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Absolute Private Rights Can Not Be Enforced Through Article 226 Of The Indian Constitution

A writ is a formal written order issued by a Court to redress Fundamental Rights which have been encroached upon of a citizen. These remedies generally can be claimed against public officers representing a public office. Any warrant, orders, directions, and so on, issued by the Supreme Court or the High court are called writs.

A writ petition can be filed in the High Court (Article 226) or the Supreme Court (Article 32) of India when any of your fundamental rights are violated. The jurisdiction with the High Court (Article 226) with regards to a writ petition is wider and extends to legal rights too.

Who Can Apply?

The applicability of Article 226 depends on the competence of the person and whether such a matter is capable of being heard. The existence of legal rights must be the right of the petitioner and this acts on the basis on which the jurisdiction of this article is brought into play.

The existence of legal rights must be the right of the petitioner himself and his acts as the basis on which the jurisdiction of this article is brought into play. Generally, a person who is empowered to move the Court is because the particular is aggrieved by an act of the public authority. When an aggrieved party applies, the Court intervenes and aims to provide justice. The Court while making such intervention also needs to take into account whether public interest demands its intervention.

An aggrieved person may apply for an appeal if the person can prove that the person has been denied or deprived his rights or burdened with legal burden. The main test to decide whether a person is aggrieved is to check whether the order affects his interest prejudicially.

An application even when made by a stranger in a matter which the Court deems that it is necessary to do so in furtherance of public interest is allowed. In the landmark case of Chairman, Railway Board vs. Chandrima Das (2000) 2 SCC 465 the Calcutta High Court allowed a practising advocate of the High Court at Calcutta to file a petition on behalf of the Bangladeshi woman who was picked from the railway station by the railway employees and was raped in a nearby Railway Yatri Niwas. The Apex Court upheld the locus standi of the advocate to file the petition on her behalf and as the offence was a gross violation of Fundamental Rights under Article 21 and as such the petition was for a public interest.

A person in trade can object to granting of licence to a rival by approaching the High Court under Article 226 only if it violates a statutory provision. In case of starting of a rival business of a similar nature is started it does not amount to a reasoned ground of challenge unless it is restricted as a monopoly by a statute.

The bidder or tenderer can challenge statements given arbitrarily by the courts in contravention of statutory provisions and such rights are always upheld. In the case of Cooverjee vs. Excise Commissioner AIR 1954 SC 120 it was held that where the conduct of the officers are not in accordance with the law or they act in excess of their jurisdiction it would be open to a person who had bid at an auction to approach the High Court under Article 226.

Again, in the case of Supreme Court Advocates on Record Association vs. Union of India (1993) 4 SCC 441 the Supreme Court Advocates on Record Association was allowed to file a petition to reconsider the earlier judgement given in the SP Gupta case pertaining to transfer of judges of the High Court and consider such procedures afresh.

Further, the Apex Court in the case of Supreme Court Bar Association vs. Union of India 1998(4) SCC 409 where the Supreme Court Bar Association challenged the judgement whereby an advocate was removed from the rolls of Bar Council on grounds of contempt. The Supreme Court in this case held that the Apex Court even in the use of its plenary powers under Article 142. Such removal can only be made by the State Bar Council or the Bar Council of India as such powers are enshrined to them by the Advocates Act, 1961.

A petitioner may apply for a writ if the petitioner is able to establish that an injury or damage of kind against which the statute has been designed to give protection. However, a person interested in spreading social education and responsible for promoting it cannot be regarded to have the locus standi to maintain a petition for mandamus against the government and thus it cannot be directed to the government to set up a Social Education Board in accordance with the statute so required. This was held in the case of Kalvan Mal vs. State AIR 1972 Raj. 234.

However, in another case of State of West Bengal vs. Union of India AIR 1996 Cal.181 the Calcutta High Court allowed standing to the state of West Bengal to file a writ petition under Article 226 seeking directions against the Union of India.

