“We also issue a writ of mandamus commanding the respondents not to run in future the brick kiln in question (subject matter of this Writ Petition) on the basis of the impugned orders or any other order passed in the past”. Para 9 of the judgement of Allahabad High Court, in the case 2007 (1) JCLR 620 : 2007 (3) ADJ 194 : 2007 (2) All LR 227 : 2007 (67) All LR 227, Shyam Nandan Kumar Mishra Versus District Magistrate,Ballia & Ors.
9.3. From these two examples, it may be clear that, there are no particular “wordings” to use in any Petitions. You have to state only what it comes to your mind, in a decent and good words.
10. Principles for Exercise of Writ Jurisdiction, from two important Text books, following notes are made:-
10.1. Noted from the Constitution of India, 9th Edn, by VN Shukla, Updated by Professor Mahendra P. Singh, Professor of Law, Delhi University; published by Eastern Book Company:- “(1) Alternative remedy. (2) Delay- there is no prescribed period of limitation nor do the provisions of Limitation Act apply to a Writ petition, but inordinate delay in invoking the jurisdiction may be a good ground for declining to grant relief. (3) Suppression of facts. (4) Futile Writ. (5) Disputed questions of fact. (6) Perpetuate illegality. (7) Dismissal in limine. (8) Joinder of parties. (9) Res Judicata”.
10.2. In another book published by the same Publisher, Eastern Book Company, namely Administrative Law, 4th Edn, by Dr.IP Massey, Dean, Faculty of Law, HP University, Shimla; the Grounds to issue each Writs are given as follows:-
10.2.1. “Grounds for issue of writ of Certiorari:- (1) Lack of jurisdiction. (2) Where the Authority exceeds its permitted Jurisdiction. (3) Abuse of jurisdiction. (4) Violation of principles of natural justice. (5) Error of law apparent on the face of the record. (6) Decision of the Authority has been obtained by playing fraud”.
10.2.2. “Grounds for issue of writ of Prohibition”:- From Certiorari’s grounds 1, 2, 4 and 6. Other grounds are: “(1) Infringement of the fundamental rights. (2) Contravention of the law of the land”.
10.2.3. “Grounds for the grant of writ of Mandamus:- Mandamus can be issued on all those counts on which certiorari and prohibition can be issued”.
10.2.3.1. “Conditions for the grant of writ of Mandamus:- (1) There must be public or Common Law duty. (2) There must be specific demand and refusal. (3) There must be a clear right to enforce the duty”.
10.2.4. “Conditions for the grant of writ of Quo Warranto:- (1) Office must be a public office. (2) That must be of substantive nature. (3) The person/ respondent must be in actual possession of the office. (4) The office must be held in contravention of law. (5) Locus standi”.
10.2.5. Purpose of issue of Habeas corpus Writ:
10.2.5.1. Preventive Detention = Detenue in the custody of Government.
10.2.5.2. Custody of Minor = Detenue in the custody of Private party.
10.2.5.3. Custody of Lunatic = Detenue in the custody of Private/ Govt Hospital.
10.2.5.4. Custody of Marriage Partner = Detenue in the custody of Private Party.
10.2.5.5. Detention for breach of privilege of Parliament/ Legislature = Detenue in the custody of Government.
10.2.5.6. Detention by Court Martial = Detenue in the custody of Government.
11. From all those theories from two books by same Publisher, Eastern Book Company, it may be clear to the Readers that, from Examination point of View, there is a lot to study in Writ Petitions, but in Practical life, if the Client have money to try at two Courts, and he is not of Black-mailing in nature, at first file Writ Petition and later file Civil Suit.
12. How to calculate compensation in MACT case and Writ petitions:- In the Judgement of Hon’ble Supreme Court of India, reported as Jai Bhagwan Versus Laxman Singh, 1994 Legal Eagle(Cri) 397 : 1994 ACJ 983; quoting from the text book on Torts written by Clerk and Lindsell, following guide-lines are given: Damages are two classes:
IN all but a few exceptional cases the victim of personal injury suffers two distinct kinds of damage which may be classed respectively as pecuniary and non-pecuniary.
Pecuniary damage: By pecuniary damage is meant that which is susceptible of direct translation into money terms and includes such matters as loss of earnings, actual and prospective, and out-of- pocket expenses. The court should and usually does seek to achieve restitution in integrum in the sense described above.
Non-pecuniary damage: While non-pecuniary damage includes such immeasurable elements as pain and suffering and loss of amenity or enjoyment of life. Court seeks to award 'fair compensation'.
This distinction between pecuniary and non-pecuniary damage by no means corresponds to the traditional pleading distinction between 'special' and 'general' damages.
Special damages: necessarily concerned solely with pecuniary losses - notably accrued loss of earnings and out-of-pocket expenses.
General damages: comprises not only non-pecuniary losses but also prospective loss of earnings and other future pecuniary damage.
Non-pecuniary losses, how Compensated:- Non-Pecuniary losses are different from pecuniary losses in that the restitution in integrum objective cannot be applied literally to them - damages cannot restore a lost limb or happiness. While there is some disagreement as to the function of non-pecuniary damages, many would agree with the Royal Commission's suggestions that they serve as a palliative, or provide the plaintiff with the means to purchase alternative forms of happiness, or help to meet hidden expenses caused by injury. While the practice of the courts is not to subdivide non-pecuniary damages under specific heads, nevertheless proper consideration cannot be given to the plaintiff's claim without taking into account the various types of loss he has suffered."
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RELEVANT CASE LAW
The Case law is selected in such a manner that, it will be clearly known by the Reader that, Judicial Opinion is subject to Variation, and do not dream a lot of compensation from the Courts.
1. Compensation, Law of – Appeal by Government, when not to be filed – Strictures passed by Hon’ble Mr. Justice Dalveer Bhandari, for the Division Bench of himself and Justice RC Jain, while dismissing Writ Appeal – Para 22. The State must learn to make distinction between case of custodial death with other cases of compensation. It is the duty and the obligation of the State Government to graciously accept the judgment in the matter of custodial death and implement the judgment in all seriousness, The attitude of rushing to Court for filing an appeal, particularly, when the learned Single Judge has granted very reasonable and fair compensation is hardly warranted. State (Govt. of NCT of Delhi) Versus Smt. Iqbal Begum, 2004 Legal Eagle(Cri) 2139 : 2004 CrLJ 3092 (Delhi).
2. Writ petition – Compensation, ad-interim, quantum of – Illegal custody for 2 days – there was non-compliance with the provisions of Section 5 of the Armed Forces (Special Powers) Act - As a result of it, the constitutional and legal rights of Dipanka had been infringed - Amount granted is Rs. Two hundred only – Held: we award a nominal amount of Rs. 200/- it would meet the ends of justice. Accordingly, it is ordered and directed that the respondents shall pay a sum of Rs. 200/- to Dipanka. It is further ordered and directed that the respondents shall see that in future no such violation of constitutional or legal rights of citizens are permitted to be committed by the army personnel. (Note: in the year 1991, the monthly salary of a Clerk was Rs.800/-, from this it can be understood that Rs.200/- was a nominal amount – Author). Paras 9 and 16 of the Smt.Purnima Barua Versus Union of India (UOI) and Ors. 1991 Legal Eagle(Cri) 1190 : 1991 CrLJ 2675 (Gauhati).
3. Writ Jurisdiction – Illegal custody by Police – Detention for 2 days – Compensation of Rs.6000/- granted – Held: Para 14. In the instant case the detenu himself has stated that he was not tortured by the 4th respondent. A man of 70 years old, who has nothing to do with the complaint given, was brought to the police station and was confined for two days, unauthorisedly. We, therefore, direct the S.I. of Police, the 4th respondent herein, to pay a compensation of Rs. 6,000/- (Rupees six thousand only) to the detenu, within four weeks from today. Gongula Venkateswara Rao Versus S.H.O., Vissannapeta P.S.and Ors. 1998 Legal Eagle(Cri) 1781 : 1998 CrLJ 414 (AP).
4. Writ Proceedings – Compensation, quantum of as ad-interim measure – More can be claimed in Civil Suit – Rudul Shah was acquitted by the Court of Sessions in 1968, but continued to be in custody until 1982 for 14 years after he had been acquitted - A compensation of Rs. 35,000 was awarded against the Government of Bihar. Rudul Sah v. State of Bihar, AIR 1983 SC 1086.
