Article 226, 227

 

Article 226 of Constitution of India

Article 227 of Constitution of India

Important Points

1. A226 power of HC are much wider than power of SC u/s A32 of Constitution of India
1. Power under A226 can be exercised NOT only for enforcement of FR but for any other purpose as well;
2. Power under A226 is Discretionary Power
3. What can be done with A226?
1. Set aside / recall the order if order passed without jurisdiction or without giving opportunity of being heard to a party 
4. Rule of Alternative Remedy
1. If there exist effective and efficacious remedy 
2. Exhausting other remedies before approaching HC
3. Does NOT operate as BAR - atleast in 3 contingencies
1. Enforcement of Fundamental Rights
2. Where there is violation of principle of Natural Justice
3. Order / Proceeding are wholly WITHOUT Jurisdiction or the vires of an Act
4. Alternative remedy does NOT divest the HC of its power under A226
5. Appeal against the Tribunal/ Arbitration /  - HC exercises the Jurisdiction u/s A227
1. 
   
6. When can HC DECLINE Jurisdiction
1. Alternative efficacious remedy
2. Dispute questions of Fact
7. The Statutory provision is acceptance of the principle that the Jurisdiction of the HC under A226/227 of the Constitution of India cannot be curtailed.

Rule of Alternative Remedy

Case Laws

1. Rule of Alternative Remedy
1. Whirlpool Corporation V Registrar of Trademarks, Mumbai ( 1998) 8 SCC 1
1. Under A226 of the Constitution, the High Court, having regard to the facts of the case, has DISCRETION to entertain or not to entertain a writ petition. 
2. But the High Court has IMPOSED upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High court would not normally exercise its Jurisdiction. 
3. but the alternative remedy has been consistently held by this court not to operate as bar in at least three contingencies, namely, where the writ petition has been filed for the 
1. enforcement of any of the Fundamental Rights or 
2. where there has been a violation of principle of Natural Justice or 
3. where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
2. Harbanslal Sahnia Vs Indian Oil Corp, Ltd ( 2003) 2 SCC 107
1. In appropirate case, in spite of availability of the alternative remdy, the HC may still exercise it s write jurisdiction in at least three contingencies
1. Where the write petition seeks enforcement of any of the fundamental rights
2. where there is failure of principles of natural justice
3. where the orders or proceeding are wholly without jurisdiction or the vires of an Act is challenged
2. A226
1. Pepsi Foods Limited Vs Special Judicial Magistrate (1998) 5 SCC 749
1. if Court finds that the appellants could not invoke its jurisdiction under Article 226 the court can certainly treat the petition as one under A227 or Section 482 of CrPC
2. State of Punjab Vs DP Bhullar 
1. if an order is pronounced without jurisdiction or without giving an opportunity of being heard to a party affected by it, inherent power can be exercised to recall such order

Sources