Writ petition & Appeal to be filed with HC & SC & circumstances thereof

Writ petition & Appeal to be filed with High Court and Supreme Court and circumstances thereof

Article 32 and Article 226 of the Constitution provide two separate but parallel provisions of writ jurisdiction with the Supreme Court and High Courts respectively. Article 32 has been incorporated as a fundamental right and it provides for the constitutional remedy against the violation of fundamental rights. This remedy is limited to the violation of fundamental rights only under Article 32.

However, it is guaranteed under Article 32(2) and as per specific provision of Article 32(4) it cannot be suspended otherwise, except, as provided under the Constitution. Therefore, the right to move the Supreme is almost an absolute right and guaranteed under the Constitution itself except in case of suspension of this right as’ provided under the Constitution (emergency provisions). Though to grant relief or not to grant is absolutely the discretion of the Supreme Court but the apex court can be moved for violation of fundamental right as a matter of right. But to this limited extent, it is a different matter with the High Court.

The provision of Article 226 is a constitutional provision, but it is not a fundamental right. There is no guarantee attached to it unlike Article 32. The scope of Article 226 is wider than that of Article 32 because the operation of Article 226 is not limited to violation of fundamental rights only, but it can be operated for other purposes also. However, in entertaining the writs, the High Court enjoys wide and open powers as a matter of discretion. It is a plenary power of the High Court without any fatter from any provision of the Constitution. Since it is an extraordinary jurisdiction with the High Court, it has not to be resorted to in routine. The basic objective of this power is to ensure justice wherever the miscarriage of justice is manifest.

The High Court has to reach the remotest corner of justice to eliminate injustice. The Writ Jurisdiction of Supreme Court can be invoked under Article 32 of the Constitution for the violation of fundamental rights guaranteed under Part – III of the Constitution. Any provision in any Constitution for Fundamental Rights is meaningless unless there are adequate safeguards to ensure enforcement of such provisions. Since the reality of such rights is tested only through the judiciary, the safeguards assume even more importance.Under Article 226, a High Court is empowered to issue directions, orders or writs, including writs in nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of a Fundamental Right and for any other purpose.

Writ in the nature of Habeas Corpus

Habeas corpus is are course in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, to bring the prisoner to court, to determine whether the detention is lawful. In India the power to issue a writ of habeas corpus is vested only in the Supreme Court and the High Court.  Habeas corpus is the writ which was visualized as an effective means to provide a quick remedy to a person who has lost his personal liberty without any legal justification. In Deepak Bajaj V/s State of Maharashtra, the Supreme Court held that “the celebrated Writ of Habeas Corpus has been described as ‘a great constitutional privilege of the citizen’ or ‘the first security of civil liberty’.” Undoubtedly, the remedy available under Habeas Corpus jurisdiction is a very strong tool made.

Writ in the nature of Mandamus 

Mandamus is a judicial remedy in the form of an order from a court to any government, subordinate court, corporation, or public authority, to do some specific act which that body is obliged under law to do, and which is in the nature of public duty, and in certain cases one of a statutory duty. It is not a writ of right and is not issued as a matter of course. Some of the conditions precedent to the issue of writ of mandamus appear to be: (1) the applicant for a writ of mandamus must show that there resides in him legal right to the performance of a legal duty by the party against whom the mandamus is sought; (2) the Court will not Interfere to enforce the law of the land by the extraordinary remedy of a writ of mandamus in cases where an action at law will lie for complete satisfaction; in order, therefore, a mandamus may issue to compel something to be done, it must be shown that the statute imposes a legal duty; (3) the writ is only granted to compel the performance of the duties of a public nature; and (4) the Court will, as a general rule and in the exercise of its discretion, refuse a writ of mandamus when there is an alternative specific remedy at law, which is not less convenient, beneficial and effective.

Writ in the nature of Prohibition .

A writ of prohibition is a writ directing a subordinate to stop doing something the law prohibits. This writ is often issued by a superior court to the lower court directing it not to proceed with a case which does not fall under its jurisdiction.

Writ in the nature of Quo Warranto.

Quo warranto means: “by what authority”.  The writ of quo warranto can be issued against the holder of a public office. The writ calls upon him slowly to the court under what authority he holds the office. If the holder has no authority to hold the office, he can be ousted from its enjoyment.