5. Writ petition – Compensation, ad-interim, quantum of – Illegal police custody for 4 days – Amount granted is Rs. Fifty thousands. Held: it was a gross violation of Bhim Singh's constitutional rights under Articles 21 and 22(2) and that when a Petition is filed with a complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may compensated only by setting him free. Bhim Singh v. State of J & K, AIR 1986 SC 494 : 1986 Cri LJ 192.
6. Writ Jurisdiction – Torture and Illegal detention – Ad-interim compensation – Held: Para 16. For the foregoing reasons, it is ordered and directed that the respondents shall pay Rituraj Barua and Padmaraj Barua Rupees 5000/- each as monetary compensation in the nature of a palliative. It is made clear that the order of monetary compensation will not preclude the aggrieved party from bringing an action to recover appropriate damages from the respondents or their erring officials in accordance with law. It is further ordered and directed that the respondents shall see that in future no such violation of constitutional and/ or legal rights of the citizens are permitted to be committed by the army personnel. Shri Bacha Bora Versus State of Assam and Ors. 1991 Legal Eagle(Cri) 1274 : 1991 CrLJ 2782 (Gauhati).
7. Writ Jurisdiction – Custodial Death – Compensation – Para 21. The learned Single Judge has taken a just, fair and a very reasonable view and granted ex-gratia compensation of Rs. 3,50,000/- for a custodial death, it is hardly appropriate for the State to appeal against such a judgment for reducing the amount of ex gratia compensation. State (Govt. of NCT of Delhi) Versus Smt. Iqbal Begum, 2004 Legal Eagle(Cri) 2139 : 2004 CrLJ 3092 (Delhi).
8. Compensation, Law of – When through Fixed Deposit Receipts – From the Powerful to weak person – How to ensure that Weak will not be compelled to tell that he had received money, without really getting the same – How the Powerful should make payment – Held: by way of depositing the said amount of Rs. 6,000/- in a Nationalised Bank at vissannapet, Krishna District or in any nearby place, for a period of two years, enabling the detenu to draw the interest and handover the FDR to the detenu. Gongula Venkateswara Rao Versus S.H.O., Vissannapeta P.S.and Ors. 1998 Legal Eagle(Cri) 1781 : 1998 CrLJ 414 (AP).
COMPENSATION : WRIT AND CIVIL SUIT CAN BE FILED
9. Writ Petitions – Compensation granted in Writ Proceedings is palliative and ad-interim in nature – Why Civil Suits are time consuming are also explained – Held: "This order will not preclude the petitioner from bring a suit to recover appropriate damages from the State and its erring officials. The order of compensation passed by us is, as we said above, in the nature of a palliative. We cannot leave the petitioner penniless until the end of his suit, the many appeals and the execution proceedings. A full-dressed debate on the nice points of fact and law which takes place leisurely in compensation suits will have to await the filing of such a suit by the poor Rudul Sah." Rudul Sah v. State of Bihar, AIR 1983 SC 1086 : 1983 Cri LJ 1644 (SC).
10. Writ jurisdiction – Compensation to Victim and Punishment to delinquent Govt employee – Distinction explained - "In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortuous act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not interrogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit." Para 55 of D. K. Basu v. State of West Bengal AIR 1997 SC 610 : 1997 Cri LJ 743.
11. Writ Petitions – Compensation – Civil Suit also can be filed - The payment of compensation in such cases as has been explained by the Supreme Court is not to be understood, as it is generally taken in a civil action for damages under the private law, but this compensation has to be taken in the broader sense of providing relief by an order of a writ Court for making monetary amends under the public law for the wrong done due to breach of public duty by not protecting the fundamental rights of the citizen. The compensation is in the nature of exemplary damages awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort through a suit instituted in a Court of competent jurisdiction. Para 8 of the WP(C)No. 11703 of 2005, Date of Decision : 20-Aug-2007, titled Prabir Kumar Das Versus State of Orissa and Ors., 2008 Legal Eagle(Cri) 310 : 2008 (2) Crimes 748 (Orissa).
