eng
competition

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ARO HIGH COURT

created Apr 12th, 08:09 by Nesh Gold


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The power of the High Court to issue writ begins with a  non-obstante clause. The power and jurisdiction of the High Court is much wider. The jurisdiction extends to enforcement against infringement of Part III rights, against "State' ans also against 'any person or authority' and 'for any other purpose'. The limitation of action against the 'State' alone is not there under Article 226 of the Constitution. Thus, there is distinction between the powers to issue writs as between the Supreme Court and the High Court. The power to issue writ conferred upon the Supreme Court by Article 32 is for enforcement of Part III rights, but the power to issue writs as conferred under Article 226 upon the High Court is for enforcement of fundamental rights as against 'State' and non fundamental rights as against any 'other person or authority' or 'for any other purpose'. Thus, is the distinction between writ jurisdiction of the Supreme Court and the High "Court, that even where the Supreme Court declines a Article 32 writ petition on the ground that the offending party/authority is not'State' yet the High Court can interfere and issue writ under Article 226 in appropriate cases.
the term 'authority' used in Article 226, must receive a liberal meaning unlike the term 'authority' in Article 12. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the 'person or authority' to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied.
The Supreme Court in Anadi Mukta upon examining the scope and ambit of the expression 'authority' used in Article 12 and in Article 226 of the Constitution was of the opinion that the expression "any person or authority' used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant and determinative element is the nature of the duty imposed on the body. This is a striking departure from the English law.
 
Though the jurisdiction of the High Court is not confined to issuing prerogative writs, there is consensus of opinion, the Court will not permit this extraordinary jurisdiction to be converted into a suit. A declaration that a contract of service with the employer still subsisted will not be made in the sphere of an ordinary relationship of master and servant or contract of service, not protected by any statutory or  constitutional provisions, because of the principle that Courts do not grant specific performance of contract of service.  
 
Whether a private company engaged in banking business performs public function. In other words does banking business as a scheduled bank involve public law element was considered by the Supreme Court in.
  

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