DOCUMENTARY AND FACTUAL VERIFICATION IN WRIT JURISDICTION OF HIGH COURT 2008 SC
Justice S.H. Kapadia and Justice B. Sudershan Reddy in a case of City and Industrial Development Corporation vs Dosu Aardeshir Bhiwandiwala & Ors. Reported in AIR 2009 SC 571,
FACT:- The High Court mostly relied upon the oral statement made through the A.G.P. and also some vague averments made by the appellant in its reply affidavit to the effect that the land in question is a private land and accordingly disposed of the Writ Petition directing the acquisition of the land. There is no whisper in the impugned order of the High Court that the Bhiwandiwala Trust continued to be the true and absolute owner of the land possessing valid and subsisting title as on the date of the filing of the writ petition. Nor there is any finding by the High Court as regards the nature of the land which is one of the most important factor that may have a vital bearing on the issue as to the entitlement of the respondent to get any relief in the writ petition. There is also no finding that Respondent No.1 who filed the writ petition as an individual is the trustee of the said trust and thus entitled to prosecute the litigation on behalf of the trust. The High Court did not consider as to what is the effect of filing of the Writ Petition by someone claiming to be a trustee without impleading the trust as the petitioner. The High Court ignored the statement made by the respondent in his Writ Petition about his representation to Tehsildar requiring to record his name as an "heir". The High Court never considered the effect of such a statement made by the writ petitioner in the writ petition itself. The High Court also did not consider whether the reliefs claimed could at all be granted in a public law remedy under Article 226 of the Constitution.
FINDINGS OF SUPREME COURT
Such a statement by itself cannot confer title in respect of immovable properties on any individual. The courts are not relieved of their burden to weigh and evaluate the relevancy and effect of such statements in adjudicating the lis between the parties.
The High Court ought to have considered whether there was any suppression of material facts from the Court. Having regard to the magnitude and complexity of the case the High Court in all fairness ought to have directed the official respondents to file their detailed counter affidavits and produce the entire material and the records in their possession for its consideration.
The stance adopted by the State ofMaharashtra
Under Article 226 of the Constitution, the jurisdiction of a High Court to issue appropriate writs particularly a writ of Mandamus is highly discretionary. The relief cannot be claimed as of right. One of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the court for a Writ is an adequate ground for refusing a Writ. The principle is that courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum.
The High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution is duty bound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record.
There is nothing like issuing an ex-parte writ of Mandamus, order or direction in a public law remedy. Further, while considering validity of impugned action or inaction the court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extra ordinary jurisdiction under Article 226 of the Constitution.
The court while exercising its jurisdiction under Article 226 is duty bound to consider whether :
(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can
be satisfactorily resolved;
(b) petition reveals all material facts;
(c)the petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) person invoking the jurisdiction is guilty of unexplained delay and laches;
(e) ex facie barred by any laws of Limitation;
(f) grant of relief is against public policy or barred by any valid law; and host of other factors.
The Court in appropriate cases in its discretion may direct the State or its instrumentalities as the case may be to file proper affidavits placing all the relevant facts truly and accurately for the consideration of the court and particularly in cases where public revenue and public interest are involved. Such directions always are required to be complied with by the State. No relief could be granted in a public law remedy as a matter of course only on the ground that the State did not file its counter affidavit opposing the writ petition. Further, empty and self-defeating affidavits or statements of Government spokesmen by themselves do not form basis to grant any relief to a person in a public remedy to which he is not otherwise entitled to in law.
It will not be appropriate to dispose of the matter without one word about the conduct of the State Government reflecting highly unsatisfactory state of affairs. This Court expresses its grave concern as to the manner in which State has conducted in this case. It is the constitutional obligation and duty of the State to place true and relevant facts by filing proper affidavits enabling the court to discharge its constitutional duties. The State and other authorities are bound to produce the complete records relating to the case once Rule is issued by the court. It is needless to remind the Governments that they do not enjoy the same amount of discretion as that of a private party even in the matter of conduct of litigation. The Governments do not enjoy any unlimited discretion in this regard. No one needs to remind the State that they represent the collective will of the society.
The State in the present case instead of filing its affidavit through higher officers of the Government utilised the lower ones to make oral statements and that too through its A.G.P. in the High Court. This malady requires immediate remedy. It is hoped that the Government shall conduct itself in a responsible manner and assist the High Court by placing the true and relevant facts by filing a proper affidavit and documents that may be available with it.
FINDINGS OF SUPREME COURT
Such a statement by itself cannot confer title in respect of immovable properties on any individual. The courts are not relieved of their burden to weigh and evaluate the relevancy and effect of such statements in adjudicating the lis between the parties.
The High Court ought to have considered whether there was any suppression of material facts from the Court. Having regard to the magnitude and complexity of the case the High Court in all fairness ought to have directed the official respondents to file their detailed counter affidavits and produce the entire material and the records in their possession for its consideration.
The stance adopted by the State of
Under Article 226 of the Constitution, the jurisdiction of a High Court to issue appropriate writs particularly a writ of Mandamus is highly discretionary. The relief cannot be claimed as of right. One of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the court for a Writ is an adequate ground for refusing a Writ. The principle is that courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum.
The High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution is duty bound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record.
There is nothing like issuing an ex-parte writ of Mandamus, order or direction in a public law remedy. Further, while considering validity of impugned action or inaction the court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extra ordinary jurisdiction under Article 226 of the Constitution.
The court while exercising its jurisdiction under Article 226 is duty bound to consider whether :
(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can
be satisfactorily resolved;
(b) petition reveals all material facts;
(c)the petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) person invoking the jurisdiction is guilty of unexplained delay and laches;
(e) ex facie barred by any laws of Limitation;
(f) grant of relief is against public policy or barred by any valid law; and host of other factors.
The Court in appropriate cases in its discretion may direct the State or its instrumentalities as the case may be to file proper affidavits placing all the relevant facts truly and accurately for the consideration of the court and particularly in cases where public revenue and public interest are involved. Such directions always are required to be complied with by the State. No relief could be granted in a public law remedy as a matter of course only on the ground that the State did not file its counter affidavit opposing the writ petition. Further, empty and self-defeating affidavits or statements of Government spokesmen by themselves do not form basis to grant any relief to a person in a public remedy to which he is not otherwise entitled to in law.
It will not be appropriate to dispose of the matter without one word about the conduct of the State Government reflecting highly unsatisfactory state of affairs. This Court expresses its grave concern as to the manner in which State has conducted in this case. It is the constitutional obligation and duty of the State to place true and relevant facts by filing proper affidavits enabling the court to discharge its constitutional duties. The State and other authorities are bound to produce the complete records relating to the case once Rule is issued by the court. It is needless to remind the Governments that they do not enjoy the same amount of discretion as that of a private party even in the matter of conduct of litigation. The Governments do not enjoy any unlimited discretion in this regard. No one needs to remind the State that they represent the collective will of the society.
The State in the present case instead of filing its affidavit through higher officers of the Government utilised the lower ones to make oral statements and that too through its A.G.P. in the High Court. This malady requires immediate remedy. It is hoped that the Government shall conduct itself in a responsible manner and assist the High Court by placing the true and relevant facts by filing a proper affidavit and documents that may be available with it.
no legal heir will involve as the petition should file by the trust only, while dosu a bhiwandiwala is not trustee, no trustee still alive.
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