Monday, December 26, 2022

WRIT PETITION AGAINST A TRIBUNAL

 


Writ petition against a Tribunal

The Article 226 of Constitution of India deals with the rights relating to writ remedy against the violation of legal rights of citizen as opposed to Article 32 of Constitution of India which is for enforcement of fundamental rights. In fact, Article 226 is in a sense wider, in as much as, the writ remedy lies before high courts and in respect of infringement of both legal rights and fundamental rights. The writ remedy shall lie in respect of rights of citizen; However, Article 21 of the constitution relating to right to life and personal liberty is available to a foreigner as well. The reason of this could be well understood. In a welfare state, there cannot be a fetter to right to life even against a foreigner.  The writs are of following kinds:

(i)          Writ of Habeas Corpus

(ii)        Writ of Certiorari

(iii)       Writ of Mandamus

(iv)       Writ of Prohibition

(v)         Writ of Quo Warranto

 

The moot point of discussion, however, is the desirability or necessity of making Tribunal as a party to a writ petition. We know that with a view to maintain a writ petition, the relief shall directed against state or instrumentality of state as defined under Article 12 of constitution of India. What is of pertinence is that there are several instances, where the orders of tribunal itself is challenged under the writ petition as appellate remedy is not provided for. The vexed question is- whether, order passed by a Tribunal, if impugned in a writ petition shall entail that Tribunal should be made a party or a tribunal shall only be represented as State? No doubt, as per Article 12 of Constitution of India, the writ shall only lie against State and State is defined in the said Article. Still further, if substantial stake in any entity is that of state then too, a writ shall lie against that entity. As narrated, however, the crux of the discussion shall revolve around the desirability or necessity of a Tribunal to be arraigned as a party and in case it is done, whether, the same is permitted or not? In other words, whether a writ petition shall be maintainable, in case, a Tribunal is not made a party, or conversely, if Tribunal is made a party, whether the same shall be an unnecessary act. In practice, one is beset with such a situation often and therefore, a peep into the spectrum of law shall be imperative. Before going further, it is worthwhile to mention that Civil Courts or courts dealing with criminal case and judge heading them are not made a party and that probably emanates from the fact that provision of Revisional Jurisdiction as per Code of Criminal Procedure finds mention in section 401 of Cr.P.C and section 397-399 of Cr.P.C, the former for impugning order/judgment before the high court and the latter before the Sessions Courts from the orders passed by ld Magistrates. Similarly, as per Code of Civil Procedure, Revisional jurisdiction provisions are there as per Section 115 of Code of Civil Procedure. Needless to say that even as per Article 227 of Constitution of India, such orders of District Civil Courts, which is neither revisable nor appealable, still under Article 227 of Constitution of India such orders could be impugned and arraigning a presiding officer of civil courts as a party is not necessary.         

The earlier precedents in this regard could be have of a Constitution Bench decision of Supreme Court rendered in Thansingh Nathmal and others vs. The Superintendent of Taxes , Dhubri, reported in AIR 1964 SC 1419. It is held that the exercise of wide jurisdiction of the High Court under Article 226, is subject to self imposed limitation. The Supreme Court had explained that as under:

          

“The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution, the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.”

It is held by hon’ble Supreme Court in M.S kazi Vs Muslim Education Society & Ors (Civil Appeal No.11976-11977 of 2014 that:

“43.Therefore, the proposition that can safely be culled out is that the authorities or the tribunals, who in law are entitled to defend the orders passed by them, are necessary parties and if they are not arrayed as parties, the writ petition can be treated to be not maintainable or the court may grant liberty to implead them as parties in exercise of its discretion. There are tribunals which are not at all required to defend their own order, and in that case such tribunals need not be arrayed as parties. To give another example:- in certain enactments, the District Judges function as Election Tribunals from whose orders a revision or a writ may lie depending upon the provisions in the Act. In such a situation, the superior court, that is the High Court, even if required to call for the records, the District Judge need not be a party. Thus, in essence, when a tribunal or authority is required to defend its own order, it is to be made a party failing which the proceeding before the High Court would be regarded as not maintainable.” 

 

         The principle thus emerges is that if appellate remedy is available, no writ shall lie. For instance, award published by an Arbitrator cannot be challenged under the writ petition, since alternate remedy of raising objection to award is prescribed as per the provision of Section 34 of Arbitration & Conciliation Act 1996 (As amended and up to date). However, if no statutory appeal is provided for, then only a writ petition shall lie. For instance, the order passed by the Debt Recovery Tribunal (DRT) shall be appealable before DRAT, but the order passed by DRAT is not appealable and hence, a writ petition against the order of DRAT shall lies and the order of DRAT could be challenged by way of writ petition based on order through State.   

As regards desirability of making a tribunal a party in writ petition, the Supreme court or High Courts are generally not in favour of arraigning Tribunal as party. No doubt, if the conduct of Tribunal itself comes in question, then the Tribunal also can be made party. As a convention, therefore, it is not found desirable to make a tribunal a party in a writ petition, unless, the conduct of the tribunal itself is a question to be looked into.      

                          -----------

         Anil K Khaware

         Founder & Senior Associate

Societylawandjustice.com

 

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