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Report No. 92

Chapter 3

Recommendations for Legislation

3.1. Enlargement of power under Article 226 desirable.-

We have stated above the present position under the constitutional provisions as to judicial review. It appears to us that it would be in the interest of justice if the High Court is given power in proceedings under Article 226 to award damages also. Such an enlargement of the powers of the High Court would remedy one defect in the present procedural set up under which a claimant seeking both judicial review of the nature contemplated by Article 226 and damages for the wrong in respect of which such review is claimed must pursue each remedy in a different forum. He must seek the first relief in the High Court, and the second relief in the ordinary court. It is true that some High Courts in India have ordinary original civil jurisdiction, in the exercise of which they can, inter alia, entertain a claim for damages.

But this jurisdiction itself is subject to a pecuniary minimum: moreover, this jurisdiction, in so far as it is vested in the High Courts in the three Presidency Towns, is confined to their own local limits as defined for the purposes of their original jurisdiction. Apart from this, proceedings under Article 226 technically belong to the extraordinary jurisdiction of the High Court. A claim for damages cannot at present be included in such proceedings, even in the High Courts exercising ordinary original civil jurisdiction as stated above. The reason is, that Article 226 of the Constitution is invoked by a petition seeking the appropriate order. In contrast, the ordinary original civil jurisdiction of a High Court, wherever it exists, is, in general, envisaged as invocable only by a plaint framed in accordance with the provisions of the procedural law, whether contained in the Code of Civil Procedure, 1908 or in the rules of procedure framed by the High Court for the exercise of its own jurisdiction.



Damage in Applications for Judicial Review - Recommendations for Legislation Back




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