CONTENTS

DRAFTING OF PLEADING AND CONVEYANCING
 

- General Principles of Drafting and Relevant Rules
 

CIVIL

-     Plaint

-     Written Statements

-     Interlocutory Applications

-     Original Petition

-     Affidavit

-     Execution Petition

-     Memorandum of Appeal and Revision

-     Petition under Art. 226 and Art. 32 of the Constitution of India
 

CRIMINAL

-     Complaint

-     Criminal Miscellaneous Petition

-     Bail Application

-     Memorandum of Appeal and Revision
 

CONVEYANCING

-     Essentials of a Deed

-     Sale Deed

-     Mortgage Deed

-     Lease Deed

-     Gift Deed

-     Promissory Note

-     Power of Attorney

-     Will

-     Agreements

PETITION UNDER ARTICLE 226 AND ARTICLE 32 OF THE CONSTITUTION

PETITION UNDER ARTICLE 226 AND ARTICLE 32 OF THE CONSTITUTION

This section deals with the writs. The writs ate obviously intended to enable the Supreme Court and High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in vacation of the principles of natural justice,

PETITION UNDER ARTICLE 226 AND ARTICLE 32 OF THE CONSTITUTION

This section deals with the writs. The writs ate obviously intended to enable the Supreme Court and High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in vacation of the principles of natural justice, or refuse to exercise jurisdiction vested I them, or there is an error apparent on the face of the record, and such act, omission, error or excess, has resulted in manifest injustice. However, extensive the a jurisdiction maybe it seems that it is not so wide or large as to enable the court to convert .itself into a court of appeal and examine for it self the correctness of the decisions impugned and decide what is the proper view to be taken or the order to be made.

Art. 32 of the constitution of India give the right to move the Supreme Court by appropriate proceeding. For enforcement of the rights conferred by part III, of the constitution of India.

The provision merely keeps open the doors of the Supreme Court in much of the same way as is used to be said, the doors of chancery court were always open the state cannot place any hindrance in the way of an aggrieved person seeking to approach the supreme court. This is logical enough for it is against state action that fundamental rights are claimed. But the guarantee goes no further at least on the terms of Art. 32 Having reached the Supreme Court, the extent or manner of interference is for the court to decide. It is clear that every case does not merit interference. That must always depend upon the facts of the case. In dealing with cases which have come before it, the Supreme Court has already settled many principles on which it acts. The Supreme Court does not take action in cases covered by the ordinary jurisdiction of the civil court that is to say; it does not convert civil and criminal actions into proceedings for the obtainment of writs. Although there is no rule or provision of law to prohibit the exercise of its extraordinary jurisdiction, the Supreme Court has always insisted up on recourse to ordinary remedies or the exhaustion of other remedies. It is in rare cases, where the ordinary process of law, appears to be inefficacious that the Supreme Court interferes even where other remedies are available. This attitude arises from acceptance of a salutary principle that extraordinary remedies should not take the place of ordinary remedies.

Then again the Supreme Court refrains from acting under Art. 32, of the Constitution, if the party has already moved the High Court under Art.26. This constitutes a comity between the Supreme Court and the High Court. Similarly, when a party had already moved the High Court with a similar complaint and for the same relief and failed, the Supreme Court insisted in an appeal to be brought before it and does not allow fresh proceedings to be started. In this connection the principle of res-judicata has been applied.

The citizens are ordinarily entitled to appropriate relief under Art. 32 once it is shown that their fundamental rights have been illegally or unconstitutionally violated. Therefore; Art. 32 does not give merely a discretionary power to the Supreme Court t grant an appropriate relief.

To enforce fundamental rights, resort can be had to art. 32 of the Constitution of India. Art. 32 is not to be invoked for infringement of a personal right of contract, nor is to be invoked for agitating questions which are capable of disposal under special enactments.

