Writ petition under Arts 226 and 227 of the Constitution of India

Indian Constitution has guaranteed certain fundamental rights to its citizens as enunciated in part III therein which includes a right to approach the Supreme Court for a writ under article 32. The High Courts are vested with writ jurisdiction under articles 226 and 227 to issue a writ in the nature of habeas corpus, mandamus, prohibitory certiorari and other direction to grant relief to the affected petitioner. High Courts have supervisory jurisdiction under article 227 to call for records of any subordinate judicial authority and review as well as rectify the error if any.

There are several occasions for the trial and lower appellate courts to pass orders on IAs  at different stages of a proceeding; among them some are amenable to revisional jurisdiction of the High Court and some are to be challenged by way of miscellaneous appeal before the immediate appellate court and for those where neither revision nor miscellaneous appeal is provided, the remedy for the aggrieved party is to invoke the writ jurisdiction of the High Court under article 227 (better mention both articles 226 and 227 to be on safer side to avoid office objection) of the constitution.  High Court would hear the petitioner at preliminary hearing and if satisfied about the error directs notice and even may stay further proceedings. On hearing both sides it would decide the matter on merits.

When a remedy for filing the revision under Section 115 of the Civil Procedure Code has been expressly barred, then in such a case, a petition under Article 227 of the Constitution of India would lie and not a writ petition under Article 226 of the Constitution of India. When the Parliament has thought fit to restrict the powers under Section 115 of the Code with a definite object, then, under such circumstances an order which is not revisable under Section 115 of the Code of Civil Procedure cannot be challenged by way of filing a Writ Petition under Article 226 of the Constitution invoking extraordinary jurisdiction of the High Court and that too an interlocutory order passed by the Civil Court in a Regular Suit proceedings. [Gujarat State Road Transport Corporation vs Firoze M. Mogal & anr., [LPA No. 1149/2002, DD 26.12.2013]. AIR 2014 Guj 33 (F.B).]

Inference drawn from facts raises question of law and is open to interference in revision. Where the inference that the issue of sub-letting was not clearly flowing from facts proved, setting aside of finding of sub-letting by High Court was held not improper. [S.F. Engineer vs Metal Box India Ltd., & anr., [CA No. 4189/2014, DD 28.3.2014]. 2014 AIR SCW 2167: AIR 2014 SC 2189: 2014 (6) SCC 780: 2014 (4) Scale 260: JT 2014 (4) SC 284.] Petitioner alleged that huge amount paid to middleman to influence State Government for acquisition. Same contention was taken in an earlier writ petition and writ appeal arising out of the dismissal of writ petition. Even in special leave petition before Supreme Court the same contention was raised. Subsequent writ petition raising same contention is barred by constructive res judicata and is not maintainable. [Krishnaprasad Y.U. & Ors  State of Karnataka & Ors. [W.P. No. 12110/2008, DD 21.04.2010]. 2011 (6) KLJ 670: 2012 (1) AIR KAR R 126.]

In a petition for regularization of unauthorized occupants the question ‘whether petitioners had better title to property, whether it was legal possession’, can be adjudicated by civil Court on basis of materials and evidence produced. Such adjudication cannot be done by Court in exercise of its writ jurisdiction. Writ petition is not maintainable as civil suit is a better alternative. Moreover, petitioners should have some legal title which they have to enforce is a condition precedent for maintainability of writ petition. Without proof of such title, petition is not maintainable. [Kariyappa S. N. & Ors.  The Executive Officer, Channagiri Taluk Panchayat. [W.P.Nos. 1231/2010, DD 25.1.2011]. 2011 (3) AIR KAR R 252 (DB).]

Applicability of bar of constructive res judicata to writ petition? Petitioner is a deputationist from State Government was absorbed in service of Food Corporation of India. His first writ petition filed against their absorption in Grade III was allowed. It was contended in his second writ petition filed by them for grant of advance increment is barred under principles of constructive res judicata and/or Order 2, Rule 2. The plea is not tenable as such claim could not have been raised in first petition when petitioners were not certain as to grade in which they would be fitted. Moreover, plea of resjudicata not raised in High Court cannot be raised for first time before Supreme Court. [Food Corporation of India & ors. v Ashis Kumar Ganguly & ors. [C.A.No.3481/2009, DD 12.5.2009]. 2009 AIR SCW 4498: AIR 2009 SC 2582: 2009 (7) SCC 734: 2009 (8) Scale 218.] Petitioner deputationist from State Government was absorbed in service of Food Corporation of India. First writ petition filed against their absorption in Grade III was allowed. Second writ petition filed by them for grant of advance increment was opposed as barred under principles of constructive res judicata and/or Order 2, Rule 2. Plea is not tenable as such claim could not have been raised in first petition when petitioners were not certain as to grade in which they would be fitted. Moreover, plea of res judicata not raised in High Court cannot be raised for first time before Supreme Court. [Food Corporation of India & ors. v Ashis Kumar Ganguly & ors. [C.A.No.3481/2009, DD 12.5.2009]. 2009 AIR SCW 4498: AIR 2009 SC 2582: 2009 (7) SCC 734: 2009 (8) Scale 218.]

 

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