A person who complains about infringement of his right to property then the person must be able to establish his own title the property and if his title is in dispute then he is ineligible to make such applications. In order to invoke an application under this Article one need not wait for carrying out the threat but may invoke this article if he feels threatened.

In the case of Director General vs. Union AIR 1969 Cal.149 the Calcutta High Court has categorically held that a collective body can only appeal when the petitioner is a legal entity or otherwise permitted by a statute to initiate legal proceedings in its own name and is being affected by the impugned order as a collective body.

However, the rights of an unincorporated association of the operators of lorries and trailers to move the High Court to ventilate the grievances of its members relating to enhancement of permit fees of vehicles was not upheld and the petition filed by it was dismissed as not maintainable. This was held in the case of Sand Carriers' Owners' Union vs. Board of Trustees AIR 1990 Cal. 176.

In the case of High Court of Madhya Pradesh vs. Mahesh Prasad 1995 (1) SCC 203 it was held that an appeal by the High Court on the administrative side against the judgement of the High Court in a writ petition on the judicial side is maintainable.

Finally, it was categorically stated that an individual dispute pertaining to eligibility of a particular student for an examination can by no means be challenged in the name of a Public Interest Litigation and this was held in the case of Dr Nandjee Singh vs. PG Medical Students Association (1993) 3 SCC 400.

Against Whom A Writ Lies?

Article 226 of the Constitution of India permits the issue of orders, directions or writs to any person or authority including any person or authority including in appropriate cases any government.

In the case of Calcutta Discount Co. vs. ITO AIR 1961 SC 372 it was stated that where a writ of prohibition or certiorari cannot be issued, the High Court can issue appropriate orders or directions prohibiting an executive authority from acting without jurisdiction.

A writ cannot lie against a private person where he violates Fundamental Rights that are enshrined under Articles 17, 23 and 24 of the Constitution. However, s writ may be issued against a private person if it is found that the act of the person is in collusion with a public authority and this was held in the case of Sohan Lal vs. Union of India AIR 1957 SC 529.

Again in the case of T.Gattiah vs. Commissioner of Labour 1981 LIC 942 it was held that writ can be issued against any private person or a company incorporated under the Companies Act, 1956.

There are several tests laid down by the Supreme Court in various cases for determining whether a body is state or not. There is no fixed formula. It may prima facie appear due to some features of a body that it is 'state', while at other times the situation might not be so prominent and it will appear that body might be 'state' or might be not.

In the case of People's Union for Democratic Rights vs. Union of India (1982) 3 SCC 235 in this landmark judgement relating to rights of workers connected to the Asian Games has held that certain fundamental rights are enforceable not only against the state but also against private individuals.

Article 226 also takes into its ambit the power to issue writs inter alia to any authority. In the case of Rajasthan Electricity Board it was for the first time that an Electricity Board was regarded as other authorities within the meaning of State under Article 12 of the Constitution. However after the judgement given in the International Airports Authority Case it has widened the term other authorities even further which includes authorities created by a statute even if the power was conferred for the purpose to carry out commercial activities.

In the case of Sukhdev Singh vs. Bhagatram (1975) 1 SCC 421 the Apex Court held that Natural Gas Commission, Life Insurance Corporation, Finance Corporation are authorities within the meaning of Article 12 and further observed that power to make rules and regulations and to administer and enforce them is deemed to be the elements of authority contemplated within the meaning of Article 12. At present, it has also been stated that even private institutions discharging public functions has also come up to be regarded as state and such public corporations too are deemed to be instrumentality of the state.

There was a question as to what does the phrase 'other authorities' mean. The above problem and the need of interpretation were solved by Justice Bhahwati in the case of Ajay Hasia v Khalid Mujahib (1981) SC AIR 487.

