Writ under art. 32
prasanna kumar
(Querist) 12 January 2017
This query is : Resolved
I filed a writ under Art. 32. I had to withdraw the same as the court asked me to. Court made an order to go to appropriate forum. But since all alternative remedies are exhausted such as High Court under Art.226 etc. I filed another writ under Art. 32. The registry said the writ has been lodged. What is the meaning of this. does this means that I have to appeal against the order of the registrar or does it mean that I have to refile the matter. Pls advice.
Whether a writ under Art. 32 can be refused even if the lower courts and tribunals have not heard the matter or merits.
R.K Nanda
(Expert) 12 January 2017
contact registry of court.
prasanna kumar
(Querist) 12 January 2017
does it mean that my writ petition is dismissed without even registering the writ petition.
R.K Nanda
(Expert) 13 January 2017
contact ur Advocate on record.
Rajendra K Goyal
(Expert) 13 January 2017
Without knowing full case details / material facts/ related documents, nothing can be advised. Discuss with senior lawyer.
P. Venu
(Expert) 13 January 2017
The facts stated lacks clarity.
Dr J C Vashista
(Expert) 14 January 2017
What is the opinion and advise of your lawyer for this academic query?
prasanna kumar
(Querist) 15 January 2017
let me give the full details of the case as below.
A bank without the account becoming NPA (RBI has acknowledge that the account is not NPA) sold the movable and immovable properties of an industry in total violation of SARFAESI Act.moved DRT twice. Both the time DRT did not hear the matter on merits.
filed a writ petition in the high court in seperate writ petitioner, the high Court directed in one case(where only possession notice was challenged) to approach DRAT by paying 25% of the demand(due to financial problem could not approach DRAT).in another case where actually sale proceedings were challenged before the DRT, high court remitted the case back to DRT.
DRT again did not hear the case ignoring the high court order. challenging this a writ petitioner was filed. in the writ petition praying to hear the case.
in this writ petition, the high court without hearing the merits disposed the case saying that the order in the earlier writ petition( a division bench order) directing the petitioner to go to DRT was wrong and the petitioner has to go to DRAT without anybody challenging the earlier division bench order( by this time one and half year has passed since the earlier division bench made the order directing to go to DRT). Since there was violation of fundamental right under Article 14,21, relying on the supreme Court ruling in Daryao Vs. state of UP and Maneka Gandhi case, a writ under Art. 32 was filed. The supreme Court asked me to withdraw the case without hearing it giving permission to avail appropriate remedy before appropriate forum. by the time the supreme court disposed this writ under art.32 the time for even filing the SLP was also expired. Since there no alternative remedy or appropriate forum left another writ petition under article 32 was filed explaining that there is no other forum or remedy available available. The registry after keeping the file for more than month said the case is lodged ( web site says so). orally when i spoke to the registry they said the case is dismissed under Order 15 Rule 5 of the supreme Court procedure rules without registering the case.
Here,
a) The account is not NPA. violation Section 13(2) of the Act.
b)the bank has not obtained the valuation of the property. Property worth several crores is sold only to less than a crore. violtion Rule 8(5) of the Act.
c) sale notice not issued violation Rule 8(6) & 9(1).
d) bidders have not paid 25% of the bid amount on the spot. they have paid it after one week violation Rule 9(3)
e) the bidders have not paid balance 75% of the bid amount within 15 days as per SARFAESI Act. they have paid after one year six months. violation rule 9(4) & 9(5).
Here the main grievance is that for the past 8 years not a single court in the country has heard and decided this case on merits. even though the sale of movable and immovable properties is continuing innullity.
Is it not the violation of fundamental right of justice. can the courts of the country refuse justice. That too Supreme Court.
As of now I have not received written communication from Supreme court which says it has despatched to me.
prasanna kumar
(Querist) 16 January 2017
I sent the details of the case
rajeev sharma
(Expert) 19 January 2017
mr. Kumar The courts do not refuse justice, but its the litigant who sleep over the or do not peruse the matter before the right court. The Advocate fraternity is also to be blamed for not advising the client properly. Firstly simply saying that your account had not become NPA is not sufficient. You had to prove that by putting strict evidence of the fact because the bank and financial institution does not error in designating the account NPA. Secodly the advocate who advised you to file a writ before HC against the order of DRT was wrong. you had to file an appeal before DRAT AND HAD APPLIED THERE FOR RELAXATION of 25% amount . You had gone to HC against the order of DRAT. Now you may under stand that you followed wrong remedy and were bound to get the orders you got from HC. From my personal experience i may say that if all the grounds mentioned in your post are true then you had been able to get a relief from DRAT certainly even if the relief was not provided by DRT.
Similarly SC is not an ordinary court where any one may walk in with a writ when alternate remedy is available. You should have followed the directive of the SC and filed appeal before DRAT.
Please do not blame judicial system for wrongly following system.
prasanna kumar
(Querist) 20 January 2017
Mr. Rajeev sharma thanks for the expert comment. In addition to the information provided above, let me give some more information for better understanding of the case.
