On how to deal with writ cases filed on the wrong administrative side: Calcutta High Court issues guidelines

The filing of a writ petition or an application under Article 226 of the Constitution on the wrong administrative side (original/ appellate) of the High Court would not by itself become a ground for dismissal, the Calcutta High Court has ruled (Susmita Gayen v. The State of West Bengal & Others.).The High Court, in such cases, can issue directions to list the matter on the appropriate administrative side. Further, in urgent cases, the Court would also have the discretion to entertain such irregularly filed cases, it was clarified. .Justice Shekhar B Saraf passed a ruling to this effect on Thursday, while dealing with a writ petition found to have been filed erroneously on the original side. .While releasing the matter and directing that the Registry to register it on the appellate side, the judge also issued guidelines to be followed in such cases. .The guidelines issued include:.The exercise of the writ jurisdiction under Article 226 of the Constitution of India is "discretionary‟, but such discretion must be exercised on sound judicial principles. The filing of a writ application/petition, either on the Original Side or the Appellate Side, as the case may be, has nothing to do with the aspect of its maintainability under Article 226 of the Constitution of India before the High Court. Any preliminary objection as regards the "entertainability" of the writ petition on either the Appellate/Original Side, if raised before a Single Judge, must be considered. If such an objection is not raised by the Respondent(s) in any case, the same ought to be considered as patent display of acquiescence or waiver of right and such Respondent(s) would subsequently, be precluded from challenging such a technical point in an intra-court appeal.Whether a particular writ petition/application is to be dealt with in the Original or the Appellate Side of this Court pertains to the distribution of the business of the Court and same is regulated by the Calcutta High Court's Rules of 1986 on entertaining Article 226 petitions. Rules 4, 5 and 7 of the 1986 Rules have to be construed and read in a harmonious manner so as to not render it otiose while also ensuring that it does not throw a spanner in the works when it comes to the overall exercise of the Court‟s writ jurisdiction, which is essentially governed by Article 226 of the Constitution of India and which cannot be circumscribed by the "subsidiary‟ Rules of 1986. If a writ petition/application under Article 226 of the Constitution of India, notwithstanding that it is constitutionally sound, appears to run afoul of Rules 4, 5 or 7 of the Rules of 1986 and as a result is filed under a wrong administrative nomenclature (Original Side/Appellate Side), it cannot entail the dismissal on this ground alone.While "cross-entertainment‟ of such applications has been discouraged, the inherent power vested in the High Court permits the conversion and transfer of such writ applications/petitions from one administrative side to another, considering that a judge of this Court normally possesses requisite determination in both the Original as well as Appellate Sides.If a judge deems it fit that such a writ petition/application runs afoul of Rules 4, 5 and 7 of the Rules of 1986, she can transfer such writ petition from one administrative side to the other, upon a procedural conversion of the same i.e. from a “WPO” nomenclature to a “WPA” nomenclature or vice versa, by issuing necessary directions in this regard to the concerned Registry. If an irregular filing of a writ application/petition is made, in either the Original Side or the Appellate Side of this Court, it would not preclude the judge from entertaining the matter when grounds of urgency or any other ground, which the learned Judge upon an application of her mind and discretion deems it fit..In the case at hand, the Court found that the petition had been wrongly filed on the original side as the cause of action had arisen and the parties were residing/carrying their business beyond the Calcutta High Court's original jurisdiction..The Court, therefore, proceeded to direct the Registry to register the case on the appellate side of the Court. .[Read Order]