Hi, HNLU Logout

BOOKMARKS TOP STORIES NEWS UPDATES COLUMNS INTERVIEWS


FOREIGN/INTERNATIONAL ENVIRONMENT RTI KNOW THE LAW VIDEOS SPONSORED

ROUND UPS

JOB UPDATES BOOK REVIEWS EVENTS CORNER LAWYERS & LAW FIRMS CARTOONS SC JUDGMENTS लाइव लॉ हिं


Home / Top Stories / Articles 32 & 226 :...

TOP STORIES

Articles 32 & 226 : Supreme Court Judgments

On Scope Of Writ Jurisdiction [2021]
LIVELAW NEWS NETWORK 1 Jan 2022 4:57 PM

SHARE THIS -
Article 32 and 226 of the Constitution of India empowers the Supreme Court and the

High Courts respectively, to issue writs in the nature of habeas corpus, quo warranto,

mandamus, certiorari and prohibition. The following are judgments delivered by the

Supreme Court in which it dealt with the scope of this power.

On Article 226

Writ Jurisdiction Cannot Be Utilised By A Litigant Only To Take Chance: Supreme

Court

Also Read - All Supreme Court 2021 Digests & Round-Up Reports In One Place

[Case: Vellanki Frame Works v. Commercial Tax Officer; Citation: LL 2021 SC 19]

"In our view, the extraordinary writ jurisdiction cannot be utilised by a litigant only to

take chance and then to seek recourse to the other remedy after failing in its attempt
on the basic merits of the case before the High Court", the Supreme Court bench

comprising Justices AM Khanwilkar and Dinesh Maheshwari remarked while

dismissing an appeal filed against the judgment passed by High Court of Judicature

at Hyderabad for the State of Telangana and the State of Andhra Pradesh.

Also Read - Why Bishop Franco Mulakkal's Acquittal In Nun Rape Case Is Flawed?

Presence Of Arbitration Clause In Contract Between State Instrumentality & Private

Party Does Not Oust Writ Jurisdiction Under Article 226: Supreme Court

[Case: UNITECH Limited v. Telangana State Industrial Infrastructure Corporation;

Citation: LL 2021 SC 92]

A bench comprising Justices DY Chandrachud and MR Shah observed that presence

of an arbitration clause within a contract between a state instrumentality and a private

party is not an absolute bar to availing remedies under Article 226 of the Constitution.

It held that the State and its instrumentalities are not exempt from the duty to act

fairly merely because in their business dealings they have entered into the realm of

contract.

Also Read - NCDRC Issues Directions For Computation Of Limitation Period After

Supreme Court Restores Limitation Extension

Writ Jurisdiction Under Article 226 Can Be Invoked To Quash FIR If It Is Found To Be

Abuse Of Process Of Law: Supreme Court

[Case: Kapil Agarwal v. Sanjay Sharma; Citation: LL 2021 SC 123]

The Supreme Court bench comprising Justices DY Chandrachud and MR Shah

observed that a High Court, invoking its powers under Article 226 of the Constitution

of India, can quash an FIR if the same is found to be an abuse of process of law. In
this case, a writ petition preferred by the accused for quashing the first information

report registered under under Sections 420/406 of the Indian Penal Code against

them was dismissed by the Allahabad High Court. The accused's contention was that

the FIR against him is a counterblast to the cheque bounce complaint filed against the

complainant.

Also Read - Can High Court Order Release Of Vehicle Seized By Police Authorities

Under Rajasthan Police Act? Supreme Court To Consider

Writ Petition Under Article 226 Not Maintainable Against Orders Passed By State

Consumer Commission: Supreme Court

[Case: Mehra Bal Chikitsalaya Evam Navjat Shishu ICU v. Manoj Upadhyaya; Citation:

LL 2021 SC 163]

A bench of Justices Navin Sinha and Krishna Murari opined that a writ petition under

Article 226 of the Constitution challenging judgments and orders passed by the State

Consumer Disputes Redressal Commission is not maintainable.

"We cannot help but to state in absolute terms that it is not appropriate for the High

Courts to entertain writ petitions under Article 226 of the Constitution of India against

the orders passed by the Commission, as a statutory appeal is provided and lies to

this Court under the provisions of the Consumer Protection Act, 1986. Once the
legislature has provided for a statutory appeal to a higher court, it cannot be proper

exercise of jurisdiction to permit the parties to bypass the statutory appeal to such

higher court and entertain petitions in exercise of its powers under Article 226 of the

Constitution of India," it was observed.

