Writ jurisdiction

Rule of exhaustion of alternate remedy is not an absolute one as there may be exceptional cases wherein a petitioner may be allowed to seek his/her remedy by way of judicial review in spite of the existence of an alternative remedy, but casual deviation from such general rule will burden the constitutional courts with such matters where grievance of petitioner can be well redressed by any alternate forum

Further, the strict compliance to such settled principle will also help to improve the working of other statutory machineries to handle such disputes instead of invoking the constitutional jurisdiction of judicial review.

Article 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 does not confer any substantive right on any party but provides a person only an additional remedy under extraordinary jurisdiction.

Under common law, remedy of judicial review through writ jurisdiction is not available in the presence of adequate alternate remedy

Remedy by way of judicial review should be treated only as a remedy of last resort and should only be used in exceptional circumstances when other remedies, which would provide efficacious redressal, have been properly exhausted by a litigant.

Remedy of writ in its very nature is an extraordinary relief which is exercised in extraordinary circumstances with due care and caution; that too when violation of law or any statutory provision, fundamental right is oozing from the record which attracts the conscious of the Court qua indulgence.

Phraseology of Art. 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, clearly indicates that writ jurisdiction is exercisable if a grievance is based on violation of a law

Under Art. 44, if an act is without lawful authority, a writ can be issued to direct the respondent to do that which he is required by law to do or to forbid him from doing an act which he is not allowed by law to do

Requirement is that a grievance raised in a writ petition must be based on law

Writ lies if law has been violated or, in case of a writ of prohibition, when it is apprehended that it will be violated by a Government functionary.

Courts do not normally interfere a policy made by the Government unless it is proved mala fide or made in a colorful exercise of authority.

Courts have vast powers for judicial review of any action of any functionary of the State but such power should not be exercised to interfere within constitutional or legal domain of any other organ of the State

Such exercise of the powers is also against the concept of trichotomy as provided by the Constitution.

Order can only be set aside in exercise of writ jurisdiction, if it violates any provision of law.

No writ can be issued in the absence of a necessary party.

Writ jurisdiction can be exercised only, where there is violation of law or principle of law.

Necessary party is one without whom no order can be made effectively and a proper party is one in whose absence an effective order can be made but whose presence is necessary for complete and final decision on the question involved in the proceedings.

High Court while exercising writ jurisdiction does not sit as Court of appeal upon the order passed by the subordinate Court or Tribunal.

Questions of fact cannot be determined by the High Court while exercising powers under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974.

Writ can be issued where any violation of rules or departure of law has been made.

Even if any illegal or void ab initio order is passed against a civil servant, the same can be challenged before the Service Tribunal and jurisdiction of High Court is totally ousted due to bar contained in Art.47 of the Azad Jammu and Kashmir Interim Constitution, 1974.

As per Art.47, the jurisdiction of High Court under Art.44 is totally ousted to adjudicate upon the service matters relating to terms and conditions of the civil servants.

Petitioners sought a direction to the respondents to add to the Azad Jammu and Kashmir Interim Constitution, 1974, that Quadianis/ Ahmadis or Lahori group are non-muslims

Validity

Writ petition was filed before the High Court prior to 12th amendment in the Azad Jammu and Kashmir Interim Constitution, 1974

After amendment, the situation had changed and the legislature had inserted the definition of non-muslim in Art. 2 of the Azad Jammu and Kashmir Interim Constitution Act, 1974

Grievance of the petitioners to this extent had been remedied

Writ petition was disposed of accordingly.

Petitioners sought a direction to the respondents to prepare a separate Electoral Roll for non-muslims (Quadianis and Lahori groups)

Validity

Quadianis/Ahmadis were indeed non-muslims, however, there was no calculation on record to ascertain the number of such non-muslims in the territory of Azad Jammu and Kashmir so as to consider that whether a separate seat for such non-muslims could be created in the Legislative Assembly of Azad Jammu and Kashmir

Number of seats in the Legislative Assembly of Azad Jammu and Kashmir was created by the Constitution

Direction in this behalf could not be issued while exercising writ jurisdiction

Writ petition was disposed of accordingly.

While invoking extraordinary writ jurisdiction, it is the duty of the petitioner to point out any violation of law.

