SC: Under Article 226, HC has jurisdiction to try issues both of fact and law

The Hon’ble Supreme Court, on 7th August 2020, in the matter of Hari Krishna Mandir Trust vs. State Of Maharashtra And Others observed 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. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law.

The Hon’ble Supreme Court observed that:

The right to property may not be a fundamental right any longer, but it is still a constitutional right under Article 300A and a human right. (Para 96)

In view of the mandate of Article 300A of the Constitution of India, no person is to be deprived of his property save by the authority of law. (Para 96)

Article 300A of the Constitution of India embodies the doctrine of eminent domain which comprises two parts, (i) possession of property in the public interest; and (ii) payment of reasonable compensation. (Para 97)

The State possesses the power to take or control the property of the owner for the benefit of public. When, however, a State so acts it is obliged to compensate the injury by making just compensation (Para 97)

The right to property includes any proprietary interest hereditary interest in the right of management of a religion endowment, as well as anything acquired by inheritance. However, laudable be the purpose, the Executive cannot deprive a person of his property without specific legal authority, which can be established in a court of law. (Para 98)

In case of dispossession except under the authority of law, the owner might obtain restoration of possession by a proceeding for Mandamus against the Government. (Para 99)

Even though the right to claim compensation or the obligation of the State to pay compensation to a person who is deprived of his property is not expressly provided in Article 300A of the Constitution, it is inbuilt in the Article. The State seeking to acquire private property for public purpose cannot say that no compensation shall be paid. Statutory authorities are bound to pay adequate compensation. (Para 99)

The High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the Government or has exercised such discretion malafide, or on irrelevant consideration. (Para 100)

In all such cases, the High Court must issue a Writ of Mandamus and give directions to compel performance in an appropriate and lawful manner of the discretion conferred upon the Government or a public authority.  (Para 101)

In appropriate cases, in order to prevent injustice to the parties, the Court may itself pass an order or give directions which the government or the public authorities should have passed, had it properly and lawfully exercised its discretion.  (Para 102)

The Court is duty bound to issue a writ of Mandamus for enforcement of a public duty. There can be no doubt that an important requisite for issue of Mandamus is that Mandamus lies to enforce a legal duty. This duty must be shown to exist towards the applicant. A statutory duty must exist before it can be enforced through Mandamus. Unless a statutory duty or right can be read in the provision, Mandamus cannot be issued to enforce the same. (Para 103)

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. 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. (Para 104)

Copy of judgement: Judgement_07-Aug-2020

-Adv. Tushar Kaushik

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