TMI Blog2015 (7) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... inter alia, reads:- 30. .........Therefore, this Court unfortunately is in disagreement with the view which has been expressed in Surya Dev Rai insofar as correction of or any interference with judicial orders of civil court by a writ of certiorari is concerned. 31. Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. Article 227 of the Constitution vests the High Courts with a power of superintendence which is to be very sparingly exercised to keep tribunals and courts within the bounds of their authority. Under Article 227, orders of both civil and criminal courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law. 32. The essential distinctions in the exercise of power between Articles 226 and 227 are well known and pointed out in Surya Dev Rai and with that we have no disagreement. But we are unable to agree with the legal proposition laid down in Surya Dev Rai that judicial orders passed by a civil court can be examined and then corrected/reversed by the writ court under Article 226 in exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rai did not, as obviously it could not overrule the ratio in Mirajkar, a Constitution Bench decision of a nine- Judge Bench. But the learned Judges justified their different view in Surya Dev Rai, inter alia on the ground that the law relating to certiorari changed both in England and in India. In support of that opinion, the learned Judges held that the statement of law in Halsbury, on which the ratio in Mirajkar is based, has been changed and in support of that quoted paras 103 and 109 from Halsbury's Laws of England, 4th Edn. (Reissue), Vol. 1(1). Those paras are set out below: 103. The prerogative remedies of certiorari, prohibition and mandamus: historical development.-Historically, prohibition was a writ whereby the royal courts of common law prohibited other courts from entertaining matters falling within the exclusive jurisdiction of the common law courts; certiorari was issued to bring the record of an inferior court into the King's Bench for review or to remove indictments for trial in that court; mandamus was directed to inferior courts and tribunals, and to public officers and bodies, to order the performance of a public duty. All three were called prerogat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders, is issued by a superior court to an inferior court which certifies its records for examination; and (iii) that a High Court cannot issue a writ to another High Court, nor can one Bench of a High Court issue a writ to a different Bench of the High Court; much less can the writ jurisdiction of a High Court be invoked to seek issuance of a writ of certiorari to the Supreme Court. The High [pic]Courts are not constituted as inferior courts in our constitutional scheme. 29. We are constrained to point out again that in Rupa Ashok Hurra the Constitution Bench did not take any view which is contrary to the views expressed in Mirajkar. On the other hand, the ratio in Mirajkar was referred to with respect and was relied on in Rupa Ashok Hurra. Mirajkar was referred to in SCC para 8, p. 399 and again in SCC para 11 on p. 402 and again in SCC para 59, p. 418 and also in SCC para 60, p. 419 of Rupa Ashok Hurra. Nowhere even any whisper of a divergence from the ratio in Mirajkar was expressed. Rather passages from Mirajkar have been quoted with approval. 30. In fact the question which was referred to the Constitution Bench in Rupa Ashok Hurra is quoted in para 1 of the judgment an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be considered by this Bench. 8. We have given anxious consideration to the rival submissions. 9. It will be appropriate to refer to some of the leading judgments of this Court on the scope of writ jurisdiction in the present context, including those referred to in Surya Dev Rai and the referring order. 10. In T.C. Basappa vs. T. Nagappa[AIR 1954 SC 440= (1955) 1 SCR 250], question before this Court was as to the scope of jurisdiction under Article 226 in dealing with a writ of certiorari against the order of the Election Tribunal. This Court considered the question in the background of principles followed by superior courts in England which generally formed the basis of decisions of Indian Courts. This Court held that while broad and fundamental norms regulating exercise of writ jurisdiction had to be kept in mind, it was not necessary for Indian Courts to look back to the early history or procedural technicalities of the writ jurisdiction in England in view of express constitutional provisions. Certiorari was meant to supervise judicial acts which included quasi judicial functions of administrative bodies. The Court issuing such writ quashed patently erroneous and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f issuing directions, orders, or writs primarily for the enforcement of fundamental rights, the power to issue such directions 'for any other purpose' being also included with a view apparently to place all the High Courts in this country in somewhat the same position as the Court of King's Bench in England. 6. The language used in Articles 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders, writs or directions including writs in the nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well. In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiorari may lie and is generally granted when a court has acted without or in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceeding or from the absence of some preliminary proceeding or the court itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances [Vide Halsbury, 2 Edn. Vol IX]. When the jurisdiction of the court depends upon the existence of some collateral fact, it is well settled that the court cannot by a wrong decision of the fact give it jurisdiction which it would not otherwise possess [Vide Banbury vs. Fuller, 9 Exch 111; R. v. Income Tax Special Purposes Commissioners, 21 QBD 313]. 