Articles 32 & 226 : Supreme Court Judgments On Scope Of Writ Jurisdiction [2021]

Writ Jurisdiction Cannot Be Utilised By A Litigant Only To Take Chance: Supreme Court

[Case: Vellanki Frame Works v. Commercial Tax Officer; Citation: LL 2021 SC 19]

"In our view, the extraordinary writ jurisdiction cannot be utilised by a litigant only to take chance and then to seek recourse to the other remedy after failing in its attempt on the basic merits of the case before the High Court", the Supreme Court bench comprising Justices AM Khanwilkar and Dinesh Maheshwari remarked while dismissing an appeal filed against the judgment passed by High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh.

[Case: UNITECH Limited v. Telangana State Industrial Infrastructure Corporation; Citation: LL 2021 SC 92]

A bench comprising Justices DY Chandrachud and MR Shah observed that presence of an arbitration clause within a contract between a state instrumentality and a private party is not an absolute bar to availing remedies under Article 226 of the Constitution. It held that the State and its instrumentalities are not exempt from the duty to act fairly merely because in their business dealings they have entered into the realm of contract.

[Case: Kapil Agarwal v. Sanjay Sharma; Citation: LL 2021 SC 123]

The Supreme Court bench comprising Justices DY Chandrachud and MR Shah observed that a High Court, invoking its powers under Article 226 of the Constitution of India, can quash an FIR if the same is found to be an abuse of process of law. In this case, a writ petition preferred by the accused for quashing the first information report registered under under Sections 420/406 of the Indian Penal Code against them was dismissed by the Allahabad High Court. The accused's contention was that the FIR against him is a counterblast to the cheque bounce complaint filed against the complainant.

[Case: Mehra Bal Chikitsalaya Evam Navjat Shishu ICU v. Manoj Upadhyaya; Citation: LL 2021 SC 163]

A bench of Justices Navin Sinha and Krishna Murari opined that a writ petition under Article 226 of the Constitution challenging judgments and orders passed by the State Consumer Disputes Redressal Commission is not maintainable.

"We cannot help but to state in absolute terms that it is not appropriate for the High Courts to entertain writ petitions under Article 226 of the Constitution of India against the orders passed by the Commission, as a statutory appeal is provided and lies to this Court under the provisions of the Consumer Protection Act, 1986. Once the legislature has provided for a statutory appeal to a higher court, it cannot be proper exercise of jurisdiction to permit the parties to bypass the statutory appeal to such higher court and entertain petitions in exercise of its powers under Article 226 of the Constitution of India," it was observed.

[Case: Kiran Devi v. Bihar State Sunni Wakf Board; Citation: LL 2021 SC 195]

With respect to sub-section (9) of Section 83 of the Wakf Act, a bench comprising Justices Ashok Bhushan, S. Abdul Nazeer and Hemant Gupta observed that a petition styled as one under Article 226 would not bar the High Court to exercise its jurisdiction which otherwise it possesses under a Statute and/or under Article 227 of the Constitution.

[Case: Rapid MetroRail Gurgaon Limited v. Haryana Mass Rapid Transport Corporation; Citation: LL 2021 SC 194]

A bench comprising Justices DY Chandrachud, MR Shah and Sanjiv Khanna observed that ordinarily a High Court in its jurisdiction under Article 226 of the Constitution has to decline to entertain a dispute which is arbitrable, unless there is a fundamental issue of public interest. In this case the High Court had entertained the writ petition even though there was an arbitration clause between the parties. In appeal, the Apex Court noted that the High Court was concerned over a fundamental issue of public interest, which was the hardship that would be caused to commuters who use the rapid metro as a vehicle for mass transport in Gurgaon.

