It is tritely etched in stone that Article 226 of the Constitution of India is a public law remedy. The powers vested under Article 226 of the Constitution of India have to be used sparingly and, in a manner, to proliferate the bonafide aim of the Constitution of India. It is elementary to posit that the writ being a public law remedy should not be exercised to settle the disputes pertaining to private law.
Article 226 is Public Law Remedy
The Supreme Court in the case of Dwarkanath v. ITO[1], discussed the phraseology of Article 226 of the Constitution of India as compared to English Law and emphasised on the prerogative nature of such writs in public law. The relevant extract of the said decision reads as under:-
“This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression nature” for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them.
That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Court to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary from of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself.”
Stressing upon the public law character attached with the writ remedy under Article 226 of the Constitution of India, the Supreme Court in the case of Life Insurance Corporation of India v. Escorts Ltd. and others[2], laid impetus on the fact that the Constitutional Courts, as a matter of prudence, should not be venturing into the disputes of private law flavour in the writ jurisdiction. The pertinent observation of the Supreme Court in the said case reads as follows:-
“102. For example, if the action of the State is political or sovereign in character, the court will keep away from it. The court will not debate academic matters or concern itself with the intricacies of trade and commerce. If the action of the State is related to contractual obligations or obligations arising out of the tort, the court may not ordinarily examine it unless the action has some public law character attached to it. Broadly speaking, the court will examine actions of State if they pertain to the public law domain and refrain from examining them if they pertain to the private law field.
The difficulty will lie in demarcating the frontier between the public law domain and the private law field. It is impossible to draw the line with precision and we do not want to attempt it. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the action and a host of other relevant circumstances.
When the State or an instrumentality of the State ventures into the corporate world and purchases the shares of a company, it assumes to itself the ordinary role of a shareholder, and dons the robes of a shareholder, with all the rights available to such a shareholder. There is no reason why the State as a shareholder should be expected to state its reasons when it seeks to change the management, by a resolution of the company, like any other shareholder.”
The concepts of public law and private law are not always separated with a fine line. At times, the distinction is thin and in such circumstances, the task before the Court is complex and delicate. The nature of action, nature of activity carried out by the State or its instrumentality, effect of such action on the public at large, infringement of any statutory or legal right etc. are some of the indicators which could influence the determination in this regard.
Violation of Rights as pre-requisite for invoking Writ jurisdiction
In a petition under Article 226 of the Constitution of India, no doubt, the High Court can ensure that no government land is encroached upon by any private individual or no unauthorised construction takes place.
Supreme Court in Jamia Arabia Nizamia Welfare Education v. DDA (2024) has categorically observed that encroachment is one of the worst forms of civil wrongs as it is like committing a “dacoity” in which the landowning agency itself loses its land and the public at large loses a valuable asset.
It was unequivocally stated that encroachment upon government land must be met with a stern action because in such cases, encroachers are not only unjustly enjoying the government land but also curtailing the rights of citizens at large from accessing the public land.
The Supreme Court in the case of Hindustan Petroleum Corporation Limited and others v. Dolly Das[3] has held that for invoking the writ jurisdiction, involvement of any constitutional or statutory right is essential and in the absence of a statutory right, the remedy under Article 226 of the Constitution of India could not be availed to claim any money in respect of breach of contract, tort or otherwise.
It was reiterated that in absence of any constitutional or statutory rights being involved, a writ proceeding would not lie to enforce a contractual obligation even if it is sought to be enforced against the State or its authorities.
Supreme Court in the case of Rajendra Motwani v. MCD[4], has categorically held that illegal construction per se does not give any person, a right to knock on the doors of the Constitutional Courts under Article 226 of the Constitution of India unless and until his individual or legal right was infringed. The relevant extract of the said decision reads as under:-
“10. The second reason for rejecting the argument urged on behalf of the appellants/plaintiffs is that an illegal construction in itself does not give any legal right to a neighbor. An illegal construction always no doubt gives locus standi to the local municipal authorities to seek removal of the illegal construction, but, a right of a neighbour only arises if the legal rights of light and air or any other legal right is affected by virtue of the illegal construction of the neighbor.”
The same principle was also upheld in the decisions of Supreme Court in the case of Vishwas Pathak v. MCD[5], Shiv Kumar v. South Delhi Municipal Corporation[6], Shiv Kumar v. South Delhi Municipal Corporation[7], wherein, it was reiterated that the Writ Court cannot entertain a petition when the individual or legal rights are not infringed.
Writ Jurisdiction in Cases involving disputed questions of facts
Yet another facet of the writ remedy under Article 226 of the Constitution of India is that the Constitutional Courts cannot be expected to conduct a roving or fishing enquiry in cases where contentious issues of facts exist.