Petition Styled As One Under Article 226 Would Not Bar High Court To Exercise Its

Jurisdiction Which Otherwise It Possesses: Supreme Court

[Case: Kiran Devi v. Bihar State Sunni Wakf Board; Citation: LL 2021 SC 195]

With respect to sub-section (9) of Section 83 of the Wakf Act, a bench comprising

Justices Ashok Bhushan, S. Abdul Nazeer and Hemant Gupta observed that a petition

styled as one under Article 226 would not bar the High Court to exercise its

jurisdiction which otherwise it possesses under a Statute and/or under Article 227 of

the Constitution.

HC Under Article 226 Should Not Entertain A Dispute Which Is Arbitrable Unless

There Is An Issue Of Public Interest: Supreme Court

[Case: Rapid MetroRail Gurgaon Limited v. Haryana Mass Rapid Transport

Corporation; Citation: LL 2021 SC 194]

A bench comprising Justices DY Chandrachud, MR Shah and Sanjiv Khanna observed

that ordinarily a High Court in its jurisdiction under Article 226 of the Constitution has

to decline to entertain a dispute which is arbitrable, unless there is a fundamental

issue of public interest. In this case the High Court had entertained the writ petition

even though there was an arbitration clause between the parties. In appeal, the Apex

Court noted that the High Court was concerned over a fundamental issue of public

interest, which was the hardship that would be caused to commuters who use the

rapid metro as a vehicle for mass transport in Gurgaon.

Existence Of Arbitration Clause Does Not Debar Court From Entertaining A Writ

Petition In Contractual Matter: Supreme Court

[Case: Uttar Pradesh Power Transmission Corporation Ltd. v. CG Power And Industrial

Solutions Limited; Citation: LL 2021 SC 255]

A Bench of Justices Uday Umesh Lalit and Indira Banerjee observed that the existence

of an arbitration clause does not debar the court from entertaining a writ petition. It

reiterated that relief under Article 226 of the Constitution of India may be granted in a

case arising out of contract.

"It is well settled that availability of an alternative remedy does not prohibit the High

Court from entertaining a writ petition in an appropriate case. The High Court may

entertain a writ petition, notwithstanding the availability of an alternative remedy,

particularly (1) where the writ petition seeks enforcement of a fundamental right; (ii)
where there is failure of principles of natural justice or (iii) where the impugned orders

or proceedings are wholly without jurisdiction or (iv) the vires of an Act is under

challenge", the Court held.

Writ Petition Can Be Entertained Only In Exceptional Circumstances When Alternate

Remedy Is Available

[Case: Assistant Commissioner of State Tax v. Commercial Steel Limited; Citation: LL

2021 SC 438]

The Supreme Court bench of Justices DY Chandrachud, Vikram Nath and Hima Kohli

observed that, when an alternate remedy is available, a writ petition under Article 226

of the Constitution can be entertained by a High Court only in following exceptional

circumstances: (i) a breach of fundamental rights; (ii) a violation of the principles of

natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the

statute or delegated legislation.

Ground Reality Today Is That Almost No Tender Remains Unchallenged': Supreme

Court Reemphasizes Limited Scope Of 'Tender Jurisdiction'

[Case: UFLEX Ltd. v. Govt. Of Tamil Nadu; Citation: LL 2021 SC 465]

"The ground reality today is that almost no tender remains unchallenged", the

Supreme Court has remarked. The bench of Justices Sanjay Kishan Kaul and

Hrishikesh Roy observed that the enlarged role of the Government in economic

activity and its corresponding ability to give economic 'largesse' was the bedrock of

creating what is commonly called the 'tender jurisdiction'. The objective was to have

greater transparency and the consequent right of an aggrieved party to invoke the

jurisdiction of the High Court under Article 226 of the Constitution of India, the court

said.

The Court observed that costs must follow the cause in commercial matters including

writ petitions. The court added that it is not a correct approach to presume that

imposition of costs is a reflection on the counsel.

Existence Of Alternate Remedy Does Not Bar Exercise Of Writ Jurisdiction If Order Is

Challenged For Want Of Jurisdiction

[Case: Magadh Sugar & Energy Ltd. v. State of Bihar; Citation: LL 2021 SC 495]

The Supreme Court observed that even if an alternate remedy exists, a High Court can

exercise its writ jurisdiction if the order of the authority is challenged for want of

authority and jurisdiction, which is a pure question of law.

