The Map of Remedies
Chapter Ninety-Five
Syllabus topic 6, "Remedies"
Pages 285 to 287 of 430
In one line
There are two families of remedy against the administration, public law and private law, and a student who cannot tell them apart will ask the wrong court for the wrong thing.
In the wording a student can write in an exam: the remedies against administrative action are the public law remedies of the writs under Articles 32 and 226, the statutory remedies of appeal, revision and review, and the private law remedies of a suit for a declaration, an injunction or damages under the ordinary law; the first are discretionary and quick, the second must ordinarily be exhausted first, and the third are of right but slow.
MU's printed topic
MU prints the single word "Remedies" as topic 6. The University has asked about injunction and declaration as judicial remedies on three papers, about the role of writs in the administrative process on the most recent one, and about remedies of injunction and declaration alongside delegated legislation. So the module needs both families.
The three families
Public law remedies. The writs and the wider directions and orders under Articles 32 and 226. Discretionary, quick, no oral evidence, and confined to public law questions.
Statutory remedies. Appeal, revision, review or reference under the Act which created the power. Ordinarily to be exhausted first, which is [Alternative Remedies], and often the only forum in which facts can be reconsidered.
Private law remedies. A suit in a civil court for a declaration under section 34 of the Specific Relief Act 1963, for an injunction under sections 36 to 42, or for damages in tort or contract. Available as of right, but slow, expensive, requiring notice to the Government under section 80 of the Code of Civil Procedure, and subject to the limits in section 41 of the Specific Relief Act.
What each family can and cannot do
| Writs | Statutory appeal | Civil suit | |
|---|---|---|---|
| Speed | Fast | Moderate | Slow |
| Facts | Not tried on evidence | Reconsidered | Tried on evidence |
| Relief | Quash, command, prohibit, declare, direct, and compensate in a proper case | Substitute the correct decision | Declaration, injunction, damages |
| As of right | No, discretionary | Yes if the Act gives it | Yes |
| Limitation | Laches | As the Act prescribes | The Limitation Act |
| Against the State | Yes | Yes | Yes, with notice under section 80 of the Code |
Choosing between them
If facts are disputed, a suit or a statutory appeal. A writ court will not try disputed questions of fact, which is [Disputed Questions of Fact].
If speed matters and the illegality is on the face of the record, a writ.
If money is what is wanted, a suit, unless the case falls in the narrow public law compensation class of Rudul Sah v. State of Bihar, AIR 1983 SC 1086.
The Map of Remedies
If the Act provides an appeal, the appeal first, subject to the exceptions in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, AIR 1999 SC 22.
Two remedies that belong to neither family
Contempt. Not a remedy against the administration but the sanction that makes a writ effective, worked in [Enforcing the Order: Contempt of Court].
The ombudsman and the grievance machinery. Outside the courts and outside this paper, since MU sets them in Paper VI.
A worked example
A contractor's bill is not paid by a municipal corporation, which says the work was defective. He also finds that the corporation has blacklisted him without notice.
Two different remedies for two different wrongs. The unpaid bill is a contractual claim: whether the work was defective is a disputed question of fact, so the remedy is a civil suit, and a writ petition would be dismissed. The blacklisting is a public law wrong: it was done without a hearing, it affects his right to carry on business, and the material is on the record, so a writ petition under Article 226 is the right course and will be decided far more quickly.
That single example is the whole of this chapter, and a student who can separate the two halves has the topic.
What this does NOT mean
It does not mean a writ petition can never involve money. It can, in the public law compensation cases and where the claim is admitted.
It does not mean a civil court cannot decide public law questions. It can, but section 41 of the Specific Relief Act limits the injunctions it may grant against a public officer.
It does not mean the families never overlap. A declaration may be sought in a writ petition, and a suit may raise ultra vires.
Quick revision
Three families: public law writs and directions under Articles 32 and 226, discretionary and fast; statutory appeals and revisions, ordinarily to be exhausted first; and private law suits for declaration, injunction and damages, of right but slow. Choose by asking whether facts are disputed, whether money is wanted, whether the Act provides an appeal, and how urgent the matter is. Contempt is the sanction rather than a remedy, and the ombudsman belongs to another paper.
Test yourself
1. Why will a writ court usually refuse a claim for the price of work done? Because whether the work was properly done is a disputed question of fact which requires evidence, and the writ jurisdiction does not try such questions.
2. Which remedy is available as of right? A civil suit, and a statutory appeal where the Act confers one; the writ remedy is discretionary.
The Map of Remedies
3. What is the practical advantage of the writ jurisdiction? Speed, and the ability to obtain quashing and mandatory directions on the record without a trial.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.