TMI Blog2021 (1) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... suppression, equitable remedy and clean hands under Article 226 of the Constitution of India, to the case on hand, we are of the view that there is suppression of material facts in the writ petition. Whether, the Tribunal should be made a party in a petition filed under Article 226 of the Constitution of India? - HELD THAT:- Though the Larger Bench of the Hon'ble Supreme Court in UDIT NARAIN SINGH MALPAHARIA VERSUS ADDITIONAL MEMBER BOARD OF REVENUE BIHAR [ 1962 (10) TMI 55 - SUPREME COURT] held that the Tribunal has to be added as a party, in the latter decisions, the Hon'ble Apex Court clarified that the Tribunal not being required to defend the proceedings under Article 226 or 227 of the Constitution of India, and hence, writ petition is maintainable, without the Tribunal being impleaded. In view of the subsequent decisions of the Hon'ble Apex Court, we are not inclined to accept the contention of the learned counsel for the appellants. Conclusion Material on record discloses that the dispute between the first respondent company and its shareholders, under challenge, is purely a civil dispute. The remedy under Article 226 of the Constitution of India is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y ordering thus: It is an admitted fact that the company petitions nine in number were pending before the NCLT. In the impugned order itself, the NCLT refers to the prayers in the company petitions and post the matter for hearing of the I.A. to 7-8-2020. The learned counsel for the petitioners has submitted that the proper course of action is to file an appeal before the NCLAT. It is submitted that such a course of action is presently rendered impossible due to the prevailing pandemic situation in the country and the petitioners are disabled from travelling to Delhi to prefer the appeal in view of the restrictions and the rising number of cases in the country. Though it is contended by the learned counsel appearing for the respondents that the writ petitions are not maintainable without the NCLT on the party array, I am of the opinion that in the facts and circumstances of the instant cases, especially in view of Ext.P6 request for adjournment made by the counsel for the petitioners before the NCLT, the passing of an order interdicting all financial transactions by running companies would create serious prejudice to the company. The technical objection raised that the NCLT is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M, as per Section 136 of the Act. In case of default, the company would be liable to pay penalty of INR 25,000/- and every Director of the Company, who was in default, would be liable to pay penalty of INR 5,000/-. 4. Appellants have further stated that the 2nd respondent has not obtained approval from them or the above mentioned majority shareholders on the financial statements for the years 2015-16, 2016-17 and 2017-18, which have been filed by the 2nd respondent before the Registrar of Companies (ROC), Ernakulam and the Income-tax authorities surreptitiously. Appellants apprehended that the 2nd respondent has either forged or has caused to be forged the signatures of the majority shareholders with the intention to suggest that the financial statements have been approved by the shareholders at the Annual General Meeting, in the respective years. 5. Appellants have further contended that the financial statements filed before the Registrar of Companies, Ernakulam, for the years 2015-16, 2016-17 and 2017-18 respectively, would disclose related party transactions, in contravention of the provisions of the Companies Act, 2013 and the transactions have not obtained the approval o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the same company petition. The National Company Law Tribunal referred the inter-party litigation to Retd. Justice C. N. Ramachandran Nair, for mediation. He submitted a failure report on 2-7-2020. Thereafter, the company petitions stand posted to 7-9-2020 for final hearing. 9. Appellants have further contended that in the meanwhile, the 2nd respondent has convened a meeting of the Board of Directors on 29-6-2020, without issuing notice, as required under the Act. Hence, the appellants approached the NCLT for the reliefs mentioned in I.A. No. 83/2020 in C.P. No. 114/KOB/2019. After issuing notice to respondents 2 and 3, NCLT heard the matter on 9-7-2020, and restrained the 2nd respondent from convening any meetings and further restrained the respondents 2 and 3 from making any financial transactions vide its order dated 9-7-2020. The I.A. stood posted to 7-8-2020, for further hearing. 10. Challenging the above said order of the NCLT in RBG Enterprises (P.) Ltd. v. Sulochana Gupta [C.P.No.114/KOB/2019, dated 9-7-2020,] W.P.(C) No. 14341/2020 has been filed by writ petitioners/respondents 1 and 2 herein, seeking the following reliefs: (i) Call for the records leading to E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the writ petition, filed against the interim order of the NCLT in CP No. 99/KOB/2019 dated 3-10-2019 would fall in the ambit of Article 12 of the Constitution of India. 15. Placing reliance on the decision of the Hon'ble Supreme Court in Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar (AIR 1963 SC 786), learned counsel for the appellants further submitted that in the Writ Petition (C) No. 14341/2020, filed by respondents 1 2, NCLT ought to have been impleaded as a necessary party, when there is a challenge to its order. Reference was also made to Rule 148 of the Rules of the Kerala High Court, 1971. But, the learned single Judge declined to consider the dictum in Udit Narain Singh Malpaharia's case (cited supra) on the ground of technicality . According to the learned counsel, the writ court ought to have dismissed the writ petition, at the threshold itself, for the failure to implead National Company Law Tribunal, as a necessary party. 16. Learned counsel for the appellants further submitted that the reliefs sought for by respondents 1 2 in the writ petition is on the fallacious plea that NCLAT, Delhi was not conducting any hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that writ court ought to have taken cognizance of the fact that an efficacious remedy, to challenge the interim order of the NCLT, is provided under Rule 49(2) of the NCLT Rules, 2016, or in the alternative, according to the writ petitioners/respondents 1 2, under section 421 of the Companies Act, 2013. The 2nd respondent, in Ground J of the writ petition, has admitted that a remedy under section 421 of the Companies Act, 2013 is available. 21. On the aspect of alternate remedy and that a writ petition under Article 226 of the Constitution of India is not maintainable, learned counsel for the appellants relied on the decisions in ICICI Bank Ltd. v. Umakanta Mohapatra [2019] 13 SCC 497 and Union Bank of India. v. K.B. Baby Saroja [WA No. 275 of 2020, dated 14-2-2020]. 22. Learned counsel for the appellants further submitted that before the writ court, the 2nd respondent has placed reliance on a judgment dated 21-12-2017 of a learned single Bench of this Court in W.P.(C) No. 41662/2017 (Exhibit-P8). According to the learned counsel for the appellants, the said judgment is opposed to the doctrine of binding precedents/stare decisis, especially in the light of the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e granted time to the appellants for filing counter affidavit. Referring to the materials to be furnished to the appellants, he submitted that the entire papers, filed in the writ petition, were not served by the respondents/writ petitioners and, therefore, counter affidavit could not be filed. He also submitted that the writ court failed to consider as to whether, denial of furnishing the entire papers, has deprived the right of the appellants to file a counter affidavit. 27. Attention of this Court was also invited to contend that on 15-7-2020, when the matter was heard, materials were produced by the appellants before the writ court to substantiate that on 15-7-2020, the respondents had already filed an appeal before the NCLAT, and that, the same was pending. Cause list on 16-7-2020, on the file of the NCLAT, was also produced before the writ court, to substantiate the contention that on 16-7-2020, a case from the State of Kerala, was also listed before NCLAT and that the contention to the contrary, by the respondents/writ petitioners, was factually incorrect. 28. Per contra, to sustain the impugned judgment dated 22-7-2020 in W.P.(C) No. 14341/2020, Mr. P. Sanjay, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... companies and sent them by email, hoping that the matter will be entertained in view of the Hon'ble Supreme Court's order. When the matter came up on 17-7-2020, the appellants did not file counter, but instead, filed copies of certain judgments as regards maintainability, to oppose the writ petitions. In abundant caution, writ petitioners also filed hard copies of the appeals, after serving copies on the appellants. The requisite fees were also paid by way of demand drafts enclosed therein. The appeals along with a covering letter and email to prove that the appeals were filed, were produced along with I.A. No. 1/2020 in the writ petition. 32. All the cases were heard and after writ petitioners' arguments, the learned counsel for the appellants argued in detail, opposing the grant of any interim order. The only objection raised by the appellants was that the writ petitions are not maintainable without the NCLT being on the party array, and the decision reported in Udit Narain Singh Malpaharia's case (cited supra) was produced, in support of the said argument. It was also argued that the Hon'ble Apex Court held that when there is an efficacious alternate reme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above circumstances, after hearing the learned counsel for both sides, learned single Judge passed the impugned judgment. 34. Learned counsel for the respondents/writ petitioners submitted that learned single Judge has not set aside the order of the NCLT, Kochi, in I.A. No. 83/KOB/2020 in C.P.No.114/KOB/2019 dated 9-7-2020 and all that is done is to make a temporary arrangement, to ensure that the functioning of the companies are not affected till 7-8-2020. No prejudice has been caused to the appellants, in any manner, due to the impugned judgment. It is contended that the writ petitioners have already filed objections to I.A. No. 83/2020 in C.P. No. 114/KOB/2009, as evident from Annexure-R1(m). 35. Learned counsel for the respondents/writ petitioners further contended that on 7-8-2020, both appellants and the 3rd respondent, through their respective learned counsel, were ready for hearing in I.A. No. 83/2020. Despite waiting from morning, the link for video conferencing was not received by email from the NCLT. When contacted over phone, NCLT registry informed that an email has been received from the appellants' counsel seeking adjournment and, therefore, the matter will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the respondents further contended that after the AGM held on 31-10-2019, at the behest of the 4th respondent, who is sailing with the appellants, a claim was made that they have conducted an AGM and unilaterally had taken a decision to remove the 2nd writ petitioner from the post of Managing Director. Styling this, as a resolution, I.A. No. 58/2019 was filed seeking approval of the NCLT. However, no such approval has been granted by the NCLT and Exhibit-R1(i) is already filed and it is for the NCLT to take a final decision in the matter. 39. Despite a clear division of the family into two groups, each of the groups carried on the management of the companies that were being under their control. While so, in the year 2016, at the instance of friends and relatives, both groups were brought to the table and after prolonged discussions and deliberations, for months together, a Memorandum of Understanding (MoU) dated 15-09-2016 was signed between all, as evident from Annexure R1(a). In the said MoU, the role of the 2nd respondent, in establishing the companies, was duly recognised and he was given 2% extra share. There is also a clause that gives preference to the person and managem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parte order was passed restraining related party transactions. True copy of the interim order dated 3-10-2019 in CP No. 99/KOB/2019 is produced herewith and marked as Annexure-R1(d). Wild and baseless allegations are made against the 2nd petitioner to somehow oust him from the post of Managing Director. Petitioners and other respondents have filed objections explaining that the said allegations are not true and cannot be treated as 'related party transactions'. The objections were filed as early as December 2019. 42. Not satisfied with the order, the appellants and the 4th respondent filed three more cases viz., C.P.Nos.114/2019, 119/2019 and 125/2019, for reconstituting the Board of Directors, by the shareholders, in a meeting to be convened and for refund of amounts alleged to be 'related party transactions'. The NCLT posted the above cases along with the one filed earlier. Further dissatisfied, interim applications were filed one after the other to somehow dislodge the 2nd petitioner from his post and to hamper the functioning of the company. The allegation in all six cases was that AGM has not been convened and for a direction to convene AGM, IA No. 49/2019 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppointed as Mediator and mediation continued till the end of June. It is understood that failure report was submitted on 2-7-2020. Thus, all the above cases came up before the NCLT on 6-7-2020 and they were adjourned and posted to 7-9-2020, since regular sitting was not there and it was found that the matter required a detailed consideration. 45. First appellant, then filed I.A. No. 83/2020, seeking to oust the 2nd petitioner from the post of Managing Director, to appointment Advocate Commissioner, and to change the signatories authorised to operate the bank accounts of the company. Since all the company petitions were already posted on 7-9-2020, counsel for petitioners and the 3rd respondent made separate requests for adjournments. It may be pointed out that, by that time, regular sittings were substituted by video conferencing, due to Covid-19 situation. Unlike the video conferencing system before this Court, where the link is published in the website for all to sign in, in the NCLT, it is understood that the link is sent by email to the respective counsel. Learned counsel for the respondents/writ petitioners and the 3rd respondent did not receive any link and hence, it was pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough rival contentions have been made on the merits of the disputes, in the company petition, we are not inclined to delve into the same, and deem it fit to address issues stated above. 51. Admittedly, challenging the interim order of the NCLT, Kochi in I.A. No. 83/2020 in C.P. No. 114/KOB/2019 dated 9-7-2020, writ petition has been filed under Article 226 of the Constitution of India for the reliefs, stated above 52. Let us have a cursory look at the provisions of the Companies Act, 2013 and the NCLT Rules, 2016. 53. Section 421 of the Companies Act, 2013, reads thus: 421. Appeal from orders of Tribunal.- (1) Any person aggrieved by an order of the Tribunal may prefer an appeal to the Appellate Tribunal. (2) No appeal shall lie to the Appellate Tribunal from an order made by the Tribunal with the consent of parties. (3) Every appeal under sub-section (1) shall be filed within a period of forty-five days from the date on which a copy of the order of the Tribunal is made available to the person aggrieved and shall be in such form, and accompanied by such fees, as may be prescribed: Provided that the Appellate Tribunal may entertain an appeal after the expiry of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Ashok Kumar Borah, Member (Judicial) 2. Sri. Hon'ble Shri Vedera Bhrahma Rao Arekapudi, Member (Technical) In the matter of Sulochana Gupta : Petitioner v. RBG Enterprises Pvt. Ltd 3 others : Respondents Parties/Counsel present Counsel for the petitioners : Shri Sukumar Oommen Shri Sherry Oommen, Advocates Counsel for the respondents : Shri P.P.Zibi Jose, PCS Shri P. Sanjay, Advocate 1. Learned Counsel for the petitioner as well as the respondents are present. 2. The petitioner filed this IA 49/KOB/2019 in the Company Petition No. CP/99/KOB/2019 seeking the following interim reliefs: i. Stay the notice dated 17-10-2019 shown in Annexure A12; ii. Direct the 2nd Respondent to convene a meeting, the AGM on a date and time to be determined by this Tribunal, iii. Appoint an Advocate Commissioner to preside over the said AGM; iv. That the AGM shall consider the following subject matters: i. Consideration of financial statements for the years 2015-16, 2016-17 and 2017-18 and matters connected therewith: ii. Consideration of related party transactions mentioned in the financial statements for the years 2015- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for both the parties, we observed that interim orders were passed by this Tribunal in related cases against the same respondents. The petitioners of this lA have not provided any now evidence or shown a valid reason to modify our stand. We are therefore of the view that no interim order is required in this IA as sought for by the learned counsel for the petitioner at this stage. However, the decision taken in the Board meeting dated 10-10-2019 as well as the resolutions to be passed in the AGM to be held on 31-10-2019 will be subject to the final orders of this Tribunal. 6. Respondents are therefore directed to file their counter and petitioners may also file their rejoinder, if any before the next date of hearing. 