WRIT JURISDICTION: ARTICLE

226
(a) NATURE OF THE WRIT
JURISDICTION

• Under Art. 226(1), a High Court is empowered to

issue directions, orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, for the enforcement of a
Fundamental Right and for any other purpose. High
Courts exercise discretionary and equitable
jurisdiction under Art. 226
• The power of the High Court to entertain a petition
under Art. 226 is an original power whereas the
power of the Supreme Court while entertaining an
appeal under Art. 136 is an appellate power.
 Scope: Both Injunctive and Remedial
• The significant point to note is that under Art.
226, the power of a High Court is not
confined only to issue of writs; it is broader
than that for a High Court can also issue
any directions to enforce any of the
Fundamental Rights or "for any other
purpose". In a number of cases, courts have
issued directions rather than writs.-
Swayambar Prasad v. State of Rajasthan, AIR
1972
• The jurisdiction thus conferred on a High Court is to protect
not only the Fundamental Rights but even any other legal
right as is clear from the words 'any other purpose‘
• Article 226 provides an important mechanism for judicial
review of administrative act ion in the country.
• Seven Judge Bench decision in L. Chandra Kumar a two
Judge Bench of the Supreme Court in relation to dismissal
of two lakh employees by State Govt. for going on strike,
held that the High Court was empowered to exercise its
extra ordinary jurisdiction under Art. 226 to meet
unprecedented extraordinary situations with no parallel and
the availability of alternative remedy before Administrative
Tribunal would not be a bar.
• The great advantage of Art. 226 is that its scope
cannot be curtailed or whittled down by
legislation.
• The jurisdiction of the High Court under Art. 226
cannot be taken away by any legislation.
• Even when the Legislature declares the act ion or
decision of an authority final, and ordinary
jurisdiction of the courts is barred, a High Court is
still entitled to exercise its writ jurisdiction which
remains unaffected by legislation. Sajjan Singh v.
State of Rajasthan, AIR 1965 SC 845
• A mere wrong decision without anything more is not
enough to attract jurisdiction of the High Court under
Art. 226- Sadhana Lodh v. National Insurance Co. Ltd.,
(2003) 3 SCC 524.
• The High Court acts as a supervisory authority and
hence it cannot re-appreciate the entire evidence
adduced in the disciplinary proceeding to alter the
findings of the enquiring authority.
• Where a decision in an earlier writ petition adversely
affected the interest of the appellants, a second writ
petition at their instance was maintainable.
• Under Art. 226, the High Court may even grant a
declaratory relief when writ is not a proper remedy.
• A High Court can make an interim order pending final
disposal of the writ, (1997) petition-Kanoria Chemicals
& Industries Ltd. v. Uttar Pradesh State Electricity
Board
• A High Court cannot, however, give interim relief to
the petitioner if it does not propose to determine the
rights of the parties involved in the matter, but desires a
regular suit to be filed for the purpose.-State of Orissa
v. Madan Gopal, AIR 1952 SC 12 : 1952 SCR 28.
• The Supreme Court has given an expansive
interpretation to Art. 226 over time.
• Under Art. 226, instead of merely quashing an
administrative order as invalid when it is found to
be flawed, the judicial tendency is to mould the
relief according to the needs of the situation. In
this way, judicial review has assumed a very
positive and creative complexion-State of Gujarat
Steel Tubes v. Its Mazdoor Sabha, AIR 1980
• Therefore the power of H.C under 226 is both
injunctive and remedial in nature.
 Territorial Jurisdiction
• The High Court can issue a writ-
(1) to a person or authority having its location or
residence within the Court's territorial jurisdiction; or,
(2) if the cause of act ion either wholly or partly arises
within the High Court's territorial jurisdiction
When a part of the cause of act ion arises within one or
the other High Court, it will be for the petitioner to
choose his forum-Kusum Ingots & Alloys Ltd. v.
Union of India, (2004) 6 SCC 254 : AIR 2004 SC
2321.