Existence Of Arbitration Clause Does Not Debar Court From Entertaining A Writ Petition In Contractual Matter: Supreme Court

[Case: Uttar Pradesh Power Transmission Corporation Ltd. v. CG Power And Industrial Solutions Limited; Citation: LL 2021 SC 255]

A Bench of Justices Uday Umesh Lalit and Indira Banerjee observed that the existence of an arbitration clause does not debar the court from entertaining a writ petition. It reiterated that relief under Article 226 of the Constitution of India may be granted in a case arising out of contract.

"It is well settled that availability of an alternative remedy does not prohibit the High Court from entertaining a writ petition in an appropriate case. The High Court may entertain a writ petition, notwithstanding the availability of an alternative remedy, particularly (1) where the writ petition seeks enforcement of a fundamental right; (ii) where there is failure of principles of natural justice or (iii) where the impugned orders or proceedings are wholly without jurisdiction or (iv) the vires of an Act is under challenge", the Court held.

Writ Petition Can Be Entertained Only In Exceptional Circumstances When Alternate Remedy Is Available

[Case: Assistant Commissioner of State Tax v. Commercial Steel Limited; Citation: LL 2021 SC 438]

The Supreme Court bench of Justices DY Chandrachud, Vikram Nath and Hima Kohli observed that, when an alternate remedy is available, a writ petition under Article 226 of the Constitution can be entertained by a High Court only in following exceptional circumstances: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation.

Ground Reality Today Is That Almost No Tender Remains Unchallenged': Supreme Court Reemphasizes Limited Scope Of 'Tender Jurisdiction'

[Case: UFLEX Ltd. v. Govt. Of Tamil Nadu; Citation: LL 2021 SC 465]

"The ground reality today is that almost no tender remains unchallenged", the Supreme Court has remarked. The bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy observed that the enlarged role of the Government in economic activity and its corresponding ability to give economic 'largesse' was the bedrock of creating what is commonly called the 'tender jurisdiction'. The objective was to have greater transparency and the consequent right of an aggrieved party to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India, the court said.

The Court observed that costs must follow the cause in commercial matters including writ petitions. The court added that it is not a correct approach to presume that imposition of costs is a reflection on the counsel.

Existence Of Alternate Remedy Does Not Bar Exercise Of Writ Jurisdiction If Order Is Challenged For Want Of Jurisdiction

[Case: Magadh Sugar & Energy Ltd. v. State of Bihar; Citation: LL 2021 SC 495]

The Supreme Court observed that even if an alternate remedy exists, a High Court can exercise its writ jurisdiction if the order of the authority is challenged for want of authority and jurisdiction, which is a pure question of law.

Exceptions to the rule of alternate remedy arise, the the bench of Justices DY Chandrachud, Vikram Nath and BV Nagarathna noted, were:(a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged.

Writ Jurisdiction Not For Deciding 'Hotly Disputed Questions Of Facts'

[Case: Shubas Jain v. Rajeshwari Shivam; Citation: LL 2021 SC 343]

The Supreme Court has reiterated that a High Court cannot invoke its writ jurisdiction to adjudicate 'hotly disputed questions of facts'. It is not for the High Court to make a comparative assessment of conflicting technical reports and decide which one is acceptable, the bench of Justices Indira Banerjee and V. Ramasubramanian said.

High Court Under Article 226 Cannot Permit Party To Modify Its Offer Without Hearing Other Parties

[Case: Vaibhavi Enterprise v. Nobel Cera Coat Limited; Citation: LL 2021 SC 585]

The Supreme Court observed that High Court under Article 226 could not permit a party to modify its offer without hearing other parties. The bench of Justices MR Shah and AS Bopanna in the present matter was considering a special leave petition assailing Gujarat High Court's judgement in which the High Court had directed ONGC to finalize the contract with an applicant on the condition that it would lift the gas within 65 days from the date of allotment instead of 75 days as offered by it earlier.