The amount there is a threat to a threat to fundamental rights to a citizen, he is entitled to approach the High Court under Article 32 not with standing actual threat has not taken place. The general attitude of the Supreme Court is not to answer any hypothetical question or a question if the same does not arise out if pleadings. (Sanjeev Coke V. Bharat Coking. AIR 1983 SC 239)

Art 32 provides in some respects for more effective remedy through Supreme Court then Art. 226 does through the High court. But the scope of the remedy is clearly narrower in that it is restricted solely to enforcement of fundamental right conferred by part III of the constitution. Art. 32 does not merely confer power on the Supreme Court as Art. 226 does on the High Court to issue certain writs for the enforcement of the rights conferred by part III, or for any other purpose, as part of its general jurisdiction. Art. 32 provides a "Guaranteed" remedy for the enforcement of those rights and this remedial right is itself made a fundamental right by being included in part III, the Supreme Court is thus the protector and guarantor of fundamental right and it cannot refuse to entertain applications seeking protection, against infringements of such rights. So and application for relief can be made to the Supreme Court direct. Art. 226 is wider in its scope vis-a- vis Art. 32, in that Art. 226 can be availed of both for enforcement of fundamental rights. But also of ordinary legal rights.

Art.32 (3) enables parliament to make a law empowering any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2) thereof one thing to be noticed is that the parliament can only empower any other court to exercise any of the powers exercisable by the Supreme Court under clause (2), it cannot confer guaranteed right mentioned in clued

(1) on any person to move that curt. That is to say, the court to courts to which such powers are given would be in the same position as the High Court in respect of the enforcement of the fundamental rights. In short no person would have a guaranteed right to move any such other court for the enforcement of fundamental lights. A discretionally jurisdiction similar to that of the High Court be . conferred on them.

Application for writ and its maintainability

In the case of K.K. Kochunni v.state of Madras (AIR 1959 SC 725) it was observed that the Supreme Court is bound to entertain a partition under Art. 32 of the constitution and to decide the same on merit even if it may encourage litigants to file many petitions under Art. 32 instead of proceedings by way of a suit. That consideration cannot by it self, be a cogent reason for denying the fundamental right of a person to approach the Supreme Court for the enforcement of his fundamental right which may, primafacie, appear to have been infringed.

Even, if the existence of other adequate legal remedy may be taken into consideration by the High Court in deciding whether it should issue any of the prerogative writs on an application under Art.226 of the constitution, the Supreme Court cannot on a similar ground decline to entertain a petition under Art. 32, for the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by part III of the constitution is itself, a guaranteed right. The mere, existence of an adequate alternative legal remedy cannot perse be a good and sufficient ground for throwing out a petition under Art. 32, if the existence of a fundamental right and a breach, actual or threatened, of such right is alleged and is prima- facie established on the petition.

In the following cases or circumstances writ petition under 32 lie: -
(a) Where action is taken under an ultra vires statutes,
(b) Where the statute is intravires but the action taken is without jurisdiction, and
(c) Where the action taken is procedurally ultra-vires -

The scope of Art-32 is being enlarged by judicial activism. In MC. Mehta V. Union of India (AIR 1987 SC 1086) it was pointed out that the court can entertrain claim for compensation suffered by a citizen on account of violation of fundamental rights.
Amendment of writ petition which cause no injustice to other side, avoids multiplicity of proceedings, and is necessary for determining real controversy of matter, should be allowed.
Aggrieved party can file a petition under Art. 32. and a petition for write under Art. 32 is not maintainable unless there has been a violation of some fundamental right.

In the case of Ravindra Nath Bose V. UOI (1970, 1SCC84) Supreme Court held that no relief should be given to petitioners who, without any reasonable explanation, approach the Supreme Court under Art 32 of the constitution after in ordinate delay. The Supreme Court administers justice in accordance with law and principles of equity and good conscience.
Applicability of Art. 226: The jurisdiction under Art.226 is to seeing that the judicial or quasi- judicial tribunals or administrative bodies exercising quasi- judicial powers, do not exercise their powers in excess of their statutory jurisdiction, but correctly administer the law within the ambit of the statute creating them or entrusting those functions to them where the Act has created its own hierarchy of officers and appellate authorities, to administer the law and so long as those authorities function within the letter and spirit of law, the High Court has no concern with the manner in which those powers have been exercised.
Writ jurisdiction is a discretionary and equitable jurisdiction. But since fundamental rights guaranteed by the Constitution the courts cannot refuse to enforce them on the ground of discretion. In the case of other rights the High Court generally refuse to exercise their discretion
(a) Where an alternative remedy is available to the petitioner,
(b) Where the petition is guilty of laches or unreasonable delay or acquiescence;
(c) Where the petition has, misrepresented or suppressed martial facts;
(d) Where it is no equitable to issue a writ;
(e) Where the writ, if issued, would be futile or ineffective or merely academic,
(f) Where the petition has become in fructuous;
(g) Where the grant of relief depends on investigation of disputed facts.
The writ jurisdiction of Supreme Court can be invoked only in cases of actual or threatened violation of fundamental rights guaranteed by part III of the constitution. The jurisdiction of the High Court is wider and can be exercised for the protection of fundamental rights as well as other legal rights.
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WRITS UNDER ARTICLE 32 & 226

