ORDER
A.K. Patnaik, C.J. and Dipak Misra, J.
1. Perceiving two conflicting views, one expressed in Smt. Shiva Dubey (Jheera) v. Sumit Ranjan Dubey (Jheera) (W.A. No. 310/06), Lakhan Lal Sonkar v. Gun Carriage Factory, 2007(1) M.P.H.T. 335 and State of M.P. v. M.S. Wakankar (2007) 1 MPLJ 99 and the other in Mis. Ram and Co. v. State of M.P. and Anr. W.A. No. 342/06 : 2007(3) M.P.H.T. 325 (DB) pertaining to the maintainability of writ appeal under the provision of the M.P. Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 (for brevity 'the Act') the Division Bench referred the matter to the Larger Bench to put the controversy to rest and further to have the certitude in the field on certain parameters. Be it placed on record that the cavil relates to the bar provided under the proviso to Sub-section (1) to Section 2 of the Act as regards the entertain ability and acceptability of an appeal from an order passed under Article 227 of the Constitution of India. In this factual backdrop the matter has been placed before us.
2. At the outset it is condign to mention that there is no necessity for advertence to the facts since the only question that has spiralled for delineation is whether the Act by way of incorporation of the proviso to Section 2 of the Act creates a bar for entertaining an appeal from an order passed under Article 227 of the Constitution, and further there is employment of the expression 'in exercise of original jurisdiction' in the main part of the said section whether the appeal has to be restricted to an order passed under Article 226 of the Constitution exclusively.
3. Mr. R.S. Jaiswal, learned Senior Counsel appearing for the appellant has submitted that the law laid down in the cases of Smt. Shiva Dubey (supra) and Lakhan Lal Sonkar (supra), is absolutely correct inasmuch as the said decisions are in consonance with the view expressed by the Apex Court in many a judgment. It is urged by him that the phraseology used 'in exercise of its original jurisdiction' cannot be interpreted in isolation to convey and mean only an order under Article 226 of the Constitution in the sense that the order under challenge is not from the inferior Forums or Tribunals in exercise of supervisory jurisdiction. It is his submission that the pleadings as a whole in the writ petition are to be scrutinised and the nature and various aspects of the order passed by the learned Single Judge are to be scanned to find out whether it is an order under Article 226 or under Article 227 of the Constitution for there cannot be a straitjacket formula or a mechanical process to treat an order passed by a learned Single Judge to be one under Article 226 or 227 of the Constitution as there can be overlapping and interlinking.
4. Mr. R.K. Verma, learned Counsel appearing for the contesting respondent No. 1, sounding a contra note, canvassed that when the language of the statute is absolutely unambiguous and clear, the same has to be followed in letter and spirit and by the interpretative process nothing should be incorporated to convey or place a different meaning. It is argued by him that there is a significant distinction between an order under Article 226 and one under Article 227 of the Constitution and if an order arising from a Civil Court or a Tribunal or any other Statutory Forum is challenged in a writ petition, the order passed in the writ petition has to be exclusively regarded as one under Article 227 of the Constitution and no other concept is invited. It is his further submission that in the decision rendered in the case of Ram & Co. (supra), there has been apposite analysis of the terminology 'in exercise of original jurisdiction' and, therefore, the said decision should be given the stamp of approval and concurred with the Larger Bench.
5. To appreciate the rivalised submissions raised at the Bar, it is apposite to reproduce Section 2 of the Act dealing with an appeal:
2. Appeal to the Division Bench of the High Court from a judgment or order of one Judge of the High Court made in exercise of original jurisdiction.-- (1) An appeal shall lie from a judgment or order passed by one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India to a Division Bench comprising of two Judges of the same High Court:
Provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.(2) An appeal under Sub-section (1) shall be filed within 45 days from the date of order passed by a Single Judge:
Provided that any appeal may be admitted after the prescribed period of 45 days if the petitioner satisfies the Division Bench that he had sufficient cause of not preferring the appeal within such period.Explanation :-- The fact that the petitioner was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this sub-section.