12. Compensation, law of – Illegal detention by Police – Number of days, mode of determination – Held: Releasing a person from the Police Station during evening time, because of which he had to continue residing at the Police Station itself till next day morning means, his illegal detention continued till he was able to move away from the Police Station – Held: Though accepting the statement of the S.I. that the detenu was asked to go away on 30-10-96 evening, it must be remembered that the detenu is an old man and unless some help was given to him to go to his village, he has to remain in the police station itself till 31-10-96, till his son came to the police station and took him away. Thus his stay till 31-10-96 in the police station should be treated as unlawful custody by the S.I. of Police. Gongula Venkateswara Rao Versus S.H.O., Vissannapeta P.S.and Ors. 1998 Legal Eagle(Cri) 1781 : 1998 CrLJ 414 (AP).
TRANSFER OF INVESTIGATION
13. Directions issued to transfer Investigation - Lock-up death case to CBI - “The CBI shall register a case and conduct an investigation into the circumstances which led to death of Ramkumar Dhruv. The CBI shall forthwith appoint an Officer to receive from the respondents (= Local Police/ Crime Branch) all records relating to Ramkumar Dhruv's detention in police custody at Police Station La, burial of his dead body at Bhalesur, the video-graphs relating to exhumation and post-mortem conducted on 20-8-2004 and also the video, if taken on 13-8-2004 by the team of Doctors, as clearly directed by Executive Magistrate, Suhela. The CBI shall also thoroughly investigate by reconstructing the scene of offence whether a person of the height who had sustained severe injuries and swelling all over the body and could not walk, could without any support climb the wall and reach the iron rod in the ventilator so as to tie a knot for committing suicide by hanging. The CBI would thoroughly investigate whether death was suicidal or homicidal. The investigation shall be completed as expeditiously as possible, at any rate, within six months from the date of receipt of the order and a copy of the report of investigation conducted by CBI shall be filed in this Court”. Forum for Fact Finding Documentation and Advocacy Versus State of Chhattisgarh and Ors. 2006 Legal Eagle(Cri) 2263 : 2006 CrLJ 4372 (Chattisgarh).
DELAY AND LACHES EXAMPLE
14. Writ Petition – To enforce Fundamental Rights – When rejected – Persons donot file WP expeditiously for relief – They stand by and allow the things to happen – They file stale claims and try to unsettle the settled matters – There is no distinction between Petitions to enforce Fundamental rights and and for other purposes - Held: it would be sound and wise decision when Writ Jurisdiction is refused to exercise in such matters with laches. PS Sadasivaswamy Vs. State of Tamil Nadu, (1975)1 SCC 152.
COMPENSATION IS BOUND BY RESPONDENT’S RULES
15. Writ Petition – Aeroplane Accident – Employee injured – Compensation claimed Rs.90 Lakhs – Given only Rs.9 Lakhs – Prayers in the Petition had been to issue a writ of mandamus directing the respondent Nos. 1, 2 and 3 to compensate the petitioner to the tune of Rs. 90 lakhs by way of exemplary damages for her physical ailments and mental harassment and issue directions to the respondent No. 1 organization to reimburse the medical expenses of the petitioner incurred by her subsequent to Air India's refusal to do so and further to continue to bear the future medical expenses arising out of her physical ailments caused due to the air accident, besides other prayers to prosecute Pilots – Held: Para 33. The respondent Air India being a public sector undertaking is bound by rules and standing orders in grant of compensation in such accidents. Despite all safety measures unfortunately similar accidents take place off and on both in India and abroad. Compelling Air India to deviate from the rules, norms and standing orders can creat serious financial implication. Air India has taken an extremely reasonable attitude in this matter. They had generously provided approximately Rs. 30 lakhs on petitioner's treatment in India and abroad. Air India has given compensation to the tune of Rs. 9,21,250/-. Air India has till date paid the entire salary to the tune of Rs.5 lakhs even without her reporting for work. Air India has also undertaken to reimburse all her future bills of treatment. Air India has given offer to keep the petitioner in employment till retirement. The respondent Air India has also given an offer of giving her a posting of her choice in any part of the country. In this view of the matter, our imposing any more financial burden on Air India would create problem for similar cases. Judgement delivered by Justice Dalveer Bhandari for the Division Bench of himself and Justice SK Agarwal, in the case titled Sangeeta Barring Versus Air India Ltd. 2003 LE(Del) 32 : 2003 LE(Del) 32.
