Mohd. Aurangzeb vs The Dist. Magistrate And 6 Ors
2018 Latest Caselaw 3283 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 40
 

 
Case :- SPECIAL APPEAL No. - 1046 of 2018
 

 
Appellant :- Mohd. Aurangzeb
 
Respondent :- The Dist. Magistrate And 6 Ors
 
Counsel for Appellant :- Santosh Kumar Mishra,S.K.Varma
 
Counsel for Respondent :- C.S.C.,Deep Chand Singh,Vidya Bhushan Srivastava
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Harsh Kumar,J.

Heard Sri S.K. Varma, learned Senior Counsel assisted by Sri Santosh Kumar Mishra learned counsel for the appellant and Sri Deep Chand Singh learned counsel for the respondent nos. 4 to 7 and learned Standing Counsel for the respondent nos 1 to 3.

The special appeal questions the correctness of the judgement of the learned Single Judge dated 7th December, 2018 whereby the petition filed by the appellant has been dismissed on the ground that admittedly the document quashing whereof has been sought was not part of the writ petition. For this learned the Single Judge has relied on his own judgement in Writ Petition No. 59231 of 2011 Nause Khan Vs. State of U.P. and Others decided on 14.10.2011.

Sri Varma submits that there are two grounds on which he presses this appeal. Firstly, that the judgement which has been relied upon by the learned Single Judge does not reflect the correct position of law and he in turn has relied on the decision of a Division Bench in the case of S. Barrow Vs. State of U.P. and Another AIR 1958 All 154 paras 17 & 18 and contends that for the purpose of the exercise of writ of certiorari the records should be there before the Court and therefore even assuming for the sake of arguments that it was not appended along with the writ petition and had been appended along with the counter affidavit, the learned Single Judge could not have dismissed the writ petition merely on this ground that the document was not part of the petition.

The second ground of challenge is that the learned Single Judge has proceeded on an erroneous assumption of fact inasmuch as the appellant challenged the select list by means of a prayer through an amendment application that was formally allowed on 7th December, 2012 and an amendment to that effect praying for certiorari had been incorporated in the writ petition. This fact has been completely omitted to be noticed by the learned Single Judge in spite of the same having been pointed out and in spite of the fact that it clearly existed in the pleadings on record.

We have heard Sri Deep Chand Singh, learned counsel for the contesting respondents and we find that the appeal deserves to succeed on both grounds. The issuance of a writ of certiorari is in the exercise of powers under Article 226 of the Constitution of India. A writ of certiorari is issued in order to put the records straight and to correct an error which is brought before the Court for its consideration in the exercise of jurisdiction under Article 226 of the Constitution of India. The exercise of powers therefore is not dependent upon annexing or not annexing the document but is dependent upon the existence of the record before the Court. The source of the record no doubt, if is being made a matter of challenge is the primary duty of the petitioner to place it on record, but if for some reason if the same has been brought on record by a contesting respondent and is available before the Court then the Court cannot ignore it merely on the ground that it did not form part of the paper book of the writ petition. 

In the instant case, we find that a writ of certiorari has been sought for quashing the select list and an amendment was sought which was allowed on 7th December, 2012. The order passed by the learned Single Judge allowing the amendment application is extracted hereinunder:-

"Heard learned counsel for the petitioner.

The amendment application is allowed.

Learned counsel for the petitioner may carry out necessary amendment within a week.

Newly amended petitioners may file reply to the amended writ petition within the same period."

The document was very much on the record. In this view of the indisputable facts, we see no reason for the learned Single Judge to have refused to exercise judicial discretion in the exercise of powers under Article 226 of the Constitution of India when the document which was sought to be quashed was on record of the Court. The issue was considered in the case of S. Barrow (supra) on which reliance has been placed by the learned counsel for the appellant, and in order to substantiate the conclusions drawn hereinabove, we extract hereinunder para 18 of the said judgement:-

"(18) The learned Advocate-General asked us to refuse to set aside the impugned order, as it would revive an order which is in contravention of the Constitution itself. We, however, think that we should not allow an order, passed without jurisdiction, to stand, because all proceedings consequent to that order would also be without jurisdiction. The better course, in our opinion, would be to quash both the orders with the result that the Land Acquisition Officer would now proceed to determine compensation unhampered by any one of them.

The petitioner has applied for summoning of the record of the case, but he wants only the impugned order to be quashed. The record being before us, we think it is open to us to quash the prior unconstitutional order, which we find on the record. Art. 226 of the Constitution does not confine the powers of Courts to issuing prerogative writs in cases where a party makes an application for the purpose and we think the words are wide enough to authorise the High Court to quash an order suo moto. In any case, we think we have power under Art. 227 of the Constitution to set aside that order."