Exceptions to the rule of alternate remedy arise, the the bench of Justices DY

Chandrachud, Vikram Nath and BV Nagarathna noted, were:(a) the writ petition has

been filed for the enforcement of a fundamental right protected by Part III of the

Constitution; (b) there has been a violation of the principles of natural justice; (c) the

order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is

challenged.
Writ Jurisdiction Not For Deciding 'Hotly Disputed Questions Of Facts'

[Case: Shubas Jain v. Rajeshwari Shivam; Citation: LL 2021 SC 343]

The Supreme Court has reiterated that a High Court cannot invoke its writ jurisdiction

to 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, the bench of Justices Indira Banerjee and V. Ramasubramanian said.

High Court Under Article 226 Cannot Permit Party To Modify Its Offer Without

Hearing Other Parties

[Case: Vaibhavi Enterprise v. Nobel Cera Coat Limited; Citation: LL 2021 SC 585]

The Supreme Court observed that High Court under Article 226 could not permit a

party to modify its offer without hearing other parties. The bench of Justices MR Shah

and AS Bopanna in the present matter was considering a special leave petition

assailing Gujarat High Court's judgement in which the High Court had directed ONGC

to finalize the contract with an applicant on the condition that it would lift the gas

within 65 days from the date of allotment instead of 75 days as offered by it earlier.

Allowing the SLP, the Court observed, "So the procedure adopted by the High Court

while disposing of the writ petition by permitting / allowing the original writ applicant

to modify its offer and that too in exercise of powers under Article 226 of the
Constitution of India, as observed herein above, is unsustainable and unknown to law.

We have our own doubt whether in exercise of powers under Article 226 of the

Constitution of India, the High Court could have permitted one of the bidders to revise

/ modify its offer. Even in the facts and circumstances of the case, the High Court felt

that instead of inviting fresh bids, the same could be allowed, in that case also, similar
opportunities ought to have been given to the other applicants also."
Non-Disclosure Of Past & Present Litigations Concerning Dispute Amounts To

Suppression Of Material Facts : Supreme Court

[Case: Shri K Jayaram & Ors v. Bangalore Development Authority; Citation: LL 2021

719]

The Supreme Court held that non-disclosure of details of past and pending litigation

concerning the subject-matter of the dispute would amount to material suppression of

facts, which would disentitle a litigant from discretionary remedy under Article 226 of

the Constitution.

A Bench comprising Justice Abdul Nazeer and Justice Krishna Murari also reiterated

that while approaching the High Court under Article 226 of the Constitution, it is

imperative that the petitioner must come with clean hands and put forward all facts

before the Court without concealing or suppressing anything.

Bank Can't Be Directed By Writ Of Mandamus To Grant 'One-Time Settlement' Benefit

To Borrower : Supreme Court

[Case: Bijnor Urban Cooperative Bank Limited, Bijnor v. Meenal Agarwal; Citation: LL

2021 SC 742]

No writ of mandamus can be issued by the High Court in exercise of powers under

Article 226 of the Constitution of India, directing a financial institution/bank to

positively grant the benefit of One Time Settlement Scheme to a borrower, the

Supreme Court has held in a judgment. The court observed that merely because the

proceedings under the SARFAESI Act have remained pending for seven years, the

Bank cannot be held responsible for the same.

 On Article 32

Managing A Construction Project Is Not Within The Jurisdiction Of Courts Supreme

Court

[Case: Shelly Lal v. Union Of India; Citation: LL 2021 SC 10]

Managing a construction project is not within the jurisdiction of the court, bench

comprising of Justices DY Chandrachud, Indira Banerjee and Sanjeev Khanna

observed while declining to entertain a writ petition filed by 25 customers of a

construction project. The petitioners sought a direction for the revival of the project or

refund of the money, and a court monitored probe in the matter. Taking note of the

prayers made, the observed:

"Essentially, the writ petition requires the Court to step into the construction project

and to ensure that it is duly completed. This would be beyond the remit and
competence of the Court under Article 32. Managing a construction project is not

within the jurisdiction of the court."

