The appellate jurisdiction of the Supreme Court can be invoked by a certificate granted by the High Court concerned under Article 132(1), 133(1) or 134 of the Constitution in respect of any judgement, decree or final order of a High Court in both civil and criminal cases, involving substantial question of law as to the interpretation of the Constitution. Appeals also lie to the Supreme Court in civil matters if the High Court concerned certifies : (a) that the case involves a substantial question of law of general importance, and (b) that, in the opinion of the High Court, the said question needs to be decided by the Supreme Court. In criminal cases, an appeal lies to the Supreme Court if the High Court (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or (b) has withdrawn for trial before itself any case from any Court subordinate to its authority and has in such trial convicted the accused and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or (c) certified that the case is a fit one for appeal to the Supreme Court. Parliament is authorised to confer on the Supreme Court any further powers to entertain and hear appeals from any judgement, final order or sentence in a criminal proceeding of a High Court.
Scope of Certiorari in SC Civil writ - to quash the High court judgement
Respected Sir/Madam, Request your valuable advise on the below scenario. Is it possible and worth proceeding to file a civil writ at SC against a High court judgment (in a regular second appeal process), which has a serious question of law by modifying a judgement passed earlier by an additional district judge (in an appeal suit process further to an objection suit process at a munsiff court) to fix the boundary between two adjacent plots; by setting a 2 feet clearance from an existing building which abutted the adjacent share. The high court has removed the 2 feet clearance between the boundary and the existing residential house's side with a building wall consisting of several windows, ventilators and a 2 feet projected sunshade. As per the High court judgement, the boundary wall has to be constructed close to building wall without leaving any space; for access, maintenance for plumbing and electrical, painting, opening of windows evidently violating the right to inhabitable shelter, right to privacy as well as the mandatory panchayat building rules in effect in the area; which calls for a minimum side setback of 1m between the building and boundary. Kindly advise with the necessary legal aspects, opinions, relevant and applicable civil laws in this special circumstances
25 Answers
If you are aggrieved by HC order file appeal in SC against impugned order
I presume construction had been done as per sanctioned plans and completion certificate obtained from local authorities
Certiorari is not issued for quashing order of HC. You have a good case, you can move ahead and file a SLP in the SC against the order of the HC.
Regards
Sir, i would like to seek appeal in SC, but the judgement is passed by a Single judge in HC at the final stage of an RSA, could you guide me for the process of getting the certificate from a single bench. Is there any possibility of civil writ petition or certiorari to SC at this stage of judgement from the High court after regular second appeal. The SLP is totally upon the discretionary power of the supreme court, so it can reject the SLP even if serious questions of law are involved as well; as its based on the sole discretion of the court; since authorised likewise by the system.
It is true that SLP can be rejected by SC
however if questions of law are involved court would direct notice to be issued to Respondent and if it is convinced admit the appeal
Sir, the boundary wall has not yet been constructed yet. Since the violation of right to safe shelter and right to privacy with the boundary wall being too close to the window and soil excavation for constructing so close to the building foundation resulting the building wall to collapse, raises the question of constitutional rights, can a civil writ or certiorari be filed directly to SC. Can you please guide me on the legal way to get a certificate for appeal from highcourt to seek appeal in SC under Article 132,133,134,
If the order of the high court was passed in writ petition then intra court appeal lies in the same court before the Division Bench.
If the order of the high court passed in revisional application then only SLP lies in Supreme Court.
If you share the judgment of high court then further advice can be give.
Writ of certiorari can be issued in cases where there is a prima facie error of law in the judgment, the authority has given an order in excess of its powers, or when the principles of natural justice are violated.
-The writ of certiorari is used by the Supreme Court and the High Courts to quash the orders passed by the lower courts when they have overstepped their jurisdiction, violated the principles of natural justice, or have made an error of law.
- Hence, you can file a writ of certiorari before the Supreme Court , if the High has violated the principle of natural justice at the time of passing that order.
- However, as the judgement passed at that final stage of RSA, then no certificate can be issued by the Court at this stage.
- Better to file writ of certiorari before the SC as the court may not go in details in SLP.