7. List the matter for further hearing on 26-11-2019 Dated this the 25th day of October 2019. Sd/- Sd/- Veera Brahma Rao Arekapudi Ashok Kumar Borah Member (Judicial) 56. It is further contended that before the writ cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Resolution passed by the majority shareholders at the AGM held at 4:00 pm on 31.10:2019 at the registered office of the Company, in accordance with Section 123 of the Companies Act, to issue dividend of INR 300 (three hundred) per share, post adoption of accounts, out of the free reserves of the Company and out of profits of the financial year ended on 31-3-2019, which is to be paid for the current financial year 2019-20, to the shareholders whose names appear on the register of members as on the date of Book Closing in proportion to the paid up value of the equity shares, is in order and therefore deserving to be confirmed. VII. Issue a direction to the Company that the Resolution passed by the majority shareholders at the AGM held at 4:00 pm on 31-10-2019 at the registered office of the Company,to open a new Current Account with Indusind Bank in the name and style, RBG Enterprises Private Limited, Dividend Account, is in order and therefore deserving to be confirmed. VIII. Issue a direction to the Company to re-convene the AGM of the Company on a date to be specified by this Hontle Tribunal, under the supervision of an Advocate Commissioner appointed by this Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d shareholders, who constitute majority shareholders of the Company have appointed Mrs. Sulochana Gupta as the Managing Director of the Company al tho AGM held at 4 pm on 31-10-2019 In the registered office of the Company. In our opinion, you do not have the legal authority to convene a meeting of the Board of Directors of the Company for the above reasons. Meeting of Board of Directors to be held at 11 am on 4-12-2019. 3. The agenda for the proposed Board Meeting includes review of the status of the cases before the Hon'ble NCLT, in our opinion, it would not be appropriate for the Board to discuss the matter which is under the scrutiny of the Hon'ble NCLT. 4. You have stated in the said Notice that the agenda for the proposed Board Meeting includes confirmation of the Minutes of the Meeting of the Board of Directors held on 10-10-2019. You are aware that the Hon'ble NCLT has directed In Its Order dated 25-10-2019 in connected case C.P/114/JOB/2019 that the decision taken in the Board Meeting dated 10-10-2019 as well as the resolutions to be passed during the AGM held on 31-10-2019 will be subject to the final orders of this Tribunal . I am, therefore, of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R3. Sub:- Request for adjournment of the following case listed as item No. 10-12 in the Cause List published for (Thursday) 09/07/2020. Sir, I am the counsel appearing for the respondent company and the Managing Director in the above cases. Due to my engagement before the Hon'ble High Court today w will not be able to attend the above cases on (Thursday) 09/07/2020. Therefore, I humbly request you to adjourn the above case to any other convenient date before the Hon'ble Tribunal itself. Kindly note that these are matters connected to various other cases that came up on 6-7-2020 and are posted on 7-9-2020. Hence the above cases can also be posted on the same date. Thanking you, Yours truly, Best regards, P. Sanjay, Advocate, . 09-07-2020 The Deputy Manager, National Company Law Tribunal, Kochi Bench,' BMC Road, Thrikkakara, Ernakulam - 682021. Sub:- Request for adjournment of the following case listed as item No. 10-12 in the Cause List published for (Thursday) 09/07/2020. Ref:- (1) IA/83/KOB/2020 IN CP/114/KOB/19-Sulochana Gupta v. Rbg Trading Pvt. Ltd 3 OTHERS - for R3 (2) IA/84/KOB/2020 IN CP/119/KOB/19-Minakshi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncial transactions shall be made till 7-8-2020. List on 7-8-2020 for final hearing in the IA. Dated 9th day of July, 2020 Sd/- (Ashok Kumar Member Borah) Member (Judicial) 61. Exhibit-P13 email dated 15-7-2020 evidencing filing of an appeal by email before Registrar, NCLAT, is extracted hereunder: Date :15-07-2020 To: The Registry National Company Law Appellate Tribunal (Southern Bench) 2nd 3rd Floor of Mahanagar Doorsanchar Sadan (M.T.N.L. Building), 9Lodhi Rd, CGO Complex, Pragati Vihar, New Delhi - 110003 Reg; Filing of Appeal in IA/83/KOB/2020 In No. CP/114/KOB/2019 (RBG Enterprises Private Limited and another v. Sulochang Gupta) under section 421 of the Companies Act, 2013.read with Rules Dear Sir, With reference to the above we are submitting herewith Company Appeals under section 421 of the Companies Act, 2013 in triplicate in respect of Petitioner- RBG Enterprises Private Limited Anr., which may kindly be taken on record and request your goodself to advise the date of hearing of the Company Appeal. I will be appearing for the same through Video Conferencing. Also filed is IA for stay (with necessary court fee) that may be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Elektronik Lab India Pvt. Ltd. v. Pinnacle (Air) Pvt. Ltd aikriti S. Jadeja For the Admission (After Notice) 5. Comp. App (AT) (Ins) No. 426 of 2020 NCC Ltd. v. Golden Jubilee Hotels Adhish Srivastava Vijay Kaundal 6 Comp. App (AT) (Ins) No. 430 of 2020 Consolidated Engineering Company v. Subodh Kumar Agarwal Ors. With Kumar Anurag Singh Vijay Kaundal 7. Comp. App. (AT) (Ins) No. 432 of 2020 Infinity Interiors Pvt. Ltd. v. Subodh Kumar Agarwal Ors. Kumar Anurag Singh Vijay Kaundal 8. Comp. App. (AT) (Ins) No. 438 of 2020 Laxmi Narayan Sharma v. Subodh Kumar Agrawal, Resolution Professional, Golden Jubilee Hotels Pvt. Ltd. Ors. Sumedha Chadha Pankaj Vivek 9. Comp. App. (AT) (Ins) No. 484 of 2020 Noble Resources Internation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Saikat Sarkar 63. As rightly contended by the learned counsel for the appellants, a case from the State of Kerala is included in the list of cases scheduled for hearing on 16-7-2020. 64. Let us consider what the respondents 1 2/writ petitioners, in the statement of facts, have contended before the writ court, for filing the writ petitions, without availing the alternative remedy. Writ petitioners have stated that they can only challenge the impugned order by filing an appeal before the Appellate Tribunal situated outside the State of Kerala. In the present situation of lockdown, under the threat of Covid-19, neither the writ petitioners nor their counsel will be able to file an appeal and obtain orders. It was pointed out that in a similar situation, this court had stayed the operation of a judgment of the Tribunal, to enable the appeal to be filed. To substantiate the said submission, writ petitioners have produced the judgment dated 21-12-2017 passed in W.P. (C) No. 41662 of 2017 (Exhibit-P8). 65. At ground 'J' in the writ petition, respondents 1 2 have contended that the impugned order of the NCLT in I.A. No. 83/KOB/2020 in C.P. No. 114/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 83/KOB/2020 in C.P.No.114/2019 dated 9-7-2020 passed by the NCLT, Kochi Bench, wherein the respondents/writ petitioners have been restrained from making any financial transactions. The said email sent on 10-7-2020 by the 1st appellant to the Branch Manager, Dhanlaxmi Branch, has been forwarded to Rajkumar Gupta, Managing Director of RBG Enterprises Pvt. Ltd., who was arrayed as respondent No. 2 in this appeal. 71. Though the respondents/writ petitioners have further contended that no e-filing was permitted by the NCLAT and that, they could not sent any representative, to submit an appeal and other documents, in person, due to the COVID-19 pandemic, perusal of the affidavit filed in support of I.A. No. 1 of 2020 in W.P.(C) No. 14341 of 2020 shows that an averment has been made therein to the effect that copies of the appeal, as well as the stay petition, have been served on the petitioners in the company petition/appellants, by way of email, proof of serving the copy of the appeal and stay petition, is sought to be substantiated by Exhibit-P12 email dated 15-7-2020. For brevity, Exhibit-P12 is extracted hereunder: Copy of Appeal in the case of RBG Enterprises (P) Ltd. san ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .P.No.114/2019 dated 9-7-2020 passed by the NCLT, Kochi Bench, there was no appeal before the NCLAT, New Delhi. Whereas, in the appeal preferred under section 421 of the Companies Act, 2013 read with rules, before the NCLAT, the appellant/1st respondent herein made a declaration that the company had not previously filed any writ petition or suit regarding the matter in respect of which this appeal is preferred, before any court or any authority nor any such writ petition or suit is pending before any of them. 76. Thus, from Exhibit-P9 P13, it is evident that on 15-7-2020, writ petitioners/respondents have sent the appeal and stay petition, filed against the order in I.A. No. 83/KOB/2020 in C.P.No.114/2019 dated 9-7-2020, along with a covering letter, through email to the Registry of NCLAT, New Delhi, and later on 16-7-2020, by registered post. Further, Exhibit-P12 makes it clear that the writ petitioners have served a copy of the appeal and stay petition dated 15-7-2020 by email to the learned counsel appearing for the petitioners in the company petition also. 77. Though the respondents/writ petitioners have contended that they came to know that the filing of the appeal by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Dhanalakshmi Bank Demand Draft : No. 114840 for ₹ 5000/- and No. 114544 for ₹ 1000/- Date : 15-07-2020 Yours Faithfully 79. Though Mr. P. Sanjay, learned counsel for the writ petitioners/respondents 1 2, contended that he has received information from the Registry of NCLAT, New Delhi, that appeal sent through email cannot be entertained, and sought to substantiate the same, by placing reliance on some screen shot image dated 15-7-2020 at 3.19 p.m. on 17-7-2020, we are of the view that no reliance can be made on the said document with regard to telephonic conversation said to have been made between the official of NCLAT, New Delhi and the learned counsel for the writ petitioners. 80. As rightly contended by Mr. Sukumar Nainan Oommen, learned counsel for the appellants, though writ petition has already been filed (on 13-7-2020-returned for curing defects), it was taken up for hearing only on 15-7-2020, on which date, appeal has been filed before the NCLAT, New Delhi, by the writ petitioners/respondents under section 421 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories (3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without- (a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and (b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the Election Tribunal. It is urged, that the Tribunal in deciding the matter in the way it did not act either without jurisdiction or in excess of its authority, nor was there any error apparent on the face of the proceedings which could justify the issuing of a writ to quash the same. It is argued by the learned counsel that, what the High Court has chosen to describe as errors of jurisdiction are really not matters which affect the competency of the Tribunal to enter or adjudicate upon the matter in controversy between the parties and the reasons assigned by the learned Judges in support of their decision proceed upon a misreading and misconception of the findings of fact which the Tribunal arrived at. Two points really arise for our consideration upon the contentions raised in this appeal. The first is, on what grounds could the High Court, in exercise of its powers under article 226 of the Constitution, grant a writ of certiorari to quash the adjudication of the Election Tribunal? The second is, whether such grounds did actually exist in the present case and are the High Court's findings on that point proper findings which should not be disturbed in appeal ? 7. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction may arise from the nature of the subject-matter of the proceedings or from the absence of some preliminary proceedings or the Court itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances (Vide Halsbury, 2nd edition, Vol. IX, page 880). 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 v. Fuller, 9 Exch. 111; R. v. Income-tax Special Purposes Commissioners, 21 Q.B.D. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter. (ii) In Radhey Shyam (supra), the Hon'ble Supreme Court explained the distinction and scope of jurisdiction between Articles 226 and 227 of the Constitution of India. Circumstances under which the case was considered is extracted hereunder: This matter has been placed before the Bench of three Judges in pursuance of an order dated April 15, 2009 passed by the bench of two Hon'ble Judges to consider the correctness of the law laid down by this Court in Surya Dev Rai v. Ram Chander Rai and Ors. 2003 (6) SCC 675 that an order of civil court was amenable to writ jurisdiction Under Article 226 of the Constitution. The reference order, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ya Dev Rai is by a Bench of two judges, the same has been referred with approval in larger bench judgments in Shail v. Manoj Kumar 2004 (4) SCC 785, Mahendra Saree Emporium (II) v. G.V. Srinivasa Murthy [2005 (1) SCC 481] and Salem Advocate Bar Assn(II) v. Union of India [2005 (6) SCC 344] and on that ground correctness of the said view is not open to be considered by this Bench. 11. It is necessary to clarify that expression judicial acts is not meant to refer to judicial orders of civil courts as the matter before this Court arose out of the order of Election Tribunal and no direct decision of this Court, except Surya Devi Rai, has been brought to our notice where writ of certiorari may have been issued against an order of a judicial court. In fact, when the question as to scope of jurisdiction arose in subsequent decisions, it was clarified that orders of judicial courts stood on different footing from the quasi judicial orders of authorities or Tribunals. The Hon'ble Apex Court, after considering several decisions, held as under: 18. While the above judgments dealt with the question whether judicial order could violate a fundamental right, it was clearly laid do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of the High Court Under Article 226 of the Constitution. (Emphasis added) 20. This Court in judgment dated 6th December, 1989 in Civil Appeal No. 815 of 1989 Qamruddin v. Rasul Baksh and Anr. which has been quoted in Allahabad High Court judgment in Ganga Saran v. Civil Judge (AIR 1991 All 114), considered the issue of writ of certiorari and mandamus against interim order of civil court, and held thus: If the order of injunction is passed by a competent court having jurisdiction in the matter, it is not permissible for the High Court Under Article 226 of the Constitution to quash the same by issuing a writ of certiorari. In the instant case the learned Single Judge of the High Court further failed to realise that a writ of mandamus could not be issued in this case. A writ of mandamus cannot be issued to a private individual unless he is under a statutory duty to perform a public duty. The dispute involved in the instant case was entirely between two private parties, which could not be a subject matter of writ of mandamus U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 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 petitions. 65. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority. 66. We may al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. It appears that the 11th respondent therein is a Public Company limited by guarantee. All the parties in this proceeding, except respondent Nos. 17, 18 and 19, are members or claim to be members of the said company. The three appellants complaining oppression and mismanagement, filed applications before the NCLT, Chennai Bench. Among other reliefs, they sought for an order restraining the directors from transferring any immovable property of the company to respondent Nos. 17, 18 and 19 herein and also for restraining the directors from expelling the appellants from the membership of the company. Before the NCLT, the company, the managing director and four other directors were made parties. The NCLT by order dated 4-7-2017 in Company Petition No. 29 of 2017, passed an interim order firstly restraining the directors/the respondents therein, from transferring any property. They then stayed the notice dated 19-5-2017 seeking to expel the appellants from the membership of the company. It is not in dispute that before the NCLT, the company, the managing director and four directors appeared and had filed their counter affidavits and were contesting the matter on merits. Notwithstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lability of an alternative remedy and filing of a writ jurisdiction a Hon'ble Division Bench of Madras High Court considered the following decisions: (i) In Union of India v. T.R. Verma AIR 1957 SC 882, the Hon'ble Supreme Court held that it is well settled that when an alternative and efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court, to issue a prerogative writ. Apex Court held that it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226 of the Constitution, unless there are good grounds to do otherwise. (ii) In C.A. Ibrahim v. ITO reported in AIR 1961 SC 609, H.B. Gandhi v. M/s. Gopinath sons, reported in 1992 (Suppl) 2 SCC 312 and Karnataka Chemical Industries v. Union of India reported in (2000) 10 SCC 13, the Hon'ble Supreme Court held that where there is a hierarchy of appeals provided by the statute, the party must exhaust the statutory remedy, before resorting to writ jurisdiction. (iii) In A. Venkatasubbiah Naidu v. S. Chellappan reported in (2000) 7 SCC 695, at Paragraph 22, the Hon'ble Supreme Court deprecated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Constitution. Therefore, the learned Single Judge was justified in observing that since the assessee has a remedy in the form of a right of appeal under the statute, that remedy must be exhausted first. The order passed by the learned Single Judge, in our opinion, ought not to have been interfered with by the Division Bench of the High Court in the appeal filed by the respondent assessee. 16. In view of the above, we cannot sustain the judgment and order passed by the Division Bench of the High Court. Accordingly, we allow these appeals and set aside the impugned judgment. It is also worthwhile to extract the judgments considered in Guwahati Carbon Ltd.'s case (cited supra), 8. Before we discuss the correctness of the impugned order, we intend to remind ourselves of the observations made by this Court in Munshi Ram v. Municipal Committee, Chheharta [1979 (3) SCC 83]. In the said decision, this Court was pleased to observe that: (SCC p. 88, para 23) 23.... when a revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that mann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to grant relief. None of the exceptions is applicable to the case on hand. Saying so, the writ petition was rejected. 