equity jurisdiction to do complete justice

       

  

   

 
 
        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT:

    THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU

FRIDAY, THE 31ST DAY OF OCTOBER 2014/9TH KARTHIKA, 1936

                  WP(C).No. 27162 of 2014 (U)
                       ----------------------------

PETITIONER:

  SIMI.A.C., AGED 26 YEARS, D/O.LATHA,
  ANANYA BHAVAN, T C 20/265, CRA 216,
  PATHIRAPPILLY, MUKKOLA P.O.,
  THIRUVANANTHAPURAM

  BY ADV. SRI.P.ANOOP (MULAVANA)

RESPONDENTS:

1. THE SECRETARY,GENERAL EDUCATION
   GOVERNMENT SECRETARIAT,
   THIRUVANANTHAPURAM-695 001.

2. THE DISTRICT COLLECTOR, COLLECTORATE,
   CIVIL STATION, THIRUVANANTHAPURAM-695 001.

3. THE DIRECTOR OF PUBLIC INSTRUCTION,
   JAGATHY, THIRUVANANTHAPURAM.

4. DEPUTY DIRECTOR OF EDUCATION,
   THIRUVANANTHAPURAM-695 001.

5. DISTRICT EDUCATIONAL OFFICER,
   THIRUVANANTHAPURAM-695 001

6. ASSISTANT EDUCATIONAL OFFICER
   THIRUVANANTHAPURAM(NORTH)-695 004.

7. THE PRINCIPAL, JAWAHAR ENGLISH MEDIUM SCHOOL,
   PATHIRAPPALLY,KUDAPPANAKKUNNU,
   THIRUVANANTHAPURAM-695 043.

8. THE MANAGER, JAWAHAR ENGLISH MEDIUM SCHOOL,
   PATHIRAPPALLY, KUDAPPANAKKUNNU,
   THIRUVANANTHAPURAM-695 043.

ADDL. RESPONDENTS 9 AND 10 ARE IMPLEADED

9. SHIHI A.G.NAIR, TEACHER, JAWAHAR ENGLISH MEDIUM
    SCHOOL, KUDAPPANAKKUNNU VILLAGE, PATHIRAPPALLY,
    MUKKOLA P.O., TRIVANDRUM-5 RESIDING AT KUZHIVILA
    PUTHEN VEEDU, NETTAYAM, MANIKANTESWARAM P.O.,
    THIRUVANANTHAPURAM-13.

Impleaded as per order dated 23.10.2014 in IA 14366/2014

      10. THULASI.S., AKASH BHAVAN, TGRA-58
         PATHIRAPPALLY, KUDAPPANAKKUNNU,
         PRESIDENT, PTA, JAWAHAR ENGLISH
         MEDIUM SCHOOL, PATHIRAPPALLY.

      Impleaded as per order dated 30.10.2014 in IA 14558/2014

       R1 TO R6 BY SPL.GOVT. PLEADER SRI.T.T.MUHAMOOD
       R7&R8 BY ADVS. SRI.M.P.ASHOK KUMAR
                         SMT.BINDU SREEDHAR
                         SMT.R.S.MANJULA
       ADDL.R9 BY ADV. SRI.THOMAS ABRAHAM
                         SMT.MERCIAMMA MATHEW
                         SRI.ASWIN.P.JOHN
                         SRI.T.S.PRASANNAKUMAR
       ADDL.R10 BY ADV. SRI.S.MANU

       THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
31-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

              APPENDIX IN WP(C).No. 27162 of 2014 (U)

32. Under Article 226 of the Constitution, this Court exercises equity jurisdiction to do complete justice, ex debito justiae. In disputably, a writ of certiorari lies in respect of only judicial or quasi-judicial acts. At the earliest point of time, in Charanjit Lal Chowdhury v. Union of India (AIR 1951 SC 41), a Constitution Bench of the Hon'ble Supreme Court has observed:

"48... Anyway, Article 32 of the Constitution gives us very wide discretion in the matter of framing our writs to suit the exigencies of particular cases, and the application of the petitioner cannot be thrown out simply on the ground that the proper writ or direction has not been prayed for."