10. A tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the rules of procedure or where no particular procedure is prescribed, it may violate the principles of natural justice. A writ of certiorari may be available in such cases. An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings, e.g. when it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsequent decisions, it was clarified that orders of judicial courts stood on different footing from the quasi judicial orders of authorities or Tribunals. 12. In Ujjam Bai vs. State of U.P.nd, matter was referred to a Bench of seven Judges on the scope of writ of certiorari against an order of assessment under the provisions of Sales Tax law passed in violation of a fundamental right. Majority of six judges took the view that except an order under a void law or an 'ultra vires' or 'without jurisdiction' order, there could be no violation of fundamental right by a quasi judicial order or a statutory authority and such order could not be challenged under Article 32. A writ of certiorari could however, lie against a patently erroneous order under Article 226. It was observed that judicial orders of Courts stood on different footing. Ayyangar, J. observed : Before concluding it is necessary to advert to one matter which was just touched on in the course of the arguments as one which might be reserved for consideration when it actually arose, and this related to the question whether the decision or order of a regular ordinary Court of law as distinguished from a trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e court and nothing more. If this basic and essential aspect of the judicial process is borne in mind, it would be plain that the judicial verdict pronounced by court in or in relation to a matter brought before it for its decision cannot be said to affect the fundamental rights of citizens under Article 19(1). 38. .......... Just as an order passed by the court on the merits of the dispute before it can be challenged only in appeal and cannot be said to contravene the fundamental rights of the litigants before the Court, so could the impugned order be challenged in appeal under Article 136 of the Constitution, but it cannot be said to affect the fundamental rights of the petitioners. The character of the judicial order remains the same whether it is passed in a matter directly in issue between the parties, or is passed incidentally to make the adjudication of the dispute between the parties fair and effective. On this view of the matter, it seems to us that the whole attack against the impugned order based on the assumption that it infringes the petitioners' fundamental rights under Article 19(1), must fail. 41. It is true that the opinion thus expressed by Kania, C.J., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Judge took the precaution of adding that the discretion of judicial officers is not arbitrary and the law provides for revision by superior courts of orders passed by the subordinate Courts. In such circumstances, there is hardly any ground for apprehending any capricious discrimination by judicial tribunals. 46. It is thus clear that though the observations made by Frankfurter, J. and Stone, C.J. in Snowden v. Hughes had been cited with approval, the question as to whether a judicial order can attract the jurisdiction of this Court under Article 32(1) and (2) was not argued and did not fall to be considered at all. That question became only incidentally relevant in deciding whether the validity of the conviction which was impugned by the appellants in the case of Budhan Choudhry could be successfully assailed on the ground that the judicial decision under Section 30 CrPC, was capriciously rendered against the appellants. The scope of the jurisdiction of this Court in exercising its writ jurisdiction in relation to orders passed by the High Court was not and could not have been examined, because the matter had come to this Court in appeal under Article 132(1); and whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 14. It is significant that these observations have been made while dealing with a writ petition filed by the petitioner, the Parbhani Transport Cooperative Society Ltd. under Article 32; and insofar as the point has been considered and decided the decision is against Mr Setalvad's contention. Decision of this Court in Prem Chand Garg vs. Excise Commnr[AIR 1963 SC 996 = (1963) Supp. 1 SCR 885], setting aside rule of this Court requiring deposit of security for filing a writ petition, was also explained as not holding that a judicial order resulted in violation of fundamental right : 49. It would thus be seen that the main controversy in the case of Prem Chand Garg centered round the question as to whether Article 145 conferred powers on this Court to make Rules, though they may be inconsistent with the constitutional provisions prescribed by Part III . Once it was held that the powers under Article 142 had to be read subject not only to the fundamental rights, but to other binding statutory provisions, it became clear that the Rule which authorised the making of the impugned order was invalid. It was in that context that the validity of the order had to be inciden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entally refer to the relevant observations made by Halsbury on this point. In the case of judgments of inferior courts of civil jurisdiction, says Halsbury in the footnote, it has been suggested that certiorari might be granted to quash them for want of jurisdiction [Kemp v. Balne (1844), 1 Dow. L. 885, at p. 887], inasmuch as an error did not lie upon that ground. But there appears to be no reported case in which the judgment of an inferior court of civil jurisdiction has been quashed on certiorari, either for want of jurisdiction or on any other ground [Halsbury Laws of England Vol.I 1, p.129] . The ultimate proposition is set out in the terms: Certiorari does not lie to quash the judgments of inferior courts of civil jurisdiction. These observations would indicate that in England the judicial orders passed by civil courts of plenary jurisdiction in or in relation to matters brought before them are not held to be amenable to the jurisdiction to issue writs of certiorari. 