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Dr Het Ram Kalia v Himachal Pradesh University
AIR 1977 Him Pra (NOC) 246
The Supreme Court went to a writ about an irregular appointment of the Vice-Chancellor of a University. The SC took the opportunity to answer some question of facts that are raised in regard to a Writ filed under Article 226 of the Constitution of India.
1. It would be abdication of Court's duty to do real justice to throw away the petition merely because questions of facts are disputed by the parties.
2. This would be more so in a writ like a writ of quo-warranto wherein the public office in question is to be held by the alleged usurper for a limited period and remedy by way of a civil suit is found be illusory.
3. If the Court finds that the affidavits filed by the parties do not throw sufficient light on some salient features of the case the Court may call some of the deponents for viva voce examination for the clarification.
4. If such a course is not adopted and if on a particular dispute involving question of facts the Court does not find it possible to record a clear finding on that dispute the Court may refuse to record a clear finding and proceed to decide that matter before it on the basis of admitted facts if the same is possible.
The observed that the basis of the rule of constructive res judicta is founded on the consideration of public policy and therefore it would not be right to ignore these principles even in writ petitions filed under Article 226. However, this principle applies only if it is found that the party concerned ought to have raised a plea which he now raises, in the previous proceeding..
In this case, the petitioner challenged the action taken by the Vice-Chancellor in his capacity as acting Vice-Chancellor and not as regular Vice-Chancellor. In the latter petition on his regular appointment as the Vice-Chancellor, the petitioner challenged his regular appointment as the Vice-Chancellor. In such circumstances, he is not expected to challenge the regular appointment in his previous writ. The court held that under the circumstances, the principle of constructive res judicta did not apply in the subsequent writ petition of the petitioner to challenge the regular appointment of the Vice-Chancellor.
In regard to issue of Writ of Quo-warranto, the SC said that the court can refuse to grant it if it is vexatious or where the petitioner is guilty of latches or where he has acquiesced ot concurred in the very act against which he complains or where the motive of the later is suspicious.
If a petition for the issue of quo-warranto, if the person is found to be occupying a public office of substantive nature without any authority, then the wrong committed by him is a continuing wrong which occurs day to day, and, therefore each day on which he functions illegally, gives a fresh cause of acting. Under these circumstances, ordinarily, delay and laches would be no ground for a writ of quo-warranto unless the delay in question is inordinate.
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