CONSTITUTIONAL LAW

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Writ of Mandamus: Disputed Question of Fact
by N.S. Bindra,
Senior Advocate, Supreme Court

Cite as : (1972) 2 SCC (Jour) 24

The Supreme Court does not countenance the proposition that, on an application under Article 32 of the Constitution, the Court may decline to entertain the same on the simple ground that it involves the determination of disputed questions of fact or on any other ground. The Court would be failing in its duty as the custodian and protector of the fundamental rights, which may, prima facie, appear to have been infringed. It is possible very often to decide questions of fact on affidavits. If the petition and the affidavits in support thereof are not convincing and the Court is not satisfied that the petitioner has established his fundamental right or any breach thereof, the Court may dismiss the petition on the ground that the petitioner has not discharged the onus that lay on him. The Court may, in some appropriate cases, be inclined to give an opportunity to the parties to establish their respective cases by filing further affidavits or by issuing a commission or even by settling the application down for trial on evidence or by adopting some other appropriate procedure.1

But where the question of fact involved has no bearing on the question of enforcement of fundamental right and must require an investigation into disputed facts and materials, the Supreme Court will not deal with it in an application under Article 32 of the Constitution.2

Under Article 226 of the Constitution, the High Court is not precluded from entering upon a decision on questions of fact raised by the petition.3 In other words, there is no rule that the High Court will not try issues of fact in a writ petition.4

But where an enquiry into complicated questions of fact arises in a petition under Article 226 of the Constitution, before the right of an aggrieved party to obtain relief claimed may be determined, the High Court may in appropriate cases decline to enter upon that enquiry and may refer the party claiming relief to a suit. But the question is one of discretion and not of jurisdiction of the Court.5 In each case the Court has to consider whether the party seeking relief has an alternative remedy which is equally efficacious by a suit, whether refusal to grant relief in a writ petition may amount to denying relief, whether the claim is based substantially upon consideration of evidence oral and documentary of a complicated nature and whether the case is otherwise fit for trial in exercise of the jurisdiction to issue high prerogative writs.6

Where on a question of fact there is a serious dispute, which cannot be satisfactorily decided without taking evidence, it is not the practice of Courts to decide such questions in a writ petition.7

It is not in every case that a court should throw out a writ merely on the ground that the case involves disputed question of fact. The Court is not powerless to embark upon an enquiry into disputed questions of fact where such enquiry can be made and resolved on the basis of documents and affidavits filed in Court. More particularly when an infringement of a fundamental right is involved in a case, the Court should normally resolve the disputed question of fact unless the disputed question is very complicated.8 Hence where the disputed questions of fact are easily provable, as for example, by the filing of original documents or certified copies of incontrovertible documents, relief will not be disallowed in such proceedings merely on the ground of the facts stated by the petitioner being disputed by the opposite party.9

Indeed a vague reply to the effect that there is nothing on record to show that the statement of the petitioner is correct will not amount to a denial of the facts alleged in that statement.10

High Courts in India have been refusing to interfere under Article 226 of the Constitution, when some material facts alleged in the petition were disputed by the opposite party on the ground that it could not do so.11

Sometimes the Court does not adjudicate upon the disputed questions of fact,12 or it considers it inappropriate to do so13 or relegates the petitioner to the forum or Authority constituted for the purpose.14

