Article 226 – Power of High Court to issue writs and Orders

A writ, direction or order may be issued by the High Court under Article 226 to a person or authority amenable to the Court’s jurisdiction either by residence or location within the State, even if the petitioner and other parties are from other States. This power can be exercised, under Article 226(2) of the Constitution, though the person or authority is outside the territories in relation to which the High Court has jurisdiction, provided the cause of action arises, wholly or in part, within such territories.Under Article 226 of the Constitution, the High Court has the power to issue not only writs of certiorari, prohibition and mandamus, but also other writs, directions and orders. In other words, even if the case is one in which a High Prerogative Writ proper as known in England cannot be issued, the Indian High Court has jurisdiction to issue such directions and orders as may be necessary to meet the ends of justice, in respect of administrative action and judicial or quasi-judicial action.Similar powers to issue writs, directions and orders are conferred on the Supreme Court under Article 32 of the Constitution, but they are restricted to the enforcement of fundamental rights.

The fact that an inappropriate writ has been asked for is not a ground for refusing to grant appropriate relief. Section 293 of this Act cannot override Article 32 or Article 226 of the Constitution, and therefore in appropriate cases writs, directions or orders under Article 32 or Article 226 may be issued even in respect of something “in good faith done or intended to be done under this Act”.

The question of constitutional validity or vires of a provision of the Act has been held by the Supreme Court to be foreign to the jurisdiction of authorities appointed under this Act. Therefore, such questions can be decided only in a suit or a writ petition.

In income-tax contexts

The High Court may issue a writ of prohibition to prohibit the income-tax authorities from acting in excess of their jurisdiction, or a writ of mandamus or an order under Article 226 of the Constitution to compel the income-tax authorities to perform their statutory duties or to refund moneys wrongfully recovered from the petitioner.

Further, the High Court may issue a writ of certiorari to quash quasi-judicial proceedings taken by the income-tax authorities without jurisdiction or in excess of jurisdiction, or to quash an order that is vitiated by an error apparent on the face of the record or which is passed in violation of the principles of natural justice, or to quash a summons or order that has been issued without application of mind. The Court will interfere by a writ if the action is mala fide or arbitrary or does not comply with the statutory requirements, or if the action amounts to merely an exercise in futility.

The remedy under Article 226 by way of judicial review is purely a discretion. Where the petitioner fails to avail of the effective statutory alternative remedy within the prescribed time due to his own fault, he cannot be permitted to seek remedy under Article 226 of the Constitution of India (A.V. Venkateswaran Collector of Customs v. Ramchand Sobhraj Wadhwani (AIR 1961 SC 1506)).

Court rulings

In Titaghur Paper Mills Co Ltd v. State of Orissa (2 SCC 433), a Bench of three judges of the apex Court held that where efficacious statutory alternative remedy is available in the statute by way of an appeal and second appeal under the Sales Tax Act, and the petitioner failed to avail of relief in the appeals, the writ petition is not maintainable in law.

In Collector of Central Excise v. Dunlop India Ltd (1 SCC 260), the Supreme Court held that Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the vires of the statute is in question or where private or public wrongs are inextricably linked and the prevention of public injury and the vindication of public justice require it, that recourse may be had to Article 226 of the Constitution. A writ will not ordinarily be issued by the Court where the impugned order, not patently erroneous, is made by an authority within his jurisdiction.

However, where the defect of jurisdiction is apparent on the face of the proceedings, or there is an abuse of power, a writ of prohibition or other appropriate writ or order will be issued despite some delay in filing the petition or the existence of an alternative remedy, e.g. the right of appeal.

Likewise, the existence of an alternative remedy is not an absolute bar to the issue of a writ of certiorari and a writ of mandamus would not be refused merely because the assessee could have filed a suit.

A writ of prohibition or mandamus may be issued to restrain recovery proceedings in pursuance of an assessment order made without or in excess of jurisdiction, even if such a plea as to jurisdiction was not raised in the assessment proceedings. Where an order is quashed by the Court for a reason other than want of fundamental jurisdiction, in appropriate cases the Court may direct the authority concerned to pass a fresh order.

Court review of order

The High Court is entitled to review its order passed in a writ petition. A second writ petition challenging the same order on different grounds would not normally be entertained. Dismissal of a writ petition by the High Court on merits — whether after contest, or without notice to the other side but by a speaking order — bars a petition to the Supreme Court under Article 32; the only remedy of the petitioner is to appeal against the order of dismissal.

If the Court rejects a writ petition at the admission stage or after issuing a rule nisi, it should record reasons for such rejection.

The Madras High Court held in Aditanar Educational Institution v. Assistant Director of Income-tax (297 I.T.R. 376) that the relief under Article 226 of the Constitution of India can be granted in spite of the availability of alternate remedy under the statute, only based on undisputed facts. When the High Court finds that factual disputes are involved, it would not be desirable to deal with them in a writ petition.