In a three Bench decision of the Supreme Court in the case of Prabodh Verma and Others vs. State of U.P. and Others 1984 4 SCC 251, the Apex Court while considering the scope of writ of certiorari traced out the legal history of such a prerogative writ up to the framing of our constitution and the incorporation of the variety of writs that can be issued under Article 226 of the Constitution of India. It was held that such writs were available with the High Courts for the enforcement of the rights conferred by Part III or for any other purpose. While explaining the powers that are exercisable by the High Court, the Apex Court referred to the decision in the case of Dwarkanath, Hindu Undivided Family Vs. I.T.O. AIR 1966 SC 81 where it was held that Article 226 ex facie confers a wide power on the High Court to reach injustice wherever it is found. It then referred to an earlier decision of the Apex Court in the case of Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar AIR 1963 SC 786 to reiterate that a certiorari lies to remove errors by quashing the proceedings of inferior Courts of Record or other persons or other bodies exercising judicial or quasi judicial functions.

We may gainfully reproduce paragraph nos. 31 to 37 of the judgement in the case of Prabodh Verma (supra) for a proper appreciation of this issue:-

31. "A writ of certiorari can never be issued to call for the record or papers and proceedings of an Act or Ordinance and for quashing such Act or ordinance. The writ of certiorari and the writs of habeas corpus, mandamus, prohibition and quo warranto were known in English common law as "prerogative writs". "Prerogative writs,' are to be distinguished from "writs of right" also known as "writs of course". Writs issued as part of the public administration of justice are called "writs of right" or "writs of course" because the Crown is bound by Magna Carta of 1215 to issue them., as for instance, a writ to commence an action at common law. Prerogative writs are (or rather, were) so called because they are issued by virtue of the Crown's prerogative, not as a matter of right but only on some probable cause being shown to the satisfaction of the court why the extraordinary power of the Crown should be invoked to render assistance to the party. The common law regards the Sovereign as the source. Or fountain of justice, and certain ancient remedial processes of an extraordinary nature, known as prerogative writs, have from the earliest times issued from the Court of King's Bench in which the Sovereign was always present in contemplation of law. (See Jowitt's "Dictionary of Law" vol.2, p. 1885, and Halsbury's "Laws of England", 4th ed., vol. 11, para. 1451, f.n.3).

32. We are concerned here with the writ of certiorari "Certiorari' is a Late Latin word being the passive form of the word "certiorari" meaning `inform' and occurred in the original Latin words of the writ which translated read "we. being desirous for certain reasons, that the said record should by you be certified to us,'. Certiorari was essentially a royal demand for information; the king, wishing to be certified of some matter, orders that the necessary information be provided for him. We find in DeSmith's "Judicial Review of Administrative Action", 4th edition, page 587, some interesting instances where writs of certiorori were so issued. Thus, these writs were addressed to the escheator or the sheriff to make inquisitions: the earliest being for the year 1260. Similarly, when Parliament granted Edward II one foot-soldier for every township, the writ addressed to the sheriffs to send in returns of their townships to the Exchequer was a writ of certiorari. Very soon after its first appearance this writ was used to remove to the King's Court at Westminster the proceedings of inferior courts of record: for instance, in 1271 the proceeding., in an assize of darrein presentment were transferred to Westminster because of their dilatoriness. This power was also assumed by the Court of Chancery and in the Tudor an early Stuart periods a writ of certiorari was frequently issued to bring the proceedings of inferior courts of common law before the Chancellor. Later, however, the Chancery confied its supervisory functions to inferior courts of equity. In "A New Abridgement of the Law", Seventh Edition, Volume II at pages 9 and 19, Matthew Bacon has described a writ of certiorari in these words:

"A CERTIORARI is an original writ issuing out of Chancery, or the King's Bench, directed in the King's name, to the judges or officers of inferior courts, commanding them to return the records of a cause pending before them, to the end the party may have the more sure and speedy justice before him, or such other justice as he shall assign to determine the cause."

33. By the time of King Charles II, however, applications for certiorari as also for habeas corpus and prohibition came to be made usually in the Court of King's Bench.

