ISSUE OF WRITS OF MANDAMUS, PROHIBITION, QUO WARRANTO AND CERTIORARI UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA

PART II—CIVIL

Part F(b)]

Part F(b)

RULES FRAMED BY THE HIGH COURT FOR ISSUE OF WRITS OF MANDAMUS, PROHIBITION, QUO WARRANTO AND CERTIORARI UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA [Note :

Please see Notification No. 17 Judicial/Rules of the Delhi High Court given immediately after these Rules]

1. Every application for the issue of any directions, or orders or writs in the nature of mandamus, prohibition, quo warranto or ceriorari mentioned in Article 226 of the Constitution of India, shall set forth all the facts and grounds on which the relief is sought, and shall be supported by affidavit. The application shall also state both in the application and the affidavit whether a more or less similar application has been made to the Supreme Court and if so shall append thereto a copy of the application and a copy of the orders, if any, passed by the Supreme Court. 1-A.

(i) All petitions under Article 226 of the Constitution of India, wherein a prayer for stay or any other interim relief is contained shall be made on motion after notice to the parties effected thereby. (ii) The notice referred to above shall be served personally or through registered post acknowledgement due on the parties affected not less than five clear days before the day the petition is filed and shall be accompanied by a copy of the main petition and shall also contain the time and place of moving of petition. (iii) The main petition shall contain an averment that the notice referred to in sub-rule (ii) above has been duly served. COMMENTS A person obtaining an ex-parte order of a rule nisi by means of petition for the exercise of the extraordinary powers under Article 226 of the Constitution must come with clean hands, must not suppress any relevant facts from the Court, must refrain from making misleading statements and from giving incorrect information to the Court. Bhupinder Pal Kaur v. Financial Commissioner (Revenue) Punjab, 1968 (70) P.L.R. 169. (iv) If the petition is not made on the date intimate to the opposite party or parties, it shall be incumbent on the petitioner to serve a fresh notice of his intention to move the petition in accordance with the provisions of sub-rule (i) above. (v) Where the delay caused by notice is likely to entail serious hardship, an application may be made for an ad interim ex parte order duly supported by an affidavit and the Court, if satisfied that the delay caused by the notice would entail serious hardship may make an order ex parte upon such terms as to costs or otherwise and subject to such undertaking, if any, as the Court may think just and proper. 2. An application under Rule 1 except Civil Writs final or interim orders passed by the Election Tribunals under the Representation of the People Act (XLIII of 1950) shall be heard and disposed of by a Single Bench. In case, any simultaneous application has been made in the Supreme Court, the hearing of the application to the High Court ordinarily be adjourned pending the decision of the Supreme Court in the matter. 3. The Court may either summarily dismiss the application or order a rule nisi to be issued against the opponent against whom, it is sought/as it thinks fit. Any rule so granted shall be made returnable on such day as the Court may direct, but it shall not be made returnable within less than fourteen days after service thereof on the opponent. COMMENTS An order of Division Bench of the High Court in a review application re-admitting the writ petition which had been originally dismissed in limine is not nullity in the eye of law on account of the order in review having been passed without notice of the review application to the respondent in the case. Yogesh Chander Bahree v. The Registrar Punjab University, Chandigarh, (1966) 68 P.LR. 718. 3-A. If the Court grants a rule, the applicant shall file two typed copies of the application, with copies of enclosures, for the use of the Court. He shall also file additional typed copy or copies, as the case may be, of the application for being supplied to the opponent(s). 4. If the Court grants a rule, it may make such interim or interlocutory order in the case, either unconditionally or upon such terms and conditions as the Court thinks just as the nature and circumstances of the case may require. 5. The rule nisi granted as above shall alongwith a copy of the application and a copy of the order, if any, made under the last preceding rule, be served on the opponent in the manner prescribed in Order V of the Civil Procedure Code for the service of summons upon a defendant in a suit. 6. An answer to the rule nisi or notice showing cause against such application shall be made in person or through an Advocate by filing an affidavit, engrossed on judicial paper typed in double-spacing and on one side of the paper only, in the office of the Registrar of by depositing the same in the petition box of the Court kept outside the room of the Deputy Registrar (Judicial) between the hours of 10 a.m. and 4 p.m. on any day which is not a Court holiday. The written statement of the affidavit in reply to the writ petition shall not be received by the Registry and shall not be deemed to have been filed unless an advance copy of the same has been served on the counsel for the petitioner and his acknowledgement obtained on the original written statement on a day at least two days before the returnable date of the rule or notice. In a case where the petitioner is not represented by counsel, the written statement or affidavit in reply to the writ petition shall be accompanied by a post office registration receipt showing the despatch of a copy of the same to the petitioner under a registered acknowledgement due cover at least two days before the returnable date of the rule or the notice. Written statement or affidavit sent by a petitioner or respondent to the Registry of the Court by post shall not be entertained by the Court and it shall be liable to be returned per bearing post. All annexures to writ petitions and written statements or affidavits shall unless they are original documents, be typed and engrossed on judicial paper in double spacing on one side of paper only. COMMENTS A written statement to a writ petition under Article 226 of the Constitution has to be in the form of an affidavit as prescribed by Rule 6. Affidavits have to be drawn verified and sworn properly and have to conform to the requirements of Rule 3(1) of Order 19 C.P.C. Workmen of Oswal Weaving Factory v. Statement of Punjab, AIR 1976 Punjab 532. 