The writ of certiorari is issued after the case is heard and decided. It is issued to quash the decision or order of the lower court when the lower court passed an order without or in excess of jurisdiction.
In your case, the high court has decided in appeal.
Therefore only SLP before supreme court only would be the next step.
A body is said to have acted beyond its jurisdiction in the following cases:
- Where the court considering the matter has not been constituted properly as per the law, like the requirements of members, etc.
- Where the subject matter of inquiry lies beyond the scope of the body’s powers as per the law.
- When the jurisdiction has been based on a wrong assumption of facts.
- When there is a failure of justice due to violation of principles of natural justice or presence of elements like fraud, collusion, or corruption.
- Even though the body has acted well within the limits of its jurisdiction, a decision can be quashed if there is a blatant error prima facie. The error here means an error of law.
Thus, in all the above-mentioned cases, a writ of certiorari can be issued.
Your case do not fall under the category hence you may once again analyze the issue properly and take decision accordingly
Dear Client,
You can challenge the High Court (HC) judgement that removed a 2-foot clearance between your boundary wall and the neighbouring building by filing a Special Leave Petition (SLP) in the Supreme Court (SC) under Article 136 of the Constitution of India. This petition is based on the substantial questions of law involved and potential violations of constitutional rights, such as the right to an inhabitable shelter and privacy.
To appeal to the SC, you may need a certificate from the HC under Articles 132, 133, or 134, which requires filing an application in the HC, highlighting the significant legal issues. Additionally, if the HC judgement violates your fundamental rights, you can file a writ petition directly with the SC under Article 32.
Consulting with a legal expert specialising in constitutional and property law is advisable. They can help draft the necessary documents and guide you through the process, ensuring that your appeal or petition is strong and well-argued.
Since such questions of privacy and inhabitable shelter in terms of the fundamental rights were not challenged until this final judgement after the RSA in a civil suit, henceforth no certificate for appeal to supreme court (Article 133,134) is not provided by HC. Would the below mentioned form adequate grounds within the writ jurisdiction of SC for a certiorari civil writ initiation Since the high court has directed at the end of the RSA to build the boundary wall along the building wall, without leaving any space, hence we are aggrieved on the following grounds. 1.The options for inhabitable residence with necessary requirements of human access (by the door) and light and air admittance (by the windows and ventilators) are not possible if such a boundary wall is constructed so close to the building. 2. The excavation of soil (for constructing boundary wall) very close to the foundation of the building could cause the the old building with settlement issue and collapse, because of the minimum set back as recommended by the Panchayat is not maintained. 3. The 3 sets of windows for the houses's bedrooms and ventilators in the bathroom are close to the boundary wall; which causes serious compromise on the privacy of the inhabitants, denying the fundamental right for privacy due to the miscarriage of justice via the HC judgement. 4. The direction to construct the boundary wall close to the building wall itself is against the muncipal or panchayat building rules, which is against the general terms of justice.
You have stated that
The direction to construct the boundary
wall close to the building wall itself is
against the muncipal or panchayat building rules,
there is prima facie error of law in the judgement and hence writ is maintainable
You can decide whichever is the better option to proceed further in this matter.
The proposed writ for certiorari may not be maintainable as per my opinion, however you can decide after discussing with your supreme court advocate.
Sir, Can we try filing a writ for certiorari first before SLP, if writ its accepted, will it hold good to freeze, nullify and quash the impugned HC judgement. Once writ is not maintained or rejected, do we have the provision to proceed further for the SLP (without the resjudicata) afterwards or does that provision also get exhausted as well if the certiorari writ is rejected or cancelled. Please correct me if i am wrong and advise me on the probability of winning the case. Writ has more chances of success as it shall be accepted due to fundamental right (privacy and shelter) & litigation error factor and gravity; compared to the SLP which may not go into further fine detail with potential risk on acceptance at SC, based on its discretion to consider; even if it has serious question of law and error of judgement is involved.
Dismissal of writ will not be a res judicata to prevent filing SLP.
You can proceed as decided by you, but remember it will be a very costly affair when you resort to fileSLP subsequently.