 Quo Warranto: The term quo warrant means what is your authority. The writ of quo warranto is used to judicially control executive action in the matter of making appointments to public offices under relevant statutory provisions. The writ is also used to protect a citizen from the holder of a public office to which he has no right. The writ calls upon the holder of a public office to show to the court under what authority he is holding the office in question. If he is not entitled to the office, the court may restrain him from acting in the office and may also declare the office to be vacant. The writ proceedings not only give a weapon to control the executive from making appointments to public office against law but also tend to protect the public from being deprived of public office to which it has a right.

Quo warranto prevents illegal usurpation of public office by an individual. The necessary ingredients to be satisfied by the court before issuing a writ is that the office in question must be public , created by the constitution or a law and the person holding the office is not legally qualified to hold the office in clear infringements of provisions of the constitution or the law . It is the person against whom writ of quo warranto is directed, who is required to show by what authority the person is entitled to hold the office. While issuing such a writ, the High court merely makes a public declaration of the illegality of the appointment and will not consider other factors, which may be relevant for issuance of a writ of certiorari.

In law, certiorari is a court process to seek judicial review of a decision of a lower court or government agency. Certiorari comes from the name of an English prerogative writ, issued by a superior court to direct that the record of the lower court be sent to the superior court for review.

Writ in the nature of Certiorari

Certiorari is a latin word being passive form of word “certiorari” meaning inform . A writ of certiorari or a writ in the nature of certiorari can only be issued by the Supreme Court under Art. 32 and a High Court under Art. 226 to direct , inferior courts , tribunals or authorities to transmit to the court the record of proceedings disposed of or pending therein for scrutiny , and , if necessary , for quashing the same . But a writ of certiorari can never be issued to call for the record or papers and proceedings of an Act or Ordinance and for quashing such an Act or Ordinance.

Certiorari under Art. 226 is issued for correcting gross error of jurisdiction i.e. when a subordinate court is found to have acted (1) without jurisdiction or by assuming jurisdiction where there exists none, or (2) in excess of its jurisdiction by over stepping or crossing the limits of jurisdiction or (3) acting in flagrant disregard of law or rules of procedure or acting in violation of principles of natural justice where there is no procedure specified and thereby occasioning failure of justice.

Writ petition to be filed with the High Court .

Remedy invoking writ jurisdiction of the High Court can be availed for any harsh action under Benami law or Income tax law or any other law if:

(a) There is Gross injustice to the assessee.

(b) Clear cut procedure has not been followed by the revenue authorities as per law.

(c) The orders and actions are perverse.

(d) There is Gross violation of principle of natural justice.

(e) Actions/orders apparently made with malafide intentions/approach.

(f) Actions/orders are arbitrary.

Options available before High Court

(a) The Hon’ble High Court can admit the writ and issue requisite directions/orders.

(b) The writ can be dismissed on merits.

(c) They can send the issues back to the Executive/Appellate Authority.

Requisite ingredients for admission of Writ

Though High Court enjoys absolute power under Article 226 of the Constitution of India but these are not exercised in an unorganized /unfettered manner:

(i) The petitioner must approach with, full fairness and transparency.

(ii) If there is no disputes on facts.

(iii) If pure legal issues are involved.

(iv) No alternative remedy is available.

(v) Pursuing alternate remedy would frustrate the purpose of seeking justice.

(vi) The time delay to seek alternate remedy may cause irreparable damage.

Save as otherwise provided in this Act of Income tax , Benami Prohibition Act or GST Act , the provisions of the Code of Civil Procedure, 1908(5 of  1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section.

Time limit for filling appeals to High Court [Section 260A(2)(a)] as per Income Tax Act ,1961 .

Appeal shall be filed to the High Court within a period of 120 days from the date of communication of the decision or order of the Appellate Tribunal to the assessee on any substantial question of law arising out of such order.

High court may entertain Belated appeal [section 260(2A)]

Section 260(2A) provides that the High Court may entertain any appeal after the said period of 120 days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the period specified in section 260A(2)(a).

Determination of any issue by High Court [Section 260A(6)]

Section  260A(6) provides that the High Court may determine any issue which (a) has not been determined by the Appellate Tribunal; or (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in section 260A being substantial question of law .