1) Habeas Corpus: It is a writ in the nature of an order calling upon the person who has detained another to produce the detained person before the court, in order to let the court know on what ground he has been confined and to set him free if there is no legal justification for the detention. The writ is available in every case of unlawful detention either by an instrumentality of the state or by a private person.Art. 21 provide that no person shall be deprived of his life or personal liberty except according to procedure established by law. Art.22 provides protection against arrest and detention in certain cases. Whenever a case of arrest or detention by the authorities in violation of these provisions is established writ of habeas corpus would be issued. The jurisdiction can be invoked not only when a person is in actual detention but also when there is a real threat to his liberty and also when a person is on bail. But it cannot be invoked in the case of detention as a result of conviction on a criminal charge by a court of competent jurisdiction.

2) Mandamus: The writ of mandamus is a prerogative writ of a most extensive remedial nature, and is form, a command issuing from the court directed to any person, corporation inferior court, requiring him or them to do some particular thing specified which appertains to his or their office and is in the nature of a public duty. A writ of mandamus maybe granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge that statutory obligation.

In order to obtain a writ of mandamus the petitioner must establish

i. That he has a legal right to the performance of a legal duly by the respondent.
ii.That such duty is one imposed by the constitution, a statute, common law or by rules or orders having the force of law;
iii. That the duty is of a public nature and
iv. That a demand for justice was made and refused.

3) Certiorari: The object of a writ of certiorari is to keep the exercise of powers by judicial and quasi­judicial tribunals within the limits of the jurisdiction assigned to them by law and to restrain them from acting in excess of their authority.
Whenever the body of personas, having, legal authority to determine questions affecting rights of subjects and having the duty to act judicially act in excess of their authority, certioraris may issue to quash the decision that goes, beyond jurisdiction.

The decision of a judicial or quasi- judicial tribunal may be quashed by the issue of a writ of certiorari of one or more a the following grounds ate made out: -
(i) The tribunal has acted without or in excess of its jurisdiction,
(ii) That there is an error if law apparent on the face of the record;
(iii) That the tribunal has acted contrary to the principles of natural justice;
(iv) That the tribunal has acted in flagrant disregard of the procedure prescribed.
(v) That the tribunal was biased,
(vi) That the tribunal has acted malafide.

4) Prohibition : A writ of prohibition is also directed to wares keeping judicial and quasi judicial tribunals within the Iimits of their jurisdiction while a writ of certiorari can issue only after the tribunal has passed orders a writ of prohibition may be issued while the matter is still pending before the tribunal. A writ of prohibition is intended to prohibit or restrain the tribunal from action without or in excess of jurisdiction.
A writ of prohibition is issued to prevent the tribunal from proceeding further, when the tribunal proceeds to act:
(i) Without or on excess ofjurisdiction;
(ii) In violation of the rules of natural justice;
(iii) In utter disregard of the procedure prescribed;
(iv) In contravention of fundamental rights; and
(v) Under a law which is ultra-vires of unconstitutional.

5) Qua-warran to: In order to invoke the jurisdiction for issuing a writ of quo-warranto the following conditions have to be satisfied -
(i) That the officer is a public office;
(ii) That it is substantive in character;
(iii) That it has been created by a statute, or the constitution to by rules having the force of law;
(iv) That the respondent has asserted a claim to the office; and
(v) That the respondent aid not legally qualified to hold the office or remain in the office, or that some statutory provisions have been violated in making the appointment, so that his title to the office becomes invalid or without legal authority.

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