Writ jurisdiction of the Supreme Court is provided under Article 226 of the Indian Constitution and can be invoked by persons for the enforcement of their rights under Part 3 of the Constitution i.e. Fundamenta lRights. The Supreme Court, in the matter of Roshina T v. Adbul Azeez K.T andOrs, held that invoking Article 226 of the Constitution can only be done when a remedy under civil or criminal laws are unavailable.
The civil appeal was filed challenging the order of the Kerala High Court which issued the writ of mandamus thereby restoring possession of the property, seized by the police, to the Respondent even though there was an existing civil case pending between the Appellant and the Respondent. The Kerala High Court directed the Appellant to restore the possession of the property to the Respondent. The Bench of Justice Abhay Mohan Sapre and Justice Indu Malhotra observed that the writ jurisdiction under Article 226 of the Constitution is special and extraordinary and it should not be exercised casually or lightly on mere asking by the litigant, as observed in the judgments of Mohan Pande vs. Usha Rani, 1992 (4) SCC 61 and Dwarka Prasad Agrawal vs BD Agrawal, (2003) 6 SCC 230).
While disagreeing with the findings of the High Court,the Bench observed that by admitting the writ of the Respondent and subsequently granting relief of restoration of possession, the High Court ‘had virtually converted the writ petition into a civil suit and itself to a Civil Court.’
On the basis of the submissions/justifications of the parties to the appeal, the Bench admitted the appeal while granting liberty to take appropriate remedy before the appropriate civil courts while making the following reflection:
“20. We do not agree with the submissions of learned counsel for respondent No.1 for the reasons that first there did exist a dispute between the appellant and respondent No. 1 as to who was in possession of the flat in question at the relevant time;Second, a dispute regarding possession of the said flat between the two private individuals could be decided only by the Civil Court in civil suit or by the Criminal Court in Section 145 Cr.P.C proceedings but not in the writ petition under Article 226 of the Constitution.”
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