REMEDIES AGAINST Module 5

ADMINISTRATION
CONTROL OF
ADMINISTRATIVE
FUNCTIONARIES THROUGH
THE POWERS OF JUDICIAL
PROCESS
5.1 Writs under Articles 32 and 226 of the Constitution of India: Habeas Corpus,
Certiorari, Prohibition, Mandamus and Qua Warranto
5.2 Procedural Aspects - Locus standi, Laches, Res Judicata, Exhaustion of
Alternative Remedies
5.3 Exclusion of Judicial Review - Exclusionary Clauses
5.4 Suits Against Administration.
5.5 Notice under Section 80. Civil Procedure Code, 1908
5.6 Period of Limitation
PROCEDURAL ASPECTS
Locus standi:
The Latin Maxim “Locus Standi” consists of two words namely “locus” which means place
and “standi” means the right to bring an action. So, collectively, it means the right to appear
or the right to bring an action before the court. As per this maxim, one person needs to show
his legal capacity before approaching the court. It means the person can only approach the
court when his personal interest is suffered or an injury is inflicted upon him.
The maxim of locus Standi is one of the core principles of civil law and it is enshrined
under Rule 7 Order 11 of the Civil procedure code, 1908. It states that only the person who
suffered some injury can approach the court. However, this rule was proving to be a
hindrance as some people were not approaching the court due to their financial or social
condition. Thus, the Hon'ble supreme court relaxed this maxim and started a new concept
called PIL wherein any public citizen can approach the court for the betterment of society at
large.
DOCTRINE OF LACHES :
The Doctrine of Laches emanates from the principle that the Courts will not help
people who sleep over their rights and helps only those who are aware and vigilant
about their rights. A party is said to be guilty of laches when they come to the Court
to assert their rights after a considerable delay in that respect.
With respect to constitutional law, laches refers to the filing of a writ petition,
however, unlike the law on limitations there is no specific time period after which a
writ petition is barred.
The underlying principle is that the Court should not examine stale cases, because
the Court is to help an individual or party that is vigilant and not indolent.
The reasons for delay if valid and reasonable are generally accepted because the
Court doesn’t dismiss petitions only due to delay but only if it is accompanied by
other reasons.
In Trilok Chand Motichand v. H.B. Munshi, 1970, the main question before the Court was whether there is any period
of limitation prescribed within which the remedy under Article 32 is to be invoked. The petition, in this case, was filed
after a delay of 10 years; the plea was dismissed for delay. The judges who comprised the bench in this case however
differed with respect to the time period after which laches should apply.
Sikri, J., opined that three years will be the proper yardstick for measuring a reasonable time for preferring a writ
petition.
Bachawat, J., put it as one year.
On the other hand, Justice Hegde suggested that the law on limitation has no application on the proceedings that take
place under Article 32 and as such the Court cannot refuse a petition based on delay.
In this regard, however, Chief Justice Hidayatullah felt that no hard and fast rule should be adopted. He stated that the
issue should be dealt with by the Court on a case to case basis.
The whole issue is dependent on what the breach of a fundamental right is, what the remedy is and why did the delay in
question arise in the first place.
This view seems to be the most reasonable in this regard because the matter is best left to the discretion of judges and
also because the facts and circumstances of one case are never identical to another.
Moreover, this involves the violation of very basic fundamental rights of individuals and as such needs to be dealt with
utmost sensitivity and care.
A similar issue arose in V. Bhasker Rao v. State of Andhra Pradesh, where the seniority list
was published twelve times during eight years showing the petitioner below the respondents
but the petitioner never challenged. It was held that he was not entitled to challenge it under
Article 32 of the Constitution of India.
Y and Z were farmers. Their lands were right next to each other. Y starts extending his
property by cultivating crops at the land of Z. Z was well aware of that but never raised this
issue with Y. After 18 years, Z filed a case against Y. In this case, it will be said that Z has
taken an exuberant amount of time to file a suit even though Z was well aware of the matter
and decided not to take any action. Thus, the defendant can take support of the doctrine of
laches and prove that Z has slept over his rights.
In most cases, the delay in filing a lawsuit by the petitioner is an advantage for the opposite
party. Because of the delay, witnesses depart, memories vanish, and evidence disappears. It
helps the defendant to put this doctrine on defense and it shifts the burden of proof upon the
petitioner. The petitioner has to give a reasonable statement for the delay
Res Judicata
The principle of Res Judicata is enshrined under section 11 of the Civil procedure
code 1908. This principle states that a party to a suit is not entitled to go for another
suit if a petition is already pending in another court of law. For applying this
principle, the nature and the content of both the suit must be the same. This principle
is the cornerstone of both the civil and criminal judicial system. Thus, any PIL that
raises an issue, which is already under consideration of a competent judicial
authority, can not be allowed to proceed as per the aforesaid principles.
Exhaustion of Alternative Remedies
It is a common notion that Writs under Article 226 of the Constitution are not
maintainable where an Alternative Statutory Remedy is available. Most of the writs
are denied hearing/relief at the very outset on the preliminary ground that Alternative
Remedy is available. The moment the respondent's counsel argues that an alternative
remedy is available; the writ is virtually thrown out on this preliminary ground alone.
