SURYA CONSTRUCTIONS V/s STATE OF UTTAR PRADESH &ORS., CIVIL APPEAL NO. 2610 OF 2019, SUPREME COURT OFINDIA, DATE OF DECISION: 08.03.2019, CORAM: R.F. NARIMAN & VINEET SARAN,JJ.
"Mandate contained in the report: ABL International Ltd & Anr V/s Export Credit Guarantee Corporation of India Ltd. & Ors., (2004) 3 SCC 553 reiterated."
It was held that: Where the State behaves arbitrarily, even in the realm of contract, the High Court can interfere under Article 226 of the Constitution of India, 1950.
IPJACKET TECHNOLOGY INDIA (P) LIMITED V/s M.D. UTTARPRADESH RAJKIYA NIRMAN NIGAM LIMITED, WRIT (C) NO. 34346 OF2018, HIGH COURT OF ALLAHABAD, DATE OF DECISION: 08.05.2019, CORAM: PANKAJ KUMARJAISWAL & YOGENDRA KUMAR SRIVASTAVA, JJ.
"In pure contractual matters the extraordinary remedy of a writ under Article 226 of the Constitution of India, 1950 cannot be invoked."
It was held that:
"… If the action of the State is related to contractual obligations or obligations arising out of the tort, the court may not ordinarily examine it unless the action has some public law character attached to it. Broadly speaking, the court will examine actions of State if they pertain to the public law domain and refrain from examining them if they pertain to the private law field. The difficulty will lie in demarcating the frontier between the public law domain and the private law field. It is impossible to draw the line with precision and we do not want to attempt it. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the action and a host of other relevant circumstances. When the State or an instrumentality of the State ventures into the corporate world and purchases the shares of a company, it assumes to itself the ordinary role of a shareholder, and dons the robes of a shareholder, with all the rights available to such a shareholder. There is no reason why the State as a shareholder should be expected to state its reasons when it seeks to change the management, by a resolution of the company, like any other shareholder…"
SONI KUMARI V/s AKHAND PRATAP SINGH, FIRSTAPPEAL NO. 65 OF 2017, HIGH COURT OF ALLAHABAD, DATE OF DECISION: 28.03.2018,CORAM: AJAI LAMBA & ANANT KUMAR, JJ.
"Whether appeal is maintainable against an award and/or decree rendered by a Lok Adalat under the Legal Services Authorities Act, 1987?"
It was held that:
P. BANDOPADHYA & ORS V/s UNION OFINDIA & ORS, CIVIL APPEAL NO. 3149 OF 2019, SUPREME COURT OFINDIA, DATE OF DECISION: 15.03.2019, CORAM: U.U. LALIT & INDU MALHOTRA, JJ.
"Principles of res judicata are applicable to writ petitions."
RAJBIR SURAJBHAN SINGH V/s THECHAIRMAN, INSTITUTE OF BANKING PERSONNEL SELECTION, MUMBAI, CIVIL APPEAL NO. 4455 OF 2019, SUPREME COURT OF INDIA,DATE OF DECISION: 29.04.2019, CORAM: L. NAGESWARA RAO & M.R. SHAH, JJ.:
"A writ petition under Article 226 of the Constitution of India, 1950 cannot be entertained against the Institute of Banking Personnel Selection (IBPS)."
It was held that:
SERIOUS FRAUD INVESTIGATION OFFICE V/s RAHUL MODI& ANR., CRIMINALAPPEAL NOS. 538-539 OF 2019, SUPREME COURT OF INDIA, DATE OF DECISION:27.03.2019, CORAM: A.M. SAPRE & U.U. LALIT, JJ.:
"Any infirmity in the detention of an individual at the initial stage cannot invalidate the subsequent detention and the same has to be judged on its own merits."
It was held that:
"… If at any time before the Court directs the release of the detenue, a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention…"
SANJAYA BAHEL V/s UNION OF INDIA & ORS, WRIT PETITION (CIVIL) NO. 981 OF 2019, HIGH COURT OF DELHI, DATE OF DECISION: 15.05.2019, CORAM: SURESH KAIT, J.:
"By no stretch of imagination an organization of United Nations which is an international body be treated as "instrumentality" and/or an "agency" of the Government."
It was held that:
UNIVERSAL CONSORTIUM OF ENGINEERS (P) LTD. & ANR. V/s STATE OFWEST BENGAL & ORS., WP 23027 (W) OF 2017, HIGH COURT OF CALCUTTA, DATEOF DECISION: 18.02.2019, CORAM: DIPANKAR DATTA & BIBEK CHAUDHURI, JJ.
"Whether High Court has jurisdiction to entertain writ petition against the judgment/order passed by the National Commission (NCDRC), since such judgment/order can be challenged before the Supreme Court in view of the provisions of the Consumer Protection Act, 1986?"