Courts do not intervene in the police investigation but where an FIR is registered against the spouses without due inquiry and taking notice of the facts, the Court cannot shut its eyes and a grave misuse of authority by the police can be checked and corrected in exercise of writ jurisdiction.

First Information Report disclosing the cognizable offences cannot be quashed in exercise of writ jurisdiction.

Rule that the High Court cannot interfere in the investigation even though if it is proved that the case is registered without lawful authority by the police by misusing its authority is not an absolute rule.

Appellants claiming to be husband and wife sought quashing of FIR lodged by the father of lady under Ss.10, 11 & 19 of Offence of Zina (Enforcement of Hudood) Act, 1985 and S.14 of Offences against Property (Enforcement of Hudood) Act, 1985

High Court declined the relief on the ground that an ex-parte decree for dissolution of marriage on the basis of khula was passed by Judge Family Court, which was still intact; that the husband's application for setting aside of the decree was dismissed in default and that the High Court could not restrain the police from investigation

Validity

Decree passed by the Judge Family Court was doubtful as the same was not acknowledged by the lady and even otherwise, such decree did not operate as complete talaq, hence, was not a hurdle in reunion of the spouses

Impugned judgment was set aside, writ petition was accepted and the FIR was quashed.

Writ is an extraordinary jurisdiction of Chief Court and it can be exercised in special circumstances where aggrieved party had no adequate and efficacious remedy available.

Chief court in exercise of its writ jurisdiction cannot go into question invoking minute details and investigation.

Petitioner sought direction from High Court under writ jurisdiction to the authorities to pay compound interest on the compensation amount at the rate of 8% per annum from the date of taking possession of acquired land till payment of its compensation amount

Validity

Petitioners had not annexed any record/document regarding actual date of taking possession of their land by the authorities

Said date could not be determined by the Chief Court by invoking its writ jurisdiction

Writ petition, being not maintainable, was dismissed, in circumstances.

Exercise of powers under writ jurisdiction, were very limited and could be exercised in extraordinary circumstances, where there was violation of law.

Government had issued notification dated 21.4.2017, Cls. (a)(iii) of which provide that population of a single-member ward should not be less than 2000 and more than 6000

Nothing was on record that every Mouza/village having population of more than 2000 must be constituted and declared as an independent ward of Municipal Corporation

Direction for creation of separate ward of Mouza concerned could not be issued merely on the ground that population of the same was more than 2000

No violation of Government Notification dated 21.4.2017 had been committed

Writ petition was only competent where there was any violation of law or any statutory provision or celebrated principle of law

No such eventuality was available in the present case

Delimitation Officer was vested with the powers to constitute new ward after taking into consideration the geographical position and location of the area

No legal right of petitioners having been infringed, petitioners were not "aggrieved party" in circumstances

No illegality had been pointed out in the impugned judgment passed by the High Court

Appeal was dismissed, in circumstances.

Writ jurisdiction could not be exercised like appeal or for pre-empting the jurisdiction of other Courts.

Writ jurisdiction was a discretionary jurisdiction.

Unlawful order could neither be enforced nor protected through writ jurisdiction.

Extraordinary remedy by way of writ jurisdiction was an equitable remedy which could not be exercised for retention of ill-gotten gains.

Contention of petitioners was that respondents/authorities were bent upon to cancel the registration of the hostel and seal the same with mala fide intention

Validity

Trustees of the Organization-Trust having not been impleaded as party, writ petition was not maintainable

Petitioners had an alternate remedy in the shape of revision against the impugned order/letter before the competent court but instead of availing the same they had invoked the extraordinary jurisdiction of High Court which was not warranted

Reports of investigating authorities on the basis of which impugned order/letter had been issued had not been challenged

Question of fact could only be resolved by recording evidence before the concerned authority/forum and High Court could not do the same while exercising writ jurisdiction

No permission for establishment of hostel was available on record

Registrar District Council was not empowered to register or issue registration certificate with regard to registration of hostels who had issued the same

District Council could perform functions of construction and maintenance of buildings to be used as hostels for students and could also arrange programs for training of teachers

Registration of welfare agencies was mandatory with the Kashmir Council/Registration Authority but no such registration was available on record

No illegality, irregularity, mala fide or violation of any law or infringement of any constitutional right of petitioners had been pointed out in the impugned order/letter

Mere levelling an allegation of mala fide did not create any reason for interference in the domain of administrative authorities

Writ petition was dismissed, in circumstances.

