 SCC 329 and in this case, Shalini Shyam Shetty & Anr. (Supra), the scope of interference by the High Court in civil matters/ private disputes under Article 226 of the Constitution of India, 1950 was considered and it was held that the High Court committed an error in entertaining writ petition in a dispute between landlord and tenant, where the respondent was only a private landlord.
2. The High Court under Article 227 of the Constitution of India, 1950 has jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well-established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under Article 227 of the Constitution of India, 1950 is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India, 1950.
3. The correctional jurisdiction can be exercised by the High Court under Article 227 of the Constitution of India, 1950 in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice by inferior court/tribunal.
4. A petition under Article 226/ Article 227 of the Constitution of India, 1950 can neither be entertained to decide the landlord-tenant dispute nor it is maintainable against a private individual to determine an intense dispute including the question of whether one party is harassing the other party. The High Court under Article 227 of the Constitution of India, 1950 has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them within the bounds of their authority.