Central India Law Quarterly
Writ Petition And Government WRIT PETITION AND GOVERNMENT ~
DR. R. B. DUBEY·
1. This article seeks to examine whether at the instance of
the State a writ can be filed against a private person who has no
publlc duty to be performed? Fortunately the Supreme ~ourt has
resolved that the Adminstrative Tribunals, which have been
established under Administrative Tribunals Act, 1985, will function
not as a substitute of the High Court but will supplement the High
courts.' This has also been held by the Supreme Court that the power
of superintendence of High Court over the Tribunals will remain as it
is, and now writ can be filed in the High Court against the final
decision (determination) of the Tribunals subject to the condition that
such writ must be heard by and decided by a bench of the High
Court. After reading the decision of the Supreme court in L. Chandra
Kumar case- the following question arises :-
1. The aggrieved party whose fundamental right(s) are vio-
lated by the State can avail remedy from the Adminstravite
service Tribunals only and after the establishment of the
Tribunals he can not invoke the extra-ordinary jurisdiction
of the High Court given Under Article 226 of the Indian
2. As the service Tribunals have been given a supplemental
role in discharging the powers conferred by Articles 226
and 227 of the Constitution. This is apparent from the
reading of L. Chandra Kumar's decision. From this it
Reader in Law, R.D.VV Jabalpur
1. L. Chandra Kumar v. Union of India and others, AIR 1997, SC 1125.
444 CENTRAL INDIA LAW QUARTERLY 2001
follows that the High court has still extra ordinary original
jurisdiction, and when the original jurisdiction is not
available to the State against private individuals then how
can the State resort the original jurisdiction in the garb
of that all decisions of the tribunals are subject to close
examination of judicial review of the High Court. It is here
pertinent to note that under the Administrative Tribunals
Act, 1985, the High court is not prescribed as the
appellate court against the decisions of the Tribunals. It,
is therefore, 'clear that the Government can not invoke
the original writ jurisdiction of the High Court against the
decision of the tribunals. Obviously the tribunal's order
can be challenged by invoking jurisdiction of the Supreme
Court under Article 136 of the Constituion. As far as the
jurisdiction of the High Court which is given under Article
227 is concerned it is quite supervisory, which is quite
limited to examine the tribunal should function within the
powers and jurisdiction as has been given to it under
relevant Act, and does not extent to correct the error if
any crept in the Tribunal's order/judgement.
2. If we look at the origin and development of writs and
against whom these writs can be issued, it shall be that these writs
can be filed issued against the State/Public individuals having public
duty to be discharged for the State under any Statute and in case of
any failing in dicharge in public duties writ or writs can be issued by
the High Court udner Article 226 of the Constitution.
Vol XIV WRIT PETITIONAND GOVERNMENT 445
3. This can also be inferred from the intention of the
Parliament in providing a provision in the Administrative Tribunals
Act i.e. Section 27 thereof that the order of the Tribunal is executable
as it is the final order of the Government. If this is termed as
government order then how the order issued/made by the Government
can be challenged by the government itself by filing a writ petition
either in the High Court under Article 226 or Article 32 before the
Supreme Court by filing writ petition. From the careful study of the
history of writs it appears that the writ petitions were filed against
the mightly people or state for the protection of basic/ fundamental
rights and not vice-versa.
In the above context the following cases may be seen:-
1. S. P. Sampath Kumar v. Union of India, AIR 1987, SC, 387.
2. S. P. Gupta V. Union of India, AIR 1982, SC, 149.
3. The Comptrollar v. K.B.S. Jaganath (1986) 1 SLR, 713 SC.
4. Awadesh Pratap Singh V. State of Bihar, AIR 1988, Pat. 227.
5. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.