Himachal Pradesh High Court
Rajesh Kumar vs National Highway Authority Of India And ... on 6 May, 2025
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( 2025:HHC:12764 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No.190 of 2025
Date of Decision : 06.05.2025
Rajesh Kumar
...... Petitioner
Versus
National Highway Authority of India and others
......Respondents
Coram:
The Hon'ble Mr. Justice Bipin Chander Negi, Judge
Whether approved for reporting?1
For the petitioner : Mr. Vipin Pandit, Advocate.
For the respondents : Nemo.
Bipin Chander Negi, Judge (oral)
By way of the present petition, an order dated 02.08.2024,
passed by the Division Commissioner-cum-Arbitrator, Shimla, has been
assailed, whereby, a petition filed under Section 3-G (5) of the National
Highways Act, 1956, has been dismissed as being time barred.
2. The maintainability of the present petition under Article 227
of the Constitution of India is debatable/questionable.
3. The language used in Article 226 of the Constitution is very
wide and the powers of all the High Courts in India extend to issuing of
orders, writs or directions including writs in the nature of 'habeas corpus,
mandamus, quo warranto, prohibition and certiorari' as may be
Whether reporters of Local Papers may be allowed to see the judgment?
( 2025:HHC:12764 )
considered necessary for enforcement of the fundamental rights and in
the case of the High Courts, for other purposes as well. In view of the
express provision, in our Constitution, the High Court can make an order
or issue a writ in the nature of certiorari in all appropriate cases and in
appropriate manner, so long as the High Court adheres to the broad and
fundamental principles that regulate the exercise of jurisdiction in the
matter of granting such writs in English law.
4. Certiorari was meant to supervise "judicial acts". The
expression "judicial acts" includes the exercise of quasi-judicial functions
by administrative bodies or other authorities or persons obliged to
exercise such functions and is used in contrast with what are purely
ministerial acts. "Judicial acts" are not meant to refer to judicial orders of
Civil Courts.
5. A distinction has been made between judicial orders of
inferior Courts of civil jurisdiction and orders of inferior tribunals or Court
which are not Civil Courts and which cannot pass judicial orders.
Therefore, judicial orders passed by Civil Courts of plenary jurisdiction
stand on a different footing. Judicial orders of Civil Courts are not
amenable to a writ of certiorari under Article 226 of the Constitution of
India (Refer to 2015 (5) SCC 423, titled Radhey Shyam and Another Vs.
Chabbi Nath & Others).
6. In case reported 2018 (15) SCC 356, titled Life Insurance
Corporation of India Vs. Nandini J. Shah and Others, an order passed
by an appellate authority under the relevant Public Premises Act was
( 2025:HHC:12764 )
assailed under Article 227 of the Constitution of India before the High
Court. In the said case challenge under Article 227 of the Constitution of
India was upheld as under the relevant Public Premises Act therein, the
appellate authority by virtue of Section 9 thereof was the District Judge of
the District in which the public premises was situate or such other judicial
officer with the required qualifications as were specified in the concerned
Act.
7. Keeping in view the aforesaid provision, it was held that the
appellate authority was exercising powers therein not in his capacity as a
persona designata but as a Civil Court/as a pre-existing judicial authority
in the District (being a District Judge or judicial officer possessing
essential qualification designated by the District Judge). Therefore, it was
held that being part of the district judiciary, the judge acts as a Court and
the order passed by him will be an order of the subordinate Court against
which remedy under Article 227 of the Constitution of India can be availed
on the matters delineated for exercise of such jurisdiction.
8. For the foregoing reasons, I am of the prima facie view that
in order to challenge the impugned judicial acts, in the case at hand, a writ
in the nature of certiorari under Article 226 should have been sought for.
9. Faced with the aforesaid, learned Senior Counsel for the
petitioner seeks permission to withdraw the present petition with liberty to
file an appropriate writ petition under Article 226 of the Constitution of
India. Permission Accorded.
( 2025:HHC:12764 )
10. The documents appended along with the present petition are
ordered to be returned to the present petitioner in order to enable him to
file an appropriate writ petition. However, photostat copies of the
documents be retained.
In view of the aforesaid, present petition is dismissed as
withdrawn, so also pending miscellaneous application(s), if any.
( Bipin Chander Negi)
May 06, 2025 (KS) Judge