Revisional jurisdiction, in Azad Jammu and Kashmir, was initially vested in the High Court, however, due to an amendment made in 1972, Appellate Authority was also vested with the same powers, which had authorized said Authority to examine the orders passed by the subordinate courts in which no appeal lay

Question for determination was as to whether, the Rent Controller was a court subordinate to Appellate Authority, designated under Azad Jammu and Kashmir Rent Restriction Act, 1986

Under subsection (7) of S.18 of Azad Jammu and Kashmir Rent Restriction Act, 1986, order of the Rent Controller subject to the result of an appeal, was final and could not be assailed in any court of law including the High Court by way of a suit, appeal or otherwise

Jurisdiction of High Court, in circumstances, was totally barred

Writ petition was liable to be dismissed, in circumstances

Order passed by the Rent Controller having attained finality, same could not be called in question in writ jurisdiction of High Court.

No direction could be issued to frustrate the statutory law in writ jurisdiction.

After withdrawal of the earnest money or bid security a participant of the auction may have no locus standi to claim any right in public auction and also may not be able to challenge the auction in the extraordinary writ jurisdiction but notwithstanding the general rule and technical objection the court may entertain a petition in public interest

Ordinarily writ jurisdiction is not invokeable in the cases of public auctions and contracts involving contractual obligation and unsuccessful bidder may have no legitimate right to call interference of court in discretionary jurisdiction

Principle of locus standi is not strictly applicable in the cases of public importance and even a stranger can invoke the jurisdiction of court in such cases

Court, in a case of public importance, may ignore the technical objections and interfere in a matter in which decision was made adverse to the public interest or in an unfair, unreasonable or unjust manner.

Courts were not supposed to interfere in the internal affairs and administrative matters of educational institutions, or in the order passed by such institutions in the public interest, but if the order was passed by a public functionary on the basis of 'consideration other than public interest which could not be justified in law, the principle of non-interference of courts in the domestic affairs of an educational institution, could not be as such attracted in such cases rather the same must be applied subject to the law of natural justice

Public functionaries could not be allowed to take away the legal rights of people for their personal satisfaction and courts were under legal and moral duty to protect the rights of the people by undoing the wrong done to the individual.

Petitioner who had retired from Police Service after attaining the age of superannuation, had sought direction to authorities to consider his case for notional promotion to the post of S.S.P./A.-I. G. (B-19)

Case of the petitioner was that a working paper for promotion against two posts fell vacant and besides him names of four other Police Officers were included therein for consideration

Petitioner claimed that at relevant time he was the only candidate who fulfilled said requirement but was not considered and he stood retired

Two persons having been promoted on acting charge basis, on basis of said working paper, it was alleged by the petitioner, that he was discriminated

Authorities contended that the petitioner was not an aggrieved person and that grievance agitated through the petition fell in the ambit of terms and conditions of service, High Court had no jurisdiction to issue direction sought for by the petitioner and that proper forum for adjudication of the same was Service Tribunal as jurisdiction of High Court stood ousted under S.47 of Azad Jammu and Kashmir Interim Constitutional Act, 1974

Validity

Ouster of jurisdiction of High Court could be pressed only to the extent of those matters, which were in exclusive jurisdiction of the Service Tribunal

Service Tribunal had not been vested with power to issue writs of mandamus, quo warranto and prohibition

It could not be said in circumstances that said power of High Court conferred by Constitution had been taken away by the establishment of the Service Tribunal

As the petitioner had only sought a direction to the Authorities to consider ` his case in light of his accrued right before his retirement objection raised by the Authorities, with regard to jurisdiction of High Court, was repelled

Petitioner could be given only benefit of the higher grade after his retirement

Notional or presumptive promotion could be given to a civil servant without disturbing the others

Authorities were directed to consider petitioner for promotion in B-19.

