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Report No. 92

3.3. Grant of damages to be discretionary.-

While conferring on the High Court the power to grant damages as recommended above,1 some provisions should also be inserted to make it clear that even if the illegality of the act complained of is established, the High Court is not bound to award the relief of damages in every case where the relief is claimed. It is well understood that the High Court may, even now, refuse to grant relief by way of writ under Article 226, where there has been undue delay in making the application or where there are other adequate grounds for such a refusal. In our view, it is proper that in regard to the newly added relief also, such a discretion on the part of the High Court should be recognised. The object can be achieved by inserting a provision somewhat, in the following terms, in the legislation to be passed to give effect to our main recommendation.2

"Nothing in this Act shall he construed as rendering the award of damages obligatory, on an application for judicial review under Article 226 of the Constitution where the High Court considers that-

(a) there has been undue delay in making the application, or

(b) the grant of such relief would involve the determination of questions which cannot be conveniently gone into in a proceeding under that article, or

(c) for any other reason it is inappropriate to determine the question of damages in such application."

1. Para. 3.2, supra.

2. Para. 3.2, supra.

Damage in Applications for Judicial Review - Recommendations for Legislation Back

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