63. In Rex. v. Chancellor of St. Edmundsburry and Ipswich Diocese Ex parte White [(1945) 1 KBD 195] the question which arose was whether certiorari would lie from the Court of King's Bench to an ecc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led now that a judgment of court can never be challenged under Articles 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to challenge as violating Article 14 or Article 21 as has been laid down by this Court in Naresh Shridhar Mirajkar v. State of Maharashtra and also in A.R. Antulay v. R.S. Nayak [1988 (2) SCC 602], the only jurisdiction which could be sought to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final judicial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this Court and that is what has consistently been held by this Court. But it will not be open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Co. Ltd.[2003 (3) SCC 524] considered the question whether remedy of writ will be available when remedy of appeal was on limited grounds. This Court held : 6. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (see National Insurance Co. Ltd. v. Nicolletta Rohtagi (2002 (7) SCC 456). This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or of jurisdiction in interfering with the order of the District Judge. 18. Thus, it has been clearly laid down by this Court that an Order of civil court could be challenged under Article 227 and not under Article 226. 19. We may now come to the judgment in Surya Dev Rai. Therein, the appellant was aggrieved by denial of interim injunction in a pending suit and preferred a writ petition in the High court stating that after CPC amendment by Act 46 of 1999 w.e.f. 1 July, 2002, remedy of revision under Section 115 was no longer available. The High Court dismissed the petition following its Full Bench Judgment in Ganga Saran to the effect that a writ was not maintainable as no mandamus could issue to a private person. The Bench considered the question of the impact of CPC amendment on power and jurisdiction of the High Court to entertain a writ of certiorari under Article 226 or a petition under Article 227 to involve power of superintendence. The Bench noted the legal position that after CPC amendment revisional jurisdiction of the High Court against interlocutory order was curtailed. The Bench then referred to the history of writ of certiorari and its scope and concluded thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of decided cases and a survey of the occasions, wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in [pic]practice. Probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate, revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simpl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al courts, as rightly observed in the referring order in paras 26 and 27 quoted above. 22. The Bench in Surya Dev Rai also observed in para 25 of its judgment that distinction between Articles 226 and 227stood almost obliterated. In para 24 of the said judgment distinction in the two articles has been noted. In view thereof, observation that scope of Article 226 and 227 was obliterated was not correct as rightly observed by the referring Bench in Para 32 quoted above. We make it clear that though despite the curtailment of revisional jurisdiction under Section 115 CPC by Act 46 of 1999, jurisdiction of the High Court under Article 227 remains unaffected, it has been wrongly assumed in certain quarters that the said jurisdiction has been expanded. Scope of Article 227 has been explained in several decisions including Waryam Singh and another vs. Amarnath and anotherst, Ouseph Mathai vs. M. Abdul Khadir[2002 (1) SCC 319], Shalini Shyam Shetty vs. Rajendra Shankar Patil[2010 (8) SCC 329] and Sameer Suresh Gupta vs. Rahul Kumar Agarwal[2013 (9) SCC 374]. In Shalini Shyam Shetty, this Court observed : 64. However, this Court unfortunately discerns that of late there is a growing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226. 24. We may also deal with the submission made on behalf of the respondent that the view in Surya Dev Rai stands approved by larger Benches in Shail, Mahendra Saree Emporium and Salem Advocate Bar Assn and on that ground correctness of the said view cannot be gone into by this Bench. In Shail, though reference has been made to Surya Dev Rai, the same is only for the purpose of scope of power under Article 227 as is clear from para 3 of the said judgment. There is no discussion on the issue of maintainability of a petition under Article 226. In Mahendra Saree Emporium, reference to Surya Dev Rai is made in para 9 of the judgment only for the proposition that no subordinate legislation can whittle down the jurisdiction conferred by the Constitution. Similarly, in Salem Bar Assn. in para 40, reference to Surya Dev Rai is for the same purpose. We are, thus, unable to accept the submission of learned counsel for the respondent. 25. Accordingly, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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