TMI Blog2015 (2) TMI 1406X X X X Extracts X X X X X X X X Extracts X X X X ..... nicalities 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. In NARESH SHRIDHAR MIRAJKAR VERSUS STATE OF MAHARASHTRA [ 1966 (3) TMI 77 - SUPREME COURT] , a nine Judge Bench judgment, a judicial order of High Court was challenged as being violative of fundamental right. This Court by majority held that a judicial order of a competent court could not violate a fundamental right. Even if there was incidental violation, it could not be held to be violative of fundamental right. In RUPA ASHOK HURRA VERSUS ASHOK HURRA ANOTHER [ 2002 (4) TMI 889 - SUPREME COURT] it was held that final order of this Court cannot be challenged Under Article 32 as violative of fundamental right. Judgment of this Court in SMT. TRIVENIBEN ORS. VERSUS STATE OF GUJARAT ORS. [ 1989 (2) TMI 404 - SUPREME COURT] was referred to with approval to the effect that a judicial order could not violate a fundamental right. It is true that this Court has laid down that technicalities associated with the prerogative writs in England have no role to play under our constitutional sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 of its power under a writ of certiorari. We are of the view that the aforesaid proposition laid down in Surya Dev Rai, is contrary to the ratio in Mirajkar and the ratio in Mirajkar has not been overruled in Rupa Ashok Hurra [2002 (4) SCC 388]. 33. In view of our difference of opinion with the views expressed in Surya Dev Rai, matter may be placed before His Lordship the Hon'ble the Chief Justice of India for constituting a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pport 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 prerogative writs;.... 109. The nature of certiorari and prohibition.--Certiorari lies to bring decisions of an inferior court, tribunal, public authority or any other body of persons before the High Court for review so that the court may determine whether they should be quashed, or to quash such decisions. The order of prohibition is an order issuing out of the High Court and directed to an inferior court or tribunal or public authority which forbids that court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and it is clear from the perusal of the said paragraph that the question for consideration in Rupa Ashok Hurra was totally different. 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. 4. Thus, the question to be decided is whether the view taken in Surya Dev Rai that a writ lies Under Article 226 of the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder 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 without jurisdiction order but the Court did not review the evidence as an appellate court nor substituted its own finding for that of the inferior Tribunal. Since the said judgment is followed in all leading judgments, relevant observations therein may be extracted: 5. The principles upon which the superior courts in England interfere by issuing writs of certiorari are fairly well known and they have generally formed the basis of decisions in our Indian courts. It is true that there is lack of uniformity even in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law. 7. One of the fundamental principles in regard to the issuing of a writ of certiorari, is, that the writ can be availed of only to remove or adjudicate on the validity of judicial acts. The expression judicial acts includes the exercise of quasi-judicial functions by administrative bodies or other authorities or persons obliged to exercise such functions and is used in contrast with what are purely ministerial acts. Atkin, L.J. thus summed up the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which it would not otherwise possess [Vide Banbury v. 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 based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision. The essential features of the remedy by way of certiorari have been stated with remarkable brevity and clearness by Morris, L.J. in the recent case of Rex v. Northumberland Compensation Appellate Tribunal [(1952) 1 KB 338]. The Lord Justice says: It is plain that certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for re-hearing of the issue rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht 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 tribunal or quasi-judicial authority constituted or created under particular statutes could be complained of as violating a fundamental right. It is a salutary principle that this Court should not pronounce on points which are not involved in the questions raised before it and that is the reason why I am not dealing with it in any fullness and am certainly not expressing any decided opinion on it. Without doing either however, I consider it proper to make these observations. There is not any substantial identity between a Court of law adjudicating on the rights of parties in the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution, 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., in the case of A.K. Gopalan [1950 SCR 88] had not received the concurrence of the other learned Judges who heard the said case. Subsequently, however, in Ram Singh v. State of Delhi [1951 SCR 451], the said observations were cited with approval by the Full Court. The same principle has been accepted by this Court in Express Newspapers (Private) Ltd. v. Union of India [1959 SCR 12], and by the majority judgment in Atiabari Tea Co., Ltd. v. State of Assam [1961 (1) SCR 809. Explaining observations in earlier judgments in Budhan Choudhary v. State of Bihar AIR 1955 SC 191 : (1955) 1 SCR 1045 and Parbhani Transp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Choudhary could be successfully assailed on the ground that the judicial decision Under Section 30 Code of Criminal Procedure, 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 or not judicial decision can be said to affect any fundamental right merely because it incidentally and indirectly may encroach upon such right, did not therefore call for consideration or decision in that case. In fact, the closing observations made in the judgment themselves indicate that this Court was of the view that if any judicial order was sought to be attacked on the ground that it was inconsistent with Article 14, the proper remedy to challenge such an order would be an appeal or revision as may be provided by law. We are, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... damental 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 incidentally examined. The petition was made not to challenge the order as such, but to challenge the validity of the Rule under which the order was made. Once the Rule was struck down as being invalid, the order passed under the said Rule had to be vacated. It is difficult to see how this decision can be pressed into service by Mr. Setalvad in support of the argument that a judicial order passed by this Court was held to be subject to the writ jurisdiction of this Court itself. What was held by this Court was that Rule made by it under its powers conferred by Article 145 which are legislative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 ecclesiastical Court; and the answer rendered by the court was that certiorari would not lie against the decision of an ecclesiastical court. In dealing with this question, Wrottesley, L.J. has elaborately considered the history of the writ jurisdiction and has dealt with the question about the meaning of the word 'inferior' as applied to courts of law in England in discussing the problem as to the issue of the writ in regard to decisions of certain courts. The more this matter was investigated, says Wrottesley, L.J., the clearer it became that the word inferior as applied to courts of law in En ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nordinate 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 just and proper. 12. We consider it inappropriate to burden this judgment with discussion of the decisions in other cases taking the same view. Suffice it to mention that various Benches of this Court reiterated the same principle in the following cases: A.R. Antulay v. R.S. Nayak, Krishna Swami v. Union of India [1992 (4) SCC 605], Mohd. Aslam v. Union of India [1996 (2) SCC 749], Khoday Distilleries Ltd. v. Registrar General, Supreme Court of India [1996 (3) SCC 114], Gurbachan Singh v. Union of India [1996 (3) SCC 117], Babu Singh Bains v. Union of India [1996 (6) SCC 565] and P. Ashokan v. Union of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court Under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court Under Section 115 Code of Civil Procedure has been expressly barred by a State enactment, only in such case a petition Under Article 227 of the Constitution would lie and not Under Article 226 of the Constitution. As a matter of illustration, where a trial court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt 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 Code of Civil Procedure 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 Code of Civil Procedure 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: 18. Naresh Shridhar Mirajkar case was cited before the Constitution Bench in Rupa Ashok Hurra case and considered. It has been clearly held: (i) that it is a well-settled principle that the technicalities associated with the prerogative writs in English law have no role to play under our constitutional scheme; (ii) that a writ of certiorari to call for records and examine the same for passing appropriate orders, is issued by a superior court to an inferior court which certifies its records for examination; and (ii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recated 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 simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction, the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, maybe, by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 115 Code of Civil Procedure 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 Anr. v. Amarnath and Anr. AIR 1954 SC 215 : 1954 SCR 565, Ouseph Mathai v. M. Abdul Khadir 2002 (1) SCC 319, Shalini Shyam Shetty v. Rajendra Shankar Patil 2010 (8) SCC 329 and Sameer Suresh Gupta v. 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 trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases the High Courts, in a routine manner, entertain petitions Under Article 227 over such disputes and such petitions are treated as writ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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