A discussion on maintainability of Writ Petition under Article 226 – where disputed questions of facts exist.
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- Under Article 226 of the Constitution of India, the High Courts are given the power to issue writs. That this power to issue writ is a discretionary power of the High Courts. However, the High courts while entertaining writ petition have implemented certain self-imposed restrictions. One of such restrictions exercised by the High Court while hearing writ matters is that they are not inclined to entertain writ petitions involving “disputed questions of fact”.
- Given the above mentioned stand of the Hon’ble High Courts while determining maintainability of writ petitions consisting of disputed questions of facts. In certain cases, the Apex Court has held that it is not always correct for the High Court to dismiss a writ petition only on that ground.
- The Apex Court have reiterated this stand in a number of cases that the writ jurisdiction of the High Court under Article 226 of the Constitution is discretionary in nature and that it has the power to try cases involving dispute in law and dispute in facts. The court has also held that in appropriate cases and in extraordinary situations, the Hon’ble High Courts can adjudicate on disputed question of facts as well, under their writ jurisdiction.
- The Hon’ble Supreme Court while providing such relief has also explained situation/ cases where disputed facts can be adjudicated. The Hon’ble Supreme Court has held that in cases where the dispute of fact is of the nature whereby they do not require elaborate evidence to be adduced in order to determine the disputed question of fact such cases should not be denied maintainability in the light of dispute of facts.
- While determining when a fact is said to be disputed the Hon’ble Court has held that merely because one of the parties to the suit raises dispute in respect to a fact such cannot be treated as a disputed questions of fact and render the writ petition non-maintainable.
- It was further held that in cases where question of facts are involved and such disputed questions are of complex nature which for their determination will require elaborate evidences to be taken into account such as oral statements etc., such writ petitions may not be appropriately tried under the writ jurisdiction.
- This issue stands settled long time back vide various judgements of the Apex Court which are discussed hereunder:
Gunwant Kaur and Ors. vs. Municipal Committee, Bhatinda and Ors. (04.12.1969 – SC): (MANU/SC/0397/1969 ) / ((1969) 3SCC 247):
- In the above mentioned case the High Court have dismissed the matter on the ground that writ petition is not maintainable in cases where there is question of disputed facts.
- The order of the High Court was then challenged before the Hon’ble Supreme Court, the Hon’ble Supreme Court held that the High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner’s right to relief, “questions of fact” may fall to be determined.
- It further held that in a petition under Article 226 the High Court has jurisdiction to try issues both of fact and of law. Exercise of the writ jurisdiction is a discretionary power, and that such discretion must be exercised on sound judicial principles.
- The Hon’ble Supreme Court further has held that petition which raises complex questions of fact which cannot be determined easily in such cases the High Court can decline maintainability of such writ petition. That the relevant portion of the judgement as discussed above is herein extracted for reference:
“13. The pleas raised by the petitioners about the infirmity in the notification and the proceedings for compulsory acquisition were serious.
14. The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit in reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioners right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition.
Rejection or a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made, dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons.
15. From the averments made in the petition filed by the appellants it is clear that in proof of a large number of allegations the appellants relied upon documentary evidence and the only matter in respect of which conflict of facts may possibly arise related to the due publication of the notification under Section 4 by the Collector.
16. In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. The High Court has jurisdiction to determine questions of fact, even if they are in dispute, and the present, in our judgment, is a case in which in the interests of both the parties the High Court should have entertained the petition and called for an affidavit in reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separate suit.”
ABL International Ltd. and Ors. vs. Export Credit Guarantee Corporation of India Ltd. and Ors. (18.12.2003 – SC) : MANU/SC/1080/2003 /((2004)3 SCC 553):
- The Hon’ble Supreme Court held that in an appropriate case, the High Court has jurisdiction to try writ petition involving disputed question of fact. The Hon’ble Supreme court further held that however, in cases where the disputed questions of facts which requires consideration of evidence which is not on record, writ can be denied maintainability.
- The Hon’ble Supreme Court further held that while determining the maintainability of a writ petition the High Court should bear in mind that the power to issue writs under article 226 of the Constitution is plenary in nature and not limited by any other provision in the Constitution. It also added that such plenary right of the High Court is to invoked in extraordinary situation where no other remedy is left.