It is the duty of the High Court before which the
writ petition is filed to ascertain whether any part
of the cause of act ion has arisen within the
territorial limits of its jurisdiction. It depends on
the facts of each case. When an order is
challenged, cause of act ion arises.-
• (i) at the place where the order was made, as well
as;
• (ii) at the place where its consequences fall on the
person concerned.
• ONGC v. Utpal Kumar Basu
It was wrong for the Calcutta High Court to assume
jurisdiction merely because the petitioner before it
resided or carried on business at Calcutta. It is for
the High Court to decide whether any part of the
cause of act ion has arisen within its territorial
limits of jurisdiction. The High Court ought not to
claim jurisdiction merely because some
insignificant event connected with the cause of
act ion happened within its territorial limits.
WRIT JURISDICTION NOT APPELLATE BUT
SUPERVISORY IN NATURE

• The Supreme Court has emphasized time and again that the power of the High
Court under Art. 226 is supervisory in nature and is not akin to appellate
power.
• The main purpose of this power is to enable the High Court to keep the various
authorities within the bounds of their powers, but not to sit as an appellate body
over these authorities.
• While exercising power under Art. 226, the High Court cannot go into the
correctness or merits of the decision taken by the concerned authority but a
review of the manner in which the decision is made (H.B. Gandhi, Excise and
Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons); it only
ensures that the authority arrives at its decision according to law (Gurdeep
Singh v. State of Jammu & Kashmir) and in accordance with the principles of
natural justice wherever applicable., AIR 1993
• The Court can also intervene if the authority acts unfairly or unreasonably.
 ALTERNATIVE LEGAL REMEDY
• A High Court does not ordinarily issue a writ
when an alternative efficacious remedy is
available.
• Under Art. 226, the High Court does not
decide disputes for which remedies under the
general law are available. Ordinary remedies
are not sought to be replaced by Art. 226.
• However, Where there is complete lack of
jurisdiction of the officer or authority or tribunal
to take act ion or there has been a contravention
of fundamental rights or there has been a violation
of rules of natural justice or where the Tribunal
acted under a provision of law, which is ultra
vires, then notwithstanding the existence of an
alternative remedy, the High Court can exercise
its jurisdiction to grant relief.-Seth Chand Ratan v.
Pandit Durga Prasad, (2003) 5 SCC 399 : AIR
2003 SC 2736.
 Laches/Delays
• No period of limitation is prescribed for a High Court to
exercise its power under Art. 226. Nevertheless, a writ petition
under Art. 226 may be dismissed by a High Court on the
ground of petitioner's laches because courts do not like stale
claims being agitated and unsettle settled matters.
• Therefore, writ petitions filed after inordinate delay are
usually dismissed.
• "The provisions of the Limitation Act do not as such apply to
the granting of relief under Art. 226. However, the maximum
period fixed by the legislature as the time within which the
relief by a suit in a civil Court must be brought may ordinarily
be taken to be a reasonable standard by which delay in seeking
remedy under Art. 226 can be measured."
Shri Vallabh Glass Works Ltd. v. Union of India –
• Art. 226 prescribes no period of limitation. What relief
should be granted to a petitioner under Art. 226 where
the cause of action arose in the remote past is a matter
of sound judicial discretion.
• A writ petition filed beyond the period of limitation
fixed for filing suits without any explanation for delay
is unreasonable.
• But this is not a rigid formula. There may be cases
where even a delay of a shorter period may be
considered sufficient to refuse relief under Art. 226.
 QUESTIONS OF FACT
• In a writ petition, theoretically, the High Court has jurisdiction to
determine questions both of fact and law- D.L.F. Housing
Construction v. Delhi Municipality, AIR 1976 SC 386
• But, usually, the Court is reluctant to go into questions of fact which
require oral evidence for their determination.
• The attitude of the courts is that questions of fact are best
determined in an ordinary civil suit after adducing evidence, and not
in a writ petition which is in essence supervisory and not appellate
jurisdiction.