Inappropriate To Entertain Art. 32 Plea By Homebuyers Against Developers: Supreme

Courts Points To Provisions In CPA, RERA, IBC, Criminal Law

[Case: Upendra Choudhury v. Bulandshahar Development Authority; Citation: LL 2021

SC 91]

A bench of Justices DY Chandrachud and MR Shah declared that proceedings under

Article 32 of the Constitution by a purchaser, seeking relief in respect of a real estate

project, cannot be entertained. "On account of the economic meltdown and now the

COVID pandemic, the real estate sector has taken a hit. If we entertain homebuyers'
petitions against builders/developers under Article 32, it will open the flood-gates," the

Bench said.

'Ambush PILs' Filed To Preclude Genuine Litigants; Summary Dismissal Of Earlier

Article 32 Petition Won't Operate As Res Judicata

[Case: National Confederation of Officers Association of Central Public Sector

Enterprises v. Union of India; Citation: LL 2021 SC 658]

The Supreme Court observed that the summary dismissal of an earlier writ petition

under Article 32 of the Constitution does not operate as res judicata. "There is a trend

of poorly pleaded public interest litigations being filed instantly following a disclosure

in the media, with a conscious intention to obtain a dismissal from the Court and

preclude genuine litigants from approaching the Court in public interest", the bench

comprising Justices DY Chandrachud and BV Nagarathna observed. The court said

that it must be alive to the contemporary reality of "ambush Public Interest Litigations"

TAGS WRIT JURISDICTION SUPREME COURT JUDGMENTS 2021 

loading....

+ VIEW MORE
SIMILAR POSTS
All Supreme Court 2021 Why Bishop Franco
Digests & Round-Up Mulakkal's Acquittal In
NCDRC Issues Directions For
Reports In One Place Nun Rape Case Is
Computation Of Limitation
Flawed?
Period After Supreme Court
Restores Limitation Extension
2 Jan 2022 5:15 PM 16 Jan 2022 11:04 AM 16 Jan 2022 10:08 AM

Hate Speeches : Army Bishop Franco Mulakkal

Veterans Move Supreme Case : Why Court Found
Can High Court Order Release Of
Court Seeking SIT Probe Nun's Testimony
Vehicle Seized By Police
On Dharam Sansads Unreliable?
Authorities Under Rajasthan
Police Act? Supreme Court To
Consider
15 Jan 2022 7:25 PM 15 Jan 2022 6:09 PM 15 Jan 2022 5:29 PM

Hate Speech : Supreme

'Personal Liberty' : Supreme Lawyer Moves Supreme
Court Petitioner Writes
Court Allows Brother-in- Court Challenging Bombay
To Authorities Against
Law Accused In Section High Court Circular Reducing
Future Dharam Sansad
498A IPC Case To Travel Working Hours To 3 Due To
Meets
Abroad COVID
15 Jan 2022 2:47 PM 15 Jan 2022 2:26 PM 15 Jan 2022 1:56 PM
Dosage Of Hate Speech Is
Marital Rape - Plea Before AG Seeks
Increasing With Law's
'Classification On Basis Of Contempt Action Against Yati
Delay; Courts Can't Afford
Marriage Unreasonable' : Narsinghanand Over Remarks
To Look On
Amicus Curiae Tells Delhi Against Supreme Court
HC
15 Jan 2022 1:45 PM 14 Jan 2022 8:10 PM 14 Jan 2022 5:26 PM

+ MORE
WEBINARS

FULL VIDEO - Justice VR Krishna Iyer Memorial Lecture By Justice Nageswara Rao

+ MORE
LAW FIRMS
Dua Associates Represents Hughes Communications (HCIPL) In JV Formation With
BhartiAirtel Limited

+ MORE
LATEST NEWS

1 Bombay High Court Allows Age-Barred Law Graduate To Participate In Judges

Selection As Recruitments Got Stalled Due To COVID

2 Delhi High Court Weekly Round-Up: January 10 To January 16, 2022

3 Tendering Pardon To An Accomplice In A Case Triable By A Special Court Under

The Prevention Of Corruption Act, 1988

4 Alapan Bandyopadhyay Moves Delhi High Court Challenging Order Of Central

Administrative Tribunal, Principal Bench

5 Why Bishop Franco Mulakkal's Acquittal In Nun Rape Case Is Flawed?

COVID-Supreme Court Order Suspending Limitation Is Applicable For Refund

 Under GST Act – Bombay High Court
6

7 NCDRC Issues Directions For Computation Of Limitation Period After Supreme

Court Restores Limitation Extension

8 Kerala High Court Weekly Roundup [January 10 to January 15, 2022]

लाइव लॉ हिंदी + MORE

सुप्रीम कोर्ट वीकली राउंड अप : सुप्रीम कोर्ट के कु छ खास ऑर्डर/जजमेंट पर एक नज़र

बॉम्बे हाईकोर्ट COVID के कारण कामकाज के घंटे घटाए, सर्कु लर के खिलाफ वकील ने सुप्रीम कोर्ट का
रुख किया

