WRIT OF CERTIORARI

INTRODUCTION  

The term “Certiorari” is derived from a Latin word which refers to the passive form of the word  “certiorari”, meaning “to inform”. It was observed that the King ordered that the necessary information to be provided to him so as to be certified of some matter. In earlier times, the concept  of Certiorari was never used for recording proceedings of an act or ordinance or quashing an act  or ordinance. In case of calling for a record of proceedings of an act or ordinance or for quashing  an act or ordinance, the remedy was declaration and mandamus however, the concept of Certiorari  as evolved with the passage of time. The concept of Certiorari is a judicial order that operates in  personam and are made in original legal proceedings directed by the Supreme Court or a high court  to any constitutional statutory or non-statutory body, a person requiring the records of any action  to be certified by the court and dealt with according to the law. Thus, the writ of certiorari can be  issued even in cases where an authority has resulted to being functus officio, to the keeper of  records. It is to be noted that the constituency within which certiorari can be regarded to be  operative has been tremendously increased because it is corrective in nature. Presently, a writ can  be issued against constitutional bodies like the judiciary, executive and legislature or the officers  under legislature, judiciary and executive, statutory bodies like corporations and other authorities  created under a statute, non-statutory bodies like companies, corporate societies, as well as private  bodies and persons. In cases where the action is judicial or quasi-judicial and such action is no  more valid, the writ of certiorari can be issued. The writ of certiorari can be issued in order to  quash actions which are administrative as was also observed in the case of A. K. Kraipak v. Union  of India (AIR 1970 SC 150) the writ of certiorari was issued to quash the action of a selection  board. 

GROUNDS FOR ISSUANCE OF CERTIORARI  

The grounds for the issuance of a writ of certiorari are briefly discussed as follows. 1. Lack of jurisdiction 

2. Excess of jurisdiction  

3. Abuse of jurisdiction  

4. Violations of the principles of natural justice  

5. Error of law apparent on the face of record  

6. Fraud 

In the case of lack of jurisdiction, these situations occur when there is a situation where there is  absence of authority of jurisdiction to take action. These situations may arise in the following  cases:- 

(1) Were the authority is improperly constituted  

(2) In cases where authority commits an error in their decision on jurisdictional facts (3) That the authority proves to be incompetent to take action with respect to locality,  party or subject matter  

(4) That the law that provides jurisdiction is in itself unconstitutional 

(5) That primary preliminary essentials have been disregarded. 

In the case of Rafiq Khan v. State of Uttar Pradesh (AIR 1954), the court held that Section 85 of  the Uttar Pradesh Panchayat Raj Act, 1947 provided power to the sub divisional magistrate to  either quash the entire order of the panchayat adalat or to cancel its jurisdiction. However, the Sub  Divisional Magistrate had no power to modify the order in any manner. The court issued that the  writ of certiorari to quash the decision of the Sub Divisional Magistrate where he had modified the  conviction passed by the Pacnchayat Adalat by quashing conviction of the accused for one offence  and maintaining the order with respect to the other offence. 

In the case of Budh Prakash Jai Prakash v. STO (AIR 1952 All 764), the court observed that  there was a lack of extent of jurisdiction in case where the subject matter was outside the scope of  extent of jurisdiction of authority which led the court to issue the writ of certiorari. 

With regards to of excess of jurisdiction, it refers to a situation where an authority exceeds its  permitted jurisdictional limits. 

In the case of A.K. Chauduri v. R. K. Datta (AIR 1958 SC 722), the governing body of a college  affiliated to Gauhari University had dismissed its principal on the ground of misconduct. The court  issued certiorari to quash the decision of dismissal on the ground of excess jurisdiction of the  University under Section 2(9) of The Gauhari University Act, 1947 as this could not apply to  principals as it was only confined to teachers. 

With regards to abuse of jurisdiction, an authority is deemed to have abused its jurisdiction in  case where it exercises its power for improper use, or in bad faith, or for extraneous considerations,  or leaves out a relevant consideration, or delegates its power to someone else in cases where it is  not allowed to do so.  

With regards to violations of principles of natural justice, we must first understand the principles  of natural justice by briefly enumerating them as follows:- 

1) Rule against bias 

Rule against bias encompasses: 

▪ Personal bias 

▪ Pecuniary bias 

▪ Subject-matter bias 

▪ Departmental bias 

▪ Preconceived notion bias 

2) Rule of audi alteram partem, which includes: 

▪ The right to know adverse evidence 

▪ The right to present a case 

▪ The right to rebut evidence 

▪ The right to cross examination and legal representation 

▪ The right to reasoned decision 

This right is thus known as the right to fair hearing and if an administrative agency violates any  of the said rules in cases where they are bound to adhere to them, the decision of the agency would  be quashed by the writ of certiorari.

In the case of Sirsi Municipality v. Cecilia Kom Francis Tellis (AIR 1973 SC 855), a hospital  worker was dismissed without a proper hearing for alleged negligence which resulted in the death  of a patient. The court quashed the decision dismissal by issuing a writ of certiorari. 

In the case of State of Punjab v. K. R. Erry (AIR 1973 SC 834), it was observed that the pension  benefits of an Assistant Engineer of the Public Works Department was reduced without proper  hearing on the alleged ground of adverse confidential report. The court quashed this dismissal via  writ of certiorari as this decision of dismissal went against the principal of natural justice by being  in violation of the principle of audi alteram partem. 

In the case of Daud Ahmed v. District Magistrate, Allahabad (AIR 1972 SC 896), a person’s  property which was in his personal possession was requisitioned by the District Magistrate without  giving him a proper hearing. The court quashed this dismissal via writ of certiorari as this decision  of requisition of property by the District Magistrate went against the principal of natural justice by  being in violation of the principle of audi alteram partem. 

With regards to error of law apparent on the face of record, certiorari will be issued in cases  where the decision made on the face of it would reveal an error of law. The “record” for such cases  are enumerated as follows: 

▪ Documents in which the determination is recorded 

▪ Documents which indicate the proceedings and pleadings 

▪ Reports, extracts of which form part of the record 

▪ Documents mentioned in the formal order on the basis of the decision 

“Error apparent on the face of record” is impossible to be exactly defined, as the issue lies with  the application of the facts of a particular case and not much with the statement of principles. 

The error which is apparent on the face of record must always depend on the facts of each case  and the nature and scope of the provision which has been stated to have been violated or  contravened.  

Error apparent on the face of records encompasses the following: 

▪ Manifest error based on clear disregard of the law

▪ Wrong position of law 

▪ Clear inconsistency between facts of the case, decision and the law 

In the case of Sangram Singh v. Election Tribunal (AIR 1955 SC 425), the court quashed the  order of the Election Tribunal via the writ of certiorari on the ground of error of law apparent on  the face of record as the Election Tribunal construed Section 9 of the Civil Procedure Code, 1908 to mean that if a person fails to appear before it with good cause, it can be debarred. 

With regards to fraud, it is observed that if a decision of an agency is founded on fraud, the  decision may be quashed via the writ of certiorari. This is a discretionary remedy available to the  high courts as they can refuse it on the ground of laches, aquiescence, available alternate remedy  and benefit to the party. There does not exist any Indian case with regards to use of certiorari in  cases of fraud. 

CONCLUSION 

The writ of certiorari cannot be used to disturb a finding of fact except in cases where it is based  on no evidence, or purely summarises on conjectures, or is in violation of the principles of natural  justice, or if it suffers from error apparent on the face of record. The writ of certiorari can be used  for quashing order as well as for affirmative action.