1. K.K. Kochunni v. Stae of Madras, 1959 Supp 2 SCR 316, 337 (Das, C. J.). Italics mine.
         Note.—In Kailash Nath v. State of U.P., AIR 1957 SC 790, 792, Govinda Menon, J., speaking for the Court observed: "It has to be mentioned that it is only on facts admitted or taken as proved that the question of the violation of a fundamental right can be decided by this Court under Article 32, because when facts are in dispute, the matter has to be enquired into and decided by proper legal proceedings."
         (This case has been dissented from on another point in Ujjam Bai's :(1963) 1 SCR 778, 841, 860, 994 and in Pioneer Traders v. Chief Cntroller, Imports, (1963) Supp 1 SCR 349, 369: (Wanchoo , J.)
         Now one of the grounds on which the Supreme Court may decline to entertain an application under Article 32 of the Constitution, is laches, or, if the petition contains misleading and inaccurate statements: Tilok Chand v. Munshi, (1969) 1 SCC 110. It may be noted that in fact no decision was given by the Supreme Court on the point whether there were or were not other sthanees or sthanams similarly situate as the petitioners were, when the petition fell to be decided on merits. See (1960) 3 SCR 887, 894, 904: Subbarao, J. Hence the observations of Das, C.J., in the first Kochunni case can be regarded as obiter.
         The Supreme Court, however, recommended to the Government of India, in Premier Automobiles Ltd. v. Union of India, Writ Petition, No. 327 of 1969, by order, dated 5-5-1970, for a Commission to be appointed for the purpose of recommending fair price for all the three cars, viz., Fiat, Ambassador and Standard Herald; the Commission to consist of a Judge, sitting or retired of a High Court, or retired Judge of the Supreme Court; as the Chairman and two other members-one, a chartered accountant, and the other, an automobile engineer. The Commission would be at liberty to obtain the assistance of other persons including experts in cost accounting. The Commission would be entitled to take into consideration all matters relevant to the determination of fair price. The Commission would also be entitled to draw up its own procedure.
         In Board of Trustees, Ayurvedic etc. v. State of Delhi, (1962) Supp 1 SCR 156, 163-164, from a perusal of the affidavits and the documents filed, it appeared to the Court that the question (whether the members had paid their subscription in time and the Board as a Board ceased to exist) being one of disputed facts could not be satisfactorily decided on materials placed before the Supreme Court, hence the Court did not adjudicate thereon. Return to Text
2. Gulabdas v. Assistant Collector, Customs, AIR 1957 SC 733, 737 (S.K. Das, J.,: Distinction between 'coloured pencil' and a 'crayon'). Return to Text
3. State of Orissa v. Miss. Binapani Dei (Dr), (1967) 2 SCR 625, 627 (Shah, J.,: Date of birth disputed). But see, Union of India v. Bhana Mal Gulzari Mal, (1960) 2 SCR 627, 642: ". . . since it was a matter in dispute between the parties it could not be tried in writ proceedings." (Gajendragadkar, J.). Regional Provident Fund Commissioner v. Shri Krishna Metal Manufacturing Co., (1962) Supp 3 SCR 815, 830 (Gajendragadkar, J.). Return to Text
4. Om Prakash v. State of Haryana, (1971) 3 SCC 277. Return to Text
5. State of Orissa v. Miss. Binapani Dei (Dr), (1967) 2 SCR 625, 627 (Shah, J.) : Date of Birth disputed. See also, Union of India v. Ghaus Mohd., (1962) 1 SCR 744. In the exercise of its extraordinary jurisdiction, the High Court is normally loath to embark upon an enquiry into disputed questions of fact. But in a fit case the Court may appropriately be called upon to decide which of the parties is correct on a disputed question of fact, on which the very jurisdiction of the authority depends and when so called upon, the Court will not hesitate to perform the sacred duty enjoined on it by the Constitution to keep all authorities, tribunals and Courts under its jurisdiction within their respective bounds fixed by law. Samunder Singh v. State of Punjab, AIR 1968 Punj 72, 76 (Narula, J.). Return to Text