QUASHING OF FIR/ CRIMINAL TRIAL
SPECIMEN OF LETTER LETTER BY WIFE TO HUSBAND
16. Writ Jurisdiction – Sec 482 Criminal Procedure Code, 1973 and Articles 226 and 227 of the Constitution of India – Quashing of Dowry Complaint – Wife left matrimonial home due to to failure of physical relationship and resultant dissatisfaction – No was case made out and the court was being used as a tool - Criminal proceedings against the husband’s sister be quashed - Presumed by relying following letter written by newly married girl to her husband, prior to deserting him:- “Dear Rrr, (marriage on 11-3-1999, date of leaving husband within 2 weeks) There are several other things which I wanted to tell but I could not tell you, so I have gathered courage to write the same. I have now learnt that you are a good human being and you have condoned my several draw backs. Thus, I shall always be grateful to you. Rrr, like any other girl, I also had dreams, which I could not tell you but I would like to tell you the same today, so that we can understand each other better and can give happiness and love to each other. My dreams were there should be light music in my room and my partner should shower love on me and should accept me from core of his heart fully. I should be attractive and we should be able to possess each other. Rrr, I know there were some mistakes on my part that I could not seduce you completely. While preparing you mentally I forgot to prepare you physically. I am sorry. Henceforth I shall make full efforts that you get satisfaction from me and not from yourself. You must be understanding what I am trying to say. Rrr, the relationship of husband and wife is not only of body but it is of heart and soul as well. I understand your all problems and I shall give company to you in all times. So far as babies are concerned, we will not have babies till you do not want them and I will not make any demand from you howsoever long it may take. Rrr, I am going today, you should come to my parental house to take me back if you consider that I am not a useless thing. Rrr, please destroy this letter after reading it so that it does not fall into the hands of others and we become laughing matter. And lastly thank you very much for all your affection, concern, care and love (I hope so) I love you very much dear and will always do so even if you accept me or not it doesn't matter. Always your and only yours. Sss. Post Script.-Rrr I have disturbed you for several nights and now you should sleep properly. I know if you wanted you could have forcibly established relationship with me but you left me thinking as if I was a child. I would not get better husband than you in this world. I am very lucky that I got a husband like you and I thank god for giving such a wonderful husband.” Decided by Hon’ble Mr. Justice S.N.Dhingra, in the case titled Sangeeta Kalra Versus State, 2007 (138) DLT 535 : 2007 (1) Crimes(Del) 761.
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CHAPTER 28 : WRIT PETITIONS - SPECIMEN
In other chapters also various specimens of Writ petitions, according to the subject of those Chapters were given. The present specimen is about Service Matter, in which despite there is “Constructive Resjudicata”, because of which the Writ petition may be dismissed on the first day itself “in Limine”, is prepared for a Client who want to make one more efforts to get Justice with new approach to the very old case:
Note:- (1). Writ Petition is prepared on the assumed facts that, a Railway Employee working in the Ticketing/ Booking Office had been punished with Termination by the Department, because he had been unwilling to plead guilty, who got re-instatement through Central Administration Tribunal, without back-wages, thus he received less pension, at the time of Superannuation. One effort had been made through the Writ Petition filed previously, which had been dismissed and SLP also failed. The Client did not loose his heart and want to make one more efforts. Now the Writ Petition to be filed once more, which is drafted as follows:-
(2). The Annexures used in this Writ Petition are:- Annexure P-1: Order dated 15-2-1989, by CAT. Annexure P-2 (Collectively) :- True copy of the entire file and orders in RA 5/92. Annexure P-3 (Collectively):- True copy of the entire file and orders in OA 668/96. Annexure P-4 (Collectively):- True copy of the entire file and orders in OP 13795 and 13796 of 1998-S, U/Article 226 of COI. Annexure P-5 (Collectively):- True copy of the Pre-Suit notice and it's Postal Receipt.
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IN THE HON’BLE HIGH COURT OF ....
Writ