86. On the issue whether, while challenging a judicial act of the Courts or the Tribunal, as the case may be, a writ petition has to be filed under Articles 226 or 227 of the Constitution of India, appellants have relied on the decision in Radhey Shyam (cited supra), which we have already considered, wherein it is categorically held that the proper remedy to challenge judicial acts is, by way of filing writ petition under Article 227 of the Constitution of India and not under Article 226. That apart, in AGDP. Ltd. v. Registrar of Companies [2019] 216 Comp. Case 360 (Mad.), relied on by the learned counsel for the appellants, High Court of Madras has considered the scope of revision petition filed under Article 227 of the Constitution of India as under: 23. We deem it fit to consider the scope and power of the superintendence of the High Court, under Article 227 of the Constitution of India: (i) In Jodhey v. State reported in AIR 1952 All 788, after hearing the history of Article 227 of the Constitution of India, the Hon'ble Allahabad High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot claim exemption from it merely by virtue of the fact that they do not come within the strict category of civil, revenue, or criminal courts as known under the ordinary law of the land. Certain other minor changes in this article are also noteworthy. A contrast of the marginal note appended to article 227 of the Constitution of India with the marginal notes of section 224, the Government of the India Act, 1935, section 107, Government of India Act 1915, and section 15, the High Courts Act, 1861, is instructive. The marginal note of article 227 of the Constitution of India is 'Power of superintendence over all courts by the High Courts'. This may be contrasted with the marginal note of section 224, Government of India Act, 1935, which was 'Administrative functions of the High Court' and the marginal note of section 107, Government of India Act, 1915, which was Towers of High Court with respect to subordinate courts'. Similarly, the marginal note of section 15, High Courts Act, 1861, was 'High Courts to superintend and to frame rules of practice for subordinate courts'. The alteration in this marginal note also emphasises the fact that the powers of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to. High Court over all courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. It is couched in a language which would vest the High Court with a power that is not fettered with any restriction and must embrace all aspects of the functions exercised by every court and Tribunal. On a proper interpretation of this clause it is difficult to my mind to hold that the powers of superintendence are confined only to administrative matters. There are no limits, fetters or restrictions placed on this power of superintendence in this clause and the purpose of this article seems to be to make the High Court the custodian of all justice within the territorial limits of its jurisdiction and to arm it with a weapon that could be wielded for the purpose of seeing that justice is meted out fairly and properly by the; bodies mentioned therein. To fulfill this function it seems to me that the power of superintendence of the High Court over judicial matters is as necessary as over administrative matters. As a matter of fact judicial function of a court is not less, important than its administrative function. In fact it is more necessary to rectify lapses in ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al by an Act or the fact that the body performing judicial functions is special tribunal constituted under a statute cannot be set up as a bar to the exercise of this power by the High Court. The prohibited area is to be found within the four corners of the constitution itself and nowhere else. 15. The fact that these unlimited powers are vested in the High Court should, however, make the High Court more cautious in its exercise. The self-imposed limits of these powers are established and laid down by the High courts themselves. It seems to me that these powers cannot be exercised unless there has been an unwarranted assumption of jurisdiction not possessed by courts or a gross abuse of jurisdiction possessed by them or an unjustifiable refusal to exercise a jurisdiction vested in them by law. Apart from matters relating to jurisdiction, the High Court may be moved to act under it when there has been a flagrant abuse of the elementary principles of justice or a manifest error of law patent on the face of the record or an outrageous miscarriage of justice which calls for remedy. Under this power, the High Court will not be justified in converting itself into a court of appeal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and authorities have only limited jurisdiction or powers and must be kept within their legal bounds. This is the concern of the Crown, for the sake of orderly administration of justice, but it is a private complaint which sets the Crown in motion.' (Administrative Law, Eighth edition, page 591). 8. The learned authors go on to add that the problem arose on exercising control over justices of the peace, both in their judicial and their administrative functions as also the problem of controlling the special statutory body which was addressed to by the Court of King's Bench. The most useful instruments which the court found ready to hand were the prerogative writs. But not unnaturally the control exercised was strictly legal, and no longer political. Certiorari would issue to call up the records of justices of the peace and commissioners for examination in the King's Bench and for quashing if any legal defect was found. At first there was much quashing for defects of form on the record, i.e., for error on the face. Later, as the doctrine of ultra vires developed, that became the dominant principle of control.'(page 592) 9. The nature and scope of the writ of cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imit of the jurisdiction of the High Court in issuing writs of certiorari was considered by this court in Hari Vishnu Kamath v. Ahmad Ishaque [1955] 1 SCR 1104; AIR 1955 SC 233 and the following four propositions were laid down-- (1) Certiorari will be issued for correcting errors of jurisdiction; (2) Certiorari will also be issued when the court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice; (3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or Tribunal, even if they be erroneous; (4) An error in the decision or determination itself may also be amenable to a writ of certiorari if it is 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 11. In the initial years the Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law but what can be said at the most was that it had disregarded certain executive instructions not having the force of law, there is no case for the exercise of the jurisdiction under article 226. 14. The Constitution Bench in T.C. Basappa v. T. Nagappa, AIR 1954 SC 440; [1955] 1 SCR 250, held that,- certiorari may be and is generally granted when a court has acted (i) without jurisdiction, or (ii) in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceedings or from the absence of some preliminary proceedings or the court itself may not have been legally constituted or suffering from certain disability by reason of extraneous circumstances. Certiorari may also issue if the court or Tribunal though competent has acted in flagrant disregard of the rules or procedure or in violation of the principles of natural justice where no particular procedure is prescribed. An error in the decision or determination itself may also be amenable to a writ of certiorari subject to the following factors being available if the error is manifest and apparent on the face of the proceedings such as when it is based on 'clear ignorance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.' 17. A perusal of the judgment shows that the above passage has been quoted 'incidentally' and that too for the purpose of finding authority for the proposition that a judge sitting on the original side of the High Court cannot be called a court 'inferior or subordinate to High Court' so as to make his orders amenable to writ jurisdiction of the High Court. Secondly, the abovesaid passage has been quoted but nowhere the court has laid down as law by way its own holding that a writ of certiorari by High Court cannot be directed to court subordinate to it. And lastly the passage from Halsbury quoted in Naresh Shridhar Mirajkar v. State of Maharashtra [1966] 3 SCR 744; AIR 1967 SC 1 is from third edition of Halsbury's Laws of England (Simond's edition, 1955). The law has undergone a change in England itself and this changed legal position has been noted i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable to writ jurisdiction of the High Court under article 226 of the Constitution. 20. Authority in abundance is available for the proposition that an error apparent on face of record can be corrected by certiorari. The broad working rule for determining what is a patent error or an error apparent on the face of the record was well set out in Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale [1960] 1 SCR 890; AIR 1960 SC 137. It was held that the alleged error should be self-evident. An error which needs to be established by lengthy and complicated arguments or an error in a long-drawn process of reasoning on points where there may conceivably be two opinions cannot be called a patent error. In a writ of certiorari the High Court may quash the proceedings of the Tribunal, authority or court but may not substitute its own findings or directions in lieu of one given in the proceedings forming the subject-matter of certiorari. 21. Certiorari jurisdiction though available is not to be exercised as a matter of course. The High Court would be justified in refusing the writ of certiorari if no failure of justice has been occasioned. In exercising the certiorari jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to such judgments of the inferior courts which were not otherwise subject to appeal or revision. That restriction has not been carried forward in article 227 of the Constitution. In that sense article 227 of the Constitution has width and vigour unprecedented. Difference between a writ of certiorari under Article 226 and supervisory jurisdiction under article 227: 24. The difference between articles 226 and 227 of the Constitution was well brought but in Umaji Keshao Meshram v. Smt. Radhikabai [1986] (Supp.) SCC 401. Proceedings under article 226 are in exercise of the original jurisdiction of the High Court While proceedings under article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of section 107 of the Government of India Act, 1915 excepting, that the power of superintendence has been extended by this article to Tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well. 26. In order to safeguard against a mere appellate or revisional jurisdiction being exercised in the garb of exercise of supervisory jurisdiction under article 227 of the Constitution, the courts have devised self-imposed rules of discipline on their power. Supervisory jurisdiction may be refused to be exercised when an alternative efficacious remedy by way of appeal or revision is available to the person aggrieved. The High Court may have regard to legislative policy formulated on experience and expressed by enactments where the Legislature in exercise of its wisdom has deliberately chosen certain orders and proceedings to be kept away from exercise of appellate and revisional jurisdiction in the hope of accelerating the conclusion of the proceedings and avoiding delay and procrastination which is occasioned by subjecting every order at every stage of proceedings to judicial review by way of appeal or revision. So long as an error is capable of being corrected by a superior court in exercise of appellate or revisional jurisdiction though ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion. This power of the High Court under the Constitution of India is always in addition to the revisional jurisdiction conferred on it. Does the amendment in section 115 of the CPC have any impact on jurisdiction under articles 226 and 227? 29. The Constitution Bench in L. Chandra Kumar v. Union of India [1997] 3 SCC 261, dealt with the nature of power of judicial review conferred by article 226 of the Constitution and the power of superintendence conferred by article 227. It was held that the jurisdiction conferred on the Supreme Court under article 32 of the Constitution and on the High Courts under articles 226 and 227 of the Constitution is part of the basic structure of the Constitution, forming its integral and essential feature, which cannot be tampered with much less taken away even by constitutional amendment, not to speak of a parliamentary legislation. A recent Division Bench decision by the Delhi High Court (Dalveer Bhandari and H.R. Malhotra JJ.) in Criminal Writ Petitions Nos. 758, 917 and 1295 of 2002 Govind v. State (Government of NCT of Delhi) decided on April 7, 2003 (reported as [2003] 6 ILD 468 (Delhi) makes an in-depth survey of decided cases including a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the power of superintendence vesting in the High Court under section 107 of the Government of India Act, 1915, is not a limitless power available to be exercised for removing hardship of particular decisions. The power of superintendence is a power of known and well-recognised character and should be exercised on those judicial principles which give it its character. The mere misconception on a point of law or a wrong decision on facts or a failure to mention by the courts in its judgment every element of the offence, would not allow the order of the Magistrate being interfered with in exercise of the power of superintendence but the High Court can and should see that no man is convicted without a legal reason. A defect of jurisdiction or fraud on the part of the prosecutor or error on the 'face of the proceedings' as understood in Indian practice, provides a ground for the exercise of the power of superintendence. The line between the two classes of case must be, however, kept clear and straight. In general words, the High Court's power of superintendence is a power to keep subordinate courts within the bounds of their authority, to see that they do what the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hink that the decision of the Full Bench has been correctly read. Rather, vide paragraph 11, the Full Bench has itself held that where the order of the civil court suffers from patent error of law and further causes manifest injustice to the party aggrieved then the same can be subjected to writ of certiorari. The Full Bench added that every interlocutory order passed in a civil suit is not subject to review under article 226 of the Constitution but if it is found from the order impugned that fundamental principle of law has been violated and further such an order causes substantial injustice to the party aggrieved the jurisdiction of the High Court to issue a writ of certiorari is not precluded. However, the following sentence occurs in the judgment of the Full Bench (AIR page 119): 'Where an aggrieved party approaches the High Court under article 226 of the Constitution against an order passed in civil suit refusing to issue injunction to a private individual who is not under statutory duty to perform public duty or vacating an order of injunction, the main relief is for issue of a writ of mandamus to a private individual and such a writ petition under article 226 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction--by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction--by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does'-have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave inj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case. 39. Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under article 226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules. Not less than often the High Court would be faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in the exercise of their jurisdiction causing grave miscarriage of justice. In regard to a finding of fact recorded by an inferior tribunal or authority, a writ of certiorari can be issued only if in recording such a finding, the Tribunal/authority has acted on evidence which is legally inadmissible, or has refused to admit an admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. It is needless to mention that a pure error of fact, however grave, cannot be corrected by a writ. 23. It is useful to refer the decision of this court in Surya Dev Rai v. Ram Chander Rai [2003] 6 SCC 675 wherein, in paragraph 38, held as under: 38. (3) Certiorari, under article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by article 227 of the Constitution is to be exercised more sparingly and only in appropriate case in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors. 12. The above said law is again reiterated by the apex court in San-gram Singh v. Election Tribunal, AIR 1955 SC 425 and Nagendra Nath Bora v. Commissioner of Hills Division and Appeals, AIR 1958 SC 398. 13. In T. Prem Sagar v. Standard Vacuum Oil Co., AIR 1965 SC 111, it has been held that in writ proceedings if an error of law apparent on the fact of the records is disclosed and the writ is issue, the usual course to' adopt is to correct the error and send the case back to the special Tribunal for its decision in accordance with law. It would be inappropriate for the High Court exercising its writ jurisdiction to consider the evidence for itself and reach its own conclusions in matters which have been left by the Legislature to the decisions of specially constituted Tribunals. 