R.K. Rastogi, J. - (1.) THIS habeas corpus writ petition was filed on behalf of Salam Waris alias Gatte through Sri Brij Raj Singh, Advocate. Though in the title of the peti tion it was stated everywhere that it was habeas corpus writ petition yet in the relief clause of the petition, the prayer was made for issuing a writ of certiorari instead of habeas corpus. Para A of the relief clause which finds place at page 16 of the paper-book runs as under; "(A) issue a writ, order or direction in the nature of certiorari quashing the impugned detention order of the petitioner dated 11.6.2008 passed by respondent No. 2 (Annexure No. 1 to this writ petition) and re lease the petitioner forthwith."
(2.) WHEN this writ petition was taken up for hearing, learned Counsel appearing for respondent No. 6 took a preliminary objection that the writ petition is not maintainable. He submitted that in the re lief clause of this writ petition there is no prayer for issuing writ of habeas corpus but the prayer is for issuing a writ of certiorari. He further submitted that separate Chap ters have been provided in the Allahabad High Court Rules for the writs of habeas corpus and for other writs. His contention was that the provisions relating to the writ of certiorari have been contained in Chapter XXII of the High Court Rules and the pres ent writ petition does not comply with those requirements. He further pointed out that if the writ petition is considered to have been moved under Chapter XXI which is applicable to habeas corpus writs, it fails to comply with the requirement of this Chapter also, because there is no prayer for grant of writ of habeas corpus, and no affi davit of the petitioner has been filed in support of the writ, nor any explanation has been submitted for not filing the affi davit of the petitioner as required under Rule 3 of the above Chapter. Rules No. 1, 2 & 3 of the above Chapter which have been substituted by Notification No. 96/VIII-C-2 (C.S. No. 84) dated 16.2.1990 are repro duced below: "I. Application: - (1) An 'application under Article 226 of the Constitu tion for a writ in the nature of ha beas corpus except against private custody, if not sent by post or tele gram shall be made to the Division Bench appointed to receive appli cations or, on any day on which no such Bench is sitting, to the Judge appointed to receive applications in civil matters. In the latter event, the Judge shall direct that the application be laid before a Division Bench for orders. (2) The application shall set out con sciously in numbered paragraphs the facts upon which the applicant relies and the grounds upon which the Court is asked to issue a direc tion, order or writ, and shall con clude with a prayer stating clearly, so far as the circumstances permit, the exact nature of the relief sought. It shall also state whether any pre vious application was moved by or on behalf of the person restrained, and, if so, with what result: Provided that an application under Article 226 of the Constitution in the nature of habeas corpus directed against private custody shall be made to the single Judge appointed by the Chief Justice to receive such an application. 2. Application by post or telegram: - The application if received by post or telegram shall be put up as soon as possible before the Bench con cerned for orders. Contents of application and affida vit: - The application shall be ac companied by an affidavit of the person restrained verifying the facts stated therein by reference to the numbers of the paragraphs of the application containing the facts: Provided that where the affidavit is made by a person other than the person restrained, such affidavit shall also state the reason why the person restrained is unable to swear the affidavit himself. The affidavit filed under this rule shall be restricted to facts which are within the deponent's own knowl edge: Provided that subject to such orders that may be passed by the Bench concerned in this behalf, this rule shall not apply to an application made by post or telegram.]" 3. Sri J.S. Sengar, learned Senior Ad vocate assisted by Sri B.R. Singh, Advocate argued the writ petition on behalf of the petitioner and at the time when this defect was pointed out to him, he made two fold submissions. His first contention was that the writ of certiorari may also be issued in the present case to quash the detention or der and it was not necessary to seek amendment to substitute the words 'habeas corpus' for the word 'certiorari'. His second contention was that the rules of procedure .are not strictly applicable in case of writ of habeas corpus which can be registered even on a telegram or letter addressed to the Court, and so even if the relief of issuing the writ of habeas corpus had not been sought in the petition, the Court, in spite of the fact that the writ of certiorari had been sought in the relief clause could grant the writ of habeas corpus. He further submitted that the present writ petition in which the writ of certiorari has been prayed in the relief clause is maintainable in its present form and his arguments may be heard on its maintainability as well as its merits in the present form, and it should be decided. Then arguments of both the parties were heard on its maintainability and merits. First of all, we are considering whether the present writ of habeas corpus seeking the writ of certiorari is maintainable in its pres ent form. It is to be seen that the writ of certiorari is issued in the following cases: 1. Where the concerned authority has exercised jurisdiction not vested in it by law. 2. Where the concerned authority has failed to exercise the jurisdiction vested in it by law. 3. Where the concerned authority has acted in exercise of its jurisdiction with material irregularity. It is to be seen that in the present case the order of detention under the Na tional Security Act was passed by the Dis trict Magistrate who has been conferred jurisdiction under the above Act to pass the order. So it is not a case of want of jurisdic tion. There is also no allegation to this ef fect that he acted with material irregularity in exercise of his jurisdiction. As such the writ of certiorari is not to be issued in the present case. Actually the petitioner is challenging the merits of the detention order passed by the District Magistrate. He has also challenged the detention on the ground of delay in disposal of his represen tation. These matters are to be considered while considering the prayer for grant of habeas corpus and not in a petition for issu ing the writ of certiorari which is to be is sued in the case of jurisdictional errors. As such, the contention that the relief sought by the petitioner can be granted to him in the shape of writ of certiorari is not tenable.
(3.) THE second contention of the learned Counsel for the petitioner was that even if the relief of issuing the habeas corpus has not been sought in the petition, the Court can grant it and it was not necessary to seek this relief in elaborate words. He also cited rulings of the Hon'ble Apex Court in the case of Sunil Batra (II) v. Delhi Administration, 1980 SCC (Cri) 777 in which it has been held that the Court can regard a simple letter as the petition and so it was not necessary to specifically seek the relief of habeas corpus in the petition. He also cited before us an other ruling of the Hon'ble Apex Court in the case of Icchu Devi Choraria v. Union of India, AIR 1980 SC 1983 in which it has been provided that the Courts are not to follow strict rules of pleadings in case of application for the writ of habeas corpus. It has been held in this ruling that when a notice has been issued in a writ of habeas corpus, it is for the State to justify its order on all corners, and the State cannot not take this plea that a par ticular point was not raised by the peti tioner and so he did not say anything on that point in its counter affidavit. THEre is no dispute regarding the legal position as enunciated in the above rulings of the Hon'ble Apex Court, but it is to be seen that in this particular case, the Court has not treated any letter or telegram of the petitioner as the habeas corpus petition but the writ of habeas corpus was filed through an advocate and a senior advocate of this Court was engaged to argue the writ peti tion. As is apparent from the last proviso of Rule 3 of Chapter XXI of the High Court Rules quoted above, the Rules of procedure shall not apply where an application is made by post or telegram, but the Rules are applicable in all other cases where a writ of habeas corpus has been filed in the Court through Counsel. As such it was manda tory for the petitioner when he was filing the writ petition through Counsel to cor rectly specify the writ which he was seek ing in the petition and the special provision which has been made in case of applica tions received by post or telegram shall not be applicable to a writ of habeas corpus filed through Counsel. Learned Counsel for the petitioner has also cited before us a Division Bench Ruling of this Court in the case of Tara Chand Seth v. The Superintendent, District Jail Rampur and others, 1983 (20) ACC 168 (SC) and of the Bombay High Court in Sudarshan Tukaram Mhatre v. R.D. Tyagi, Commissioner of Police, Thane, 1990 Cri.LJ. 1964. and of the Hon'ble Apex Court in Mo-hinuddin alias Moin Master v. District Magis trate, Beed and others 1987 (24) ACC 495 (SC) in which it has been held that strict rules of pleadings are not applicable in habeas corpus writ petitions and writ of habeas corpus should not be dismissed on the ground of imperfect pleadings. We are in agreement with the law laid down in the above rulings and we are not dismissing the present writ petition on this ground that the relief of habeas cor pus has not been sought in the present pe tition, but when the petition has been filed through a Counsel and a Senior Counsel was engaged to argue it, we are of the view that the petitioner must have corrected the relief sought in the petition by substituting the words 'habeas corpus' for the word 'certiorari'. The benefit which is available to a layman who is unable to engage any Counsel and who sends his petition in the form of a letter or telegram, cannot be available to a person who files his petition through an advocate, and when such a petition is filed, containing apparently a mistake on the face of record in seeking the relief, the petitioner must correct that relief and then only his petition can be enter tained, and there is no justification for con tinuing the present petition filed through Counsel in which a wrong relief has been sought in the relief clause. It is also to be seen that it has been very clearly provided in sub Rule 2 of Rule 1 of Chapter XXI of the Allahabad High Court Rules quoted above that the petition shall conclude with a prayer stating clearly the exact nature of the relief sought in the petition. Since there is no compliance of the above rule in the present case, the writ cannot proceed in the present form unless and until suitable amendment is sought in it.;