Actually speaking you are suffering from easement rights and you should have sought relief accordingly and not the case which was dragged on for this long.
Better option is to file SLP in SC rather than writ in respect of same cause of action
if your writ is rejected you will not be able to file SLPin SC
Is it possible to file writ afterwards SLP once it is not accepted (due to the inherent risk of the discretionary power reserved for the SC) without the factor of resjudicata. How many review petitions in SC to reconsider SLP is possible; after rejection of SLP , and to what extent of benches. Can the writ and SLP both accomodate a request for stay to freeze the HC judgement and maintain status quo in the plaint schedule property. Which has more inherent risk of dismissal A civil writ with questions on fundamental rights and constitutional involvement or An SLP at the mercy of the discretionary privileges; which authorises the SC even to dismiss any potential case with adequate question of law and error of judgement. Please advise
Once SLP is rejected you cannot file writ in SC
2) only one review petition is maintainable
3) better option is to file SlP
Show order.
If you claim that you are seriously aggrieved by the HC judgment in RSA, the only option is to appeal to the SC
A writ cannot be issued by SC against the HC's judgment
If you still want to file such a writ petition challenging the HC judgment , then please proceed at your own peril
In all likelihood that petition will be rejected as you have an alternative remedy of filing an SLP
Thereafter if you file any SLP, then provided the court granted liberty to you to prefer a SLP in its order dismissing your writ petition, the SC may look at your subsequent SLP as an abuse of the process of law
And first of all no good lawyer will agree to file a writ petition in SC against the HC judgment. You have to do that as a party in person
So please get over your obsession that the SLP would be rejected by the SC using its discretionary powers and FILE A SLP if you are really aggrieved. Filing a writ petition in SC against HC judgment would be seen as making mockery of the law !
Dear Client,
You can consider filing a writ petition under Article 32 of the Constitution in the Supreme Court (SC) to challenge the High Court (HC) judgement on the grounds of violating fundamental rights like privacy and the right to an inhabitable shelter.
1. The HC judgement directing the construction of a boundary wall close to your building wall can be contested as it hinders necessary access and ventilation, impacting living conditions.
2. Highlight the potential danger of soil excavation near the building foundation, which could cause settlement issues and collapse, against the Panchayat's setback recommendations.
3. Argue that the proximity of the boundary wall to windows and ventilators compromises privacy, violating fundamental rights.
4. Point out that the HC judgement contradicts municipal or panchayat building rules, mandating setbacks.
If the writ petition is not accepted, you can file a Special Leave Petition (SLP) under Article 136. The rejection of a writ petition does not prevent you from filing an SLP.
A writ petition is likely to be accepted due to fundamental rights and legal errors, while an SLP, though discretionary, can also succeed if significant legal issues are demonstrated.
You can file one review petition if the SLP is rejected, usually reviewed by the same or a different bench.
Both the writ petition and the SLP can request a stay on the HC judgement to maintain the status quo regarding the boundary wall construction.
Filing a writ petition first provides a structured approach, and if unsuccessful, pursuing an SLP offers another avenue for redress.
There are possibilities that your subsequent SKP subsequent to the rejection of writ petition may not be entertained considering it as abuse of law.
Your thought over the filing of writ also in this regard may not be entertained by supreme court because your rights are not deprived hence there's no question of violation of fundamental rights.
You may decide further course of action after having seen plenty of replies to your question.