Here there are two different cases. One in which the sale notice before the sale took place was questioned before DRT.( only the sale notice was challenged). In this case DRT without hearing the merits dismissed the case and the same was appealed to DRAT.DRAT ordered to pay 25% pre deposit which amounts to approx 28 lakhs which i did not have. I filed exemption before DRAT, DRAT dismissed the same approached the High Court High court said go back to DRAT and pay the money in spite of me praying that I do not have such huge money to pay as I am struggling to meet my daily needs. When the High Court itself has said that the money has to be paid, the DRAT will never even accept my application to reopen the case. Now you may say I should have approached the High Court for the relief. I have exactly done the same and approached the High court and prayed that though the High has asked me pay the amount and go to DRAT, I do not have such money and I prayed for the High Court to hear the case on merits. In any case this was only for academic reason as the sale based on the sale notice did not take place and the same and even the case itself has become in fractious.
The second case is where the post sale factors are challenged before the DRT in which sale notice itself was not served to me. Here DRT again did not decide the case and said the remedy should be obtained from the DRAT. My point is this, DRT being the tribunal of first instance, without hearing the matter how can they say that I should go to DRAT. on this point a review application was filed before the DRT. simultaneously another writ petition was also filed seeking the High court to hear the matter on merits. In this case the High Court referred me back to DRT saying all contentions are to be raised before DRT. therefore I went back to DRT. Again DRT ignoring the order of the Division bench of the High Court dismissed the review application as well as the restoration application. ( now is it not the contempt of the High Court by DRT though it is a different question that I cannot file a contempt proceeding against the DRT presiding officer). Here since I had filed a review application before DRT as per law I have lost appeal preference.Therefore, the DRAT does not have the jurisdiction to hear and decide my appeal on the order of my S.A. Besides, since DRT has ignored the Division bench order of High Court, I approached the high Court again seeking the matter to be heard on merits.
it is in this writ petition that the single bench of the High Court decided that the Division bench order asking me to go to DRT was wrong and that I should have been sent to DRAT. another division bench on an appeal also held the same thing and said I have to pay 28 lakhs and go to DRAT. My point is this When the earlier order of the Division bench was not challenged by the Bank and has become final, in a new writ petition how can the high court rewrite the same and refuse to hear the case on merits in a new writ petition. The High Court itself has no jurisdiction to re write an earlier order passed by a division bench. Such an order is nullity.
Now as for your suggestion that the bank is not at fault usually in treating an account as NPA which should be proved before a court is concerned, I must inform you here that none other than RBI has accepted in writing that my account is not NPA. However, if some court hears me I can prove the facts beyond doubt that my account is not NPA. but if no court is ready to hear my case, where should I Prove the facts. The point is that the auction bidders have not paid 25% of the bid amount immediately and the balance 75% of the amount is not paid within 15 days of auction but they have paid it over on year & six months which is also admitted by the bank itself in a letter sent to me.All these fact are part of my pleading before, DRT, High Court and the Supreme Court. but if no court wants to hear and see the merits of the case, how can I prove and how can I get justice.
This is outright violation of my fundamental right under Art. 14,21,39A. It may be noted that I have approached DRT, DRAT, High Court and the Supreme Court.
I have immense respect to the judiciary and also the High Court and Supreme Court but if the courts do not give justice, the question always rises against such injustice. Therefore, I have approached the Supreme Court . But One may now say why writ under Art. 32 and not SLP.
In ordinary course, if the case is heard and decided by some court on merits I would have preferred an SLP. But when no court is hearing the matter beyond 30 seconds and a deliberately directing me to DRAT knowing very well that I do not have financial capability to pay huge sum of 28 lakhs, the courts are doing this at the behest of the Bank which is making back door manipulations.Otherwise no court will have prejudice against me as a litigant.
The Supreme Court ruling is very clear as mentioned earlier, that if the High court does not hear the case on mertis, or dismisses the case for want of alterntive remedy,( In this Case DRAT) or even if there are laches on the part of the petitioner, a writ under article 32 can be filed. ( Daryao Vs. state of UP.). Also according to Supreme Court any law violated whether statutory or other wise is violation of art.21 and aggrieved party can file a writ under art 32. ( olga tellis and manek ganghi cases).
Therefore, I have approached the Supreme Court under Art. 32. By the way now I have received a communication from Supreme Court
in which the registrar of the Supreme Court has passed a judgement saying that I cannot be allowed to invoke the jurisdiction of the Supreme Court under Art. 32. Art 32 is itself a fundamental right. If the supreme court itself violates the constitution, is there any forum which can give justice. Where, it is the court which has to pass the order,in my case the registrar passed an order. This is what I say denial of justice.
Now your expert comments and advice on this will be very helpful for me to get justice especially when I do not have 28 lakhs to be paid to DRAT. If i do not pay I do not get justice.
So therefore should I conclude that justice is a commodity which I can buy only if I have money? or is there a constitutional remedy if so who other than Supreme Court can give it.
