Source: Gujarat High Court 

Why in News? 

A bench of Chief Justice Mrs. Sunita Agarwal and Justice Pranav Trivedi held that within the scope of Article 226 of the Constitution of India, 1950 (COI) there can be no factual inquiry.             

• The Gujarat High Court held this in the case of Jakhariya Saleman Manek & Anr v. Ministry of Environment Forest and Climate Change & Ors.  

What was the Background of Jakhariya Saleman Manek & Anr v. Ministry of Environment Forest and Climate Change & Ors. Case? 

• A CRZ clearance dated 19th December 2016 was granted for development of 7 integrated facilities within the existing Kandla Port Trust limit at district Kutch. 
• A CRZ recommendation letter was issued by GCZMA for the integrated facilities which indicated several conditions which were to strictly adhere to the provisions of CRZ notification of 2011. 
• The Respondent no. 3 was directed to submit a fresh proposal for environmental clearance/CRZ clearance as per the recommendation of GCZMA.  
• On the submission of fresh application, the MoEF & CC issued the approved terms of reference in respect of the 7 integrated facilities. 
• This writ petition has been filed challenging the above clearances to two projects of Respondent no. 3 i.e. Deen Dayal Port Authority on the grounds that the projects of respondent no. 3 are to be carried out on lands containing Mangrove forests. 
• The crux of the challenge is that the projects of respondent no.3 are to be carried out on lands containing mangrove forests and the same falls within CRZ-1A category under the CRZ Notification of 2011, whereas CRZ clearance has been given under CRZ-1(B), CRZ-III and CRZ-IV categories. 

What were the Court’s Observations?  

• The Court observed that in case there is a violation of CRZ notification issued under Section 3 of the Environment Protection Act, 1986 (EPA) there would be penal consequences under Section 15 of the EPA Act. 
• The Court held that issues involved here require factual inquiry which falls out of the scope of Article 226 of the COI. 
• In this ace to examine the contention of the petitioners some more evidence would be required including recording of the oral evidence. 
• Thus, the Court concluded that the present case involves an enquiry which would not be permissible or possible under Article 226 of the COI. 
• On the contention that the writ petition lacks bonafide the Court again held that the inquiry is impermissible within the scope of Article 226 of COI. 
• Further, the Court held that the petitioners are open to approach the National Green Tribunal (NGT) for redressal of grievances as the primary issue raised is violation of CRZ Notification of 2011. 
• Hence, the Court disposed of the writ petition with the observation that the petitioners are open to avail appropriate remedy available in law. 

What is Article 226 of the COI ?

• Article 226 is enshrined under Part V of the Constitution which puts power in the hands of the High Court to issue the writs. 
• Article 226(1) of the COI states that every High Court shall have powers to issue orders or writs including habeas corpus, mandamus, prohibition, quo warranto, and certiorari, to any person or any government for the enforcement of fundamental rights and other purpose. 
• Article 226(2) states that the High Court has the power to issue writs or orders to any person, government, or authority - 
  • Located within its jurisdiction or 
  • Outside its local jurisdiction if the circumstances of the cause of action arises either wholly or partly within its territorial jurisdiction. 
• Article 226(3) states that when an interim order is passed by a High Court by way of injunction, stay, or by other means against a party then that party may apply to the court for the vacation of such an order and such an application should be disposed of by the court within the period of two weeks. 
• Article 226(4) says that the power granted by this article to a high court should not diminish the authority granted to the Supreme Court by Clause (2) of Article 32. 
• This Article can be issued against any person or authority, including the government. 
• This is merely a constitutional right and not a fundamental right and 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”. 
• It enforces not only fundamental rights, but also other legal rights.

What is a Factual Inquiry?

About: 

• Inquiry as defined under Section 2 (g) of Criminal Procedure Code, 1973 (CrPC) means every inquiry other than trial conducted under this code by a Magistrate or Court.   
• Inquiry under Bharatiya Nyaya Suraksha Sanhita, 2023 (BNSS) is defined under Section 2 (k). The contents of both the provisions are the same.  
• Factual Inquiry pertains solely to facts in a particular case. 
• Factual Inquiry involves recording oral evidence as well.  

Relation between Factual Inquiry and Article 226 of the COI: 

• It is a well settled principle that in the case of writ petition under Article 226 of the COI there can be no factual inquiry. 
• In the case of Sanjay Kumar Jha v. Prakash Chandra Chaudhary & Ors. (2018) a Supreme Court bench comprising of Justice R. Banumati and Justice Indira Banerjee held that under Article 226 the High Court does not adjudicate upon affidavits, disputed questions of fact. 
• The Supreme Court laid down the following principles: 
  • In proceedings under Article 226 the High Court does not adjudicate upon affidavits, disputed questions of fact. 
  • The High Court cannot sit as a Court of Appeal over findings recorded by a competent administrative authority, nor reappreciate evidence itself to correct the error of fact. 
  • Even in cases where there is an apparent factual error that goes to the root of the decision the appropriate cause of action is to give the authority an opportunity concerned to rectify the error. 
  • It is only in rarest of rare cases where the factual error can be rectified by the Court in order to prevent delay and consequential denial and/or miscarriage of justice, rectify the error.