• This principle has been stated by the Supreme Court as follows in
S.P. Gupta v. President of India :
• "The traditional rule in regard to locus standi is that judicial redress
is available only to a person who has suffered a legal injury by
reason of violation of his legal right or legally protected interest
• But in an appropriate case the Court may direct
the appointment of a committee to find out
whether allotments were made involving
political patronage and direct the authority
concerned to proceed on the basis of the
committee's findings- Ambika Mandal v. State
of Bihar (Now Jharkhand), (2008) 15 SCC 743
 LEGAL STANDING
• A petitioner should have 'legal standing' to file a writ petition- Prasar
Bharati Broadcasting Corpn. of India v. Debyajoti Bose, AIR 2000 Cal 43.
• As the Supreme Court has observed, "The requirement of locus standi of a
party to a litigation is mandatory; because the legal capacity of the party to
any litigation whether in private or public act ion in relation to any specific
remedy sought for has to be primarily ascertained at the threshold.
• The rule of locus standi has assumed much wider dimensions, in the day to
day expanding horizons of socio-economic justice and welfare of the state.
• Enunciating the broad aspect of PIL, BHAGWATI, J., observed that:
• "Whenever there is a public wrong or public injury caused by an act or
omission of the State or a public authority which is contrary to the
Constitution or the law, any member of the public act ing bona fide and
having sufficient interest can maintain an action for redressal of such
wrong or public injury." S.P. Gupta v. Union of India, AIR 1982 SC 149 :
1981 Supp SCC 87
TO WHOM CAN A WRIT BE ISSUED?

• Article 226 is broader in scope than Art. 32 as under Art.

226, a High Court may issue a writ not only for enforcement
of fundamental rights but "for any other purpose" as well.
• So, it is argued that the term "authority" in Art. 226 should
be given a broader and a more liberal interpretation than the
term "other authority" in Art. 12.
• There may be a body which may not fall within the compass
of Art. 12 (as it may not be regarded as an 'instrumentality'
of the state) but, nevertheless, it may still be regarded as an
'authority' under Art. 226 and may thus be subject to the
writ jurisdiction of the High Court.
• Harijander Singh v. Kakatiya Medical College, the Andhra Pradesh
High Court held that certiorari can go to a private affiliated college and
an order cancelling admission of a student in breach of natural justice
was quashed.
• In Kumkum v. Principal, Jesus & Mary College ,the Delhi High Court
issued mandamus against the Principal of such a private college on the
petition of a student in the matter of exercise of his powers under the
University Ordinances. The High Court ruled that the Principal holds a
public office, has statutory duties to perform and acts in a public
capacity. It is not necessary for purposes of mandamus that the office be
the creature of a statute. Public office is one where the powers and
duties pertaining to the office relate to a large section of the public.
• It is thus established now that the High Courts have power to issue writs
not only to statutory authorities and instrumentalities of the state but
also to "any other person or body performing public duty
 APPLICABILITY OF CIVIL PROCEDURE
CODE
(i) Necessary Parties
(ii) Suppression of fact
It is a well established principle that suppression of materials
exposes the petitioner to the risk of threshold dismissal. The
principle emanates from the very nature of the power of
interference under Art.226 {and since the court is sitting} i.e.
a discretionary jurisdiction. A person who approaches the
court for justice must come with clean hands and not one who
deliberately attempts to deflect the court from the true path of
justice by leading the court to injustice.
(ii) Res Judicata.-
• The rule of res judicata envisages that finality should attach
to the binding decisions pronounced by courts of competent
jurisdiction so that individuals are not made to face the same
litigation twice.
• Abuse of process
Abuse of process means utilizing the court's
process not for justice but for some other
ulterior motive.
 DISMISSAL OF WRIT PETITIONS IN LIMINE

• The Supreme Court has at times come with a heavy hand on the practice of the
High Courts dismissing writ petitions in limine.
• The Supreme Court has pointed out that the High Court may, in exercise of its
discretion, decline to exercise its extra- ordinary jurisdiction under Art. 226. The
discretion however is judicial.