The main theory evolved for interpreting 'other authorities' were that the body in question should bear the instrumentality of the state. This means that to be 'state' for the purpose of Article 12 that body should appear as an agency of the Government. And only then writs can be issued against it for violation of fundamental rights.

Justice Bhagwati had said that if the Government lessens its burden by delegating it to a corporation, this does not exempt the government from following the obligation of not contravening the Fundamental rights. In the case of Ajay Hasia v Khalid Mujahib (1981) SC AIR 487 following tests were laid to check whether a body is instrumentality of state or not:
  1. If the entire share capital of the body is in control of the Government, it is state.
  2. If the financial assistance given by government, meets nearly the whole of the body's expenditure, is shows the impregnation of the governmental character in the body.
  3. If the corporation has been bestowed upon by government a monopoly, it is a state
  4. If deep and pervasive control of the government is present over the body, it is state.
  5. If the corporation performs public functions, then it is alsos tate.
If any of the above characters is present in the body, and it violates any of the fundamental rights then, a writ can lie against it.

Whether Absolute Private Rights Can Be Enforced Through Article 226?

  1. M/S Ipjacket Technology India Pvt Ltd vs. M.D. Uttar Pradesh Rajkiya Nirman Nigam Ltd. (2018) Allahabad High Court
    The remedy under Article 226 of the Constitution being an extraordinary remedy, it is not intended to be used for the purpose of declaring private rights of the parties. In the case of enforcement of contractual rights and liabilities the normal remedy of filing a civil suit being available to the aggrieved party, the Court may not exercise its prerogative writ jurisdiction to enforce such contractual obligations.

    The legal position in this regard is that where the rights which are sought to be agitated are purely of a private character no mandamus can be claimed, and even if the relief is sought against the State or any of its instrumentality the pre­-condition for the issuance of a writ of mandamus is a public duty. In a dispute based on a pure contractual relationship there being no public duty element, a mandamus would not lie.

    Where the contract entered into between the State and the person aggrieved is of a non­-statutory character and the relationship is governed purely in terms of a contract between the parties, in such situations the contractual obligations are matters of private law and a writ would not lie to enforce a civil liability arising purely out of a contract.

    The proper remedy in such cases would be to file a civil suit for claiming damages, injunctions or specific performance or such appropriate relief's in a civil court. Pure contractual obligation in the absence of any statutory complexion would not be enforceable through a writ.
     
  2. State of Manipur & Ors vs. Moirangthem Chaoba Singh & Ors. (2005) Gauhati High Court
    The core question that falls for consideration in this case is as to whether a writ petition under Article 226 of the Constitution of India is maintainable to resolve the dispute arising out of concluded commercial contractual obligations between a citizen and the State or its instrumentalities even in cases where the extract itself provides for the forum to resolve the dispute. All the respondent-writ petitioners have entered into agreements for execution of different contract works for the Government of Manipur.

    The respondent-writ petitioners claimed that they have completed and executed the works about which no disputes have been raised by the State and its departments even after completion and successful execution of the works the State and its departments failed to pay and release the undisputed bills for contract work admittedly completed by grievance that the State and its departments without any reason and justification failed to refund the undisputed security deposits made by them at the time of entering into the contract.

    The court held that a writ of Mandamus does not lie for enforcement of private rights, nor is it available for obtaining interim relief till cross-claims between the parties are determined in arbitration wherefrom such a provision is made in the contract itself. It is axiomatic that relations between the parties in concluded non-statutory contracts are governed by the terms and conditions thereof; and rights and obligations of parties inter se are required to be decided elsewhere. The relations are purely contractual and rights and obligations are governed only by the contract. A writ does not lie for enforcement of contractual rights.

Written By:
  1. Mr. Atish Chakraborty is a Fifth Year Law Student at Amity Law School, Kolkata specialising in Intellectual Property Law.
    Email:  [email protected]
  2. Mr. Aurin Chakraborty is a First Year Law Student at Symbiosis Law School, NOIDA.
    Email: [email protected]

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