34. The different functions of the prerogative writs of prohibition, certiorari and mandamus have been thus described in Halsbury's Laws of England, Fourth Edition, Volume I, in para 80:

"Historically, prohibition was a writ whereby the royal courts of common law prohibited other courts from entertaining matters falling within the jurisdiction of the common law courts; certiorari was issued to bring the record of an inferior court into the King's Bench for review or to remove indictments for trial in that court, mandamus was directed to inferior courts and tribunals, and to public officers and bodies, to order the performance of a public duty, All three were called prerogative writs...During the seventeenth century certiorari evolved as a general remedy to quash the proceedings of inferior tribunals and was used largely to supervise justices of the peace in the performance of their criminal and administrative functions under various statutes. In 1700 (in R.v. Glamorganshire Inhabitants(1) and Groennevt v. Burwell(2) it was held that the Court of King's Bench would examine the proceedings of all jurisdictions erected by Act of Parliament, and that, if under pretence of such an Act they proceeded to arrogate jurisdiction to themselves greater than the Act warranted, the court would send a certiorari to them to have their proceedings returned to the court, so that the court might restrain them from exceeding that jurisdiction. If bodies exercising such jurisdiction did not perform their duty, the King's Bench would grant a mandamus. Prohibition would issue if anything remained to prohibit. The ambit of certiorari and prohibition was not limited to the supervision of functions that would ordinarily be regarded as strictly judicial, and in the nineteenth century the writs came to be used to control the exercise of certain administrative functions by local and central government authorities which did not necessarily act under judicial forms."

35. By the Administration of Justice (Miscellaneous Provisions) Act, 1938 (1 and 2 Geo. 6 c. 63) a more expenditious procedure was introduced under which instead of writs, orders of mandamus prohibition and certiorari are to be issued and the writ of quo warranto was abolished and its place an injunction is to issue against the usurper to the office in question restraining him from acting in that office and, if the case so requires, declaring that office to be vacant. These were, however, procedural changes only. By order 53 of the Rules of the Supreme Court, 1965, substituted for the old order 53 by Rules of Supreme Court (Amendment No.3), 1977 (S.1. 1977 No.1955), far reaching changes, not merely in the form but in the substance of procedural law, were introduced whereby reliefs by way of mandamus, prohibition, certiorari, declaration and injunction have been joined together under the general head of `judicial review' for which an application can be made for any or all of these reliefs in the alternative or in addition to other reliefs arising out of the same matter and the court is also conferred the power to award damages. An application, however, cannot be made without leave of the court and unless the court "considers that the applicant has a sufficient interest in the matter to which the application relates". The expression `sufficient interest' has enabled the court in England to enlarge the rule of locus standi by giving to that expression a liberal interpretation.

36. In India, prior to the Constitution, the power to issue prerogative writs was vested only in three High Courts, that is, the High Courts established by Letters Patent issued by Queen Victoria under authority given by the Indian High Courts Act, 1861 (24 & 25 Vict c, 104) for the establishment of the High Courts of Judicature at Fort William in Bengal and at Madras and at Bombay for these three presidencies, namely, the High Courts of Calcutta, Madras and Bombay. Hence this Act is generally called the Charter Act and the High Courts established there under the Chartered High Courts. These High Courts were the successors so far as their original jurisdictions were concerned of the Supreme Courts which were established in these three Presidency- towns and inherited from those courts the powers of the Courts of King's Bench which included the power to issue prerogative writs, Apart from these three High Courts none of the other High Courts in India possessed this power. The position was changed when the Constitution of India came into force. Article 225 continues the jurisdiction of existing High Courts. Article 226, however, confers upon every High Court the power to issue to any person or authority, including in proper cases, any Government, within the territories in relation to which it exercises jurisdiction, "directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them, for the enforcement of the rights conferred by Part III or for any other purpose". It may be mentioned that under Article 32 of the Constitution, the same power as has been conferred upon the High Courts is conferred upon this Court without any restriction as to territorial jurisdiction but, unlike the High Court, restricted only to the enforcement of any of the rights conferred by Part III of the Constitution, namely, the Fundamental Rights. Referring to Article 226, this Court in Dwarka nath,Hindu Undivided Family v. I.T.O. said:

"This article is couched in comprehensive phraseology and it ex-facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England but the scope of those writs also is widened by the use of the expression `nature', for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them, That apart High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the high Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Art. 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government in to a vast country like India functioning under a federal structure, such a construction defeats the purpose of the article itself. To say this is not to say that the High Courts can function arbitrarily under this article. Some limitations are implicit in the article and others may be evolved to direct the article through the defined channels."

