Source: Allahabad High Court

Why in News?

Recently, the Allahabad High Court in the matter of M/S Bajrang Trading Company v. Commissioner Commercial Tax & Anr., has held that under Article 226 of the Constitution of India, 1950 (COI), the allegations of violations of law cannot be dealt with in extraordinary jurisdiction of the Court unless the inherent lack of jurisdiction is claimed.

What was the Background of M/S Bajrang Trading Company v. Commissioner Commercial Tax & Anr. Case?

• The present allegation is with respect to the misuse of E-way Bills by the consignor i.e. M/s. Kay Pan Fragrances Pvt. Ltd. and M/s. Mahaveer Trading Co..
• An Adjudication notice was issued to the petitioner for tax period from August 2018 to March 2019 alleging petitioner’s involvement in misuse of E-way Bills.
• As per the submissions advanced by learned counsel for the petitioner that the entire proceedings have originated on the strength of certain survey conducted at the premises of M/s. Kay Pan Fragrances Pvt. Ltd. and M/s. Mahaveer Trading Co. in the month of July, 2019 whereas, the petitioner had surrendered its business registration prior to that survey in the month of May, 2019.
• Challenging the adjudication notice, a writ petition was filed before the Allahabad High Court.
• The High Court dismissed the writ petition.

What were the Court’s Observations?

• The bench comprising of Justices Saumitra Dayal Singh and Surendra Singh-I held that once allegations of infraction of law arise, adjudication proceeding may not be interjected in exercise of extra ordinary jurisdiction of the writ court. Limited scope of challenge may be preserved for cases involving inherent lack of jurisdiction or grounds of like nature.
• The Court further held that the allegations of violations of law cannot be dealt with in the extraordinary jurisdiction of the Court under Article 226 of the COI unless inherent lack of jurisdiction is claimed.

What is Article 226 of the COI?

• Article 226 is enshrined under Part V of the COI which puts power in the hand of the High Court to issue the writs.
• Article 226 states that -

(1) Notwithstanding anything in Article 32 every High Court shall have the powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without

(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favor such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated.

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause (2) of Article 32.

• This Article can be issued against any person or authority, including the government.
• This Article is merely a constitutional right and not a fundamental right.
• This article cannot be suspended even during an emergency.
• Article 226 is of mandatory nature in case of fundamental rights and discretionary nature when it is issued for any other purpose.
• Article 226 enforces not only a fundamental right, but also other legal rights.
• In Bandhua Mukti Morcha v. the Union of India (1984), the Supreme Court held that Article 226 has a much broader scope than Article 32 as Article 226 can be issued to safeguard legal rights as well.
• In Common Cause v. Union of India (2018), it was held by the Supreme Court that the writ under Article 226 can also be issued for the enforcement of public responsibilities by public authorities.