Procedure note · Constitutional

The writ jurisdiction of the High Court for the State of Telangana

Article 226 in outline: the writs the Court may issue, when a writ lies and when an alternative remedy stands in the way, the effect of delay, how the jurisdiction differs from Article 32, and the practical sequence of filing.

1. The Court and the provision

The High Court for the State of Telangana was constituted with effect from 1 January 2019, on the bifurcation of the former High Court of Judicature at Hyderabad. Its writ jurisdiction is conferred by Article 226 of the Constitution, under which a High Court may issue directions, orders or writs to any person or authority within the territories over which it exercises jurisdiction, for the enforcement of a fundamental right “and for any other purpose”.

Article 226(2) extends the jurisdiction to a person or authority outside those territories where the cause of action, wholly or in part, arises within them. Article 226(3) provides that where an interim order is made ex parte without furnishing the other party copies of the petition and the material relied upon, an application by that party to vacate it is to be disposed of within the period prescribed, failing which the interim order stands vacated.

2. The five writs

• Habeas corpus — to produce a person said to be detained, and to test the legality of the detention.
• Mandamus — to command a public authority to perform a public duty it has failed or refused to perform, or to forbear from acting without authority.
• Prohibition — to restrain a subordinate court or tribunal from proceeding beyond its jurisdiction, issued while the proceeding is pending.
• Certiorari — to quash an order already made by a subordinate court, tribunal or quasi judicial authority which acted without or in excess of jurisdiction, in breach of natural justice, or with an error of law apparent on the face of the record.
• Quo warranto — to call upon the holder of a public office to show the authority by which the office is held.

In practice a petition is seldom framed by the name of a writ. Article 226 permits directions and orders “in the nature of” these writs, and a petition ordinarily asks for the order it needs, with the writ named in the alternative.

3. When a writ lies

The jurisdiction runs against the State, against local and statutory authorities, and against a body discharging a public function or a public duty. It does not ordinarily lie in a purely private dispute, or to enforce a contract simpliciter, or to decide a question that turns on evidence which has to be led and tested, because it is exercised on affidavits and not on a trial. A serious dispute of fact is ordinarily a reason to relegate a petitioner to a suit.

Nor is it an appeal. On certiorari the Court examines the legality of the decision-making process and the jurisdiction of the authority; it does not re-weigh the evidence or substitute its own view of the merits for that of the authority to whom the decision was entrusted.

4. Alternative remedy

Where the statute provides an appeal, revision or other remedy, the High Court will ordinarily require it to be exhausted first. The rule is one of self-imposed restraint and of policy, not a limit on jurisdiction: the existence of an alternative remedy does not oust Article 226, but it is a strong reason not to exercise it.

The exceptions recognised by the Supreme Court in Whirlpool Corporation v. Registrar of Trade Marks, (1998) 8 SCC 1, and restated in Radha Krishan Industries v. State of Himachal Pradesh, (2021) 6 SCC 771, are where the petition seeks enforcement of a fundamental right; where there has been a breach of the principles of natural justice; where the order or proceeding is wholly without jurisdiction; or where the vires of a statute is under challenge. To these the courts have added cases where the alternative remedy is not efficacious — for example where the appellate forum has not been constituted — and cases where the authority has acted in manifest disregard of a binding decision. These judgments are cited here as statements of law.

5. Delay and laches

No period of limitation is prescribed for a petition under Article 226. Delay nevertheless matters, because the jurisdiction is discretionary and equitable. A petitioner who approaches the Court long after the cause arose may be refused relief on the ground of laches, particularly where third parties have acted on the order in the meantime. The courts commonly take the limitation prescribed for an analogous civil proceeding as a guide, without treating it as a rule. Delay that is explained — by the pursuit of a statutory remedy, by the pendency of a representation, or by want of knowledge — is ordinarily excused, and the explanation belongs in the affidavit rather than in argument.

6. Article 226 compared with Article 32

Article 32 confers the right to move the Supreme Court for the enforcement of fundamental rights, and the right to do so is itself a fundamental right. Article 226 is wider in subject matter — it extends to any other purpose, and so reaches legal rights that are not fundamental rights — but it is exercisable only by a High Court and only within its territorial reach, and it is discretionary rather than guaranteed. In the ordinary case a grievance against a State authority in Telangana belongs before the High Court under Article 226.

7. The practical sequence of filing

1. Identify the order or action impugned, obtain a certified or authenticated copy of it, and settle the relief actually needed.
2. Exhaust or account for the statutory remedy, and be able to explain any delay.
3. Draft the petition with an affidavit, a list of dates and events, and the material papers as annexures; execute the vakalatnama.
4. File the petition with the prescribed court fee before the Registry; objections raised on scrutiny are complied with, and the petition is then numbered.
5. Move a miscellaneous petition for interim relief where one is needed, remembering the constraint in Article 226(3) on ex parte interim orders.
6. The matter is listed before the bench holding the roster for that subject. At admission the Court may dismiss it, direct notice, or grant interim relief.
7. The respondents file a counter-affidavit; a reply affidavit follows; the matter is heard and disposed of by a reasoned order.

From an order of a single judge an intra-court appeal — a writ appeal — lies to a Division Bench in the classes of case in which it is available. From an order of the High Court, a special leave petition lies to the Supreme Court under Article 136. Both carry their own periods of limitation, to be checked as soon as the order is received.

Related

Writ practice — areas of practice