37.The fact that the High Courts and a fortiori this Court have power to mould the reliefs to meet the requirements of each case does not mean that the draftsman of a writ petition should not apply his mind to the proper relief which should be asked for and throw the entire burden of it upon the Court.An Advocate owes a duty to his client as well as to the Court - a duty to his client to give of his best to the case which he has undertaken to conduct for his client and a duty to assist the Court to the utmost of his skill and ability in the proper and satisfactory administration of justice. In our system of administration of justice the courts have a right to receive assistance from the Bar and it is the duty of the advocate who drafts a writ petition or any other pleading to ask for appropriate reliefs. The true nature of a writ of certiorari has been pointed out this by Court In several decisions. We need refer to only one of them, namely, Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar. In that case Subba Rao. J., as he then was, speaking for the court, said:

Certiorari lies to remove for the purpose of quashing the proceedings of inferior courts of record or other persons or bodies exercising judicial or quasi judicial functions. It is not necessary for the purpose of this appeal to notice the distinction between a writ of certiorari and a writ in the nature of certiorari: in either case the High Court directs an inferior tribunal or authority to transmit to itself the record of proceedings pending there in for scrutiny and, if necessary, for quashing the same."

The power of judicial review through writs therefore is of a very wide amplitude and cannot be fettered by mere technicalities.

Apart from this we further find that the learned Single Judge has erroneously assumed that it was not possible to entertain this writ petition as the document was not part of the writ petition. For this the learned Single Judge has relied on his own judgement dated 14th October, 2011 which is extracted hereinunder in the case of Nause Khan Vs. State of U.P. Writ Petition No. 59321 of 2011.

"1. There is no recovery certificate or citation challenged in this writ petition. Petitioner has sought a writ of certiorari quashing the recovery certificate and citation dated 26.09.2011, copy thereof has not been placed on record.

2. In absence of order sought to be quashed, not appended to writ petition, the relief of certiorari for quashing the same cannot be granted. The writ petition, therefore, as drafted, is not entertainable.

3. Dismissed."

We have gone through the said judgement and it does not lay down any such ratio on the basis of any principle having been discussed and consequently we are not bound by the same.

For the exercise of the powers of writ of certiorari the physical presence of the record is necessary and the Court has the power to call for the records in order to exercise this prerogative writ. This power is inherent and inbuilt under Article 226 of the Constitution of India and therefore the Court can compel physical presence of the document for the purpose of its quashing. The party claiming such a relief namely the writ petitioner therefore has the primary duty to bring the same on record but if for some valid reason and in spite of genuine efforts the writ petitioner is prevented from receiving such records or is otherwise not made available to him then the Court can summon the records in the exercise of the powers under Article 226 of the Constitution of India.

Our observations hereinabove may not be construed as a licence for filing of petitions without bringing on record the document the quashment whereof is sought. It is the duty of the writ petitioner to comply with the rules prescribing the procedure of filing of writ petitions as contained in Chapter XX of the Allahabad High Court Rules, 1952. Rule 1(2) thereof to the extent necessary for our purpose is extracted hereinunder:-

"The application shall set out concisely in numbered paragraphs the facts upon which the applicant relies and the grounds upon which the Court is asked to issue a direction, order or writ and shall conclude with a prayer stating clearly, so far as the circumstances permit, the exact nature of the relief sought. The application shall be accompanied by an affidavit (or affidavits) verifying the facts stated therein by reference to the numbers of the paragraphs of the application containing the facts."

Coupled with this Rule 8 recites as under:-

"8. Procedure.- All questions arising for determination under this chapter shall be decided ordinarily upon affidavits, but the Court may direct that such questions as it may consider necessary, be decided on such other evidence and in such manner as it may deem fit and in that case, it may follow such procedure and may pass such order as may appear to it to be just."

The writ petitioner therefore has to exercise due diligence to bring on record all pleadings and evidence as has been held by the Apex Court in the Case of Bharat Singh and Others Vs. State of Haryana 1988 4 SCC 534. The relevant extract of paragraph 13 of the said judgement is reproduced hereinunder:-

"In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, it spite of that, we have entertained it to show that it is devoid of any merit."

The writ petition however should not be thrown out if the petitioner in spite of exercise of due diligence is unable to procure the document under challenge. A writ petitioner however has these days is facilitated with all electronic devices having sufficient means to procure orders, notifications or the like that are under challenge that are made available online or through internet services or websites. Even otherwise, the provisions of the Right to Information Act, 2005 are available for procuring such information and thus, the filing of writ petitions should be complied in all respects but at the same time this Court is not denuded of its power of entertaining a writ petition and calling for the records of proceedings that is prayed for quashing.

The view expressed by the learned Single therefore cannot stand the scrutiny of law. The appeal therefore deserves to be allowed. The appeal is accordingly allowed. The impugned judgement dated 7th December, 2012 is set aside.

The writ petition shall stand restored to its original number and shall be considered by the learned Single Judge on merits on the submissions advanced by the parties concerned.

Let the writ petition be listed before the appropriate Court in the next cause list.

Order Date :- 24.10.2018

P Kesari