- The view taken by the Apex Court while relying on Smt. Gunwant Kaur and Ors. v. Municipal Committee, Bhatinda and Ors. MANU/SC/0397/1969 is extracted hereunder for reference:
“17. The above judgment of Smt, Gunwant Kaur (supra) finds support from another judgment of this Court in the case of Century Spinning and Manufacturing Company Ltd. and Anr. v. The Ulhasnagar Municipal Council and Anr. MANU/SC/0397/1970 : [1970]3SCR854 wherein this Court held :
“Merely because a question of fact is raised, the High Court will not be justified in requiring the party to seek relief by the somewhat lengthy, dilatory and expensive process by a civil suit against a public body. The questions of fact raised by the petition in this case are elementary.”
18. This observation of the Court was made while negating a contention advanced on behalf of the respondent-Municipality which contended that the petition filed by the appellant-company therein apparently raised questions of fact which argument of the Municipality was accepted by the High Court holding that such disputed question of fact cannot be tried in the exercise of the extraordinary jurisdiction under Article 226 of the Constitution. But this Court held otherwise.
19. Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of Smt. Gunwant Kaur (supra), this Court even went to the extent of holding that in a writ petition, if facts required, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and or involves some disputed questions of fact.
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29. From the above discussion of ours, following legal principles emerge as to the maintainability of a writ petition :-
(a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable.
(b) Merely because some disputed questions of facts arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.
(c) A writ petition involving a consequential relief of monetary claim is also maintainable.
30. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power [See: Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. MANU/SC/0664/1998 : AIR1999SC22 . And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the court thinks it necessary to exercise the said jurisdiction.
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……………………………Merely because the first respondent wants to dispute this fact, in our opinion, it does not become a disputed fact. If such objection as to disputed questions or interpretations are raised in a writ petition, in our opinion, the courts can very well go into the same and decide that objection if facts permit the same as in this case. We have already noted the decisions of this court which in clear terms have laid down that mere existence of disputed questions of fact ipso facto does not prevent a writ court from determining the disputed questions of facts.”
Popatrao Vyankatrao Patel v. State of Maharashtra and Ors. (CIVIL APPEAL No. 1600 OF 2020 – Supreme Court):
- The High Court of Judicature at Bombay in a recent case has also held that it is not inclined to entertain the writ as question of facts are in dispute and have asked the petitioner to avail alternative remedy of filing the said suit.
- The petitioner aggrieved by the order of the Hon’ble High Court have preferred an appeal before the Hon’ble Supreme Court.
- The Apex Court has held that there is no provision in the Constitution which puts a restriction on the power of the High Court to entertain Writ under Article 226. That the rule of entertaining writs which involved questions of law is a self-restrain rule which the High courts have imposed on themselves and not a hard and fast rule.
- The Hon’ble Supreme Court relied on the judgement passed by it in ABL International Ltd. & Anr. vs. Export Credit Guarantee Corpn. of India Ltd. & Ors.((2004)3 SCC 553) wherein the Apex Court has held that a writ petition cannot be denied maintainability on the sole ground that disputed question of facts are involved.
- The Hon’ble Supreme Court further held that, in extraordinary situation it can entertain the question of facts which appear in the face of the matter and when no such evidence is required to accept the same. The Court held in the following terms:
“6. ……………………………. even if there are disputed questions of fact which fall for consideration but if they do not require elaborate evidence to be adduced, the High Court is not precluded from entertaining a petition under Article 226 of the Constitution. However, such a plenary power has to be exercised by the High Court in exceptional circumstances. The High Court would be justified in exercising such a power to the exclusion of other available remedies only when it finds that the action of the State or its instrumentality is arbitrary and unreasonable and, as such, violative of Article 14 of the Constitution of India. In any case, in the present case, we find that there are hardly any disputed questions of facts.”
8. In view of above discussion, it is explicitly clear that while exercising writ jurisdiction it is not a matter of rule that the High Court is precluded from delving upon disputed question of facts. That it shall always be determined on a case to case basis whether;
- a disputed question of fact exists and that such dispute is not raised by one of the parties just for the sake of it;
- considering the nature of evidences required to determine the disputed question of fact the Hon’ble High Court may delve into such determination under its writ jurisdiction.
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