6. Om Parkash v. State of Haryana, (1971) 3 SCC 277 (Shah, J.). See also, Mahant Moti Das v. Sahi, (1959) Supp 2 SCR 563, 582 (S.K. Das, J.). Whether the trusts are public or private or the properties are private or trust properties are questions which involve investigation of complicated facts and recording of evidence and such investigation could not be done in writ proceedings. Return to Text
7. Union of India v. Varma, 1958 SCR 499, 504 (Aiyar, J.) See also, Regional Provident Fund Commissioner v. Krishna Metal Co., (1962) Supp 3 SCR 815, 830 (Gajendragadkar, J.): Whether employees in the factory exceeded 50. Return to Text
8. Caltex India Ltd. v. Excise and Taxation Officer, AIR 1962 J&K 48, 58 (Murtaza Fazl Ali, J.). See however, Bhagat Rajinder Kumar v. State of J&K, AIR 1960 J.&K. 50 FB (Fazl Ali, J.): Estoppel or acquiescence. Return to Text
9. Shiv Dutt v. State of Himachal Pradesh, AIR 1953 HP 95, 100 (Chowdhry, J.C.); Atolchow Singh v. Chief Commissioner, AIR 1968 Mani 4, 7 (Brij Narain, J.C.); Ghulam Rasul v. State of J.&K., AIR 1956 J&K 17, 20 (FB) (Wazir, C.J.). See also Chiranjilal v. Prasad, ILR (1966) 16 Raj 973: AIR 1967 Raj 61, 68; the point being the main basis of the writ application, in the special circumstances of the case, the Court decided it on the materials placed before it. Return to Text
10. Nitya Ranjan v. State, ILR 1961 Cut 373: AIR 1962 Ori 78 (Narasimham, C.J.). Return to Text
11.       Allahabad: Punjab Lime etc. Co. v. Cantonment Board, AIR 1967 All 15, 19, para 22 (Verma, J.): Sanction obtained by misrepresentation. Ram Gopal v. Badri Prasad, 1970 ALJ 420: possession; Ram Vidyarthi v. State of U.P., AIR 1971 All 442.
          Andhra Pradesh: Pithana Apparao v. State of A.P., AIR 1970 AP 318, 328, para 45 (FB)(Ekbote, J.). N.V. Subba Rao v. Govt. of A.P., AIR 1968 AP 98, 100. Yedlapalli B Punnahia v. Commissioner, Hindu Religious Endowments, AIR 1957 AP 108 (Satyanarayana Raju, J.).
          Bombay: Amichand v. Kotak, AIR 1966 Bom 70, 91 (Tambe, J.): Question of custom; Bhikusha Yamasa v. Sangamner Akola etc. Union, AIR 1960 Bom 299, 308 (Vyas, J.). Kamalakar v. Principal, Training College, AIR 1960 Bom 9, 11 (Dixit, J.). Ganpati v. Jayasingrao, AIR 1956 Bom 749, 752 (Dixit, J.): Whether a bogus Co.
          Calcutta: Nitish Ranjan v. University of Calcutta, AIR 1970 Cal 207, 212 (A.K. Sinha, J.): Cancellation of examination. Shashi Bhushan Ray v. Pramathanath, 70 CWN 892. Birendranath v. State of W.B., AIR 1969 Cal 386, 389 (A.K. Sinha, J.): Citizenship. Arati Paul v. Registrar, AIR 1966 Cal 120, 125 (Misra, J.): Consent to arbitration, going to root of the case. Shewlal v. State of W.B., AIR 1965 Cal 380, 386 (D.N. Sinha, J.): Election matter. Abdul Halim v. Sub-Divisional Officer, AIR 1965 Cal 160, 162 (Bachawat, J.): Citizenship. Nawab Ariff v. Corporation of Calcutta, AIR 1960 Cal 159, 160 (K.C. Das Gupta, J.): Whether notice under Municipal Act sent or not. Bhartia Electric Steel Co. v. Commercial Tax Officer, AIR 1956 Cal 299, 303 (Sinha J.): Expert evidence necessary. Makhanlal v. S.K. Chatterjee, AIR 1955 Cal 72, 74 (Sinha, J.): School management. Annapoorna etc. Ltd. v. State of W.B., AIR 1953 Cal 756, 758 (Sinha, J): Appeal lay. Samarendra v. University of Calcutta, AIR 1953 Cal 172, 176 (Bose, J.) Parraju v. General Manager, Railway, AIR 1952 Cal 610 (Das, J.): Several questions of fact in dispute.
          Himachal Pradesh: Amolak Singh v. Punjab Univrsity, AIR 1957 HP 31 (Ramabhadran, J.C.). Gupta v. State of Himachal Pradesh, AIR 1956 HP 7 (Ramabhadran, J.C.): Abuse of power by Municipality. Ramesh Chandra v. State of H.P., AIR 1955 HP 11 (Ramabhadran, J.C.) Abuse by Small Town Committee.
          Kerala: Cheruparambil v. Panchayat Board, 1966 KLT 1035. Moosa v. State of Kerala, AIR 1960 Ker 355 (Ansari, J.) Mala fide acquisition.
          Madhya Pradesh: Sunnulal v. State of Madhya Bharat, AIR 1954 MB 63, 64 (Shinde, C.J.): Harrasment by constables. Lilawati v. State of M.B., AIR 1952 MB 105, 113 (Dixit, J.): Natural Justice.