14. In Joint Registrar of Co-operative Societies v. P.S. Rajagopal Naidu, AIR 1970 SC 992, the apex court has held that the High Courts should not act as a court of appeal and reapprais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wers conferred upon the High Court under articles 226 and 227 of the Constitution are extraordinary and discretionary powers as distinguished from ordinary statutory powers. No doubt, article 227 confers a right of superintendence over all courts and Tribunals throughout the territories in relation to which it exercises the jurisdiction but no corresponding right is conferred upon a litigant to invoke the jurisdiction under the said article as a matter of right. In fact power under this article casts a duty upon the High Court to keep the inferior courts and Tribunals within the limits of their authority and that they do not cross the limits, ensuring the performance of duties by such courts and Tribunals in accordance with law conferring powers within the ambit of the enactments creating such courts and Tribunals. Only wrong decisions may not be a ground for the exercise of jurisdiction under this article unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the subordinate courts and tribunals resulting in grave injustice to any party.' 19. In State v. Navjot Sandhu alias Afshan Guru [2003] 6 SCC 641, the Hon'ble Aex Court, at paragr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over all courts and Tribunals is basically to keep the subordinate courts/Tribunals/Appellate Authorities constituted under statutes within their bounds and not for correcting mere errors. The exercise of power is limited to want of jurisdiction, errors of law, perverse findings, gross violation of principles of natural justice and like the one. It may be exercised, if it is shown that grave injustice has been done to the person, who has invoked the jurisdiction with such grievance, the court does not act as an Appellate Authority to reappraise the evidence and come to a different conclusion. Even if two views are possible, in exercise of power, the court would not be justified in substituting its own reason for the reasons of the subordinate courts/Tribunals or appellate tribunals/boards. Of course, the power of this court is not taken away, where the statutory Appellate Tribunal/board brushes aside the evidence on conjunctures and without giving cogent reasons, which would result in error apparent on the face of the records. Unless, the errors questioned are apparently error, perverse and the findings are not supported by any materials, the exercise of power under article 227, of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii) In Ramesh Ahluwalia (supra), the Hon'ble Supreme Court held thus: The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found . Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the Appellants on the maintainability of the writ petition The aforesaid observations have been repeated and reiterated in numerous judgments of this Court including the judgment in Unni Krishnan and Zee Telefilms Ltd. 88. Per contra, Mr. Sukumar Nainan Oommen, learned counsel for the appellants, relying on Nivedita Sharma (cited supra) and New Saravana Stores Bramandamai (cited supra), submitted that when there is an alternate remedy, writ petition is not maintainable. In Nivedita Sharma (cited supra), the question considered by the Hon'ble Supreme Court was whether the Hon'ble Division Bench of the Delhi High Court was justified in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uasi - judicial body/authority, and it is an altogether different thing to say that each and every petition filed under Art.226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. Rather, it is settled law that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 12. In Thansingh Nathmal v. Superintendent of Taxes AIR 1964 SC 1419, this Court adverted to the rule of self - imposed restraint that writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed: The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Art.226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Stores Bramandamai (supra), challenge was to the correctness of a common order directing the appellants therein to avail the alternate remedy provided under the Statute. While dismissing the writ petitions, writ court directed the appellants therein to prefer revision petitions under the Tamil Nadu Value Added Tax Act, 2006. Contentions of the learned counsel, as summarised in paragraph 5 of the judgment, are reproduced. 5. Instant writ appeals have been filed against the said orders. Inviting the attention of this Court to the preamble of the Tamilnadu Value Added Tax Act, 2006 that, it is an Act to consolidate and amend the law relating to the levy of tax on the sale or purchase of goods in the State of Tamilnadu, explanation (v) to Section 2(33) of the Tamilnadu Value Added Tax Act, 2006, which defines 'sale', details of the purchase of the cars and sale effected outside the state of Tamilnadu, extracted in the rectification order dated 16-6-2017 of the Assistant Commissioner (CT), Pondy Bazaar Assessment Circle, Chennai, and placing reliance on the decisions of this Court in W.P. No. 16576 of 2001 dated 21-11-2003, in the matter of M/s. V. Guard Industries Limited, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. Ltd. v. R.S. Pandey and Another [2005] 8 SCC 264, at para No. 11 are as follows: Except for a period when Article 226 was amended by the Constitution (Forty-Second Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction or discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided, the high Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction. (iv) In United Bank of India v. Satyawati Tondon and Others ((2010) 8 SCC 110), the Hon'ble Apex Court, at paragraph Nos. 43 to 45, held as follows:- 43. Unfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emedy is not a bar to the entertaining of writ petition filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order under challenge is wholly without jurisdiction or the vires of the statute are under challenge. The Court has recognised some exceptions to the rule of alternative remedy. However, the high Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal or grievance still holds the field. (vi) The Hon'ble Apex Court, after considering a catena of cases, in Shauntlabai Derkar and Another v. Maroti Dewaji Wadaskar [(2014) 1 Supreme Court Cases 602], at para Nos. 15 to 18, held as follows:- 15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment and order passed by the High Court in Chhabil Dass Agarwal v. Union of India (W.P.(c) No. 44 of 2009, decided on 5/10/2010). We grant liberty to the respondent, if he so desires, to file an appropriate petition/appeal against the orders of reassessment passed under section 148 of the Act within four weeks' time from today. If the petition is filed before the appellate authority within the time granted by this Court, the appellate authority within the time granted by this Court, the appellate authority shall consider the petition only on merits without any reference to the period of limitation. However, it is clarified that the appellate authority shall not be influenced by any observation made by the High Court while disposing of Writ Petition (Civil) No. 44 of 2009, in its judgment and order dated 5/10/2010. (vii) After considering a plethora of judgments, in Union of India and Others v. Major General Shri Kant Sharma and Another [(2015) 6 SCC 773], at para 36, the Hon'ble Apex Court held as follows:- The aforesaid decisions rendered by this Court can be summarised as follows:- (i) The power of judicial review vested in the High Court under Article 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is an alternative remedy. Judicial orders of the Court/Tribunal can be challenged only under Article 227 of the Constitution of India and not under Article 226. 92. In the case on hand, admittedly, all parties in the writ petition are private parties. On the issue as to whether, a writ petition is maintainable under Article 226 of the Constitution of India, in a dispute between private parties, when they do not fall under the definition of State, authority, or instrumentality of the State, or a private person, not discharge public function or duty, let us consider a few decisions: (i) In Anandi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trustv. V.R. Rudani [1989] 2 SCC 691, the Hon'ble Supreme Court considered, as to when a writ petition under Article 226 of the Constitution of India lies, as hereunder: 12. The essence of the attack on the maintainability of the writ petition under Article 226 may now be examined. It is argued that the management of the college being a trust registered under the Public Trust Act is not amenable to the writ jurisdiction of the High Court. The contention in other words, is that the trust is a privat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate body with no public duty mandamus will not lie. These are two exceptions to Mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants-trust was managing the affiliated college to which public money is paid as Government aid. Public money paid as Government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like Government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. (See-The Evolving Indian Administrative Law by M.P. Jain (1983) p. 266). So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies are defined by statute. So Government Departments local authorities, police authorities and statutory undertakings and corporations, are all 'public authorities'. But there is no such limitation for our High Courts to issue the writ 'in the nature of mandamus'. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226 writs can be issued to a 'any person or authority . It can be issued for the enforcement of any or the fundamental rights and for any other purpose . 18. Article 226 reads: 226. Power of High Courts to issue certain writs (1) Notwithstanding anything in Article 32, every High Court shall have power throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority including in appropriate cases, any Government, within those territories directions, order or writs, including (writs the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose. ** ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pandey v. Usha Rani Rajgaria [1992] 4 SCC 61, the Hon'ble Supreme Court dealt with a dispute relating to immovable property. Holding that remedy under Article 226 of the Constitution of India is special and extraordinary and should not be exercised casually or lightly, the Hon'ble Apex Court held thus: 6 There is no doubt that the dispute is between two private persons with respect to an immovable property. Further, a suit covering either directly a portion of the house-property which is in dispute in the present case or in any event some other parts of the same property is already pending in the civil court. The respondent justifies the step of her moving the High Court with a writ petition on the ground of some complaint made by the appellants and the action by the police taken thereon. We do not agree that on account of this development, the respondent was entitled to maintain a writ petition before the High Court. It has repeatedly been held by this Court as also by various High Courts that a regular suit is the appropriate remedy for settlement of disputes relating to property rights between private persons and that the remedy under Article 226 of the Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought to be enforced against the State or to avoid contractual liability arising thereto. In the absence of any statutory right Article 226 cannot be availed to claim any money in respect of breach of contract or tort or otherwise. In the present case, the appellants have sought to exercise their powers under section 7 of the Act and, therefore, though the other consequences may be contractual in nature, the exercise of the right being under a statute, it cannot be said that the respondent could not approach the writ court. (ii) In Binny Ltd. v. V. Sadasivan [2005] 6 SCC 657, termination of the employees on the basis of an agreement was challenged under Article 226 of the Constitution of India. High Court set aside the termination, declined back wages, and directed the employees to work out their remedy. On appeal, the Hon'ble Apex Court, after considering the issue as to whether the company is discharging any Public duty or Public function and thus, fall under the definition of State within Article 12 of the Constitution of India, held that Writ Petition under Article 226 of the Constitution of India is not maintainable. Relevant paras are hereunder: 9. Superior Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of mandamus has long provided the normal means of enforcing the performance of public duties by public authorities. Originally, the writ of mandamus was merely an administrative order from the sovereign to subordinates. In England, in early times, it was made generally available through the Court of King's Bench, when the Central Government had little administrative machinery of its own. Early decisions show that there was free use of the writ for the enforcement of public duties of all kinds, for instance against inferior tribunals which refused to exercise their jurisdiction or against municipal corporation which did not duly hold elections, meetings, and so forth. In modern times, the mandamus is used to enforce statutory duties of public authorities. The courts always retained the discretion to withhold the remedy where it would not be in the interest of justice to grant it. It is also to be noticed that the statutory duty imposed on the public authorities may not be of discretionary character. A distinction had always been drawn between the public duties enforceable by mandamus that are statutory and duties arising merely from contract. Contractual duties are enforceable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... functions and private functions when it is being discharged by a purely private authority. A body is performing a public function when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. In a book on Judicial Review of Administrative Action (Fifth Edn.) by de Smith, Woolf Jowell in Chapter 3 para 0.24, it is stated thus: A body is performing a public function when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. This may happen in a wide variety of ways. For instance, a body is performing a public function when it provides public goods or other collective services, such as health care, education and personal social services, from funds raised by taxation. A bod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicants' complaint; but that since, on the facts, there were no grounds for interfering with the panel's decision, the court would decline to intervene. 13. Lloyd L.J., agreeing with the opinion expressed by Sir John Donaldson M.R. held : I do not agree that the source of the power is the sole test whether a body is subject to judicial review, nor do I so read Lord Diplock's speech. Of course the source of the power will often, perhaps usually, be decisive. If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. If at the end of the scale, the source of power is contractual, as in the case of private arbitration, then clearly the arbitrator is not subject to judicial review. 14. In that decision, they approved the observations made by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374 wherein it was held : ...for a decision to be susceptible to judicial review the decision-maker must be empowered by public law (and not merely, as in arbitration, by agreement between private parties) to make decisions that, if vali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial time the Union Government and the Government of Andhra Pradesh held 56 per cent and 32 per cent of its shares respectively. Respondent workmen filed a writ petition under Article 226 in the High Court of Andhra Pradesh challenging the validity of an agreement entered into between the employees and the company, seeking a writ of mandamus or an order or direction restraining the appellant from implementing the said agreement. The appellant raised objection as to the maintainability of the writ petition. The learned Single Judge dismissed the petition. The Division Bench held that the petition was not maintainable against the company. However, it granted a declaration in favour of three workmen, the validity of which was challenged before this Court. This Court held at pages 589-590 as under: ...that the applicant for a mandamus should have a legal and specific right to enforce the performance of those dues. Therefore, the condition precedent for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is, in form, a command directed to a person, corporation or any inferior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate law, e.g., the activities by private bodies may be governed by the standards of public when its decisions are subject to duties conferred by statute or when by virtue of the function it is performing or possible its dominant position in the market, it is under an implied duty to act in the public interest. By way of illustration, it is noticed that a private company selected to run a prison although motivated by commercial profit should be regarded, at least in relation to some of its activities, as subject to public law because of the nature of the function it is performing. This is because the prisoners, for whose custody and care it is responsible, are in the prison in consequence of an order of the court, and the purpose and nature of their detention is a matter of public concern and interest. After detailed discussion, the learned authors have summarized the position with the following propositions : (1) The test of a whether a body is performing a public function, and is hence amenable to judicial review, may not depend upon the source of its power or whether the body is ostensibly a public or a private body. (2) The principles of judicial review prima facie gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Federal Bank was performing a public duty and as such it fell within the definition of other authorities under Article 12 of the Constitution. The appellant bank preferred an appeal, but the same was dismissed and the decision of the Division Bench was challenged before this Court. This Court observed that a private company carrying on business as a scheduled bank cannot be termed as carrying on statutory or public duty and it was therefore held that any business or commercial activity, whether it may be banking, manufacturing units or related to any other kind of business generating resources, employment, production and resulting in circulation of money which do have an impact on the economy of the country in general, cannot be classified as one falling in the category of those discharging duties or functions of a public nature. It was held that that the jurisdiction of the High Court under Article 226 could not have been invoked in that case. 29. Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these two cases to terminate the services of their employees cannot be said to have any element of public policy. Their cases were purely governed by the contract of employment entered into between the employees and the employer. It is not appropriate to construe those contracts as opposed to the principles of public policy and thus void and illegal under section 23 of the Contract Act. In contractual matters even in respect of public bodies, the principles of judicial review have got limited application. This was expressly stated by this Court in State of U.P. v. Bridge Roof Co. AIR 1996 SC 3515 and also in Kerala State Electricity Board v. Kurien E. Kalathil AIR 2000 SC 2573. In the latter case, this Court reiterated that the interpretation and implementation of a clause in a contract cannot be the subject matter of a writ petition. Whether the contract envisages actual payment or not is a question of construction of contract. If a term of a contract is violated, ordinarily, the remedy is not a writ petition under Article 226. 32. Applying these principles, it can very well be said that a writ of mandamus can be issued against a private body which is not a State within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction. 16. If, as was noted in Ram and Shyam Co. v. State of Haryana and Ors., AIR 1985 SC 1147 the appeal is from Caesar to Caesar's wife the existence of alternative remedy would be a mirage and an exercise in futility. In the instant case the writ petitioners had indicated the reasons as to why they thought that the alternative remedy would not be efficacious. Though the High Court did not go into that plea relating to bias in detail, yet it felt that alternative remedy would not be a bar to entertain the writ petition. Since the High Court has elaborately dealt with the question as to why the statutory remedy available was not efficacious, it would not be proper for this Court to consider the question again. When the High Court had entertained a writ petition notwithstanding existence of an alternative remedy this Court while dealing with the matter in an appeal should not permit the question to be raised unless the High Court's reasoning for entertaining the writ petition is found to be palpably unsound and irrational. Similar view was expresse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia, at paras 29 to 31, held thus: 29. In our opinion, the High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution is duty bound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record. There is nothing like issuing an ex-parte writ of Mandamus, order or direction in a public law remedy. Further, while considering validity of impugned action or inaction the court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extra ordinary jurisdiction under Article 226 of the Constitution. 30. The court while exercising its jurisdiction under Article 226 is duty bound to consider whether : (a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved; (b) petition reveals all material facts; (c) the petitioner has any al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, eventually, came to hold thus: 92. The position which emerges from the above discussion is that under clause 15 of the Letters Patent of the Chartered High Courts, from the judgment (within the meaning of that term as used in that clause) of a Single Judge of the High Court an appeal lies to a Division Bench of that High Court and there is no qualification or limitation as to the nature of the jurisdiction exercised by the Single Judge while passing his judgment, provided an appeal is not barred by any statute (for example, Section 100A of the Code of Civil Procedure, 1908) and provided the conditions laid down by clause 15 itself are fulfilled. The conditions prescribed by clause 15 in this behalf are: (1) that it must be a judgment pursuant to Section 108 of the Government of India Act of 1915, and (2) it must not be a judgment falling within one of the excluded categories set out in clause 15. And again: 100. According to the Full Bench even were clause 15 to apply, an appeal would be barred by the express words of clause 15 because the nature of the jurisdiction under Articles 226 and 227 is the same inasmuch as it consists of granting the same relief, namely, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Hon'ble Supreme Court in Shalini Shyam Shetty (supra) and held in the negative. In Shalini Shyam Shetty's case (cited supra), the Hon'ble Apex Court explained the scope of Articles 226 227 of the Constitution of India, in civil matters/private disputes. Taking note of the Bombay High Court Rules, Bombay High Court Appellate Side Rules, 1960, Articles 226 and 227 of the Constitution of India, and after tracing the history as to how the provisions have been enacted, at paragraphs 24 to 68, the Hon'ble Apex Court held thus: 24. R.17 deals with applications under Art.227 and Art.228. If a comparison is made between R.1 of Chap.17 and R.17 of the same Chapter it will be clear that petitions under Art.226 and those under Art.227 are treated differently. Both these Rules are set out one after the other: 1. (i) Applications for issue of writs, directions, etc. under Art.226 of the Constitution. Every application for the issue of a direction, order or writ under Art.226 of the Constitution shall, if the matter in dispute is or has arisen substantially outside Greater Bombay, be heard and disposed of by a Division Bench to be appointed by the Chief Justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such applications. 25. The distinction between the two proceedings also came up for consideration before the Bombay High Court and in the case of Jhaman Karamsingh Dadlani v. Ramanlal Maneklal Kantawala, AIR 1975 Bombay 182 the Bombay High Court held: 2. This High Court since its establishment in 1862 under the Letters Patent has been exercising original as well as appellate jurisdiction and its functioning is regulated by 'the Bombay High Court (Original Side) Rules, 1957' and 'Rules of the High Court of Judicature at Bombay, Appellate Side, 1960' (hereinafter referred to respectively as 'O. S. Rules' and 'A. S. Rules'). Rules also provide for disposal of petitions under Art.226 and Art.227 of the Constitution. Supervisory jurisdiction of the High Court under Art.227 of the Constitution is exclusively vested in a Bench on the Appellate Side and jurisdiction of either of the two wings of this Court under Art.226, however, depends upon whether the matter in dispute arises substantially in Greater Bombay or beyond it, the same being exercisable by the original Side in the former case and by the Appellate Side in the latter case. This is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut to a proceeding under Art.226, either the original side or the appellate side rules, depending on the situs of the cause of action, will apply. 28. Therefore High Court rules treat the two proceedings differently in as much as a proceeding under Art.226, being an original proceeding, can be governed under Original Side Rules of the High Court, depending on the situs of the cause of action. A proceeding under Art.227 of the Constitution is never an original proceeding and can never be governed under Original Side Rules of the High Court. 29. Apart from that, writ proceeding by its very nature is a different species of proceeding. 30. Before the coming of the Constitution on 26th January, 1950, no Court in India except three High Courts of Calcutta, Bombay and Madras could issue the writs, that too within their original jurisdiction. Prior to Art.226 of the Constitution, under S.45 of the Specific Relief Act, the power to issue an order in the nature of mandamus was there. This power of Courts to issue writs was very truncated and the position has been summarized in the law of writs by V.G. Ramchandran, Volume 1 (Easter Book Company). At page 12, the learned author observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall have Power to make and issue General Rules for regulating the Practice and Proceedings of such Courts, and also to prescribe Forms for every Proceeding in the said Courts for which it shall think necessary that a form be provided, and also for keeping all Books, Entries, and Accounts to be kept by the officers, and also to settle Tables of Fees to be allowed to the Sheriff, Attorneys, and all Clerks and Officers of Courts, and from Time to Time to alter any such Rule or Form or Table; and the Rules so made, and the Forms so framed, and the Tables so settled, shall be used and observed in the said Courts, provided that such General Rules and Forms and Tables be not inconsistent with the Provisions of any law in force, and shall before they are issued have received the Sanction, in the Presidency of Fort William of the Governor General in Council, and in Madras or Bombay of the Governor in Council of the respective Presidencies. 36. Then in the Government of India Act, 1915 S.107 continued this power of superintendence with the High Court. S.107 of the Government of India Act, 1915 was structured as follows: 107. Powers of High Court with respect to subordinate Courts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ij Bhushan Misra and Others reported in AIR 1951 Allahabad 667. 39. The history of Art.227 has also been traced by this Court in its Constitutional Bench judgment in Waryam Singh and Another v. Amarnath and Another, AIR 1954 SC 215. In paragraph 13 at page 217 of the report this Court observed: ...The only question raised is as to the nature of the power of superintendence conferred by the article . 40. About the nature of the power of superintendence this Court relied on the Special Bench judgment delivered by Chief Justice Harries in Dalmia Jain Airways Limited v. Sukumar Mukherjee, (AIR 1951 Calcutta 193). 41. In paragraph 14 page 217 of Waryam Singh (supra), this Court neatly formulated the ambit of High Court's power under Art.227 in the following words: This power of superintendence conferred by Art.227 is, as pointed out by Harries C.J., in 'Dalmia Jain Airways Ltd. v. Sukumar Mukherjee', AIR 1951 Cal. 193 (SB) (B), to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. 42. Chief justice Harries in the Full Bench decision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45. The learned judge considered the power of the High Court under Art.227 to be plenary and unfettered but at the same time, in paragraph 15 at page 792 of the report, the learned judge held that High Court should be cautious in its exercise. It was made clear, and rightly so, that the power of superintendence is not to be exercised unless there has been an (a) unwarranted assumption of jurisdiction, not vested in Court or tribunal, or (b) gross abuse of jurisdiction or (c) an unjustifiable refusal to exercise jurisdiction vested in Courts or tribunals. The learned judge clarified if only there is a flagrant abuse of the elementary principles of justice or a manifest error of law patent on the face of the record or an outrageous miscarriage of justice, power of superintendence can be exercised. This is a discretionary power to be exercised by Court and cannot be claimed as a matter or right by a party. 46. This Court in its Constitution Bench decision in the case of Nagendra Nath Bora and Another v. Commissioner of Hills Division and Appeals, Assam and Others, AIR 1958 SC 398 followed the ratio of the earlier Constitution Bench in Waryam Singh (supra) about the ambit of High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra) is based on the principle of the Constitution Bench judgments in Waryam Singh (supra) and Nagendra Nath (supra) discussed above. 52. To the same effect is the judgment rendered in the case of Laxmikant Revchand Bhojwani and Another v. Pratapsingh Mohansingh Pardeshi reported in (1995) 6 SCC 576. In paragraph 9, page 579 of the report, this Court clearly reminded the High Court that under Art.227 that it cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principle of law and justice (see page 579-580 of the report). 53. Same views have been taken by this Court in respect of the ambit of High Court's power under Art.227 in the case of Sarpanch, Lonand Grampanchayat v. Ramgiri Gosavi and Another reported in AIR 1968 SC 222, (see para 5 page 222-234 of the report) and the decision of this Court in Jijabai Vithalrao Gajre v. Pathankhan and Others reported in (1970) 2 SCC 717. The Constitution Bench ratio in Waryam Singh (supra) about the scope Art.227 was again followed in Ahmedabad Manufacturing Calico Ptg. Co. Ltd. v. Ram Tahel Ramnan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re - appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. 57. Art.226 and Art.227 stand on substantially different footing. As noted abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been framed for regulating the exercise of jurisdiction under Art.226. No such rule appears to have been framed for exercise of High Court's power under Art.227 possibly to keep such exercise entirely in the domain of the discretion of High Court. 62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Art.227 of the Constitution may be formulated: (a) A petition under Art.226 of the Constitution is different from a petition under Art.227. The mode of exercise of power by High Court under these two Articles is also different. (b) In any event, a petition under Art.227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Art.227 and have been discussed above. (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Art.227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Art.227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Art.227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. (n) This reserve and exceptional power of judicial intervention is not to be exercised ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , was illegal. He was entitled to be evicted in due course of law and a writ of mandamus could issue to or an order in the nature of mandamus could be made against the Union of India to restore possession of the property to Jagan Nath from which he had been evicted if the property was still in the possession of the Union of India. The property in dispute, however, is in possession of the appellant. There is no evidence and no finding of the High Court that the appellant was in collusion with the Union of India or that he had knowledge that the eviction of Jagan Nath was illegal. Normally, a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an order is made against a person directing him to do some particular thing, specified in the order, which appertains to his office and is in the nature of a public duty (Halsbury's Laws of England Vol. 11, Lord Simonds Edition, p. 84). If it had been proved that the Union of India and the appellant had colluded, and the transaction between them was merely colourable, entered into with a view to deprive Jagan Nath of his rights, jurisdiction to issue a writ to or make an or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20. The respondents, on the other hand, contend that the Writ Petition has been justly rejected by the High Court on the ground that the Appellant was pursuing remedy for the same reliefs in substantive proceedings by way of a dispute filed Under Section 64 of the Act of 1960 before the competent Forum. Besides the said proceedings, it was open to the Appellant to take recourse to other appropriate remedy before the Civil Court, to the extent necessary. The High Court in exercise of powers Under Article 226 of the Constitution of India not only exercises an equitable jurisdiction but also an extraordinary jurisdiction. The High Court in any case is not expected to enter upon the plea of declaring agreements and documents executed between private parties as illegal or for that matter void ab initio, which remedy is available before the cooperative Forum or the Civil Court. It was contended that if this contention is accepted, it may not be necessary to answer the other issue noted in the judgment of Justice Dipak Misra as the same can be considered in an appropriate proceedings, if and when the occasion arises. Alternatively, it was contended that the dictum of this Court in Tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Registrar of Companies [2020] 158 SCL 260 (Mad.), the petitioners therein filed writ petition, praying to issue a Writ of Mandamus, directing the Registrar of Companies, 1st respondent therein, and respondents 3 to 6, to permit the petitioners, to induct more directors in the Board of Directors of the 2nd respondent Company viz., Cetex Petro Chemical, to have representation in proportionate to the equity shareholding of the petitioner holding 47.68% to the respondents holding 47.82%, as per the mandatory provisions of Sections 160 and 161(1) of the Indian Companies Act, 2013, and the rules framed thereunder, till then forbearing the respondents 3 to 6 from conducting and the Annual General Meeting on 31-12-2019, in any manner. The background facts, as given in the paragraph 4 of the said judgment, read as under: (i) A company by name M/s. Udhyaman Investments Pvt. Ltd. which is the twelfth Respondent in the first of these three appeals, claiming to be a Financial Creditor, moved an application before the NCLT Chennai, under section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the IBC, 2016), against M/s. Tiffins Barytes Asbestos Paints Ltd., the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o file a fresh writ petition. (viii) However, instead of filing a fresh writ petition (in accordance with the liberty sought), the Resolution Professional moved a Miscellaneous Application No. 632 of 2018, before the NCLT, Chennai praying for setting aside the Order of the Government of Karnataka, and seeking a declaration that the lease should be deemed to be valid upto 31-3-2020 and also a consequential direction to the Government of Karnataka to execute Supplement Lease Deeds for the period upto 31-3-2020. (ix) By an Order dated 11-12-2018, NCLT, Chennai allowed the Miscellaneous Application setting aside the Order of the Government of Karnataka on the ground that the same was in violation of the moratorium declared on 12-3-2018 in terms of section 14(1) of IBC, 2016. Consequently the Tribunal directed the Government of Karnataka to execute Supplement Lease Deeds in favour of the Corporate Debtor for the period upto 31-3-2020. (x) Aggrieved by the order of the NCLT, Chennai, the Government of Karnataka moved a writ petition in WP No. 5002 of 2019, before the High Court of Karnataka. When the writ petition came up for hearing, it was conceded by the Resolution Profession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent appeals. On the basis of the facts and the reliefs sought for, a Hon'ble Division Bench of the Madras High Court, observed thus: 11. As a matter of fact, in this connection, a Company Petition No. 20 of 2018 is pending before the NCLT at Chennai. It is also seen that in said Tribunal, the petitioners had also filed I.A. No. 421 of 2019 and a comparison of the petition therein and the affidavit filed in the present Writ Petition shows that the affidavit is practically a cut and paste of the said petition. The said petition had been filed seeking the following reliefs: i. to set aside the induction of the two Additional Director pursuant to the resolution passed by the Board of Directors on 1-11-2019 in violation of the order passed by this Honourable Tribunal. ii. to pass a direction that the Board of Directors shall have representation in proportion to the equity shareholding of the Petitioners with 47.68% and the respondents with 47.82%. iii. to extend the time for subscription to the rights issue dated 1-11-2019 by a period of 30 days for infusion of entire shortfall of funds ₹ 6.5 Cr. iv. or any other order or orders as this Honourable Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... special cases. The court should also be satisfied that there is no chance of the suit succeeding. 