(3) An appeal under Sub-section (1) shall be filed, heard and decided in accordance with the procedure as may be prescribed by the High Court.
6. In M/s. Rama and Company (supra), the Division bench has held as under:
22. Learned Counsel for the appellant has also cited two judgments of the Division Bench of this Court, which were delivered after coming into force of Adhiniyam, 2005 and in which the Division Bench has held that an appeal shall lie against the judgment passed by the learned Single Judge against the order passed by the Tribunal. These two judgments cited by learned Counsel for the appellant are in the case of State of M.P. v. M.S. Wakankar 2007 (1) MPLJ 99 and in the case of Smt. Shiva Dubey (Jhira) v. Sumit Ranjan Dubey W.A. No. 310/2006, decided on 14-8-2006.
23. After perusing both these judgments, we find in both cases that Division Bench has held that an appeal shall lie against the order passed by the learned Single judge against the order passed by the Tribunal, but while deciding these cases language of Section 2 of the Adhiniyam was not brought to the notice of the Division Bench that appeal shall lie only against the order passed by the learned Single Judge in exercise of original jurisdiction.
24. The argument raised by learned Counsel for the appellant that appeal is maintainable against every order passed by the learned Single Judge in exercise of powers under Article 226 of the Constitution of India is not supported by the language of Section 2 of the Adhiniyam, because of the said interpretation is made, 'the exercise of original jurisdiction' will become redundant. The legislature by use of the words 'in exercise of its original jurisdiction' has made its intention clear that an appeal shall lie only if the learned Single Judge has exercised its original jurisdiction. The words 'in exercise of its original jurisdiction' qualifies for the words 'Article 226 of the Constitution of India'.
25. Thus, it is clear that even though an appeal against an order passed by the learned Single Judge in exercise of jurisdiction under Article 226 will lie only if the learned Single Judge has exercised power as an original jurisdiction and not under supervisory jurisdiction. The supervisory jurisdiction of the High Court cannot be equated with original jurisdiction. In such circumstances, even if the learned Single Judge has exercised its jurisdiction under Article 226 of the Constitution of India and issued a writ of certiorari against an order passed by any Tribunal or a Court, then an appeal will not lie.
26. In the case at hand the State Government has filed a writ petition under Article 226/227 of the Constitution of India praying for a writ of certiorari against the order passed by the Board of Revenue, which is a final Court of fact and thus has invoked the supervisory jurisdiction of the High Court, which is akin to appellate revisional or corrective jurisdiction that means not original jurisdiction. Hence, above mentioned appeals are not maintainable.
7. Thus, from the aforesaid ratiocination it is perceptible that the Division Bench has understood that the phraseology 'in exercise of original jurisdiction' has inseparable nexus with Article 226 of the Constitution of India. It is evincible that if the learned Single Judge has passed an order in exercise of jurisdiction under Article 226 of the Constitution of India, such power has been exercised by way of an original jurisdiction and then only an appeal would lie. It is further manifest that the Division Bench has expressed the view that the supervisory jurisdiction of the High Court cannot be equated with the original jurisdiction and even if the learned Single Judge has exercised the jurisdiction under Article 226 of the Constitution of India and issued a writ of certiorari against the order of any Tribunal or Court then an appeal would not lie.
8. In Hari Vishnu Kamath v. Ahmad Ishaque and Ors. : [1955]1SCR1104 , the Apex Court has held that the High Court while issuing a writ of certiorari under Article 226 of the Constitution of India can only annul a decision of a Tribunal whereas under Article 227 it can issue further directions as well.
9. In Umaji Keshao Meshram and Ors. v. Smt. Radhikabai and Anr. : [1986]1SCR731 , the Apex Court has ruled thus:
106...In our opinion, where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution and the party chooses to file his application under both these Articles, in fairness and justice to such party and in order not to derive him of the valuable right of appeal the Court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order the Court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under Clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226. Such was the view taken by the Allahabad High Court in Aidal Singh v. Karan Singh : AIR1957All414 and by the Punjab High Court in Raj Kishan Jain v. Tulsi Dass and Barham Dutt v. Peoples' Cooperative Transport Society Ltd., New Delhi AIR 1961 Punj 24 and we are in agreement with it.
