Calcutta High Court (Appellete Side)
Hemant Goenka vs Bureau Of Immigrations on 3 January, 2024
26
03.01.2024
mb
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P.A. No. 27336 of 2023
Hemant Goenka
Vs.
Bureau of Immigrations, thorough
its Deputy Director & Ors.
Mr. Kanishk Kejriwal,
Ms. Suranjana Chatterjee,
Mr. P.P. Bishwal
...for the petitioner
Mr. Siddhartha Bhattacharyya,
Mr. Sailendra Tiwari
...for the respondent nos. 1 and 3
Mr. Arjun Mookerjee Mr. P.C. Ghose ...for the Bank
1. Learned counsel for the respondent-Bank at the outset takes an objection as to the maintainability of the writ petition. It is argued that relief (a) seeks a writ of certiorari commanding the respondents- authorities to produce the Lookout Circular issued against the petitioner and the request for issuing the same before the Hon'ble Court so that conscionable justice may be done by quashing and/or setting aside the same. It is argued that the respondent-authorities acted in their administrative capacity and are not as quasi-judicial authorities. Hence, it is contended that a writ of certiorari is not maintainable against the respondents. 2
2. It is further argued that the relief (b) sought in the writ petition is a mandamus of similar effect as relief (a) and, as such, the two cannot be maintainable together. Relief (c) seeks a rule Nisi in terms of the reliefs (a) and (b) and, as such, is entirely dependent on the maintainability of the writ petition on reliefs (a) and (b), which are not maintainable in the eye of law.
3. Learned counsel also places reliance on the judgment of Om Prakash Gupta vs. Ranbir B. Goyal, reported at (2002) 2 SCC 256 for the proposition that a civil court can mould reliefs only if there is subsequent event. In the present case, there being no subsequent events as such, there is no scope for the writ court to mould the reliefs sought.
4. The arguments of the Bank, to say the least, borders on the ridiculous.
5. First of all, the proposition laid down in Om Prakash Gupta (supra) pertains to civil suits. Although the principles of civil suits apply to the writ jurisdiction as well, the writ court can even take suo motu cognizance of any offensive action, be it administrative or quasi-judicial, on the part of the respondents, being unfettered by the rigours normally associated with civil suits.
6. Even otherwise, the judgment cited by the Bank does not speak of the proposition which has been 3 advanced by the Bank. Paragraph 11 of the cited judgment, which has been relied on by the Bank, says that the ordinary rule of civil law is that the rights of the parties stand crystallized on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Supreme Court held, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied. Thereafter, the conditions have been given.
7. The said case, thus, dealt with the scenario where a question arose whether the civil court has power to take note of subsequent events, even though the rights of the parties crystallized on the date of institution of the suit, to mould the reliefs and grant the same.
8. In the present case, there is nothing similar to the said factual premise. Here, the petitioner has brought to the notice of the Court that the petitioner's foreign travel has been interdicted by the respondent-authorities purportedly on the basis of a Look Out Circular, no copy of which was ever served on the petitioner. Hence, there was no occasion for the petitioner to specifically challenge the Lookout Circular without having a copy of the 4 same. The first prayer and the second prayer in the writ petition are supportive of each other.
9. Although technically the Bank is justified in arguing that the writ of certiorari is generally issued in case of quasi-judicial authorities, in the present case, relief (b) is sufficient, since it seeks a mandamus commanding the respondents to furnish copy of the request of the Lookout Circular.
10. Since the Lookout Circular has, as its sole premise, a request purportedly made by the respondent-Bank herein, a demand for the Lookout Circular and the request of the Bank are justified in the factual conspectus of the case. In order to properly adjudicate the justification of the respondents to prevent the petitioner from travelling abroad, an essential yardstick is for the Bank to produce its request, which was the very genesis of the impugned Lookout Circular.
11. Thus, this court is not fettered by the rigours of the Code of Civil Procedure inasmuch as the power of the court to mould the relief is concerned. In any event, nothing has been produced to indicate that any law has been laid down by any court of law restricting the writ court from moulding the reliefs and granting reliefs in line with the primary reliefs sought in the writ petition. Hence, the objection raised by the Bank is turned down.
5
12. The writ petition is held to be very much maintainable.
13. Leave is granted to the petitioner, by carrying out necessary corrections to the prayer portion of the writ petition through learned Advocate-on- Record for the petitioner, to seek a quashing of the Lookout Circular issued against the petitioner as well as the corresponding request of the Bank on the basis of which such Lookout Circular has been issued.
14. Such necessary amendments to the prayer portion of the writ petition shall be carried out by the learned advocate-on-record of the petitioner during the course of the day.
15. The Bank shall produce a copy of the request on the basis of which the Lookout Circular was issued against the petitioner.
16. For such purpose, the matter shall be listed next under the same heading on January 08, 2024 when the learned Advocate for the Bank shall produce a copy of the said request with an advance copy of the same to his counterpart appearing for the petitioner.
(Sabyasachi Bhattacharyya, J.)