Constitutional Courts Would Be Committing Breach Of Trust Against Bonafide Litigants If They Readily Entertain Writ Petitions Without Proper Scrutiny: Delhi HC
The Delhi High Court, while dismissing a writ petition filed alleging encroachment, observed if writ petitions are readily entertained without proper scrutiny, the Constitutional Courts would be committing a breach of trust against the genuine and bonafide litigants.
The Court said that writ jurisdiction should not be exercised liberally without establishing the individual or legal rights and consequential breach of obligations on the part of the authorities concerned.
The Bench of Justice Purushaindra Kumar Kaurav held, “An upshot of the above discussion clearly elucidates that the Constitutional Courts while exercising the extraordinary powers under Article 226 of the Constitution of India inter alia have to scrupulously ascertain i) whether the petition has been filed with any oblique motive or vested interest, ii) whether disputed and complex questions of facts are involved that require a shred of evidence, iii) whether there exists an alternate and equally efficacious remedy to address the grievance, iv) whether any individual or legal right of the petitioner has been violated along with consequential breach of obligations on part of authorities concerned thereto, v) whether the nature of action and nature of activity under question falls in the domain of public law etc. The aforesaid exigencies are only illustrative in nature and not exhaustive. Without such a meticulous exercise, if writ petitions are being readily entertained, then the Constitutional Courts would be committing a breach of trust against the genuine and bonafide litigants who have reposed faith in the constitutional machinery and have been longing since ages in the hope of justice. Undoubtedly, the scheme of Article 226 of the Constitution of India does not envisage such a practice and therefore, the Courts should be mindful while exercising the extraordinary writ jurisdiction. This self-imposed fetter on the discretionary extraordinary power of the Constitutional Courts was kept keeping in mind the spirit of Article 226 of the Constitution of India.”
Advocate Sonal Alagh for the Petitioner while Senior Advocate Sunil Dalal, Advocates Rakesh Mittal and Shreyash U Lalit appeared for the Respondents.
A petition was filed by the Petitioner, which is a Resident Welfare Association, being aggrieved by the purported inaction of the erstwhile South Delhi Municipal Corporation and alleged wrongful closure of the complaints.
It was the case of the Petitioner-Association that members of the Petitioner-Association were residents of SFS Housing located adjacent to respondent No.5-Rajouri Apartments and alleged that the residents of Rajouri Apartments had wrongfully and illegally constructed a boundary wall, opposite the residences of the members of the petitioner-Association, thereby, encroaching upon the government land. The boundary wall in question, therefore, caused a public nuisance and blocked the passage of the members of the Petitioner-Association to approach public utilities like parks, gymnasium, and recreation centres, including Priyadarshini Park.
The main issue for the Court’s consideration was whether the Court should exercise the discretionary power under Article 226 of the Constitution of India or should relegate the parties to take appropriate recourse as per the private law.
The Court reiterated that Article 226 of the Constitution of India is a public law remedy and the powers vested under Article 226 have to be used sparingly and, in a manner, to proliferate the bonafide aim of the Constitution of India. The writ being a public law remedy should not be exercised to settle the disputes pertaining to private law, it said.
Stressing upon the public law character attached to the writ remedy under Article 226 of the Constitution, the Court relied on the judgment of the Supreme Court in the cases of Life Insurance Corporation of India v. Escorts Ltd. and Ors. (1986) and Dwarkanath v. ITO (1965).
“The concepts of public law and private law are not always separated with a fine line. At times, the distinction is thin and in such circumstances, the task before the Court is complex and delicate. The nature of action, nature of activity carried out by the State or its instrumentality, effect of such action on the public at large, infringement of any statutory or legal right etc. are some of the indicators which could influence the determination in this regard.”, the Court observed.
It was also observed that any petition wherein the rights involved are not clearly exposited and are in fact, rooted in the complexity of disputed facts, the Court is constrained to start a roving enquiry and that may not be an appropriate recourse while exercising the writ jurisdiction. The Court held that the writ being discretionary and prerogative in nature, should not be exercised liberally without establishing the individual or legal rights and consequential breach of obligations on the part of the authorities concerned.
On this fulcrum, the Court also expressed its displeasure and said that when writ petitions with vested interests are filed they lead to an undesirable docket explosion and often end up burdening the already saddled judiciary. Moreover, entertaining such writ petitions results in a domino effect and propels other litigants to file similar cases by frequently knocking on the doors of Constitutional Courts under Article 226 of the Constitution.
The Court added, “The High Court under the writ jurisdiction cannot possibly entertain all the cases where public nuisance, encroachment over government areas etc. are being alleged. Furthermore, it is not a case where the petitioner does not have any legal remedy. There exist alternate legal remedies under Section 152 of the Bharatiya Nagarik Suraksha Sanhita, 2023, Special Task Force constituted vide Notification dated 25.04.2018 by the Ministry of Housing and Urban Affairs or a Civil Suit etc., which are also equally efficacious.”
Accordingly, the Court, while providing liberty to the Petitioner-Association to avail appropriate remedy available as per law, dismissed the writ petition.
Cause Title: Resident Welfare Association v. Kishan Devnani and Ors. (Neutral Citation: 2024:DHC:6204)
Appearances:
Petitioner: Advocates Sonal Alagh, Aviral Kapoor and Rishabh Kapoor
Respondents: Senior Advocate Sunil Dalal, Advocates Rakesh Mittal, Shreyash U Lalit, Yamini Mittal Runjhun Garg, Himanshu Vats, Manisha Saroha, Mahabir Singh, Navish Bhati.