• If the petition makes a frivolous, vexatious, or prima facie unjust claim, or a claim
which may not appropriately be tried, or seeks a relief which the Court cannot
grant, in a petition invoking extraordinary jurisdiction, the Court may decline to
entertain the writ petition.
• But when a writ petition raises an arguable or triable issue, or when the party
claims to have been aggrieved by the act ion of a public body on the plea that the
act ion is unlawful, high-handed, arbitrary or prima facie unjust, he is entitled to a
hearing on its petition on the merits.
• Dismissal of the petition in limine would be unjustified in such a situation
 DECLARATORY RELIEF
• Normally, under Art. 226, the High Court does
not grant merely a declaration unless the
person aggrieved has asked for the
consequential relief available to him.
• But the High Court can grant a mere
declaration if the petitioner is not entitled to
the further consequential relief on account of
some legal bar of circumstances beyond his
control.
 M.C. Sharma v. The Punjab University,
Chandigarh, AIR 1997 P & H 87.

• In the instant case, the petitioner came to the High Court for
declaration of a University Service Rule as unconstitutional.
• The problem was that unless the rule was declared
unconstitutional, the petitioner could not get any relief. The
relief could be given by the Administrative Service Tribunal
and not by the High Court.
• But the Tribunal could not declare the rule in question
unconstitutional. Only the High Court could do so. Because
of this division of jurisdiction between the High Court and
the Tribunal, the High Court gave the declaration holding
the impugned rule to be unconstitutional.
 MOULDING OF RELIEF
• The High Courts under Art. 226 have power not only to issue writs but also to
make orders and to issue directions. Accordingly, the High Courts do not only
issue writs, but discharge a much wider function, viz., to mould relief in
accordance with the facts of the case with a view to do complete justice
between the contending parties. One or two examples of how the courts mould
relief may be given here. High Court's power to consider subsequent events is
limited to the purpose of moulding the relief and does not extend to grant of a
relief for which no foundation was laid in pleadings of the parties.
• In Grindlays Bank v. I.T.O., the High Court while quashing the income-tax
assessment proceedings also directed that fresh assessment be made. The
appellant company contested this direction on the ground that the I.T.O. could
not make an assessment as it was time-barred. Over-ruling this objection, the
Supreme Court held that under article 226, the High Court may not only quash
the offending assessment order but may also mould the remedy to suit the facts
of the case. A party ought not to be permitted to gain any undeserved or unfair
advantage by invoking the Court's jurisdiction. The Court's direction for a fresh
assessment was necessary for properly and completely disposing of the writ
petition. It had jurisdiction to do so and acted in the sound exercise of its
judicial discretion in making it.
 GRANT OF COMPENSATION
• In DK Basu v. State of West Bengal, 21 the
Supreme Court accepted that compensation can be
awarded to the victims of torture in police custody.
In the instant case, the Supreme Court granted
compensation for the custodial death of a person as
this was held to be an infringement of Art. 21.
• In a case, under Art. 226, compensation has been
awarded to a Bengala Deshi lady who was gang
raped by railway employees at the Sealdah station-
Chairman, Railway Board v. Chandrima Das, AIR
2000 SC 988 : (2000) 2 SCC 465.
 INTERLOCUTORY ORDER
• When a writ petition is filed, the Court may make an interim or interlocutory
order.
• The purpose of such an order is to preserve in status quo the rights of the
parties, so that, the proceedings do not become infructuous or ineffective by
any unilateral overt act s by one side or the other during the pendency of the
writ petition.
• The scope and effect of an interim order would depend upon terms of the
order itself. In case of any ambiguity the interim order should be understood
in the light of prayer made for interim relief, facts of the case and terms of
the interim order- BPL Ltd. v. R. Sudhakar, (2004) 7 SCC 219 : AIR 2004 SC
3606.
• In Medical Council of India v. Rajiv Gandhi University of Health Sciences
the Supreme Court indicated the factors to be considered before granting any
interim relief namely, prima facie case, irreparable injury and balance of
convenience. The Court expressed the view that ordinarily the Court is
inclined to maintain status quo.