10. In Sushilabhi Laxminarayan Mudliayar and Ors. v. Nihalchand Waghajibhai Shaha and Ors. AIR 1993 Suppl (1) SCC 11, the Apex Court referred to an unreported judgment passed in Ratnagiri District Central Co-operative Bank Ltd. v. Dinkar Kashinath Watve C.A. No. 520 of 1989, decided on 27-1-1989, wherein it has been held as under:
Even when in the cause title of an application both Article 226 and Article 227 of the Constitution have been mentioned, the learned Single Judge is at liberty to decide, according to facts of each particular case, whether the said application ought to be dealt with only under Article 226 of the Constitution. For determining the question of maintainability of an appeal against such a judgment of the Single Judge the Division Bench has to find out whether in substance the judgment has been passed by the learned Single Judge in exercise of the jurisdiction under Article 226 of the Constitution. In the event in passing his judgment on an application which had mentioned in its cause title both Articles 226 and 227, the Single Judge has in fact invoked only his supervisory powers. under Article 227, the appeal under Clause 15 would not lie. The Clause 15 of the Letters Patent expressly bars appeals against orders of Single Judges passed under revisional or supervisory powers. Even when the learned Single Judge's order has been passed under both the articles, for deciding the maintainability against such an order what would be relevant is the principal or main relief granted by the judgment passed by learned Single Judge and not the ancillary directions given by him. The expression 'ancillary' means, in the context, incidental or consequential to the main part of the order.
Thus, the determining factor is the real nature of the principal order passed by the Single Judge which is appealed against and neither the mentioning in the cause title of the application of both the articles nor the granting of ancillary orders thereupon made by learned Single Judge would be relevant. Thus, in each case, the Division Bench may consider the substance of the judgment under appeal to ascertain whether the Single Judge has mainly or principally exercised in the matter his jurisdiction under Article 226 or under Article 227. In the event in his judgment the learned Single Judge himself had mentioned the particular article of the Constitution under which he was passing his judgment, in an appeal under Clause 15 against such a judgment it may not be necessary for the Appellate Bench to elaborately examine the question of its maintainability. When without mentioning the particular article the learned Single Judge decided on merits the application, in order to decide the question of maintainability of an appeal, against such a judgment, the Division Bench might examine the relief granted by the learned Single Judge, for maintainability of an appeal, the determination would be the main and not the ancillary relief. When a combined application under Articles 226 and 227 of the Constitution is summarily dismissed without reasons, the Appeal Court may consider whether the facts alleged warranted filing of the application under Article 226 or under Article 227 of the Constitution.
11. thereafter. Their Lordships explained the ratio laid down in the case of Umaji (supra) and expressed thus:
In Umaji case it was clearly held that where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution of India and the party chooses to file his application under both these articles in fairness of justice to party and in order not to deprive him of valuable right of appeal the Court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order the Court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under Clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226. Rule 18 of the Bombay High Court Appellate Side Rules read with Clause 15 of the Letters Patent provides for appeal to the Division Bench of the High Court from a judgment of the learned Single Judge passed on a writ petition under Article 226 of the Constitution. In the present case the Division Bench was clearly wrong in holding that the appeal was not maintainable against the order of the learned Single Judge.
