Upgrad LLM

writ

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Online (Querist)
31 May 2009

hello all learned experts
i read that under the article 226 writ can be filed in the highcourt while under the article 32 writ can be filed in the superem court both have writ power then what is the material differnces,in the both tpes of writ
pls inform me


A V VishalOnline (Expert)
31 May 2009

The Article 226 empowers High Courts to issue directions, orders or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. Such directions, orders or writs may be issued for the enforcement of fundamental rights or for any other purpose. It is well established that the remedy provided for in Article 226 of the Constitution of India is a discretionary remedy and the High Court has always the discretion to refuse to grant such a relief in certain circumstances even though a legal right might have been infringed. Availability of an alternative remedy is one of such considerations which the High Court may take into account to refuse to exercise its jurisdiction, but this principle does not apply to the enforcement of fundamental rights either under Article 32 or under Article 226 of the Constitution.

The Supreme Court in Mohd. Yasin v Town Area Committee (AIR 1952 SC 115) held that an alternative remedy is not a bar to move a writ petition in the High Court to enforce a fundamental right. This is the only exception.

In all other cases where no fundamental right is involved, it has been ruled that the High Court would not exercise its jurisdiction under Article 226 when an alternative, adequate, and efficacious legal remedy is available and the petitioner has not availed of the same before coming to the High Court. Of course, Article 226 is silent on this point; it does not say in so many words anything about this matter, but the Courts have themselves evolved this rule as a kind of self imposed restriction on their jurisdiction under Article 226.

The rule of exhaustion of a remedy before invoking jurisdiction under Article 226 has been characterised as a rule of policy, convenience and discretion rather than a rule of law, as per decision of the Supreme Court in State of Uttar Pradesh v Md. Nooh (AIR 1958 SC 86) and Baburam Prakash Chandra Maheshwari v Antarim Zila Parishad (AIR 1969 SC 556). The rule has been justified on the ground that persons should not be encouraged to circumvent the provisions made by a statute, providing for a mechanism and procedure to challenge administrative or quasi-judicial actions taken thereunder (Union of India v TR Varma (AIR 1957 SC 882)).

The Income-tax Act is a code in itself as regards legal remedies too. Against impugned orders, petitioners have effective and comprehensive legal remedies by way of appeal under section 246(1)(i) of the Act, further second appeal to the Income-tax Appellate Tribunal, a reference to the High Court and further appeal to the Supreme Court. Article 226 is not meant to circumvent statutory legal remedies. It is quite often held and reiterated by Courts that ordinarily the High Court should not entertain writ applications filed, bypassing the statutory legal remedies, where violation of fundamental rights is not involved.

At times it becomes necessary for the Court to remind itself about the self-imposed restraints and limitations in exercise of the power granted to the Court by the Constitution under Article 226. The Court can take judicial notice of the fact that large numbers of writ petitions are filed in the High Court by persons without exhausting statutory alternative remedies or other remedies available to them.

Further, what can be gathered from the decisions of the Supreme Court in U P Jal Nigam v Nareshwar Sahai Mathur (1 SCC 21); Titaghur Paper Mills Co. Ltd. v State of Orissa (142 ITR 663) and HB Gandhi v Gopi Nath and Sons ((1990) 77 STC 1) is that where statutory remedies are available or a statutory Tribunal has been set up, a petition under Article 226 should not be entertained, unless the statutory remedies are ill-suited to meet the demands of any extraordinary situation, for example, where the very vires of the statute is in question, or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require that recourse

B.B.R.Goud. (Expert)
31 May 2009

as per Art 32, the apex court is empowered to provide the constitutional remedies, against the violation of fundamental rights alone.
As per the Art 226, the high court is empowered to provide the constitutional and legal remedies, against the violation of fundamental and legal rights.

Swami Sadashiva Brahmendra Sar (Expert)
31 May 2009

Ditto. the supreme court can issue writs for enforcement of fundamental rights only but high court can issue writs for any other purposes also. thus, high court's power under 226 is wider than that of supreme court under art 32.



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