The Supreme Court in the case of Radha Krishan Industries v. State of H.P.[8] has held that in cases where the disputed questions of facts are involved, the Court may decline to entertain the writ petition on that perspicuous count. The relevant extract of the said decision reads as follows:-
“(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.”
The Supreme Court in the case of Shubhas Jain v. Rajeshwari Shivam[9], has held that the Constitutional Courts, while exercising the writ jurisdiction, should restrain themselves from adjudicating the hotly disputed question of facts. The Court held as under:-
“26. It is well settled that the High Court exercising its extraordinary writ jurisdiction under Article 226 of the Constitution of India, does not 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.”
Furthermore, in the case of Union of India v. Puna Hinda[10], the Supreme Court has observed that in cases where disputed questions of facts are involved, the writ jurisdiction is not amenable. The relevant observations of the Supreme Court as observed in the said case read as under:-
“24. Therefore, the dispute could not be raised by way of a writ petition on the disputed questions of fact. Though, the jurisdiction of the High Court is wide but in respect of pure contractual matters in the field of private law, having no statutory flavour, are better adjudicated upon by the forum agreed to by the parties. The dispute as to whether the amount is payable or not and/or how much amount is payable are disputed questions of facts. There is no admission on the part of the appellants to infer that the amount stands crystallised.”
At this juncture, it is apropos to lend credence to the observations of the Constitution Bench decision of the Supreme Courting the case of Thansingh Nathmal v. Supdt. of Taxes[11] which reads as under:-
“Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative 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 evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore 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 trench upon an alternative remedy provided by 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 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.”
Supreme Court as well, in the case of Harpati v. State (NCT of Delhi)[12], has held that where there are disputed questions of facts involved, the High Court should not be entertaining the writ petition. The relevant extract of the said decision reads as under:-
“22. A reading of the aforesaid judgments makes it clear, that it is well settled proposition of law that when there are disputed question of facts involved in a case, the High Court should not exercise its jurisdiction under Article 226 of the Constitution of India. Particularly in cases where tortious liability and negligence is involved, it has been held that the remedy under Article 226 may not be proper.
In the instant case, the relief of compensation sought by the petitioners is contingent upon the resolution of the disputed question of facts raised, and these questions cannot be adjudicated only on the basis of affidavits. In view of the aforesaid, it would not be appropriate for Supreme Court to entertain the instant writ petition as there are disputed questions of fact involved, the resolution of which is necessary, as an indispensable prelude to the grant of the relief sought.”
Summary of the Discussion
An upshot of the above discussion clearly elucidates that the Constitutional Courts while exercising the extraordinary powers under Article 226 of the Constitution of India inter alia have to scrupulously ascertain-
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.
The aforesaid exigencies are only illustrative in nature and not exhaustive. 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.
Undoubtedly, the scheme of Article 226 of the Constitution of India does not envisage such a practice and therefore, the Courts should be mindful while exercising the extraordinary writ jurisdiction. This self-imposed fetter on the discretionary extraordinary power of the Constitutional Courts was kept keeping in mind the spirit of Article 226 of the Constitution of India.
Any petition wherein the rights involved are not clearly exposited and are in fact, rooted in complexity of disputed facts, the Court is constrained to start a roving enquiry and that may not be an appropriate recourse while exercising the writ jurisdiction. Writ being discretionary and prerogative in nature, should not be exercised liberally without establishing the individual or legal rights and consequential breach of obligations on the part of the authorities concerned.
On this fulcrum, Supreme Court also expresses its displeasure when petitions with vested interests are being filed under the writ jurisdiction. These cases lead to an undesirable docket explosion and often end up burdening the already saddled judiciary. Moreover, entertaining such writ petitions results in a domino effect and propels other litigants to file similar cases by frequently knocking on the doors of Constitutional Courts under Article 226 of the Constitution of India. Consequentially, these writ petitions, if being entertained, will consume not only judicial time but also resources, which can effectively be utilised in cases where parties have been awaiting the fate of their cases 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.
Reference
Resident Welfare Association v. South Delhi Municipal Corporation (2024)
[1] (1965) 3 SCR 536.
[2] (1986) 1 SCC 264.
[3] (1999) 4 SCC 450.
[4] 2017 SCC OnLine Del 11050.
[5] 2024 SCC OnLine Del 4171
[6] 2021 SCC OnLine Del 4323
[7] 2021 SCC OnLine Del 4323
[8] (2021) 6 SCC 771.
[9] 2021 SCC OnLine SC 562
[10] (2021) 10 SCC 690.
[11] 1964 SCC OnLine SC 13
[12] 2023 SCC OnLine Del 4607.