While dispelling all rays of doubts and questions over the moot question of whether writ of certiorari can be issued even if lis is between two private parties, the Calcutta High Court in a remarkable, robust, refreshing, rational and recent judgment titled Rajeev Jhunjhunwala vs State of West Bengal & Ors in WPA 4393 of 2023 that was pronounced as recently as on February 23, 2023 has relied on the Apex Court’s judgment in TC Basappa v T Nagappa AIR 1954 SC 440 to reiterate that the writ of certiorari can be issued even if the lis is between two private parties.

The Court thus issued a writ of certiorari against a private entity named Bajaj Housing Finance Limited on the ground that it has violated the petitioner’s right to a fair hearing. It must be also noted that the Court also made it explicitly clear that a writ of certiorari can also be issued against a body which has acted in flagrant disregard of the law or the rules of procedure or in violation of the principles of natural justice including failure of justice where no fixed procedure has been prescribed.

The Court made it specifically clear that it has not gone into the merits of the case and the order has been passed on the view that the respondents have violated the petitioner’s right to a fair hearing. The court listed the matter to be heard again on February 28.

At the very outset, this brief, brilliant, and balanced judgment authored by the single Judge Bench of Hon’ble Ms Justice Moushumi Bhattacharya sets the ball in motion by first and foremost putting forth in the opening para that:
The affidavit-of-service be filed during the course of the day.

While specifying the purpose of the petition, the Bench then states in next para that:
The petitioner is before this Court seeking a Mandamus on the respondent No. 7, being the Officer-in-Charge, Beniapukur Police Station, not to take any steps in terms of an order dated 1st December, 2022 passed by the District Magistrate, South 24 Parganas under Section 14 of the SARFAESI Act, 2002. The petitioner duly went before the statutory forum available to it under the SARFAESI Act on 20th January, 2023 which is the Debts Recovery Tribunal-III. The matter was heard by the Presiding Officer of DRT-III on 21st February, 2023. The respondent Financial Institution was present during the hearing.

On the one hand, the Bench mentions in the next para that:
Learned counsel appearing for the petitioner submits that the hearing could not be completed by the Presiding Officer and no returnable date was fixed in the matter. The case proceeding details is a part of the writ petition.

On the other hand, the Bench then discloses in the next para that:
Learned counsel appearing for the F.I. submits that the question of the petitioner’s locus is doubtful since the petitioner is not a tenant as explained in the application filed by the petitioner before the DRT.

Also, the Bench then specifies in the next para that:
Learned counsel appearing for the State submits that the Officer-in-Charge of the concerned P.S. was under instructions to take possession of the petitioner’s office and therefore executed the said order on 22nd February, 2023.

To put things in perspective, the Bench then envisages in this new para that, The undisputed fact is that the petitioner filed the application before the DRT on 20th January, 2023, the matter was heard on 21st February, 2023 and remained undecided. The matter was not made returnable on a subsequent date. The respondent F.I. was before the DRT. The petitioner was constrained to file the present writ petition on 22nd February, 2023 seeking urgent relief since the possession was due to be given effect to on that date itself. The matter was mentioned before the Court but could not be filed due to logistical difficulties by reason of a strike called by the Court Officers on 22nd February, 2023. The matter could not be taken up for hearing for the same reason.

As we see, the Bench then discloses in the next para stating that:
The respondent F.I. regardless of the fact that the petitioner was constrained to approach both the DRT as well as the High Court, proceeded to take possession of the petitioner’s property yesterday, i.e., 22nd February, 2023.

To be sure, the Bench then points out in new para that:
The action of the respondent in acting in terms of the D.M’s order warrants intervention of this Court. The respondent was aware and was represented in the hearing before the DRT and was also aware that the hearing had not been concluded on 21st February, 2023. The respondent however pre-judged the outcome of the application and dispossessed the petitioner while the matter was still before the DRT. The respondent was also served notice of the present writ petition yesterday, i.e, 22nd February, 2023. The service of the respondent has been placed before the Court.

It cannot be glossed over that the Bench then points out in next para that:
It is inconceivable that during the pendency of a proceeding when a litigant is before a statutory forum and a constitutional forum, the respondent would give effect to the action impugned. The principles of natural justice demand that parties before a forum have a sufficient and equal opportunity of representation before the lis is decided. In this case, the respondent did not give that opportunity to the petitioner and in effect non-suited the petitioner before the challenge was adjudicated upon.

Simply put, the Bench then deems it apposite to mention in the next para that, The other question which needs to be answered is the maintainability of the writ petition. The respondent F.I. is Bajaj Housing Finance Limited which is a private entity.

Be it noted, the Bench then underscores in the next para stating that:
A Writ of Certiorari is generally issued against the acts or proceedings of a judicial or quasi-judicial body conferred with the power to determine questions affecting the rights of subjects. The aforesaid power casts a corresponding obligation on the body to act judicially.

Although, Certiorari is generally issued for correcting gross errors of jurisdiction or acts without jurisdiction where jurisdiction has erroneously been assumed or where the authority has acted in excess of jurisdiction by overstepping the limits of jurisdiction, a writ of Certiorari can also be issued against a body which has acted in flagrant disregard of the law or the rules of procedure or in violation of the principles of natural justice including failure of justice where no fixed procedure has been prescribed.

Certiorari can also step in where the error is manifest and apparent on the face of the proceedings where the law has been disregarded or where gross injustice or gross failure of justice has been caused as a result thereof.

While citing the most relevant case law, the Bench then hastens to add in the next para stating that:
The Supreme Court in a Constitution Bench decision in T.C. Basappa v. T. Nagappa; AIR 1954 SC 440 opined that the Writ of Certiorari can be issued even if the lis is between two private parties.

Most significantly and also most commendably, the Bench then minces just no words to propound in the next para holding that:
This Court is of the view that this is a fit case where the action of the private respondent can be called into question and interfered with. There is no doubt that the petitioner must be given an opportunity to fight its case and the statutory forum must adjudicate on the lis which is already before it. Besides, cutting an adjudication short and rendering it infructuous is also in breach of a party’s right to see the end of an adjudication.

It is worth noting that the Bench then observes in the next para that:
The Supreme Court in Surya Dev Rai vs. Ram Chander Rai; (2003) 6 SCC 675 relied upon a 3-Judge Bench decision in Dwarka Nath v. ITO; AIR 1996 SC 81. Bajarang Shyamsunder Agarwal vs. Central Bank of India; (2019) 9 SCC 94 has been cited by the respondent on the point of validity of a tenancy which was in existence prior to the creation of a mortgage. This point goes to the merits of the matter and relates to the rights of the petitioner. The respondent can well take this point before the DRT as and when the matter is heard. The Court cannot – and will not – entertain the matter on merits.

What’s more, the Bench then directs in the next para of this notable judgment that:
The respondent No. 7 is directed to restore possession of the property which was taken possession of yesterday, by 8 p.m today i.e., 23rd February, 2023 for the above reasons. It is made clear that the Court has not gone into the merits of the case. The order has been passed purely on the view that the respondents have violated the petitioner’s right to a fair hearing and a decision on the lis brought before the Court. The respondent No. 7 shall file an affidavit-of-compliance on the returnable date.

Finally, the Bench now concludes by directing in the last para that:
List this matter on 28th February, 2023.

To conclude, we thus see that the Calcutta High Court has so very rightly expounded and reiterated that a writ of mandamus can be issued even if lis is between two private parties. It merits no reiteration that all the courts must definitely pay heed to what the Calcutta High Court has laid down so very elegantly, eloquently and effectively in this leading case. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh