In the instance case, suit was filed by the appellant for recovery of money from the principal debtor as well as the guarantors. As the case relates to recovery of debts therefore, it got transferred to Debt Recovery Tribunal, Calcutta. The case was decided by the tribunal against the principal debtor as well as against the guarantors. There are certain conditions specified by the court to entertain the curative petition in India. There are five types of writs named- Habeaus corpus, Certiorari , Mandamus, Prohibition, Quo warranto.
Why do we file writ petitions?
Supreme Court held that Certiorari can only be issued by the High Court for quashing the decisions of subordinate court. But by this writ High Court can’t quash decision of other high court or of its own bench. Further a sub- rule to this principle states that every decision of tribunal must be accompanied with a reason for giving such decision whereas this rule does not apply in English Common- Law. And in India also this rule is not a universally established rule though in certain cases in rigidly followed.
The accusation is that the individual is exercising public office without legal permission. In the case of Niranjan Kumar Goenka v University of Bihar and Others, Muzzafarpur19, the Patna High Court held that writ of quo-warranto cannot be issued against a person not holding a public office. If the inquiry leads to a finding, that a person is holding the office which he is not entitled to, the court may issues the writ of quo warranto preventing the person from acting further and may also declare to vacant the office. The Part III of the constitution contains some specifically protected rights which are called as Fundamental Rights.
There are 5 different types of writ provided under law, whereas, no such classification for orders has been made. It is generally issued by a higher court to a lower court either to transfer the pending case to a higher authority or squash the judgement passed. In the year 1991, the Supreme Court ruled that the writ of certiorari can also be issued against administrative authorities if their judgements are violating the rights of an individual. Articles 32 and 226 contain two distinct but related provisions regarding writ jurisdiction for the Supreme Court and High Court. The constitutional remedy against the violation of fundamental rights is provided by Article 32. The remedy specified in this article applies only to violations of fundamental rights.
But those reasons given by the tribunal or inferior court, would become easier for the court to make further decision and the reason will make give a clear picture of the authority given the decision. In cases where inferior court might have passed the order but the same does not completely dispose of the case so it might be necessary to apply both the writs- certiorari for quashing the decided issues and prohibition for barring further proceedings for continuing the case and deciding left issues. Primary object of writ of mandamus is to issue a command for directing the authority to do some work or abstain from doing some act. This whole process of issuing interim order/direction is known as “continuing Mandamus”.
The writ petition, a powerful legal tool, stands as a symbol of justice, accountability, and the protection of individual liberties within the ambit of the legal system. Writs of mandate are issued to correct an abuse of discretion or to compel the performance of a lower court for a nondiscretionary duty to act. Writs of prohibition are issued to prevent a threatened judicial act in excess of a court’s jurisdiction.
Writs can be filed on behalf of minority groups, disadvantaged sections of society, or individuals who may not have the means to challenge state actions through traditional litigation. The court will issue necessary orders or directions if the writ petition is allowed. In the earlier days, courts in England, usually refused to interfere in the matters where the Government or the concerned officer passed a non-speaking order (an order which on the face of it did not specify the reasons for the orders).
- Coelho v. State of Tamil Nadu6 and then in the historical judgment of the Court which came after 41 years on 24th august, 2017 in the case of- Justice K.S. Puttaswamy (Retd) and another vs. Union of India and others, regarding the right to privacy.
- “order given in that case was that an order of a civil court can be amended in a writ jurisdiction under Article 226”.
- In the other words error of law must be seen with open eyes and for establishing such an error there should be no need of any examination or further enquiry or argument in the case.
- It was also observed in this case that refusal of special leave does not come stand in a way of petitioner a principle of res judicata file filing a writ petition under Article 226 before the High Court.
- For instance, the debtor might not have any assets at the moment, but they might in the future.
Existence of legal right is the foundation of jurisdiction of a writ court to issue mandamus. Writs can only be issued by the High Court Under Article 226 of Indian Constitution,1950 and by The Supreme Court under Article 32 of Indian Constitution,1950. Indian constitution has adopted the concept of prerogative writs from English common law. Whereas, these writs are now available to a person aggrieved by the decision of the inferior courts or administrative body in England. Mandamus, a Latin word meaning “we command,” is an order from a higher court to a lower court, public authority, or law enforcement agency to perform an act within its jurisdiction.
Define Torts and its essential elements Law of Torts in India
Writ of mandamus can only be issued when there exists a legal right without a legal right it can’t be issued. A person be called aggrieved person only when he is denied a legal right by any person, court or board who has a legal duty to do something and abstains from doing it. Supreme Court declares that an application for the writ of habeas corpus can be filed by the person illegally jailed or can also be filed by any other person on his behalf provided that meaning of writ petition such any person must not be totally a stranger to the person wrongfully detained. Under Article 226, a person can move to the High Courts to file a writ petition when there is a violation of his/her fundamental rights. It should be noted that the authority against whom the writ petition is filed has to be present within the territory of India, otherwise, the petition has no value. Rule 10 of the Supreme Court Rules lists the criteria for granting certiorari and explains that the decision to grant or deny certiorari is discretionary.
Who can file a writ petition
Issued as a direction for officer or judge of an inferior court or tribunal. Proceeding of Article 226 is of Summary nature as it is seen in the above referred case “purushottam chandra ” that there is an availability of alternate remedy but the case needs to be decided early and fast therefore, petitioner seek remedy under Article 226. Therefore, proceeding under this Article are not suitable for making any arguments on questions of facts. In this case the Supreme Court has refused to issue the writ on the ground of futility and held that during the pendency of the proceedings validity period of contract has expired. Whereas, on application to the Supreme Court it is found that the question raised in the case before the high court was a pure question of facts and The High Court has no jurisdiction to interfere in the matters decided on facts by the tribunal.
In the other words error of law must be seen with open eyes and for establishing such an error there should be no need of any examination or further enquiry or argument in the case. The procedure followed in the instant case whereby the Home Secretary, in charge of Transport, himself a party to the dispute, heard the objections and the Chief Minister decided them, violated those principles, and the order of the State Government approving the scheme, therefore,must be quashed. Facts of the case- section 85 of Uttar Pradesh Panchayat Raj Act, 1947 a sub-divisional Magistrate does not have power to modify the order or sentence of Panchayati Adalat.