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.
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Anil K Khaware
Founder & Senior Associate
Societylawandjustice.com
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