          Orissa: Asok Kumar v. State, ILR 1963 Cut 281: AIR 1963 Ori 173 (Narasimham, C.J.): Admission; Maheswari Prasad v. State of Orissa, AIR 1957 Ori 219, 221 (Narasimham, C.J.) Apportionment of Income of forests in Zamindari; Bhramarbar Santra v. State of Orissa, AIR 1970 Ori 141, 149 (Misra, C.J.): Public or private trust.
          Patna : Debi Prasad v. State of Bihar, AIR 1970 Pat 356, 358 (U.N. Sinha, J.): Loan conditions; M.N. Sharma v. State of Bihar, AIR 1960 Pat 212: Date of communication of the order; Mohd. Azkar Hussain v. Collector, Shahabad, AIR 1960 Pat 144 (Choudhary, J.): Whether acquisition of graveyard.
          Punjab: Shaligram v. Union of India, AIR 1967 Punj 98 (S.K. Kapur, J.): Service conditions; Naubat Rai v. Union of India, ILR 1953 Punj 472: AIR 1953 Punj 137 (Kapur, J.) Date of birth and opportunity to show cause contested. King v. Sansea Income Tax Commissioners, (1925) 2 KB 250, 256, (Lord Hewart, C.J.) quoted.
          Rajasthan: Hiralal Chhagan Lal v. State of Rajasthan, ILR (1968) 18 Raj 389: AIR 1968 Raj 188, 209: (dealer or not), (Kan Singh, J.); Radhakishen v. State of Rajasthan, ILR (1966) 16 Raj 935: AIR 1967 Raj 1, 4 (Dave, C.J.): Owner or Mutwalli. Ismail v. Rajasthan State, ILR (1958) 8 Raj 320: AIR 1958 Raj 96 (Dave, J.) Literate or not, Jagatnath Singh v. State of Rajasthan, ILR (1957) 7 Raj 601: AIR 1957 Raj 151, 154 (Modi, J.): Talwarbandi or Ked Nazrana has the force of custom or not. Daulat Singh v. State of Rajasthan, ILR (1955) 5 Raj 950: AIR 1956 Raj 33 (Bapna, J.): Licensee or lessee of forest. Pannalal v. State of Ajmer, AIR 1966 Aj 40(2) (Nigam, J.C.): Whether well belongs to public or petitioner's tribe.
          Tripura: Guru Charan Nath v. Managing Committee, AIR 1955 Tri 33 (Brij Narain, J.C.): Re-instatement as Headmaster. Kartick Kumar v. Barathakur, AIR 1957 Tri 15 (Datta, J.C.) mala fides: Counsel conceded. Return to Text
12. Bhagwandas v. State of U.P., AIR 1957 All 375 (Mehrotra, J.): Disqualification on the ground of arrears; Mohd. Ibrahim v. Asansol Iron etc. Union, AIR 1955 Cal 189, 191 (Sinha, J.): Application for membership of the Union disputed; Doongarsee v. State of Gujarat, AIR 1971 Guj 46, 54 (Bhagwati, C.J.): Whether acquisition mala fide; Rajinder Singh v. Shejwalker, AIR 1971 MP 248, 252; Mata Prasad v. Election Officer, AIR 1971 MP 136 (Shiv Dayal, J.): No tax due; Dineshcharan v. State of Madhya Bharat, AIR 1953 MB 165, 169 (Pension); Zeenat Tej v. Principal, Prince of Wales Medical College, AIR 1971 Pat 43, 48, Para 7 (A.B.N. Sinha, J.): Admission provisional or not. Nand Kumar v. Ali Hassan, AIR 1966 Pat 127 (Employee or sub-contractor); Barkat Rai v. Union of India, AIR 1954 Punj 117 (Kapur, J.) : Who appointed the petitioner? Return to Text
13. Harnath Rathi v. State of Hyderabad, AIR 1958 AP 222, 226 (Jaganmohan Reddy, J.): Patta whether cancelled: Hiranmoy v. State of Assam, AIR 1954 Ass 254, 263 (FB) (Ram Labhaya, J.): Service; Radheshyam v. Union of India, AIR 1960 Bom 353 (Shah, J.); Kamalakar v. Principal, Training College, AIR 1960 Bom 9, 11 (Dixit, J.): Discharge from service. Dayabhai v. Amarchand, AIR 1971 Guj 73 (Mehta, J.); Panchem Ramcharan v. Collector, Bhind, AIR 1971 MP 97 (Shiv Dayal, J.) recourse to election petition suggested; Sayeed Mohd. Khan v. State of Bhopal, AIR 1954 Bhopal 1 (Sathaye, J.C.): For restoration of possession; Dilip Kumar Singh v. State of Bihar, AIR 1971 Pat 65, 69 (FB) (Shambhu Prasad Singh, J.): Revision of Voter's List in dispute. Return to Text
14. Birendranath v. State of W.B., AIR 1969 Cal 386, 389 (A.K. Sinha, J.): Whether Petitioner is a Pakistani; Abdul Barik v. Union of India, AIR 1964 Cal 324 (P.N. Mukherjee, J.); Abdul Halim v. Sub-Divisional Officer, AIR 1965 Cal 160 (Bachawat, J.); Ram Chandra v. State of Bihar, AIR 1965 Pat 250 (Untwalia, J.); Punjab State Club v. Municipal Committee, AIR 1959 Punj 220 (Bishan Narain, J.); Jagir Singh v. State of Punjab, ILR (1963) 2 Punj 773: AIR 1964 Punj 90 (S.B. Capoor, J.): Consolidation of holdings; Ramnijdas v. State of Punjab, AIR 1964 Punj 391, (Khanna, J.): Election; Kailash Chandra v. State, AIR 1969 Raj 68, 73 (Kan Singh, J.); Radha Kishen v. State of Rajasthan, ILR (1966) 16 Raj 935: AIR 1967 Raj 1 (Dave, C.J.). Return to Text