Constitutional Courts Entertaining Writ Petitions Without Proper Caution Would Breach Trust Of Genuine Litigants: Delhi High Court

The Delhi High Court has observed that a writ petition under Article 226 of Constitution of India, which alleges encroachment on government land, cannot be entertained if it requires the court to conduct a 'roving or fishing enquiry' into disputed facts of the case.

Justice Purushaindra Kumar Kaurav observed that Article 226 is a public law remedy and cautioned that entertaining writ petitions filed with vested interest would be committing breach of trust towards genuine and bonafide litigants.

The High Court was considering petition filed by the petitioner-association, which claimed that the respondent-apartment society encroached upon a government land.

The petitioner-association claimed that the respondents illegally constructed a boundary wall opposite to the residences of its members and that the boundary wall caused a public nuisance and blocked the passage of its members to approach public utilities

Determining public law character of writ petitions u/A 226

The Court noted that Article 226 of the Constitution is a public law remedy and the public law character can be determined based on the nature of the action, effect of such action on the public at large, violation of any statutory or legal right, etc.

It explained that constitutional courts while exercising their powers under Article 226 have to consider the following:

“i) whether the petition has been filed with any oblique motive or vested interest,

ii) whether disputed and complex questions of facts are involved that require a shred of evidence,

iii) whether there exists an alternate and equally efficacious remedy to address the grievance,

iv) whether any individual or legal right of the petitioner has been violated along with consequential breach of obligations on part of authorities concerned thereto,

v) whether the nature of action and nature of activity under question falls in the domain of public law etc.”

It remarked that the courts would be 'committing a breach of trust' on genuine litigants if the writ petitions are entertained without considering the above-mentioned requirements.

“Without such a meticulous exercise, if writ petitions are being readily entertained, then the Constitutional Courts would be committing a breach of trust against the genuine and bonafide litigants who have reposed faith in the constitutional machinery and have been longing since ages in the hope of justice.”

The Court disproved the practice of filing petitions under Article 226 with vested interests. It remarked that such cases burden the judiciary and results in a domino effect where other litigants will file similar cases under Article 226.

It stated that if such petitions are entertained, it will only consumer judicial time and resources, which could be used in cases where parties have been waiting for a verdict since ages.

“In a judicial system with mounting pendencies, it is necessary for the Courts to ensure that judicial time is used judiciously. Judicial time, in principle and in fact, is public's time and the principles discussed above are only meant to ensure that it goes to the deserving causes so that the constitutional promise of guaranteed protection of rights is fulfilled in a time-bound manner.”

Roving enquiry cannot be conducted u/A 226

It observed that High Courts can entertain petition under Article 226 if there has been encroachment or unauthorised construction on government land. However, courts cannot conduct “…a roving or fishing enquiry in cases where contentious issues of facts exist” while exercising their jurisdiction under Article 226.

The Court stated that if the petition does not disclose any rights being violated and if the court has to start a roving enquiry into disputed facts, it would not be fit to exercise jurisdiction under Article 226. It noted that as writ jurisdiction is discretionary, it cannot be exercised without establishing legal rights and consequent breach of obligations from concerned authorities.

It observed that it is not possible for High Courts to entertain all cases of public nuisance and encroachments under writ jurisdiction.

The Court emphasised that alternate legal remedies are available for such cases. Such remedies include Section 152 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which empowers the District Magistrate/ Sub-divisional Magistrate to remove any unlawful obstruction or nuisance from a public place; a Special Task Force constituted by the Ministry of Housing and Urban Affairs to monitor illegal constructions and encroachments on public land; and filing a civil suit.

In the present case, the Court noted that the boundary wall has been in existence for more than 30 years. It remarked that there are several disputed questions of facts, such as the party who constructed the boundary wall, whether it was constructed on public or private land, whether the boundary wall obstructed access to public spaces, etc

It noted that “All these are undoubtedly debatable questions of facts and if such controversies are entertained in the writ petitions, the Constitutional Courts would be engaging in roving enquiries into such contentious facts, which would mandatorily require thorough leading of evidence from both the parties and adjudication thereupon.”

The Court thus held that the present petition cannot be entertained under Article 226. It dismissed the petition, while granting liberty to the petitioner-association to avail appropriate remedy.

Case title: Resident Welfare Association vs. Kishan Devnani and Ors.

Citation: 2024 LiveLaw (Del) 936

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