The Apex Court and the High Court consistently deprecate the practice of filing writ
petitions in the High Court where an alternative remedy has been provided under the
relevant statute. But it is not an 'Absolute' Rule of Law and there are Valid
Exceptions where the writ petitions are maintainable in the High Court and in such
cases, the petitioner ought not to be relegated to alternative remedy.
Harbanslal Sahnia v Indian Oil Corpn. Ltd, (2003) 2 SCC 107, wherein the Apex
Court carved out the exceptions thus:
In an appropriate case, in spite of availability of the alternative remedy, the High
Court may still exercise its writ jurisdiction in at least three contingencies: (i) where
the writ petition seeks enforcement of any of the fundamental rights; (ii) where there
is failure of principles of natural justice; or (iii) where the orders or proceedings are
wholly without jurisdiction or the vires of an Act is challenged.
In CIT vs. Chhabil Dass Agarwal (2014) 1 SCC 603, the Apex Court reiterated this
proposition and struck a balance between admission and rejection of writ under
Article 226 of the Constitution in case of availability of alternative remedy.
EXCLUSION OF JUDICIAL REVIEW -
EXCLUSIONARY CLAUSES
Finality clauses are provided by the statute to declare that the decision by any agency
“shall be final”.
the judicial review available under Articles 32, 136, 226, 227 cannot be excluded by
the finality clause contained in the statute and expressed in any languages. Any
statute or ordinary laws cannot take the jurisdiction of the Court under article 32,
136, 226 and 227 as the Constitution of India provides them.
SUITS AGAINST
ADMINISTRATION
Suits by or against the government or public officials in their official capacity is a
type of special cases in the code of civil procedure. Such suits are of a special type
because the procedures which are needed to be followed in the institution of the
plaint are different from the procedures which are to be followed in the civil suits
which consists of private parties. For filing a suit against the government or public
official, the plaintiff needs to first serve a legal notice to the public officer or to the
Secretary to the Government.
After the service, the plaintiff needs to wait for two months to file the plaint in the
Court. A lot of formalities and procedures are needed to be taken care of to file the
suit. However in certain situations, the Court may grant an exception, but it depends
upon the facts and circumstances of the case.
Sections 79-82 and Order 27 of the Code of Civil Procedure, 1908, deal with the
procedure which needs to be followed in the process of filing of a suit against the
government or public officials. Code of civil procedures prescribes only the procedures.
The first step in the process of filing of suit in this case is service of notice to the defendant.
Section 80 of the Code of Civil Procedure, 1908 states that only after the expiry of two
months from the date of service of notice to the government officials, a plaint can be filed in
the Court of law.
The main intention of the Legislative in the insertion of this section and adding this process
in the filing of suit is to make sure that the Government or the Public Officer knows the
reasons, demands or the concern of the Plaintiff for which the suit shall be instituted. By
knowing the distress of the Plaintiff, the Public official can act upon it and rectify the
situation. The time period of two months is also provided for the same reason.
Section 80 of the Code of Civil Procedure, 1908 also states the contents of the
notice which should be served to the government of the public official. The most
essential contents of the notice should have the name, description, place of residence
of the plaintiff and the cause of action and the relief sought. The service of the notice
should be delivered to the office of the concerned person or served directly to him.
After the expiry of two months if the aggrieved party wishes to file the suit in the
Court of law, he or she would need to produce a written statement which should state
the way in which the notice was served. The service of the notice has a strict
application and is mandatory process. It should be done expressly and not impliedly.
The Supreme Court had held so in the case of State of A.P. v. Gundugola Venkata ,
that if proper service of the notice does not happen then the suit would entail a
dismissal.
Section 80(2) of the Code of Civil Procedure, 1970 allows private individuals to file
a suit against the government without serving the notice to the public officer if the
matter is of an urgent nature. This section acts as an exception for sub-section 1 of
Section 80 of the Act. The main objective of inserting this exception is to make sure
that miscarriage of justice does not happen in urgent cases by delay in the
proceedings. The urgency of the matter is judged by the Court by considering the
facts and circumstances. The Court should hear both the private individual and the
government in judging whether the matter is of an urgent nature.
Writ Petitions against the Government is exempted from the service of notice under
Section 80 of CPC as writ petitions do not fall under the category of suits. Writ
Petitions are filed under Article 32 and 226 to the Supreme Court and High Court
respectively.
The legislative intention behind that section is that public money and time should not
be wasted on unnecessary litigation and the Government and the public Officers
should be given a reasonable opportunity to examine the claim made against them in
case they should be drawn into avoidable litigations. The purpose of law is
advancement of justice.
PERIOD OF LIMITATION
"There is no period of limitation prescribed by any law for filing the writ petition
under Article 226 of the Constitution”
There is no time-frame provided under our Constitution within which a Writ Petition
ought to be filed in the High Court from the arising of the cause of action. This
becomes all the more important as the Limitation Act is not applicable to Petitions
under Articles 32 and 226 of the Constitution. Accordingly, the Writ courts generally
refuse to grant relief in cases where Writ Petitions are filed after long, unreasonable
and inordinate delay.