With all due respect to every knowledgeable experts,would you be kind enough to explain how an abuse of law and mockery of the system is assumed to be present; ( especially when a serious error in judgement has occured at High court, evidently denying the fundamental rights of safe residence with adequate privacy;) if we seek one option after other; in case of failure of one. Especially If only subsequently intiated not simultaneously. Does the system not have a provision to correct the last stage error at HC, even if it has gone through various lower court phases; where such denial of rights, never occured, without arising any necessity for writ or claim to be utilised at earlier stages of litigation; until the last minute. Do we have any particular articles or sections of law which is relevant to the case on this particular HCs last minute error & complication; or does it not address and elaborate on it at all. Especially, in such a high stake scenario; its prudent to have multiple options and legal strategies standby to be initiated, if one fails; other back up would be expected to hold effective; to avoid the dismissal of admittance of aggrieved to the right platform. It is never intended to abuse or misuse the legal system, but due diligence; assuring all possible remedies are exhausted in an attempt to seek the denied justice one way or other, to effectively achieve the lawfully eligible privileges; in this highly exceptional HC judgement which violates the bare minimum logic of building rules and municipal norms. Do we have any similar sections in Indian Law which elaborates and documents the details on grounds of denial and assumption of criteria of abuse, misuse or mockery of law based on jurisdiction and judicial power. Please provide the requested information which may at least cover the particular aspects of the mentioned case; that could be helpful to strategize and plan ahead; minimizing the potential risk of failures.
You cannot pick one option after another
if there is error of law in HC judgment file appeal against impugned order on the grounds that
The direction to construct the boundary
wall close to the building wall itself is
against the muncipal or panchayat building rules,
3) if your SLP is rejected you cannot then file writ of
certain taking the same grounds that were rejected by SC for n SLP
If after exhausting the remedies available before the apex court and still you approach it with one or the other reason, then the court will consider it as abuse of law
You are always having liberty with your own advocate to know about the provisions of law seeking all these clarification.
Your problem is for easement rights and violation of fundamental rights
After exhausting all remedies so far in the lower courts, there was never a circumstance which violated the fundamental rights of residence, privacy in the sequence. Since the gross error happened at HC in the end of RSA, SC is the only way, and pursuing the options in SC to seek the denied justice in SC only because of HCs last minute error, can it be regarded as an abuse of law? Would it be ok, if i file SLP on the grounds of error in HC judgement by violation of the panchayat law and if its rejected. Can i initiate a writ based on a different ground that the fundamental rights of residence , privacy and easement rights are violated. Would that be admissible if the grounds of both are different and would not be an abuse as well complying to the procedures in SC. Can i obtain a cerificate (Article 133, 134 ) from HC to invoke appellate remedy from Supreme court by filing a request for the same in HC elaborating on the questions of law in its judgement; after a judgement is issued in the final stage of RSA Is that possible?
- Yes, this remedy can be removed after approaching the Supreme Court
- Writ petition is better on the ground that the fundamental rights of residence , privacy and easement rights are violated.
Why should SC reject your SLP if HC order is contrary to law
you are always at liberty to take legal proceedings on other grounds
You are either misinterpreting the rights to residence and easement rights.
Easement rights is the actual subject you are fighting now.
Easement normally means the right to use a land that does not belong to the person using it. Section-26 of the Limitation Act, 1908 provides for acquisition of right to easement.
Here your fundamental rights i.e., your right to residence has not been violated due to your neighbor's construction.
Therefore as the high court judgment aggrieved you, the next step would be SLP before supreme court or to file a revision petition before high court.
You can proceed on the advice of your advocate in furtherance.
Dear Client,
Pursuing multiple legal options sequentially is not inherently an abuse of law, especially when fundamental rights are at stake and there is a serious error in judgment at the High Court (HC) level. The legal system allows for various remedies to ensure justice is served, provided that each remedy is pursued in good faith and within the legal framework. Article 136 of the Constitution of India, allows any party to appeal to the Supreme Court against any judgment, decree, or order in any cause or matter passed or made by any court or tribunal in the territory of India. It is a discretionary power of the SC. If the HC judgment violates panchayat law or building rules, you can file an SLP citing these legal errors. Article 32 of the Constitution of India, guarantees the right to move the Supreme Court for the enforcement of fundamental rights. If your SLP is rejected, you can file a writ petition on different grounds, such as the violation of fundamental rights to residence, privacy, and easement rights. This would be a different legal argument and thus, not an abuse of the legal process. You can also obtain a certificate from the HC under Articles 133 or 134 if substantial questions of law are involved. By adhering to these strategies, you can maximize the chances of having your case heard and rectifying the HC judgment that you believe violates fundamental rights and municipal norms. Should you require any further clarification, please do not hesitate to contact us.