Somnath Bharti vs National Human Rights Commission ...
2014 Latest Caselaw 7128 Del

*                HIGH COURT OF DELHI AT NEW DELHI

+                             W.P.(C) No.8938/2014

                                    Decided on : 23rd December, 2014

SOMNATH BHARTI                                             .....   Petitioner
            Through:             Mr.Deepak Khosla, Adv.

                     Versus

NATIONAL HUMAN RIGHTS COMMISSION & ORS.... Respondent
                   Through:      Mr.Jasmeet Singh, CGSC for UOI.
                                 Mr.Kundan Kr.Mishra, Adv. for
                                 R-2, R-3 and R-5.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. By virtue of the present petition, the petitioner has prayed for

the following reliefs:

i) Issue a writ of certiorari, or such other suitable order or direction, to the National Human Rights Commission (Respondent No.1), directing it to produce its records pertaining to Case No.252 / 30 / 8/ 2014 before this Hon'ble Court, and then, proceed to certify and declare them as incorrect.

ii) Issue a writ in the nature of a declaration, or such other suitable order or direction, holding and declaring that the ex parte sans jurisdiction order / direction dated 29.09.2014 of the National Human Rights Commission (Respondent No.1), passed by it in Case No.252 / 30 / 8 / 2014 is a 'nullity' in law, void ab initio, as if non est, and of no significance, consequence, relevance or effect.

iii) Issue a writ of mandamus, or such other suitable order or direction, to the State of NCT of Delhi to recover from the personal estate of any person who, without conducting himself in good faith, has complied with such 'nullity' order or direction of the NHRC, and has directed for, or authorized, the release of State Funds to any of the 12 women named therein.

iv) Issue of a writ of mandamus, or such other suitable order or direction, to the Union of India, the National Human Rights Commission, Delhi Police and the State of NCT of Delhi to jointly and severally pay to the petitioner a sum of not less than Rs.100 crores as compensation, and further direct that it be recovered from the personal estates of any and all persons who are responsible for this loss and / or injury to the State Exchequer.

2. I had heard the learned counsel for the petitioner yesterday

and he was directed to file an affidavit as to whether the petitioner

had appeared before the National Human Rights Commission

('Commission' for short) on 08.12.2014 and if so what was the

outcome of the proceedings before the Commission. Mr.Khosla stated that they did appear on 08.12.2014 and the matter was

simply adjourned to 15.12.2014 and he does not know what

happened thereafter as they did not appear.

3. Pursuant thereto, an affidavit has been filed by the petitioner

wherein it has been stated that on 08.12.2014 the petitioner had

appeared before the Commission and hearing was adjourned to

15.12.2014. On 15.12.2014 despite submissions having been made

and three judgments having been cited before the Commission, the

NHRC reserved the order on the application/plea of the petitioner

for recall of the order dated 29.09.2014.

4. It has been further informed to the court today that on

22.12.2014, the Commission has agreed to consider the plea of the

petitioner for recall of the order dated 29.09.2014 and fixed the

matter for 13.01.2015 at 11 AM. A copy of the order has also been

handed over in court. The same is taken on record wherein the

submissions of the petitioner with regard to the violation of his

right under Section 16 as well as the order being prejudicial to him

have been taken note of and order is yet to be passed by the

Commission.

5. Counsel for the petitioner has vehemently contended that

despite the NHRC being seized of the matter with regard to the

recall of the order in question, he can still maintain the writ petition

inasmuch as apart from violation of his rights, he is also claiming

damages to the tune of Rs.100 crores from the respondent on

account of the tortious liability and, therefore, wants to argue the

matter.

6. Counsel for the petitioner has also stated that since NHRC

has passed an order that it is not going to recall the order dated

29.09.2014 until and unless the petitioner establishes his innocence

and consequently the petitioner does not intend to join the

proceedings before the NHRC and, therefore, the present writ

petition is maintainable.

7. I do not agree with the submission of the counsel that the

present writ petition is maintainable on account of the fact that the

order dated 29.09.2014 is already under scrutiny before the NHRC.

A perusal of the order dated 22.12.2014, shows that the NHRC has

recorded the submissions of the petitioner and is still to pass the

orders for reconsideration.

8. In the light of the fact that the NHRC is still seized of the

matter with respect to challenge laid to its order dated 29.09.2014,

the present writ petition is premature. Even otherwise, one of the

fundamental principles of writ jurisdiction is that if a party has an

alternative efficacious remedy available to him, the writ petition

would not be maintainable.

9. The counsel has tried to cite judgments to contend that there

is no bar to the entertaining of the writ petition.

10. I do not feel that there is any necessity referring to these

judgments. The entertaining of the writ petition is a discretion with

the court.

11. In the instant case, the petitioner not only has the alternative

efficacious remedy of approaching the Commission, he has

actually gone to the Commission and filed an application for recall

of the order and, therefore, till the time the Commission rules on

this aspect of the matter, the present petition would be premature

and is accordingly dismissed.

V.K. SHALI, J

DECEMBER 23, 2014/dm