"… learned counsel for the petitioner is right that the High Court had no jurisdiction to deal with the matter against the order of the Commission (NCDRC)… we cannot help but state in absolute terms that it is not appropriate for the High Courts to entertain writ petitions under Article 226 of the Constitution against the orders passed by the Commission (NCDRC), as a statutory appeal is provided and lies to this Court (Supreme Court) under the provisions of the Consumer Protection Act. Once the legislature has provided for a statutory appeal to a higher court, it cannot be proper exercise of jurisdiction to permit the parties to bypass the statutory appeal to such higher court and entertain petitions in exercise of its powers under Article 226 of the Constitution of India…"
Thus, in Cicily Kallarackal (Supra) it was held that, orders of NCDRC are incapable of being questioned under the writ jurisdiction of the High Court as a statutory appeal in terms of Section 27-A (1) (c) of the Consumer Protection Act, 1986 (hereinafter referred to as the CPA) lies to the Supreme Court.
"… The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for 'any other purpose'… Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field…"
"… By reason of the provisions of the said Act, the power of judicial review of the High Court, which is a basic feature of the Constitution, has not been nor could be taken away…"
Thus, the decision rendered in the matter of Cicily Kallarackal (Supra) runs contrary to the decision rendered in the matter of Vishwabharathi House Building Coop. Society (Supra).
Moreover, if in a writ petition constitutionality of a provision of the CPA is under challenge along with an order of NCDRC, and the petition contains dual prayers to declare the impugned statutory provision as ultra vires the Constitution of India, 1950 as well as a writ of certiorari to quash such order, then the remedy of an appeal being available before a higher court (the Supreme Court) will be of no immediate significance or relevance. Ordinarily, the Supreme Court would not be in a position to declare a provision of the CPA unconstitutional while exercising its appellate power under the CPA. Any declaration on the vires of a statute/statutory provision ideally would come from the Supreme Court exercising original writ powers (Article 32 of the Constitution of India, 1950) or writ powers while hearing a civil appeal arising out of a writ petition after grant of special leave (Article 136 of the Constitution of India, 1950).
11. With certainty, it can be said that, Cicily Kallarackal (Supra) is a judicial pronouncement that whittles down, nullifies, curtails, abrogates, dilutes and takes away the power conferred on the High Courts by the Constitution of India, 1950 to enforce Fundamental Rights and other rights that can validly be claimed by a party which, in terms of previous decisions of the Supreme Court itself [L. Chandra Kumar (Supra)], the Supreme Court cannot.
12. Dismissing a writ petition or a civil revisional application wherein an order of the SCDRC or the DCDRF is under challenge without even looking into the ground of challenge and the nature of right sought to be enforced by blindly following the decision in Cicily Kallarackal (Supra) is not a proper exercise of discretion.
13. To reconcile the conflicting views, the decision in Cicily Kallarackal (Supra) should be read as one which lays down the law that interference with the orders of NCDRC under Section 21 (a) (i) and Section 27 of the CPA would not be permissible by way invoking the writ jurisdiction of the High Court in absence of any of the exceptions summarized in Whirlpool Corporation (Supra) being satisfied.
14. NCDRC, which is a creature of the CPA, does not have the power to decide on the question of constitutionality of the provisions of the CPA, and if such question incidentally arises while the order of NCDRC is under challenge in any writ petition preferred under Article 226 of the Constitution of India, 1950, then it would be proper to hold that the High Court should decide the same at the first instance exercising the powers of judicial review contained in Article 226 of the Constitution of India, 1950. Moreover, NCDRC does not enjoy any exalted status that its orders would not be subject to judicial review, whatever be the nature of grievance that a party may have in relation to it.
15. It is important to note that, apart from the power that NCDRC is empowered to exercise under Section 21 (a) (i) and Section 27 of the CPA, it can exercise appellate power under Section 21 (a) (ii) of the CPA and revisional power under Section 21 (b) of the CPA thereof. No doubt, an appeal would lie before the Supreme Court against an order passed by the NCDRC either under Section 21 (a) (i) or Section 27 of the CPA, but Cicily Kallarackal (Supra) fails to answer as to what would be the legal position if a writ petition is presented before a High Court challenging an appellate order under Section 21 (a) (ii) of the CPA, or a revisional order under Section 21 (b) of the CPA, against which a statutory right of appeal before the Supreme Court is not provided in the CPA. Thus, Cicily Kallarackal (Supra) cannot be read as an authority laying down the law that no order passed by NCDRC, irrespective of the power exercised by it, would be amenable to challenge before the High Courts, given the limited right that the CPA confers for presenting appeals to the Supreme Court and that an appeal cannot be presented against an order passed by the NCDRC either under Section 21 (a) (ii) of the CPA or Section 21 (b) of the CPA.
16. The High Courts have the jurisdiction to entertain writ petitions against appellate (Section 21 (a) (i) of the CPA) and revisional (Section 21 (b) of the CPA) orders of the NCDRC.
17. It is incorrect in law to state that if in a writ petition under Article 226 of the Constitution of India, 1950, the order of NCDRC is under challenge, the High Court must dismiss the writ petition irrespective of the grounds on which such order is challenged.
18. Caution: Under Article 227 of the Constitution of India, 1950, the High Courts have the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Clauses (2) and (3) of Article 227 of the Constitution of India, 1950 contain provisions empowering the High Courts to exercise control over the courts subordinate to it in the manner as ordained. Reading Article 227 of the Constitution of India, 1950 as it is, it admits of no doubt that NCDRC is not a tribunal over which the High Courts can or may exercise its power of superintendence. Any application under Article 227 of the Constitution of India, 1950 challenging an order of NCDRC would, therefore, not be maintainable before a High Court.