Writ Of Certiorari Can Be Issued Even If Lis Is Between Two Private Parties: Calcutta High Court Reiterates

The single judge bench of Justice Moushumi Bhattacharya observed that a Writ of Certiorari is generally issued against the acts or proceedings of a judicial or quasi-judicial body. However, it relied on Supreme Court's decision in T.C. Basappa v. T. Nagappa; AIR 1954 SC 440 to reiterated that the Writ of Certiorari can be issued even if the lis is between two private parties.

The bench observed,

“This Court is of the view that this is a fit case where the action of the private respondent can be called into question and interfered with. There is no doubt that the petitioner must be given an opportunity to fight its case and the statutory forum must adjudicate on the lis which is already before it. Besides, cutting an adjudication short and rendering it infructuous is also in breach of a party’s right to see the end of an adjudication.”

The petitioner approached the High Court to direct the officer-in-charge, Beniapukur Police Station, not to take any steps in terms of an order dated 1st December, 2022 passed by the District Magistrate, South 24 Parganas under Section 14 of the SARFAESI Act, 2002 to take possession of the petitioner’s office.

Earlier, the petitioner approached the Debts Recovery Tribunal-III on 20.01.2023 under SARFAESI Act, against the order of the District Magistrate which was heard on 21.02.2023.

It was contended by the petitioner that the hearing could not be completed by the Presiding Officer, DRT-III on 21^st February, 2023 and no returnable date was fixed in the matter.

The counsel appearing for the State submitted that the Officer-in-Charge of the concerned P.S. was under instructions to take possession of the petitioner’s office and therefore executed the said order on 22^nd February, 2023.

The court observed that the respondent was aware and was represented in the hearing before the DRT and was also aware that the hearing had not been concluded on 21st February, 2023. Yet, it pre-judged the outcome of the application and dispossessed the petitioner while the matter was still before the DRT.

“It is inconceivable that during the pendency of a proceeding when a litigant is before a statutory forum and a constitutional forum, the respondent would give effect to the action impugned. The principles of natural justice demand that parties before a forum have a sufficient and equal opportunity of representation before the lis is decided. In this case, the respondent did not give that opportunity to the petitioner and in effect non-suited the petitioner before the challenge was adjudicated upon.”

The court said that a writ of Certiorari can also be issued against a body which has acted in flagrant disregard of the law or the rules of procedure or in violation of the principles of natural justice including failure of justice where no fixed procedure has been prescribed.

It thus directed the Officer-in-Charge of the concerned P.S. to restore possession of the property which was taken possession on 22 February 2022, by 8 p.m. on the date order i.e. 23rd February, 2023.

However, the court clarified that it has not gone into the merits of the case and the order has been passed purely on the view that the respondents have violated the petitioner’s right to a fair hearing.

The court listed the matter again on February 28.

Case Title: Rajeev Jhunjhunwala v. State of West Bengal & Ors.

Citation: 2023 LiveLaw (Cal) 48

Coram: Justice Moushumi Bhattacharya

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