Can a person other than respondent file a reply in wp?

IF THE AFFIRMING PERSON IS DULY AUTHORISED TO MAKE AND AFFIRM AFFIDAVITS ON BEHALF OF THE RESPONDENT ,THERE IS NO DEFECT.I BELIEVE THERE MUST BE AN AVERMENT TO THAT EFFECT IN THEIR AFFIDAVIT. PLS CHECK.

REGARDS,

DEBISREE ADHIKARY.

Thanks DEBISREE,

 

Exactly the same point came to my mind and hence this post.

 

1)     No! no such aversion of authority is made in the affidavit.  If I raise the objection the authorisation document may be filed at later stage.  AS OF NOW NO SUCH AUTHORISATION EXISTS.  THE QUESTION IS "IS BELATED AUTHORISATION CREATED AFTER THE OBJECTION IS RAISED LEGALLY VALID?"

 

2)     Does CPC permit the Respondent to authorise another person to affirm on his behalf?

 

 3)    The Respondent is a Public Limited Company with 51% share of Govt of India.  Normally Board of Directors issue power of attorney for court cases.  In this case it has not been done so far.  Will it be valid if it is done belatedly?

 

4)     MOST IMPORTANTLY WHEN I HAVE ZONAL MANAGER THE RESPONDENT IS IT LEGAL FOR ZONAL MANAGER OR BOARD OF DIRECTORS TO DEPUTE ANOTHER PERSON AFFIRM ON BEHALF OF COMPANY (OR ZONAL MANAGER)?

Writ petition itself can not be files against the company.

Wp can be filed even against an individual

Sir, although it has not been much time in practice. Pardon me if there are any faults or misconceptions of my concepts. I would like state following as a personal opinion over your questions:-

1)     Is it illegal to file a reply affidavit by an officer other than the Respondent?  If so under what law?

Here in Rajasthan High Court, whenever any affidavit is filed, usually the same starts with the terms decalaring under what capacity he is filing the reply... For example : I, XOX(name) s/o YOY(Father's name) Age DD, DESIGNATED AS   do hereby state under oath that....

So, it is usually presumed that the person who is filing the affidavit is under the authority to file the reply or affidavit, whatsoever.... In case you will raise this objection  through any explicit averment by way of rejoinder or additional argument, then as you said, they  may respond accordingly. Instead, why dont you raise it first at the time of argument in the most authoritative way by bringing the attention of the Hon'ble Court at the page of sworn affidavit. Along with that, be ready with some case laws that the person who has filed the affidavit is not in the capacity and case laws regarding punitive measures for misleading the Hon'ble Court...

2)     Can a contempt petition be filed against the Respondent, the other officer who filed a reply affidavit and the lawyer representing the respondent?

The Contempt petition can be filed only for non-compliance of the order or directions of Hon'ble Court. I suppose, since there is no standing order or directions explicitly which has not been complied with. Moreover, if your writ or matter is already pending then how come you can file a contempt. so, its not possible. Against a lawyer, the contempt can not be filed at all because whatsoever the case may be, its impossible that Court passed any direction against the concerning lawyer which he was obligated to follow..

3)     What remedy other than the contempt petition is available for false statements in affidavit? (This might be only against the signatory to the affidavit)

Contempt per se cannot be filed unless the matter has been decided and there was the order which was not complied with. In case, there was any order for which the concerning public officer was bound to follow, which he has failed to follow, contempt cannot be filed. If this is a case, where court disposed the matter with a direction and the same was not complied with, you can go with the contempt proceedings...

 

Regards

Adv. Ravish Sharma

Rajendera Ji, thanks for your comment, however for general information WP can be filed against the state and what state is prescribed under Article 12 of the state and petitioner also has to aver in WP the respondent is state within the meaning of art 12 of constitution. Trust we will not be confusing on term state. Further, I would be very excited to learn, if any WP filed and entertained by HC / SC may be share to us.

I mean any WP filed and entertained by HC/SC against private person.

Haven't you heard about Bodhisattva Gautam Sir.. Wherein writ was admitted against a private person .. Here are the details.. Shri Bodhisattwa Gautam vs Miss Subhra Chakraborty on 15 December, 1995 Equivalent citations: 1996 AIR 922, 1996 SCC (1) 490 https://indiankanoon.org/doc/642436/

Moreover he has written in a comment below.. "Respondent is a Public Limited Company with 51% share of Govt of India." So... It is state under Article 12 of the Constitution of India..

Moreover he has written in a comment below.. "Respondent is a Public Limited Company with 51% share of Govt of India." So... It comes within the purview of definition of 'state' under Article 12 of the Constitution of India..

Hi thanks for writing your thought. Appreciate 51% share of govt in private Ltd company, do not bestow it's a status of state within the meaning of Art. 12. Would appreciate, if Art. 12 can be read carefully. Another, the case law of 1996 cited above has nothing to do with WP, rather that case is related to deceptively marrying and committing intetcourse. .

WP can not sustain agaist Ltd or pvt Ltd company, if otherwise cite judgement to support the statement. Will be new learning for us. Thanks

Dear Jai Karan Nagwanji

The judgment I have cited above i.e. Shri Bodhisatva Gautam's Case is the only case wherein the writ was admitted against the Private Person...  wherein it has been observed that even Article 32 in itself is a fundamental right... It is apparant that you haven't noticed the following observation in the said judgment I referred:-

"Under Article  32 of the Constitution, it has the jurisdiction to enforce the Fundamental Rights guaranteed by the Constitution by issuing writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-Warranto and Certiorari. Fundamental Rights can be enforced even against private bodies and individuals. Even the right to approach the Supreme Court for the enforcement of the Fundamental Rights under Article 32 itself is a Fundamental Right. "

I would have appreciated had you read that judgment carefully rather than skimming it because then you wouldn't have mentioned that the case has got nothing to do with wp or whatever..

Moreover so kindly refer the following judgment to elucidate the situation..

MC Mehta vs UOI (1987) 1 SCC 395 wherein it has been observed that the even the non-government companies are within the meanin gof state for the reason if they are controlled/regulated and are performing kind of public function which satisfies the test of being an instrumentality of state engaged for discharging its functions.... 

In Mysore Paper Mills vs Mysore Paper Mills Officers' Association Anr.  (2002) 2 SCC 167, where it was held that a company was an authority within the meaning of Article 12 of the Constitution as it was substantially financed and financially controlled by the Government and carrying on functions of state.

In the instant case, wherein the ownership by the Private company is 51 percent which means financial control in form of share ownership and the same has been engaged for discharging function of state by way of contract...

Hence, it can be included into the scope of Article 12...

Do suggest if you have any worthy opinion... Would be a new learning for me.... Thanks