16. In these circumstances, I hold that the Writ jurisdiction cannot be exercised to grant the relief sought by the petitioners, particularly since the Company Petition No. 20 of 2018 is already pending before the NCLT with respect to the very same parties and with respect to the very same issue and I.A. No. 421 of 2019 has been filed for the very same relief, namely seeking representation in proportion with respect to the equity shareholding and re-agitation of the same issue is not permissible under law. 97. On the issue, as to whether writ petition is maintainable under Article 226 of the Constitution of India, when the writ petitioners/respondents 1 2 herein are guilty of suppression of crucial material, let us consider the decisions relied on by the appellants as hereunder. (i) In Jose M.G.. v. State of Kerala. [W.A. No. 919 of 2020, dated 17-7-2020], appellants/writ petitioners therein are fishermen by occupation. They reside at Puthuvype, which forms part of Vypeen Island, a Ramsar site connected to Vembanad backwaters in Kochi taluk, Ernakulam district. An LPG ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Police, Calcutta [(1983) 4 SCC 522], Gulam Abbas v. State of U.P. [(1982) 1 SCC 71], Anuradha Bhasin v. Union of India [W.P. (C) No: 1031/2019], Gulam Nabi Azad v. Union of India [W.P. (C) No. 1164/2019], K.S. Puttaswamy v. Union of India [ (2017) 10 SCC 1], and Mazdoor Kisan Shakti Sangathan v. Union of India Ors. [WP(C) No. 1153 of 2017]. 14. However, it is the admitted case of the appellants that an application dated 30-5-2020, under sub-section (6) of Section 144 of the Cr.P.C. has been sent to the Home Secretary, Government of Kerala, on 2-6-2020. We have perused the copy of the same. Judgment in W.P.(C) No. 10542 of 2020 has been delivered on 17-6-2020. As rightly contended by the learned standing counsel for the Indian Oil Corporation Ltd., Ernakulam, respondent No. 3 herein, submission of an application under sub-section (6) of Section 144 of the Cr.P.C. has not been brought to the notice of the writ court. Thus, having sent an application under sub-section (6) of Section 144 of the Cr.P.C., availing the statutory remedy, the appellants ought to have brought to the notice of the writ court, before the impugned judgment was delivered. 15. Learned counsel for the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question. 13. In Moody v. Cox [(1917) 2 Ch. 71: (1916-17) All ER Rep 548 (CA)], it was held: (All ER pp. 555 I-556 D) It is contended that the fact that Moody has given those bribes prevents him from getting any relief in a court of equity. The first consequence of his having offered the bribes is that the vendors could have rescinded the contract. But they were not bound to do so. They had the right to say? no, we are well satisfied with the contract; it is a very good one for us; we affirm it . The proposition put forward by counsel for the defendants is: It does not matter that the contract has been affirmed; you still can claim no relief of any equitable character in regard to that contract because you gave a bribe in respect of it. If there is a mistake in the contract, you cannot rectify it, if you desire to rescind the contract, you cannot rescind it, for that is equitable relief. With some doubt they said: We do not think you ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed. * * * 1305. He who comes into equity must come with clean hands. A court of equity refuses relief to a plaintiff whose conduct in regard to the subject-matter of the litigation has been improper. This was formerly expressed by the maxim he who has committed iniquity shall not have equity , and relief was refused where a transaction was based on the plaintiff's fraud or misrepresentation, or where the plaintiff sought to enforce a security improperly obtained, or where he claimed a remedy for a breach of trust which he had himself procured and whereby he had obtained money. Later it was said that the plaintiff in equity must come with perfect propriety of conduct, or with clean hands. In application of the principle a person will not be allowed to assert his title to property which he has dealt with so as to defeat his creditors or evade tax, for he may not maintain an action by setting up his own fraudulent design. The maxim does not, however, mean that equity strikes at depravity in a general way; the cleanliness required is to be judged in relation to the relief sought, and the conduct complained of must have an immediate and necessary relation to the equity sued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, a Writ Court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, the Court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible. (iii) In Udyami Evam Khadi Gramodyog Welfare Sanstha v. State of Uttar Pradesh [2008] 1 SCC 560, at paragraphs 16 and 17, the Hon'ble Apex Court, held as follows: 16. A writ remedy is an equitable one. A person approaching a superior court must come with a pair of clean hands. It not only should not suppress any material fact, but also should not take recourse to the legal proceedings over and over again which amounts to abuse of the process of law. In Advocate General, State of Bihar v. M.P. Khair Industrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rated cases upholding this principle, in the Court of Appeal in R. v. Kensington Income-tax Commissioner [1917 (1) K.B. 486] Lord Justice Scrutton formulated as under: and it has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts-facts, now law. He must not misstate the law if he can help it -the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have been fully and fairly stated to it, the Court will set aside any action which it has taken on the faith of the imperfect statement. 59. The aforesaid requirement of coming to Court with clean hands has been repeatedly reiterated by this Court in a large number of cases. Some of which may be noted, they are: Hari Narain v. Badri Das AIR 1963 SC 1558, Welcome Hotel and others v. State of A.P. and others [1983] 4 SCC 575, G. Narayanaswamy Reddy (Dead) by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not sit simply as an umpire in a contest between two parties and declare at the end of the combat as to who has won and who has lost but it has a legal duty of its own, independent of parties, to take active role in the proceedings and reach at the truth, which is the foundation of administration of justice. Therefore, the truth should become the ideal to inspire the courts to pursue. This can be achieved by statutorily mandating the Courts to become active seekers of truth. To enable the courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, prevarication and motivated falsehood, must be appropriately dealt with. The parties must state forthwith sufficient factual details to the extent that it reduces the ability to put forward false and exaggerated claims and a litigant must approach the Court with clean hands. It is the bounden duty of the Court to ensure that dishonesty and any attempt to surpass the legal process must be effectively curbed and the Court must ensure that there is no wrongful, unauthorised or unjust gain to anyone as a result of abuse of the process of the Court. One way to curb this tendency is to impose re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impermissible to a litigant or even as a technique of advocacy. In such cases, the Court is duty bound to discharge rule nisi and such applicant is required to be dealt with for contempt of court for abusing the process of the court. [K.D. Sharma v. Steel Authority of India Ltd. Ors. [(2008) 12 SCC 481]. 36. Another settled canon of administration of justice is that no litigant should be permitted to misuse the judicial process by filing frivolous petitions. No litigant has a right to unlimited drought upon the court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be used as a licence to file misconceived and frivolous petitions. [Buddhi Kota Subbarao (Dr.) v. K. Parasaran [1996] 5 SCC 530]. 98. Applying the principles of law laid down by the Hon'ble Supreme court, as regards suppression, equitable remedy and clean hands under Article 226 of the Constitution of India, to the case on hand, we are of the view that there is suppression of material facts in the writ petition. 99. On the issue as to whether, the Tribunal should be made a party in a petition filed under Article 226 of the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Phudan Manjhi nor Bhagwan Rajak in whose favour the Board of Revenue decided the petition, was made a party. It is represented to us that pursuant to the orders of the Board of Revenue the Deputy Commissioner made an enquiry, came to the conclusion that Phudan Manjhi was not fit to be selected for the grant of a licence, and that he has not yet made a fresh settlement in view of the pendency of the present appeal. After considering the above facts, the Hon'ble Apex Court observed thus: 6. The question is whether in a writ in the nature of certiorari filed under Art. 226 of the Constitution the party or parties in whose favour a tribunal or authority had made an order, which is sought to be quashed, is or are necessary party or parties. While learned Additional Solicitor General contends that in such a writ the said tribunal or authority is the only necessary party and the parties in whose favour the said tribunal or authority made an order or created rights are not necessary parties but may at best be only proper parties and that it is open to this Court, even at this very late stage, to direct the impleading of the said parties for a final adjudication of the contro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting rights of subjects and (3) having the duty to act judicially (4) act in excess of their legal authority - a writ of certiorari may issue . It will be seen from the ingredients of judicial act that there must be a duty to act judicially. A tribunal, therefore, exercising a judicial or quasi-judicial act cannot decide against the rights of a party without giving him a hearing or an opportunity to represent his case in the manner known to law. If the provisions of a particular statute or rules made thereunder do not provide for it, principles of natural justice demand it. Any such order made without hearing the affected parties would be void. As a writ of certiorari will be granted to remove the record of proceedings of an inferior tribunal or authority exercising judicial or quasi-judicial acts, ex hypothesi it follows that the High Court in exercising its jurisdiction shall also act judicially in disposing of the proceedings before it. It is implicit in such a proceeding that a tribunal or authority which is directed to transmit the records must be a party in the writ proceedings, for without giving notice to it, the record of proceedings cannot be brought to the High Court. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition filed for the issue of a writ of certiorari without making him a party or without impleading him subsequently, if allowed by the court, would certainly be incompetent. A party whose interests are directly affected is, therefore, a necessary party. 10. In addition, there may be parties who may be described as proper parties, that is parties whose presence is not necessary for making an effective order but whose presence may facilitate the settling of all the questions that may be involved in the controversy. The question of making such a person as a party to a writ proceeding depends upon the judicial discretion of the High Court in the circumstances of each case. Either one of the parties to the proceeding may apply for the impleading of such a party or such a party may suo motu approach the court for being impleaded therein. 11. The long established English practice, which the High Courts in our country have adopted all along, accepts the said distinction between the necessary and the proper party in a writ of certiorari. The English practice is recorded in Halsbury's Laws of England, Vol. 11, 3rd Edn. (Lord Simonds') thus in paragraph 136 : The notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that notice to show cause against the issuance of the writ must be given, and they are the only parties who may make return, or who may demur. The omission to make parties those officers whose proceedings it is sought to direct and control, goes to the very right of the relief sought. But in order that the court may do ample and complete justice, and render a judgment which will be binding on all persons concerned, all persons who are parties to the record, or who are interested in maintaining the regularity of the proceedings of which a review is sought, should be made parties respondent. This passage indicates that both the authority whose order is sought to be quashed and the persons who are interested in maintaining the regularity of the proceeding of which a review is sought should be added as parties in a writ proceeding. A division Bench of the Bombay High Court in Ahmedalli v. M. D. Lalkaka AIR 1954 Bom. 33, laid down the procedure thus : I think we should lay down the rule of practice that whenever a writ is sought challenging the order of a Tribunal, the Tribunal must always be a necessary party to the petition. It is difficult to understand how under any circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the impleadment of the Court or Tribunal as a party. The special Bench has held that even if application is described as one not only under Art.226 of the Constitution, but also under Art.227, the Court or Tribunal whose order is sought to be quashed, if not arrayed as a party, the application would not be maintainable as one of the relief of certiorari, in the absence of the concerned Tribunal or Court as a party, cannot be granted. It has also been held that if the Court or Tribunal has not been impleaded as party -respondent in the main writ petition, then by merely impleading such Court or Tribunal for the first time in letters patent appeal would not change the nature and character of the proceeding before the learned Single Judge and, therefore, intra - Court appeal would not be maintainable. To arrive at the said conclusion, the High Court has referred to Messrs. Ghaio Mal Sons v. State of Delhi and Others 1959 KHC 455 : AIR 1959 SC 65, Hari Vishnu Kamath v. Ahmad Ishaque and Others AIR 1955 SC 233 and relied upon a four - Judge Bench judgment in Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue AIR 1963 SC 786. ** ** ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajak who were necessary parties to the writ petition were not made parties, the High Court was justified in dismissing the writ petition in limini. This Court accepted the preliminary objection holding that the law on the subject is well settled that a person who is a necessary party is one without whom no order can be made effectively and a proper party is one in whose absence an effective order can be made but his presence is necessary for complete and final decision on the question involved in the proceeding. After so stating, the four - Judge Bench proceeded to deal with the nature of writ of certiorari and reproduced a passage from King v. Electricity Commissioners 1924 (1) KB, which is as follows: 8. ....Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs. Lord Justice Slesser in King v. London County Council 1931 (2) KB 215, (243 dissected the concept of judicial act laid down by Atkin, L. J., into the following heads in his j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arty, it will not be liable to contempt. In these circumstances whoever else is a necessary party or not the authority or Tribunal is certainly a necessary party to such a proceeding. In this case, the Board of Revenue and the Commissioner of Excise were rightly made parties in the writ petition. Thereafter, the Court proceeded to lay down thus: 9. The next question is whether the parties whose rights are directly affected are the necessary parties to a writ petition to quash the order of a Tribunal. As we have seen, a Tribunal or authority performs a judicial or quasi - judicial act after hearing parties. Its order affects the right or rights of one or the other of the parties before it. In a writ of certiorari the defeated party seeks for the quashing of the order issued by the Tribunal in favour of the successful party. How can the High Court vacate the said order without the successful party being before it? Without the presence of the successful party the High Court cannot issue a substantial order affecting his right. Any order that may be issued behind the back of such a party can be ignored by the said party, with the result that the Tribunal's order would be qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e such directions is not correct as the true scope of certiorari is that it merely demolishes the offending order and hence, the presence of the offender before the Court, though proper is not necessary for the exercise of the jurisdiction or to render its determination effective. 31. In Udit Narain Singh (supra), the fulcrum of the controversy was non-impleadment of the persons in whose favour the Board of Revenue had passed a favourable order. There was violation of fundamental principles of natural justice. A party cannot be visited with any kind of adverse order in a proceeding without he being arrayed as a party. As we understand in Hari Vishnu Kamath (supra), the seven - Judge Bench opined that for issuance of writ of certiorari, a Tribunal, for issue of purpose of calling of record, is a proper party, and even if the Tribunal has ceased to exist, there would be some one in - charge of the Tribunal from whom the records can be requisitioned and who is bound in law to send the records. The larger Bench has clearly stated that while issuing a writ of certiorari, the Court merely demolishes the defending order, the presence of the offender before the Court though proper but i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and made clear by the Supreme Court in Udit Narain (supra) laying down as an absolute proposition of law that no writ could be issued under Art.226 of the Constitution without the Tribunal, whose order is sought to be impugned, is made a party respondent. 34. As we notice, the decisions rendered in Hari Vishnu Kamath (supra), Udit Narain Singh (supra) and Savitri Devi (supra) have to be properly understood. In Hari Vishnu Kamath (supra), the larger Bench was dealing with a case that arose from Election Tribunal which had ceased to exist and expressed the view how it is a proper party. In Udit Narain Singh (supra), the Court was really dwelling upon the controversy with regard to the impleadment of parties in whose favour orders had been passed and in that context observed that Tribunal is a necessary party. In Savitri Devi (supra), the Court took exception to Courts and Tribunals being made parties. It is apposite to note here that propositions laid down in each case has to be understood in proper perspective. Civil Courts, which decide matters, are Courts in the strictest sense of the term. Neither the Court nor the Presiding Officer defends the order before the superior Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Tribunals or authorities, would depend upon many a facet. The court - fee payable on a petition to make it under Art.226 or Art.227 or both, would depend upon the rules framed by the High Court. (B) The order passed by the Civil Court is only amenable to be scrutinized by the High Court in exercise of jurisdiction under Art.227 of the Constitution of India which is different from Art.226 of the Constitution and as per the pronouncement in Radhey Shyam (supra), no writ can be issued against the order passed by the Civil Court and, therefore, no letters patent appeal would be maintainable. (C) The writ petition can be held to be not maintainable if a Tribunal or authority that is required to defend the impugned order has not been arrayed as a party, as it is a necessary party. (D) Tribunal being or not being party in a writ petition is not determinative of the maintainability of a letters patent appeal. (iii) In M.S. Kazhi (supra), relied on by the writ petitioners/respondents, the issue whether a Tribunal or Court, whose order is challenged in a proceedings under Articles 226 and 227 of the Constitution, is a necessary party to the proceedings has been considered by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case (cited supra) held that the Tribunal has to be added as a party, in the latter decisions, the Hon'ble Apex Court clarified that the Tribunal not being required to defend the proceedings under Article 226 or 227 of the Constitution of India, and hence, writ petition is maintainable, without the Tribunal being impleaded. In view of the subsequent decisions of the Hon'ble Apex Court, we are not inclined to accept the contention of the learned counsel for the appellants. 101. One of the contentions raised before us is that the judgment in W.P.(C) No. 41662/2017 dated 21-12-2017 passed by one of us (Hon'ble Mr. Justice Shaji P. Chaly), is a precedent, which enables the writ petitioners/respondents 1 2 to file instant writ petitions and on the contrary, relying on the decisions in Kasi S. (supra), Sundarjas Kanyalal Bhathija v. Collector [(1989) 3 SCC 396] and Ehvees (supra), learned counsel for the appellants submitted that the above said judgment is not a precedent. 102. In Sundarjas Kanyalal Bhathija (cited supra), the Hon'ble supreme Court, at paragraphs 17 to 20 held thus: 17. It would be difficult for us to appreciate the judgment of the High Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se and chose to examine the question himself. 20. The Chief Justice Pathak, in a recent decision stressed the need for a clear and consistent enunciation of legal principle in the decisions of a Court. Speaking for the Constitution Bench (Union of India v. Raghubir Singh 1989 (2) SCC 754: (AIR 1989 SC 1933) learned Chief Justice said (at p. 766) (of SCC) (at p. 1939 of AIR): The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a Court. Cardozo propounded a similar thought with more emphasis : I am not to mar the symmetry of the legal structure by the introduction of inconsistencies and irrelevancies and artificial exceptions unless for some sufficient reason, which will commonly by some consideration of history or custom or policy of justice. Lacking such a reason, I must be logical just as I must be impartial, and upon like grounds. It will no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discipline while taking a contrary and diagonally opposite view to one which have been taken by another learned Single Judge in Settu v. The State (supra). The contrary view taken by learned Single Judge in the impugned judgment is not only erroneous but also sends wrong signals to the State and the prosecution emboldening them to act in breach of liberty of a person. 33. We may further notice that learned Single Judge in the impugned judgment had not only breached the judicial discipline but has also referred to an observation made by learned Single Judge in Settu v. The State as uncharitable. All Courts including the High Courts and the Supreme Court have to follow a principle of Comity of Courts. A Bench whether coordinate or Larger, has to refrain from making any uncharitable observation on a decision even though delivered by a Bench of a lesser coram. A Bench sitting in a Larger coram may be right in overturning a judgment on a question of law, which jurisdiction a Judge sitting in a coordinate Bench does not have. In any case, a Judge sitting in a coordinate Bench or a Larger Bench has no business to make any adverse comment or uncharitable remark on any other judgment. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y will attach such weight as they consider proper. A persuasive precedent depends for its influence upon its own merits.... A decision of a High Court Judge of a State is regarded as binding on all the subordinate courts in that State. A decision of a Division Bench of a High Court is regarded as binding on Judges of the same High Court sitting singly in the High Court. A decision of a Full Bench, i. e. a Bench of at least 3 Judges of a High Court is considered binding on all Division Benches of the same High Court... A decision of a High Court Judge sitting singly is not legally binding on another Judge of the same High Court sitting singly. So also a decision of a Division Bench of a High Court is not legally binding on another Division Bench of the same High Court. A decision of a Full Bench is not legally binding on another Full Bench of the same Court. One Judge of a High Court has however, no right to overrule the decision of another Judge of the same High Court nor has one Division Bench of a High Court the legal right to overrule another decision of a Division Bench of the same High Court.... The rule that a court should follow the decision of another Court of coordinate ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 1177, it was held that judicial discipline as well as decorum suggested only one course when a Bench wanted to differ from the decision of a co-ordinate court and that was to refer to a larger Bench. (vii) In Sonal Sihimappa v. State of Karnataka and Ors. reported in AIR 1987 SC 2359, it was observed, In a precedent-bound judicial system, binding authorities have got to be respected and the procedure for developing the law has to be one of evolution. (viii) The Hon'ble Chief Justice Pathak, speaking for the Constitution Bench, in Union of India v. Raghubir Singh reported in AIR 1989 SC 1933, said: The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court. (ix) In Sundaradas Knyalal Bhathija v. The Collector, Thane reported in AIR 1991 SC 1893, the law is stated thus: 17. It would be difficult for us to appreciate the judgment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) The position in regard to the binding nature of the decisions of a High Court on different Benches of the same court may be summed up as follows: (i) A single judge of a High Court is bound by the decision of another single judge or a Division Bench of the same High Court. It would be judicial impropriety to ignore that decision. Judicial comity demands that a binding decision to which his attention had been drawn should neither be ignored nor overlooked. If he does not find himself in agreement with the same, the proper procedure is to refer the binding decision and direct the papers to be placed before the Chief Justice to enable him to constitute a larger Bench to examine the question (see Food Corporation of India v. Yadav Engineer and Contractor AIR 1982 SC 1302). (ii) A Division Bench of a High Court should follow the decision of another Division Bench of equal strength or a Full Bench of the same High Court. If one Division Bench differs from another Division Bench of the same High Court, it should refer the case to a larger Bench. (iii) Where there are conflicting decisions of courts of coordinate jurisdiction, the later decision is to be preferred if reached a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi. ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi. Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e it, two situations need to be carefully distinguished. One is where a case is rejected as being no longer law on the ground that it is now thought never to have represented the law; the other is where a case, which is acknowledged to have been the law at the time, has ceased to have that character owing to altered circumstances. (See Dias Jurisprudence, 5th Edn., pp. 146- 47.) 336. It is the latter situation which is often of relevance. With changes that are bound to occur in an evolving society, the judiciary must also keep abreast of these changes in order that the law is considered to be good law. This is extremely pertinent especially in the current era of globalisation when the entire philosophy of society, on the economic front, is undergoing vast changes. 339. Judicial discipline envisages that a coordinate Bench follow the decision of an earlier coordinate Bench. If a coordinate Bench does not agree with the principles of law enunciated by another Bench, the matter may be referred only to a larger Bench. (See Pradip Chandra Parija v. Pramod Chandra Patnaik [2003] 7 SCC 01, SCC at paras 6 and 7; followed in Union of India v. Hansoli Devi 2002 (7) SCC 01, SCC at para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into consideration the contentions put forth by the petitioner in the appeal pending before the 4th respondent Tribunal. It is also submitted by the learned Senior Counsel for the petitioner that even though Ext.P4 is an appealable order, the same is creating a lot of legal consequences in the petitioners functioning as the Managing Director as well as the Director of the company causing innumerable difficulties. Thereafter, Ext.P5 notice is issued directing to implement the directives contained under Ext.P4. 2. Taking into account the submission made by the learned Senior Counsel for the petitioner, I think it is only appropriate that some time is provided to the petitioners to file an appeal in accordance with the Companies Act and Rules,2013. Therefore, I leave open the liberty of the petitioner to prefer the appeal within the time permitted under law, which according to the petitioner is 45 days and the petitioner has sought time till 26-1-2018. Therefore, it is only appropriate that the proceedings pertaining to Exts.P4 and P5 is directed to be deferred for a period of one month from today. Accordingly, I do so. The writ petition is disposed of accordingly. 106. Per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the provisions of the Companies Act, 2013 against any order of NCLT, an appeal lies to National Companies Appellate Tribunal. In such situation, we are of the view that the learned single Judge ought not to have entertained the writ petition nor passed the interim order. We accordingly vacate the interim order and dismiss the writ petition with liberty to the parties to move the NCLT in the matter for whatever relief they may seek. This appeal is accordingly allowed. 107. W.P.(C) No. 14341 of 2020 was filed on 13-7-2020 under Article 226 of the Constitution of India, to set aside the interim order made in I.A. No. 83/2020 in C.P. No. 114/KOB/2019 dated 9-7-2020, on the file of the National Company Law Tribunal, Kochi Bench. Rule 49 of the National Company Law Tribunal Rules, 2016, extracted above, deals with ex parte hearing. Admittedly, the writ petitioners/respondents 1 2 have not chosen to file an application under Rule 49(2) to set aside the ex parte interim order. Whereas, they have chosen to file a writ petition under Article 226 of the Constitution of India, on 13-7-2020. However, after curing the defects, the writ petition has been listed for admission on 15-7-202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenged by way of an appeal, placing reliance on the decisions on the scope of revision petition filed under Article 227 of the Constitution of India, the Hon'ble High Court of Madras interfered with the publication and granted liberty to the petitioner to take appropriate recourse. 112. One of the contentions raised by the learned counsel for the appellants is that the appellants were not furnished with the full cause papers in W.P.(C) No. 14341 of 2020 other connected cases, so as to enable them to file a counter affidavit and thus, there is denial of reasonable opportunity. In this context, let us have a look at Rule 153A of the Rules of the High Court of Kerala, 1971, which reads thus: 153A. Exchange of copies of pleadings etc.-Copies of pleadings, petitions, applications and affidavits, counter affidavits, reply affidavits and rejoinders shall be served on all the parties appearing in the case, through counsel or otherwise, except when the Court, by order exempts from doing so. 113. In the case on hand, writ petition has been filed on 13-7-2020, and certain defects noticed by the Registry, were cured. Thereafter, the writ petition was taken up on 15-7-2020. