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Report No. 79

III. Procedural Delays in writs: Service

16.5. Service of notice and recommendation.-

One of the causes of delay in the matter of writ petitions is the difficulty in getting service effected on the respondents. In most of the writ petitions, apart from the other respondents, the State Government or the Central Government too is a respondent. Whatever steps may be taken to expedite the service on other respondents, we may mention that so far as the State Government or the Central Government is concerned, in some of the High Courts the Advocate- General accepts service of the notice on behalf of the State Government, and the Central Government Standing Counsel accepts service of notice on behalf of the Central Government.

We are given to understand that this procedure has worked well, and has resulted in the elimination of delays. We suggest that the feasibility of adopting this course in other places might also be considered by the State Government and the Central Government. It may be added that the adoption of this course would necessitate increasing the strength of the staff of the office of the Advocate-General and the Central Government Standing Counsel.1 Looking to the advantage which would accrue, no one should grudge the increase in the expense on that score.

1. For action by State Government and Central Government.

16.6. Service matters.-

In service matters, especially those relating to seniority, it has been often noticed that in addition to the Government, quite a large number of respondents who are interested in the subject-matter of the writ petition or who are likely to be affected by the order on the petition, are also impleaded. Individual service of such respondents takes a lot of time. Quite often, by the time the notice of the writ petition issued by the court reaches at the address given, the official is transferred and the notice comes back with the report that the official is no longer at that station.

To avoid this difficulty, we recommend that instructions may be issued to the various departments of the Government that so far as court notices are concerned, they should, instead of being sent back to the court with the above report, be re-directed to the new station of posting of the official concerned. It is obvious that the department would know the exact place at which an official is posted at a particular time.

16.7. Lengthy writ petitions.-

It is not uncommon to come across writ petitions which are lengthy and prolix, even though the facts relevant to the points that call for decision lie within a narrow compass. It would facilitate quick disposal of writ petitions on the date of preliminary hearing as well as that of final hearing, if the writ petition is accompanied by a chronological statement of facts necessary for the purpose of the relief sought by the petitioner. This may be provided for in the rules.1

1. For rules.

16.8. Show cause notice.-

There are many petitions under Article 226 of the Constitution which are dismissed at the preliminary stage by the High Court with a one-word order "dismissed". Quite a number of these orders are reversed on appeal and the cases are remanded to the High Court for disposal. All this entails unnecessary wastage of time and also leads to duplication of work. We are of the opinion that a substantial number of writ petitions can be disposed of at the preliminary hearing if a notice is issued to the opposite side to show cause why the writ petition be not admitted. The result of issuing such a notice is that fresh light is thrown on many of the allegations of fact which otherwise remain uncontroverted.

Some new facets of law, not mentioned in the petition, may also be brought to the notice of the court in the return. All this helps the court in deciding whether the petition should or should not be admitted for regular hearing. Experience has also shown that as a result of show cause notice, the area of controversy becomes so much narrowed down that the parties agree to some quick solution of the controversy at that stage itself. These aspects highlight the utility and advantage of a show cause notice in appropriate cases. It is, however, essential that the show cause notice is made returnable by an early date, so that the provision regarding interim relief is also not abused. The High Court would also be on a much firmer ground in dismissing a writ petition if it does so after issuing a show cause notice.

16.9. Order of dismissal.-

Apart from the above, we are of the opinion that the High Court, while dismissing a petition under Article 226 of the Constitution, should record a short order, giving its reasons for not admitting the petition. This is necessary to enable the petitioner as well as the Supreme Court, in case the matter is taken up before it, to know what considerations have weighed with the High Court in dismissing the petition. The need for such an order is all the more great in writ petitions because, unlike in an appeal, in a writ petition there is generally no reasoned decision of a subordinate court.

16.10. Time for filing counter-affidavit.-

Rules of the High Court should also specify the time-as has already been done in many of the States-during which counter-affidavit or the affidavit in opposition should be filed by the respondent. In our view, such time should not exceed three months from the date of the service of notice of admission of the writ. However, if sufficient cause is shown by application in writing made before the expiry of three months, the court may further extend the time for a period generally not exceeding one month.

The respondent must, in every case, serve an advance copy of the counter-affidavit on the petitioner of his counsel. The Registry should refuse to accept the counter-affidavit if it is filed beyond three months or without obtaining an extension of time for the purpose from the count or without serving an advance copy on the petitioner or his counsel.

16.11. Consequences of non-filing of counter-affidavit.-

If the counter-affidavit is not filed within three months or within the extended time, the case should be listed for hearing without counter-affidavit. The respondent shall not be entitled to file counter-affidavit after the expiry of the period mentioned above (original or extended) without express permission of the court. An advance copy of the counter-affidavit should be served on the petitioner or his counsel before the same is filed in court.

16.12. Replication by petitioner when to be filed.-

Rules of the High Court should also provide for filing a replication, if any is desired to be filed by the petitioner or if the court considers it necessary. Time for this purpose may be prescribed by rules to be four weeks from the date of service of copy of the counter-affidavit.



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