Allowing the SLP, the Court observed, "So the procedure adopted by the High Court while disposing of the writ petition by permitting / allowing the original writ applicant to modify its offer and that too in exercise of powers under Article 226 of the Constitution of India, as observed herein above, is unsustainable and unknown to law. We have our own doubt whether in exercise of powers under Article 226 of the Constitution of India, the High Court could have permitted one of the bidders to revise / modify its offer. Even in the facts and circumstances of the case, the High Court felt that instead of inviting fresh bids, the same could be allowed, in that case also, similar opportunities ought to have been given to the other applicants also."

Non-Disclosure Of Past & Present Litigations Concerning Dispute Amounts To Suppression Of Material Facts : Supreme Court

[Case: Shri K Jayaram & Ors v. Bangalore Development Authority; Citation: LL 2021 719]

The Supreme Court held that non-disclosure of details of past and pending litigation concerning the subject-matter of the dispute would amount to material suppression of facts, which would disentitle a litigant from discretionary remedy under Article 226 of the Constitution.

A Bench comprising Justice Abdul Nazeer and Justice Krishna Murari also reiterated that while approaching the High Court under Article 226 of the Constitution, it is imperative that the petitioner must come with clean hands and put forward all facts before the Court without concealing or suppressing anything.

Bank Can't Be Directed By Writ Of Mandamus To Grant 'One-Time Settlement' Benefit To Borrower : Supreme Court

[Case: Bijnor Urban Cooperative Bank Limited, Bijnor v. Meenal Agarwal; Citation: LL 2021 SC 742]

No writ of mandamus can be issued by the High Court in exercise of powers under Article 226 of the Constitution of India, directing a financial institution/bank to positively grant the benefit of One Time Settlement Scheme to a borrower, the Supreme Court has held in a judgment. The court observed that merely because the proceedings under the SARFAESI Act have remained pending for seven years, the Bank cannot be held responsible for the same.

Managing A Construction Project Is Not Within The Jurisdiction Of Courts Supreme Court

[Case: Shelly Lal v. Union Of India; Citation: LL 2021 SC 10]

Managing a construction project is not within the jurisdiction of the court, bench comprising of Justices DY Chandrachud, Indira Banerjee and Sanjeev Khanna observed while declining to entertain a writ petition filed by 25 customers of a construction project. The petitioners sought a direction for the revival of the project or refund of the money, and a court monitored probe in the matter. Taking note of the prayers made, the observed:

"Essentially, the writ petition requires the Court to step into the construction project and to ensure that it is duly completed. This would be beyond the remit and competence of the Court under Article 32. Managing a construction project is not within the jurisdiction of the court."

Inappropriate To Entertain Art. 32 Plea By Homebuyers Against Developers: Supreme Courts Points To Provisions In CPA, RERA, IBC, Criminal Law

[Case: Upendra Choudhury v. Bulandshahar Development Authority; Citation: LL 2021 SC 91]

A bench of Justices DY Chandrachud and MR Shah declared that proceedings under Article 32 of the Constitution by a purchaser, seeking relief in respect of a real estate project, cannot be entertained. "On account of the economic meltdown and now the COVID pandemic, the real estate sector has taken a hit. If we entertain homebuyers' petitions against builders/developers under Article 32, it will open the flood-gates," the Bench said.

'Ambush PILs' Filed To Preclude Genuine Litigants; Summary Dismissal Of Earlier Article 32 Petition Won't Operate As Res Judicata

[Case: National Confederation of Officers Association of Central Public Sector Enterprises v. Union of India; Citation: LL 2021 SC 658]

The Supreme Court observed that the summary dismissal of an earlier writ petition under Article 32 of the Constitution does not operate as res judicata. "There is a trend of poorly pleaded public interest litigations being filed instantly following a disclosure in the media, with a conscious intention to obtain a dismissal from the Court and preclude genuine litigants from approaching the Court in public interest", the bench comprising Justices DY Chandrachud and BV Nagarathna observed. The court said that it must be alive to the contemporary reality of "ambush Public Interest Litigations"