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction to decide a matter, it does not lose its jurisdiction by coming to a wrong conclusion whether it is wrong in law or in fact. The question, whether a tribunal has jurisdiction depends not on the truth or falsehood of the facts into which it has to enquire, or upon the correctness of its findings on these facts, but upon their nature, and it is determinable at the commencement, not at the conclusion, of the inquiry'. (Rex v. Bolten [1841] I Q.B. 66. Thus, a tribunal empowered to determine claims for compensation for loss of office has jurisdiction to determine all questions of law and fact relating to the measure of compensation and the tenure of the office, and it does not exceed its jurisdiction by determine any of those questions incorrectly but it has no jurisdiction to entertain a claim for reinstatement or damages for wrongful dismissal, and it will exceed its jurisdiction if it makes an order in such terms, for it has no legal power to give any decision whatsoever on those matters. A tribunal may lack jurisdiction if it is improperly constituted, or if it fails to observe certain essential preliminaries to the inquiry. But it does not exceed its jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner [1969] 1 All ER 208, Lord Reid, at pages 213 and 214 of the Report, stated as under: It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the words jurisdiction has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the enquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in had faith. It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. In the same case, Lord Pearce said: Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an enquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or, in the intervening stage while engaged on a proper enquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which the Parliament did direct. Any of these things would cause its purported decision to be a nullity. The dicta of the majority of the House of Lords in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court comes to the conclusion, as the learned single Judge has done in this case, that the Income-tax Officer had clutched at the jurisdiction by deciding a jurisdictional fact erroneously, then the assesses was entitled for the writ of certiorari prayed for by him. It is incomprehensible to think that a quasi-judicial authority like the Income-tax Officer can erroneously decide a jurisdictional fact and thereafter proceed to impose a levy on a citizen. In our opinion the Appellate Bench is wholly wrong in opining that the Income-tax Officer can decide either way . (vi) In Smt. Shrisht Dhawan v. Shaw Brothers [1992] 1 SCC 534, the Hon'ble Supreme Court, at paragraph 19, held thus:- 19....What, then, is an error in respect of jurisdictional fact? A jurisdictional fact is one on existence or non-existence of which depends assumption or refusal to assume jurisdiction by a Court, tribunal or an authority. In Black's Legal Dictionary it is explained as a fact which must exist before a court can properly assume jurisdiction of a particular case. Mistake of fact in relation to jurisdiction is an error of jurisdictional fact. No statutory authority or tribunal can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission, the legal world seems to have accepted that any 'jurisdictional error' as understood in the liberal or modern approach, laid down therein, makes a decision ultra vires or a nullity or without jurisdiction and the 'ouster clauses' are construed restrictively and such provisions whatever their stringent language be, have been held, not to prevent challenge on the ground that the decision is ultra vies and being a complete nullity, it is not a decision within the meaning of the Act. The concept of jurisdiction has acquired 'new dimensions'. The original or pure theory of jurisdiction means 'the authority to decide' and it is determinable at the commencement and not at the conclusion of the enquiry. The said approach has been given a go-by in Anisminic case as we shall see from the discussion hereinafter (See De Smith, Woolf and Jowell-Judicial Review of Administrative Action (1995 Edn.) p.238, Halsbury's Laws of England (4th Edn.) p. 114, para 67, footnote (9). As Sir William Wade observes in his book, Administrative Law (7th Edn.), 1994, at p.229: The tribunal must not only have jurisdiction at the outset, but must retain it unimpair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ist to be exhaustive. In the same case, Lord Pearce said: 'Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an enquiry. Or the tribunal may, at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper enquiry, the tribunal may, depart from the rules of natural justice, or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby, it would step outside its jurisdiction. It would turn its enquiry into something not directed by Parliament and fail to make the enquiry which Parliament did direct. Any of these things would cause its purported decisions to be a nullity.' 11. The dicta of the majority of the House of Lords, in the above case, would show the extent to which 'lack' and 'excess' of jurisdiction have been assimilated or, in other words, the extent to which we have moved away from the traditional concept of 'jurisdiction'. The effect of the dicta in that case is to reduce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seen from the footnotes. It should be stated that the said observation is omitted form the latest edition of the book De Smith, Woolf and Jowell -Judicial Review of Administrative Action - 5th Edn. (1995) as is evident from p.229; probably due to later developments in the law and the academic opinion that has emerged due to the change in the perspective. 335. After 1980, the decision in Anisminic case came up for further consideration before the House of lords, Privy Council and other courts. The three leading decisions of the House of Lords wherein Animinic principle was followed and explained, are the following: Racal Communications Ltd., In re 1981 AC 374, O' Reilly v. Mackman 1983 (2) AC 237, Re. v. Hull University Visitor 1993 AC 682. It should be noted that Racal, In re cae, the Anisminic principle was held to be inapplicable in the case of (superior) court where the decision of the court is made final and conclusive by the statute. (The superior court referred to in this decision is the High Court) (1981 AC 374 (383, 384, 386, 391)). In the meanwhile, the House of Lords, in Council of Civil Service Unions v. Minister for the Civil Service (1985 AC 374), enunciated thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... installation, a question which also entails considerations of degree. It is however, doubtful whether any test of jurisdictional error will prove satisfactory. The distinction between jurisdictional and non-jurisdictional error is ultimately based upon foundations of sand. Much of the superstructure has already crumbled. What remains is likely quickly to fall away as the courts rightly insist that all administrative action should be, simply, lawful, whether or not jurisdictionally lawful.' 336. The jurisdictional control exercised by superior courts over subordinate courts, tribunals or other statutory bodies and the scope and content of such power has been pithily stated in Halsbury's Laws of England - 4th Edn. (Reissue), 1989 Vol. 1(1), p.113 to the following effect: The inferior court or tribunal lacks jurisdiction if it has no power to enter upon an enquiry into a matter at all and it exceeds jurisdiction if it nevertheless enters upon such an enquiry or, having jurisdiction in the first place, it proceeds to arrogate an authority withheld from it by perpetrating a major error of substance, form or procedure or by making an order or taking action outside its l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... swering the wrong question, taking irrelevant considerations into account or failing to take relevant considerations into account when purporting to apply the law to the facts; admitting inadmissible evidence or rejecting admissible and relevant evidence; exercising a discretion on the basis of incorrect legal principles; giving reasons which disclose faulty legal reasoning or which are inadequate to fulfil an express duly to give reasons and misdirecting oneself as to the burden of proof.(pp. 121-122). 337. H.W.R. Wade and C.F. Forsyth in their book-Administrative Law 7th Edn.(1994) discuss the subject regarding the jurisdiction of superior courts over subordinate courts and tribunals under the head 'jurisdiction over Fact and Law' in Chapter 9, pp.284 to 320. The decisions before Anisminic and those in the post-Anisminic period have been discussed in detail. At pp.319-320, the authors give the Summary of Rules thus: 'Jurisdiction over fact and law: Summary At the end of a chapter which is top-heavy with obsolescent material it may be useful to summarise the position as shortly as possible. The overall picture is of an expanding system struggling to free itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compulsory purchase was made which was challenged by the owner contending that the land was a part of park. The Minister directed public inquiry and on the basis of the report submitted, confirmed the order. 81. Interfering with the finding of the Minister and setting aside the order, the Court of Appeal stated: The first and the most important matter to bear in mind is that the jurisdiction to make the order is dependent on a finding of fact; for, unless the land can be held not to be part of a park or not to be required for amenity or convenience, there is no jurisdiction in the borough council to make, or in the Minister to confirm, the order. In such a case it seems almost self-evident that the Court which has to consider whether there is jurisdiction to make or confirm the order must be entitled to review the vital finding on which the existence of the jurisdiction relied upon depends. If this were not so, the right to apply to the Court would be illusory. [See also Rex v. Shoredich Assessment Committee; [1910] 2 KB 859: 80 LJ KB 185]. 82. A question under the Income-tax Act, 1922 arose in Raza Textiles Ltd. v. Income-tax Officer, Rampur, [1973] 1 SCC 633. In that c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2007] 1 SCC 559, the Hon'ble Supreme Court, at paragraph Nos. 21 to 24 and 31, held thus:- 21. Stated simply, the fact or facts upon which the jurisdiction of a Court, a Tribunal or an Authority depends can be said to be a 'jurisdictional fact'. If the jurisdictional fact exists, a Court, Tribunal or Authority has jurisdiction to decide other issues. If such fact does not exist, a Court, Tribunal or Authority cannot act. It is also well settled that a Court or a Tribunal cannot wrongly assume existence of jurisdictional fact and proceed to decide a matter. The underlying principle is that by erroneously assuming existence of a jurisdictional fact, a subordinate Court or an inferior Tribunal cannot confer upon itself jurisdiction which it otherwise does not posses. 22. In Halsbury's Laws of England, (4th Edn.), Vol. 1, para 55, p.61; Reissue, Vol. 1(1), para 68, pp. 114-15, it has been stated: Where the jurisdiction of a tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described as preliminary to, or collateral to the merits of the issue. If, at the inception of an inquiry by an inferior tribunal, a challen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermine the particular case involved; the power of a Court or a judge to entertain an action, petition, or other proceeding; the legal power of hearing and determining controversies. As applied to a particular claim or controversy, jurisdiction is the power to hear and determine the controversy. Jurisdiction, therefore, means the authority or power to entertain, hear and decide a case and to do justice in the case and determine the controversy. In absence of jurisdiction the court has no power to hear and decide the matter and the order passed by it would be a nullity. (xii) In Ramesh Chandra Sankla v. Vikram Cement [2008] 14 SCC 58, the Hon'ble Supreme Court, at paragraphs 68 to 70, held thus:- 68. A 'jurisdictional fact' is one on existence of which depends jurisdiction of a Court, Tribunal or an Authority. If the jurisdictional fact does not exist, the Court or Tribunal cannot act. If an inferior Court or Tribunal wrongly assumes the existence of such fact, a writ of certiorari lies. The underlying principle is that by erroneously assuming existence of jurisdictional fact, a subordinate Court or an inferior Tribunal cannot confer upon itself jurisdiction wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the definition State under Article 12 of the Constitution of India. 117. Writ petition filed under Article 226 of the Constitution of India, can be for the enforcement of fundamental rights or for any other purpose, as envisaged under Article 226 of the Constitution. There is no pleadings or materials to substantiate that the appellants are discharging public duties or public functions, and thus, amenable to writ jurisdiction under Article 226 of the Constitution of India. 118. On a scrutiny of the decisions extracted above, it is clear that insofar as challenge to the judicial acts of the Courts or the Tribunals, in exercise of the powers under Article 227 of the Constitution of India, the High Court exercises overall superintendence on such Tribunals under Article 227. Orders by Courts or Tribunals, as the case may be, can be challenged by way of filing a writ petition under Article 227 of the Constitution of India, and the administrative orders passed by the Courts, or the Tribunals, as the case may be, can be challenged under Article 226 of the Constitution. Administrative orders passed by the State, authority or instrumentality of the State, can be challenged by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred]. In exercising its discretion to entertain a particular case under Article 226, a High Court may take into consideration various factors including the nature of the injustice that is alleged by the petitioner, whether or not an alternate remedy exists, or whether the facts raise a question of constitutional interpretation. These factors are not exhaustive and we do not propose to enumerate what factors should or should not be taken into consideration. It is sufficient for the present purposes to say that the High Court must take a holistic view of the facts as submitted in the writ petition and make a determination on the facts and circumstances of each unique case. 23. At this juncture, it is worth discussing the decision of this Court in Aligarh Muslim University v. Vinay Engineering [1994] 4 SCC 710. In that case, the contract between the parties contained a clause conferring jurisdiction on the courts at Aligarh. When the High Court of Calcutta exercised its writ jurisdiction over the matter, this Court h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 invoking the principle of forum non conveniens in an appropriate case. The High Court must look at the case of the Appellant holistically and make a determination as to whether it would be proper to exercise its writ jurisdiction. We do not express an opinion as to what factors should be considered by the High Court in the present case, nor the corresponding gravity that should be accorded to such factors. Such principles are well known to the High Court and it is not for this Court to interfere in the discretion of the High Court in determining when to engage its writ jurisdiction unless exercised arbitrarily or erroneously. The sole and absolute reliance by the Bombay High Court on clause 21 of the Constitution and Bye Laws to determine that its jurisdiction under Article 226 is ousted is however one such instance. 27. We accordingly allow the appeal and set aside the impugned judgment and order of the High Court dated 25 September 2018. Writ Petition No. 7770 of 2017 is accordingly restored to the file of the High Court for being considered afresh. No costs. 121. Applying the above said decision to the case on hand, we are of the view that the writ court, while entertai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India v. G.R. Prabhavalkar [1973] 4 SCC 183. In para 23 of the decision, it was observed as follows: 23. Mr Singhvi, learned counsel, then referred us to the fact that after the judgment of the High Court the State Government has passed an order on 19-3-1971, the effect of which is to equate the Sales Tax Officers of the erstwhile Madhya Pradesh State with the Sales Tax Officers, Grade III, of Bombay. This order, in our opinion, has been passed by the State Government only to comply with the directions given by the High Court. It was made during a period when the appeal against the judgment was pending in this Court. The fact that the State Government took steps to comply with the directions of the High Court cannot lead to the inference that the appeal by the Union of India has become infructuous. 6. The expression infructuous means ineffective, unproductive and unfruitful. It is derived from the Latin word fructus (fruit). By implementing an order, the challenge to the validity of the order is not wiped out and is not rendered redundant. 125. Reverting to the case on hand, it could be seen that when the Writ Appeal has been filed challenging the very maintainabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is not void, it is merely error to be corrected on appeal or by motion to vacate, timely made, but as long as it stands it is binding on every one.' There is plausibility in the propositions taken in their generality, but there are opposing ones. Courts are constituted by authority and they cannot beyond the power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not voidable, but simply void, and this even prior to reversal. Elliott v. Peirsol, 1 Pet. 328, 340, 7 L. Ed. 164; Old Wayne Life Ass'n v. McDonough 204 U. S. 8, 27 Sup. Ct. 236, 51 L. Ed. 345. (iii) In Charles A. Williamson v. Joseph Berry., 49 US 495 (1850), the Hon'ble Supreme Court of U.S opined as under: Courts are constituted by authority and they cannot go beyond that power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities; they are not voidable, but simply void, and this even prior to reversal. (iv) In Margaret Klugh v. United States of America, [620 F. Supp. 892] (1985), September 6, 1985], ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. 18. In Sultan Sadik v. Sanjay Raj Subba and Ors. AIR 2004 SC 1377, this Court took a similar view observing that once an order is declared non-est by the Court only then the judgment of nullity would operate erga omnes i.e. for and against everyone concerned. Such a declaration is permissible if the court comes to the conclusion that the author of the order lacks inherent jurisdiction/competence and therefore, it comes to the conclusion that the order suffers from patent and latent invalidity. 19. Thus, from the above, it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the Court for seeking such a declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the Court may refuse to quash the same on various grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ara 7, the Hon'ble Apex Court observed thus: 7. In this connection it should be remembered that there is a fundamental distinction between want of jurisdiction and irregular assumption of jurisdiction, and that whereas an order passed by an authority with respect to a mattar over which it has no jurisdiction is a nullity and is open to collateral attack, an order passed by an authority which has jurisdiction over the matter, but has assumed it otherwise than in the mode prescribed by law, is not a nullity. It may be liable to be questioned in those very proceedings, but subject to that it is good, and not open to collateral attack (ix) In S. Balasubramaniyam v. P. Janakaraju ILR 2004 KAR 2442, at paragraphs 18 19, the Hon'ble High Court of Karnataka held as under: 18. There is a clear difference between orders which are 'void' and orders which are 'voidable'. The term 'void' is used referring to contracts or orders which can be ignored with impunity by those who are parties to it. The term 'voidable' is used referring to contracts or orders which may be enforced until set aside. No order of Court wears the brand 'null an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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