Question of fact which required recording of evidence and examination of record could not be gone into by the High Court in exercise of writ jurisdiction

Writ did not lie to enforce a contract

Contract was not law and contractual liability could not be enforced through a writ

Jurisdiction in writ petition was attracted only if it was based on violation of any law.

Scope Jurisdiction conferred on High Court, under S.44 of Azad Jammu and Kashmir Interim Constitution Act, 1974, being discretionary, in nature, relief could be refused to a person who otherwise had a good case, but whose conduct was dubious.

Government had to prepare Development Scheme and a citizen or a member of Legislative Assembly had no vested right to insist that a particular Development Scheme submitted by him should have been implemented

Government or its functionaries were bound to perform their functions within four corners of law when it was shown by an aggrieved person that an act of Executive Authority was tainted with mala fides or same offended against law, such an act was open to review by Supreme Court in exercise of its Constitutional jurisdiction

Executive order, if shown to be violative of law, could not be protected on the ground that Authority concerned had the jurisdiction to pass the same and, thus, was immune from challenge by invoking writ jurisdiction.

Question of fact could not be gone into by High Court in exercise of writ jurisdiction.

Writ jurisdiction, exercise of-Petitioner approaching High Court directly, without agitating his grievance before competent Revenue Authority

Loss of locus standi

Competency of such approach

Lease of Government land

Claim of both contesting reject, by Additional Commissioner

Respondent alone filed parties revision petition before Member, Board of Revenue which was 'boner's writ petition challenging order of member, Board accepted Revenue rejected on ground that he could not have directly filed after the decision of Additional Commissioner-Order writ petition a that it was duty of respondent to implead petitioner impugned

Plea that in Revision before M.B.R., repelled necessary having as respond before Additional Commissioner, it was necessary for lost his case him to agitate his grievance before M . B . R .

He having accepted order of Additional Commissioner, lost his locus standi to file a writ petition in High Court

Leave to appeal refused.

Decision being bas-ad on sound and legitimate inferences that could be drawn from documents produced by petitioner, upheld, and leave to appeal refused.

Assessee refusing to produce records for verification of amount claimed to be refunded on plea that Tribunal's orders implied that refund was to be made without verification

High Court upholding decision of Appellate Tribunal that order of refund of sales tax implied that refund would be without verification

Leave to appeal granted to consider contentions that question of verification of claim and determination of amount to be refunded in accordance with prescribed procedure, was not examined nor decided in first round of litigation, and whether High Court should have interfered in its discretionary jurisdiction, in case it was found just and fair that assessee should have responded to a call for verification of its claim as to exact amount to be refunded.

Writ jurisdiction-Order of Authority under Payment of Wages Act, 1936 rejecting claim for over-time wages passed after considering evidence produced by parties could not be termed as without lawful authority or without jurisdiction

Interference refused by High Court in constitutional jurisdiction.

Entries in mutation register and other revenue records are not in nature of title deeds, but only have an evidentiary value in support of title, for termination of question of title civil Court is proper forum to adjudicate and not High Court in a constitutional petition.

Petitioner's review petition against order of Chairman, Tribunal Land Disputes, dismissed by Chairman as barred by time and High Court declining to interfere in writ jurisdiction on view that no good ground was shown by petitioner that order of Chairman dismissing review petition on ground of limitation was bad in law

Order of High Court maintained

Held, question of entertaining or not entertaining a time-barred review petition by condoning or not condoning delay lay entirely within discretion of Chairman and said discretion not having been shown to have been exercised illegally, capriciously or perversely was not open to review in writ jurisdiction.

Finding of fact substituted by High Court based on report not mentioned in impugned order of Chief Settlement Commissioner

Jurisdiction of High Court being confined to question of law, did not extend to controversial questions of fact

Questions of law may be involved if there be misreading of certain documents and where documents having presumption of correctness were not given that presumption or an inference manifestly against record was drawn

There being no misreading of record or drawing an incorrect inference from admitted facts a substitutive order, held, could not be passed in revisional jurisdiction under S. 21 of Act (XLVII of 1958)

Judgment of High Court set aside and appeal accepted.

Not a rule of law barring jurisdiction of Court but a rule to regulate exercise of discretion of Court.