Applicability of provisions of CPC Section 260A(7)

Section 260A(7)  provides that save as otherwise provided in this Act , the provisions of the Code of Civil Procedures, 1908(5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section.

Substantial question of law

Test laid down in Sir Chunilal v. Mehta and Sons Ltd. v Century Spinning and Manufacturing Co. Ltd. to determine whether a substantial question of law is involved are:

(i) Whether directly or indirectly it affects the substantial rights of the parties;

(ii) Whether the question is of general public importance;

(iii) Whether it is open question in the sense that the issue has not been settled by pronouncement of the highest court in the land;

(iv) The issue is not free from difficulty; or

(v) It calls for a discussion for alternative view.

Section 260A relates to appeal to High Court. Any party aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within a period of one hundred and twenty days  from the date of communication of the decision or order of the Appellate Tribunal to him on any question of law arising out of such order.

Text of Section 49 under prohibition of Benami Property Transactions Act, 1988

APPEAL TO HIGH COURT

[49.(1) Any party aggrieved by any decision or order of the appellate Tribunal may file an appeal to the High Court within a period of sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any question of law arising out of such order.

(2) The High Court may entertain any appeal after the said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the period specified in sub-section (1).

(3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question.

(5) Nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question.

(6) The High Court shall decide the question of law so formulated and deliver the judgments thereon containing the grounds on which any decision is founded and may award any cost as it deems fit.

(7) The High Court may determine any issue which –

    (a) has not been determined by the Appellate Tribunal; or

    (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-section(1).

Text of Section 24 of Code of Criminal Procedure 1973

PUBLIC PROSECUTORS

“24. (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor for conducting, in such Court, any prosecution, appeal or other proceeding on behalf of the Central or State Government, as the case may be.

(2) For every district the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutor for the district.

(3) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons who are, in his opinions, fit to be appointed as the Public Prosecutor or Additional Public Prosecutor for the district.

(4) No persons shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears on the panel of names prepared by the District Magistrate under sub-section (3).

(5) A person shall only be eligible to be appointed as a Public prosecutor or an Additional Public Prosecutor under sub-section (1) or sub-section (2), if he has been in practice as an advocate for not less than seven years.

(6) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, an advocate who has been in practice for not less than ten years, as a special Public Prosecutor.”

APPEAL TO HIGH COURT UNDER THE INCOME TAX ACT ,1961

260A. (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal [before the date of establishment of the National Tax Tribunal], if the High Court is satisfied that the case involved a substantial question of law.

(2) {The [Principal Chief Commissioner or] Chief Commissioners or the [Principal Commissioners or] Commissioners or an assessee aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High court and such appeal under this sub-section shall be-]

       (a) Filed within one hundred and twenty days from the date on which the order appealed against is [received by the assessee or the [Principal Chief Commissioner or] Chief Commissioner or [Principal Commissioner or] Commissioner];

(b) Omitted by the Finance Act, 1999

(c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved.

[(2A) The High Court may admit an appeal after the expiry of the period of one hundred and twenty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period.]

(3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question.

(5) The High Court shall decide the question of slaws so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit.

(6) The High Court may determine any issue which –

   (a) has not been determined by the Appellate Tribunal; or

  (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as referred to in sub-section (1).

[(7) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section.]

Taxpayers are allowed to make appeals to the High Court for challenging orders passed by the Appellate Tribunal. Not every appeal is dealt with in the corridors of the High Court. The High Court admits appeals if, and only if, it is satisfied that the case involves a substantial question of law. A question of law is considered to arise when the assessee makes a dispute about the applicability of any particular legal provisions forming part of the Income Tax Act.

The role played by the High Court pertaining to Income-tax appeals is limited. The High Court pursues the case only in terms of qualifying questions of law. However, the High Court has jurisdictions to hear any other substantial question of law which is not formulated by it, provided that the Court is satisfied that the appeal provides room for the relevant questions. The Court has to record the reasons for pursuing any other question of law. Taxpayers should note that the High Court has jurisdiction to recall any orders passed by any other bench of the High Court provided that sufficient cause is shown for the enactment of the order.

Writ Petitions OR Appeals

Appeals to the High Court can be made by the Assessee or the Commissioner of Income Tax. There might be instances where the Act deprives the assessee or the commissioner of the right to appeal. However, the concerned person is benefited with the option of a writ petition, which acts as a substitute for the appeal.