Article 226 cannot be invoked in cases for which Civil & Criminal Remedies are available: SC

Team SoOLEGAL 5 Dec 2018 4:30pm

Article 226 cannot be invoked in cases for which Civil & Criminal Remedies are available:  SC

A Supreme Court bench of Justices AM Sapre and Indu Malhotra on Monday observed that a regular suit, and not a writ petition, is the appropriate remedy for settlement of the disputes pertaining to property rights between private persons.

In this case, the Kerala HC had allowed a writ petition filed by a person, who was forcefully evicted by police, seeking for restoration of possession of a flat.

The petitioner, Abdul Azeez, who lived in a flat owned by Roshina had approached the high court alleging that he was dispossessed from his house by the police, even though he had a civil case pending between him and the landlady. 

The Kerala HC had noted that the court has two conditions:

1.      Tell Azeez to appear before a civil court under Section 6 of the Specific Relief Act;

2.      To grant relief under its extraordinary jurisdiction, which has all facets of an equitable remedy.

The Kerala HC Division bench, which said that the police carried out the eviction,’also observed that “it puts a premium on dishonesty to ask Azeez, a victim, to follow a due process of law against those who are precisely guilty of violating the due process of law .” 

The bench then asked the landlady to restore possession to Azeez while giving her liberty to have recourse to due process of law to recover her possession.

Subsequent to Kerala HC observation, the landlady filed an appeal in the top court in this case. The two-judge bench of the Supreme Court then observed that the writ petition seeking relief of restoration of the possession of the flat in question was not maintainable and the same ought to have been dismissed in limine as being not maintainable.  

However, the SC bench disagreed with the approach adopted by the high court, and said:

It unnecessarily went into all the questions of fact arising in the case on the basis of factual pleadings in detail (43 pages) and recorded a factual finding that it was the respondent No.1 (writ petitioner ) who was in possession of the flat and , therefore, he be restored with his possession of the flat by the appellant .” 

The bench further added that the remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of statutory authority is alleged. 

The Court has jurisdiction to issue appropriate directions to the authority concerned. It is held that the High Court cannot avow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal are available. This Court has held that it is not intended to replace the ordinary remedies by way of a civil suit or application available to an aggrieved person. The jurisdiction under Article 226 of the Constitution being special and extraordinary, it should not be exercised casually or lightly on mere asking by the litigant.” 

First, there did exist a dispute between the appellant and respondent No.1 as to who was in possession of the flat in question at the relevant time; Second, a dispute regarding possession of the said flat between the two private individuals could be decided only by the Civil Court in civil suit or by the Criminal Court in Section 145 Cr.P.C proceedings but not in the writ petition under Article 226 of the Constitution ...,” the top court said and directed the parties involved to pursue remedies before civil court.

Source: LiveLaw

Tagged: Article 226   Abdul Azeez   Kerala High Court   Supreme Court  
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