33. Whether this wide discretion has been confined to the proceedings under Article 32 of the Constitution alone fell for consideration in scores of subsequent cases before the Supreme Court. In Dwarkanath v. ITO (AIR 1966 SC 81), it is held as follows:

"4. [T]his article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution  designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression `nature', for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country..."

(emphasis added)

34. In fact, quoting Dwarkanath with approval, a Division Bench of the Hon'ble Supreme Court has recently held in Bangalore Development Authority v. Vijaya Leasing Ltd. ((2013) 14 SCC 737), as follows:

"17. Therefore, while exercising the extraordinary jurisdiction under Article 226 of the Constitution, the learned Single Judge came across the above incongruities in the proceedings of the Hon'ble Minister which resulted in the issuance of denotification dated 5-10-1999. We fail to note as to how the ultimate order of the learned Single Judge in setting aside such a patent illegality can be held to be beyond the powers vested in the constitutional court. The conclusion of  this Court in Gujarat Steel Tubes case (1980) 2 SCC 593) that judicial daring is not daunted when glaring injustice demands even affirmative action and that authorities exercising their powers should not exceed the statutory jurisdiction and correctly administer the law laid down by the statute under which they act are all principles which are to be scrupulously followed and when a transgression of their limits is brought to the notice of the Court in the course of exercise of its powers under Article 226 of the Constitution, it cannot be held that interference in such an extraordinary situation to set right an illegality was unwarranted."

(emphasis added)

35. It suffices if we end our discussion on this aspect with the observation of the Hon'ble Supreme Court in State of Punjab v. Salil Sabhlok ((2013) 5 SCC 1), wherein their Lordships have quoted with approval T.C.Basappa v.

T.Nagappa (AIR 1954 SC 440) to the following effect:

"89. However, in a unique situation like the present, where a writ of quo warranto may not be issued, it becomes necessary to mould the relief so that an aggrieved person is not left without any remedy, in the public interest. This Court has, therefore, fashioned a writ of declaration to deal with such cases. Way back, in T.C.Basappa v. T.Nagappa it  was said:

"6. The language used in Articles 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders, writs or directions including writs in the nature of `habeas corpus, mandamus, quo warranto, prohibition and certiorari' as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well. In view of the express provisions of our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges."

36. The learned revising authors of V. G.

Ramachandran's two-volume treatise Law of Writs, (EBC, 6th Edn.), after examining the case law holding the field on this issue opine thus (pp.1576-1581):

"The approach of the court in granting relief must be liberal and no hyper technical view should be taken. The court has a very wide discretion in granting relief and as held by the Supreme Court in Charanjit Lal v. Union of India. A petition under Article 226 should not be thrown away merely on the ground that the proper relief is not prayed for by petitioner. Even if the petitioner has asked  for wider relief which cannot be granted by the court, it can grant such relief to which the petitioner is entitled.

*** However, looking to the decisions of the Supreme Court starting from Charanjit Lal, it clearly appears that the Supreme Court has taken a liberal view by holding that a petition under Article 32 or under Article 226 of the Constitution should not be rejected merely on the ground of formal defects in praying for proper reliefs.

*** It is, however, well settled that no petition will be dismissed by the court only on the ground that the prayer clause is defective. If the court is satisfied that the petitioner is entitle to a particular relief, it may grant such relief irrespective of defective prayer clause before dismissing the petition on the ground that no proper relief was sought by him."

37. The prayer portion of the pleadings cannot be said to be forensically inspiring. Inartistic as it is, the writ cannot be thrown out on the deficiency of the relief sought in the writ petition; such action, in my considered view, metaphorically amount to throwing the baby with the bath water. In the light of the above discussion, the objection regarding the so-called defect in the prayer cannot be  sustained.