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Judiciary

HC Can’t Entertain Writ Petition Under Article 226 To Replace Ordinary Alternative Remedies: SC [Read Judgment]

By LawStreet News Network      04 December, 2018 12:00 AM      0 Comments
HC Can’t Entertain Writ Petition Under Article 226 To Replace Ordinary Alternative Remedies: SC [Read Judgment]

The Supreme Court in a recent case of Rashina T. v. Abdul Azeez K.T. & Ors. has held that Writ jurisdiction of Constitutional Courts, including that of a High Court under Article 226 of the Constitution, cannot be invoked to replace alternative remedies in ordinary disputes.

A Bench comprising of JusticesAbhay Manohar Sapre and Indu Malhotra was hearing an appeal filed against the final judgment and order of the Kerala High Court in which the Division Bench of the High Court allowed the writ petition filed by the respondent and directed the appellant, by issuing a writ of mandamus, to restore the possession of the disputed flat.

The High Court had rendered the decision in question primarily on factual merit, on a writ petition filed under Article 226. This writ petition was filed, despite a pending civil suit in the matter before the Munsiff Court.

The Bench while overturning the decision passed by the Kerala High Court has found that the writ petition filed invoking Article 226 of the Constitution was wholly misconceivedThe Bench noted that the exercise of such extraordinary jurisdiction would only come in where there is a violation of statutory duties.

“It has been consistently held by this Court that a regular suit is the appropriate remedy for settlement of the disputes relating to property rights between the private persons. The remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of statutory authority is alleged. In such cases, the Court has jurisdiction to issue appropriate directions to the authority concerned,” the Bench observed.

Moreover, noting that the factual issues cropping up from the property dispute in question ought to have been decided by ordinary civil courts. The Bench said that “These questions, in our view, were pure questions of fact and could be answered one way or the other only by the Civil Court in a properly constituted civil suit and on the basis of the evidence adduced by the parties but not in a writ petition filed under Article 226 of the Constitution by the High Court.

The Bench, also observed that jurisdiction under Article 226 of the Constitution being special and extraordinary, it should not be exercised casually or lightly on mere asking by the litigant.

It is held that the High Court cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal are available. This Court has held that it is not intended to replace the ordinary remedies by way of a civil suit or application available to an aggrieved person. The jurisdiction under Article 226 of the Constitution being special and extraordinary, it should not be exercised casually or lightly on mere asking by the litigant,” the judgment reads.

In view of the above observations, the Bench allowed the appeal and stated that “Indeed, the High Court in granting such relief, had virtually converted the writ petition into a civil suit and itself to a Civil Court. In our view, it was not permissible…

…a dispute regarding possession of the said flat between the two private individuals could be decided only by the Civil Court in civil suit or by the Criminal Court in Section 145 Cr.P.C proceedings but not in the writ petition under Article 226 of the Constitution.

Consequently, the order passed by the Kerala High Court was set aside and the parties were granted liberty to approach the appropriate civil court to resolve their dispute.



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