 Types
(i) HABEAS CORPUS
• The writ of habeas corpus is used to secure release of a person who
has been detained unlawfully or without legal justification.
• The great value of the writ is that it enables an immediate
determination of a person's right to freedom. Detention may be
unlawful if inter alia it is not in accordance with law, or the procedure
established by law has not been strictly followed in detaining a person,
or there is no valid law to authorise detention, or the law is invalid
because it infringes a Fundamental Right, or the Legislature enacting
it exceeds its limits.
• A habeas corpus petition was filed by the father of T. It was alleged
that T had been kept in illegal custody by the police officers. It was
established that T was killed in an encounter with the police. The
Court awarded Rs. 5 lac as compensation to the petitioner- Malkiat
Singh v. State of Uttar Pradesh, AIR 1999 SC 1522
 (ii) QUO WARRANTO
• The writ lies only in respect of a public office of a
substantive character.
• The writ does not therefore lie to question the appointment
of a college principal as it is not a public office.
• The writ calls upon the holder of a public office to show to
the Court under what authority he is holding that office. The
Court may oust a person from an office to which he is not
entitled. It is issued against the usurper of an office and the
appointing authority is not a party. The Court can thus
control election or appointment to an office against law, and
protect a citizen from being deprived of a public office to
which he may be entitled-Univ. of Mysore v. Govinda Rao,
AIR 1965 SC 491 : (1964) 4 SCR 575
 MANDAMUS
• Mandamus is a command issued by a Court commanding a public authority to
perform a public duty belonging to its office.
• Mandamus is issued to enforce performance of public duties by authorities of
all kinds. For example, when a tribunal omits to decide a matter which it is
bound to decide, it can be commanded to determine the questions which it has
left undecided.
• Mandamus is a discretionary remedy and the High Court has full discretion to
refuse to issue the writ in unsuitable cases.
• Under Art. 229(2), the Chief Justice of a High Court can make rules
prescribing conditions of service of officers and servants of the Court.
However, the rules relating to salaries etc. require the approval of the State
Executive.
• The Supreme Court has observed in State of West Bengal v. Nuruddin Malik :
"The courts can either direct the statutory authorities, where it is not
exercising its discretion, by mandamus to exercise its discretion or when
exercised to see whether it has been validly exercised. It would be
inappropriate for the Court to substitute itself for the statutory authorities to
decide the matter."
• Mandamus cannot be issued to the legislature to enact a particular
legislation. Similarly, mandamus cannot be issued to the executive
to make a particular rule in the exercise of its power of delegated
legislation, as the power to frame rules is legislative in nature
• A mandamus can issue to quash an illegal assessment of a tax and
for refund of money illegally realized as tax as a consequential
relief.
• But mandamus would not issue merely for refund of money due
from the State on account of its having made an illegal exaction, and
for this purpose a suit should be filed in a civil Court.
• A party seeking mandamus must first call upon the authority
concerned to do justice by performing its legal obligation and show
that it has refused or neglected to carry it out within a reasonable
time before applying to a Court for mandamus even where the
alleged obligation is established
 CERTIORARI & PROHIBITION
• The writs of certiorari and prohibition are issued practically on similar
grounds. The only difference between the two is that certiorari is issued to
quash a decision after the decision is taken by a lower tribunal while
prohibition is issuable before the proceedings are completed.
• The grounds for the issue of certiorari have been succinctly stated by the
Supreme Court in Syed Yakoob v. K.S. Radhakrishnan . The writ of certiorari
or prohibition is issued, inter alia on the following grounds:
• (1) when the body concerned proceeds to act without, or in excess of,
jurisdiction, or (2) fails to exercise its jurisdiction; or (3) there is an error of
law apparent on the face of the record in the impugned decision of the body;
or (4) the findings of fact reached by the inferiror tribunal are based on no
evidence; or (5) it proceeds to act in violation of the principles of natural
justice; or (6) it proceeds to act under a law which is itself invalid, ultra vires
or unconstitutional, or (7) it proceeds to act in contravention of the
Fundamental Rights