7. The Court may in its discretion, at any time before the final order is made on the application, order the rule nisi to be served on any party to be affected, by any order which the Court may make in the matter. The provisions contained in the last two preceding rules relating to service of the rule and filing of an affidavit in reply shall apply to such a case. 8. No further affidavit or affidavits shall be filed by any party except with the leave of the Court. 9. If cause be shown or answer made upon affidavit putting in issue any material question of fact, the Court may allow oral testimony of witnesses to be taken and for that purpose may adjourn the hearing of the rule to some other date. In such a case either party may obtain summons to witnesses, and the procedure in all other respects shall be similar to that followed in original causes in the High Court. 10. In case of difference of opinion between the Judges composing the Divisional Court, the point of difference shall be decided in accordance with the procedure referred to in Clause 26 of the Letters Patent. COMMENTS The mandate of law is that in case the Division Court is composed of two Judges and the Judges are equally divided in opinion as to the decision to be given on any point, they should specifically state the point upon which they differ and the case should be heard on that point only by a third Judge and the point should be decided according to the opinion of the majority of Judges. Hearing by third Judge is confined to the specific points stated in the reference and cannot cover the whole case again. Amar Pal Singh v. Election Commission of India, AIR 1993 Delhi 316. 11. The costs of all applications and orders made under this Chapter shall be in the discretion of the Court. Notification of the Delhi High Court No. 17-Judicial/Rules, Dated the 1st February, 1967 In exercise of the powers conferred by Section 7 of the Delhi High Court Act, 1966, the Hon‟ble the Chief Justice and Hon‟ble Judges of the Delhi High Court are pleased to make the following amendment in the Rules and Orders of High Court Volume V: 1. Every petition for the issue of any direction, order or writ in the nature of mandamus, prohibition, quo warranto or certiorari, mentioned in Article 226 of the Constitution of India, shall be in writing and shall set out the name and description of the petitioner, the nature of the relief sought and the grounds on which it is sought, and shall be accompanied by an affidavit verifying the facts relied on, and at least 4 [two typed, photostat or computerised copies] of the petition and affidavit shall be lodged in the Registry. 5 [The petition shall state whether the petitioner has moved the Supreme Court or any High Court for similar relief and if so, copies of the said petition to the Supreme Court/High Court and the order made thereon shall also be filed]. 6 [The writ Petition shall be accompanied by a chronological statement of necessary facts.] 7 [1-A If the respondent in a Civil Writ Petition is either the Union of India, National Capital Territory of Delhi, Lt. Governor, Delhi Development Authority, Municipal Corporation of Delhi, New Delhi Municipal Council, Delhi Electric Supply Undertaking, Delhi Transport Corporation, Nationalised Bank, Public Sector Undertaking, Government Company, Insurance Company or any other statutory of public authority then the petition and paper books, with one extra copy, shall be delivered in advance to the nominated counsel (within the meaning of Rule 1-8) and acknowledgement obtained by the writ-petitioner. The acknowledgement above-mentioned shall be deemed to be sufficient service in the Civil Writ Petition on the said Department/Authority above-mentioned. A letter will also be served on the nominated counsel that the matter will be 4. Substituted for words “three copies” vide Notification No. 38/Rules/8425 dated 15-3-2002. 5 . Substituted vide Notification No.226/Rules/DHC dated 12.9.2006. 6. Added vide Notification No. 208/DHC/Rules dated 5-8-1988. 7. Rules 1-A & 1-B inserted vide Notification No. 495/Rules/DHC dated 17-11-1995 (w.e.f. 1-1-1996). coming up for admission in the next few days. It will be for the party/counsel of the Department/Authority above-mentioned to take note of the case in the cause list and be present when the matter or a C.M. therein comes up for admission/hearing. Or else, the Court may set the said respondent ex parte and pass orders. 1-B. The Government and the authorities referred to in Rule 1-A shall nominate a counsel authorised to accept and acknowledge delivery of petition, paper books in the writ petitions filed or likely to be filed against it. A list of such nominated counsel shall be maintained in the Registry and shall also be given to the Bar Association.] 8 [1-C. In writ petitions arising out of orders passed by statutory authorities e.g. Central Administrative Tribunal (CAT), Labour Court, Industrial Tribunal, Delhi School Tribunal, Debts Recovery Tribunal (DRT), Customs, Excise and Gold Control Appellate Tribunal(CEGAT)(now Customs, Excise & Service Tax Appellate Tribunal),Income Tax Appellate Tribunal(ITAT),Election Tribunal, Board for Industrial & Financial Reconstruction(BIFR)/Appellate Authority for Industrial & Financial Re-construction(AAIFR), etc., a caveat will be entertained by the Registry”.