सुप्रीम कोर्ट के खिलाफ टिप्‍पणी के मामले में यति नरसिंहानंद के खिलाफ अवमानना कार्र वाई की मांग,
एटॉर्नी जनरल को पत्र
पोक्सो : सुप्रीम कोर्ट ने छात्रा के यौन उत्पीड़न के आरोपी शिक्षक की हाईकोर्ट के फै सले को चुनौती देने
वाली याचिका पर नोटिस जारी किया

अगर सह-आरोपियों बरी हो गए हैं, 'गैरकानूनी रूप से जमा भीड़ के सदस्यों की संख्या 5 से कम हुई,
मामले में अज्ञात आरोपी नहीं है तो आईपीसी की धारा 149 की मदद से दोषसिद्धि टिकाऊ नहीं : सुप्रीम
कोर्ट
 + MORE
INTERNATIONAL

1 Judicial Commission Of Pakistan Recommends Elevation Of Justice Ayesha

Malik As First Female Judge Of Supreme Court

2 Myanmar Court Sentences Ousted Leader Aung San Suu Kyi To 4 Years Jail

3 Unwritten Constitutional Principles Like Democracy Is Part Of Constitution; But

Cannot Be Used As Bases For Invalidating Legislation: Canada Supreme Court

4 Children Born To Parents Outside Marital Bond Are Blameless; Differential

Treatment Towards Them Unconstitutional: South Africa Constitutional Court

+ MORE
ENVIRONMENT

1 Total Ban On Legal Mining Will Give Rise To Illegal Mining & Cause Huge Loss
To Public Exchequer: Supreme Court Modifies NGT Directives On Sand Mining

2 Dolomite Mining In Uttarakhand: NGT Orders ₹2 Cr Interim Compensation For

Environment Damage, Spreading Muck Beyond Allotted Area

3 Pollution In Doodh Ganga & Mamath Kull Of Jammu & Kashmir; NGT
Constitutes Five Member Committee To Ascertain Water Quality

4 TN Approaches Supreme Court To Restrain Karnataka From Proceeding With

The Proposed Construction Of Mekedatu Reservoir

JOB UPDATES

1. Legal cum Probation Officer Vacancy At District Child Protection Society, Kallakurichi,
Tamil Nadu

2. Empanelment Of Advocates (Chennai and Puducherry) Vacancy At Employees Provident

Fund Organization (EPFO)
3. Legal Researcher Vacancy At High Court Of Rajasthan, Jodhpur

4. Odisha Judicial Service Examination, 2021

5. Young Professional (Legal) Vacancy At Broadcast Engineering Consultants India Limited

+ VIEW MORE

JUST ENTER YOUR EMAIL FOR THE

LIVELAW DAILY NEWS BRIEFING BY
EMAIL ALL THE DAY'S HEADLINES AND
HIGHLIGHTS FROM LIVELAW, DIRECT
TO YOU EVERY MORNING

NEWSLETTERS
DIRECTLY IN YOUR MAILBOX

Enter Your Email

Submit
 TOP STORIES KNOW THE LAW

NEWS UPDATE LAW FIRMS

COLUMNS JOB UPDATES

INTERVIEWS BOOK REVIEWS

INTERNATIONAL EVENTS CORNER

RTI UPDATES COVER STORY

EDITOR'S PICK PLACEMENTS

LAW SCHOOL CORNER SCHOLARSHIPS

ARTICLES SEMINARS

CALL FOR PAPERS ENVIRONMENT

COMPETITIONS BOOK REVIEWS

INTERNSHIPS

© All Rights Reserved @LiveLaw

Powered By Hocalwire

Who We Are Careers Advertise With Us Contact Us Privacy Policy Terms And Conditions



X
Live Law subscriptions starting ₹ 899 +GST

Subscribe to Live Law now and get unlimited access.

SUBSCRIBE NOW

Already have an account? Sign In