16 March 2018 11:42 AM GMT
An advocate and a professor of Law have made a representation to the Delhi High Court Acting Chief Justice Gita Mittal seeking amendment to the Delhi High Court Rules relating to regulation of proceedings for issue of Writs under Article 226 of the Constitution of India and stressing that states should not be allowed to challenge Tribunal’s order under Article 226 as a routine and should...
An advocate and a professor of Law have made a representation to the Delhi High Court Acting Chief Justice Gita Mittal seeking amendment to the Delhi High Court Rules relating to regulation of proceedings for issue of Writs under Article 226 of the Constitution of India and stressing that states should not be allowed to challenge Tribunal’s order under Article 226 as a routine and should rather invoke Article 227.
The representation has been made by Supreme Court advocate Pawan Reley along with Associate Professor of Law Sanjay Bang.
The representation prays for “amendment to the Delhi High Court Rules & Orders, Volume-V, Part II (Civil), Part F(b), regulating the proceeding for issue of Writs under Article 226 of the Constitution of India so as to direct the State (government in specific) to challenge the order of tribunals under Article 227 and not under Article 226”.
It also prays for providing “proper identification to the Petition filed under Article 227 in challenging the order of tribunal through making necessary amendment in Volume IV of Delhi High Court Rules & Orders”.
Advocate Reley says the jurisprudence behind Article 32 and 226 has always been “Writ petition by the people against State” and not “Writ Petition by the State against the People” and therefore raises objection to the government challenging the orders of the Tribunal under Article 226 in form of a writ petition rather than invoking Article 227.
Rule 1C and Rule 1D of Delhi High Court Writ Rules, which were added vide notification No.116/Rules/DHC dated 12.2.2004, allow a litigant to file Writ Petition against the order of statutory authorities e.g. Central Administrative Tribunal (CAT), Labour Court, Industrial Tribunal, Delhi School Tribunal etc.
Reley says the word ‘litigant’ used in the Rule covers both an individual and government.
“It is to be noticed that problem does not arise when an Individual challenges the order of tribunal and files a Writ Petition under Article 226 praying for the writ of certiorari but it arises when Government files a Writ Petition against individuals challenging the order of the said tribunals,” says the representation.
The representation raises three questions – Firstly, whether State can be considered as an “aggrieved person” so as to file to Writ Petition under Article 226; secondly, if the state has any right, and thirdly, whether the rules framed by the high court can prevent a person or state from challenging the order of tribunal under Article 227 and confine it to file petition under Article 226?
Reley and Bang say the state cannot be termed an ‘aggreived person’ whereas Rules 1C and 1D are “binding the “state” to be “aggrieved person” on daily basis where “state” everyday challenges the order of tribunals under Article 226 demanding writ of certiorari rather than filing the petition under Article 227. Even if “state” wants to file the petition under Article 227 challenging the order of the tribunal, then also it will be termed as “civil writ petition” under Article 226 which is contrary to the constitutional scheme of Article 226.
On whether the state enjoys any right, the representation says the existence of a right and the infringement thereof are the foundation of the exercise of the jurisdiction under Article 226.
Stressing that the ‘state’ (government in the present case) does not enjoy any ‘right’ except as given under Article 131 of the Constitution of India. It enjoys ‘power’, they say, sometimes, a state’s right might be affected by another state but in those cases, the remedy is exclusively laid down in Article 131 by way of a suit before the Supreme Court.
“…recourse to Article 131 can be taken when its right is violated by another State instrumentality…recourse to Article 227 can be taken when it is violated by an independent public body.
The representation states that any order of any tribunal is not a violation of rights of the state but mere curtailing of its powers and that “it was an act of great wisdom and foresight on the part of the Constitutional makers to introduce the writ system in India under Article 226, and thus, constitutes the high courts into guardians of the people’s legal rights and not of the State”.
Reley also submits that “the rules framed by High Court cannot take away the Constitutional remedy to challenge the order of tribunal under Article 227 and confine the person or State to challenge the same under Article 226. However, in absence of any such rule to challenge the order of tribunal under Article 227 and its procedure thereof, advocates file Civil Writ Petition under Article 226 and Article 227”.
Reley says he is going to send representations to several high courts, including the Punjab and Haryana High Court, as most of them have similar rules.