12. In Mangalbhai and Ors. v. Dr. Radhyshyam : [1992]3SCR537 , a two Judge Bench of the Apex Court after reproducing certain paragraphs from Umaji Keshao Meshram (supra), proceeded to state as under:
6. The learned Single Judge in his impugned judgment dated 11-12-1987 nowhere mentioned that he was exercising the powers under Article 227 of the Constitution. The learned Single Judge examining the matter on merit and set aside the orders of the Rent Controller as well as the Resident Deputy Collector on the ground that the aforesaid judgment were perverse. The findings of the Rent Controller and Resident Deputy Collector were set aside on the question of habitual defaulter as well as on the ground of bonafide need. Thus in the totality of the facts and circumstances of the case, the pleadings of the parties in the writ petition and the judgment of the learned Single Judge leaves no manner of doubt that it was an order passed under Article 226 of the Constitution and in that view of the matter the Letters Patent Appeal was maintainable before the High Court....
13. In Lokmat Newspapers Pvt. Ltd. v. Shankarprasad : (1999)IILLJ600SC , the Apex Court took note of the fact situation where an order passed by the Labour Court under Section 28 of the Maharashtra (Recognition of Trade Unions and Prevention of Unfair Labour Practices) Act, 1971 was confirmed by the Industrial Tribunal under Section 44 of the said enactment. Both the Courts held that retrenchment of the respondent did not amount to any 'unfair labour practice' on the part of the appellant. The said orders were challenged by the respondent by filing a writ petition under Articles 226 and 227 of the Constitution of India before the High Court of Judicature at Bombay, Nagpur Bench and the learned Single Judge dismissed the writ petition. Their Lordships took note of the fact that the order passed by the learned Single Judge showed that he was considering the writ petition of the respondents which was moved before him invoking jurisdiction under Articles 226 and 227 of the Constitution of India and thereafter Their Lordships adverted to the averments made in the writ petition and eventually came to express the view as under:
16. It is, therefore, obvious that the writ petition invoking jurisdiction of the High Court both under Article 226 and 227 of the Constitution had tried to make out a case for the High Court's interference seeking issuance of an appropriate writ of certiorari under Article 226 of the Constitution of India. Basic averments for invoking such a jurisdiction were already pleaded in the writ petition for the High Court's consideration. It is true, as submitted by learned Counsel for the appellant, that the order of the learned Single Judge nowhere stated that the Court was considering the writ petition under Article 226 of the Constitution of India. It is equally true that the learned Single Judge dismissed the writ petition by observing that the Courts below had appreciated the contentions and rejected the complaint. But the said observation of the learned Single Judge did not necessarily mean that the learned Judge was not inclined to interfere under Article 227 of the Constitution of India only. The said observation equally supports the conclusion that the learned Judge was not inclined to interfere under Articles 226 and 227. As seen earlier, he was considering the aforesaid writ petition moved under Article 226 as well as Article 227 of the Constitution of India. Under these circumstances, it is not possible to agree with the contention of learned Counsel for the appellant that the learned Single Judge had refused, to interfere only under Article 227 of the Constitution of India when he dismissed the writ petition of the respondent....
14. In the case of Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , a two Judge Bench of the Apex Court after referring to the established principles relating to the constitutional jurisdiction conferred on the High Court under Articles 226 and 227 of the Constitution of India and after referring to the basic spectrum inhered in writ of certiorari and further referring to the decisions rendered in Custodian of Evacuee Property, Bangalore v. Khan Saheb Abdul Shukoor etc. : [1961]3SCR855 , Nagendra Nath Bora and Anr. v. Commissioner of Hills Division and Appeals : [1958]1SCR1240 , T.C. Basappa v. T. Nagappa and Anr. : [1955]1SCR250 and Rupa Ashok Hurra v. Ashok Hurra and Anr. AIR 2002 SC 1771, expressed the opinion in Paragraph 19 as under:
19. Thus, there is no manner of doubt that the orders and proceedings of a Judicial Court subordinate to High Court are amenable to writ jurisdiction of High Court under Article 226 of the Constitution.
15. Thereafter, Their Lordships dwelled upon the supervisory jurisdiction under Article 227 of the Constitution of India and the difference between the writ of certiorari under Article 226 and supervisory jurisdiction under Article 227 and opined as under:
25. Upon a review of decided cases and a survey of the occasions wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterate in practice. Probably, this is the reason why it has become customary with the lawyers labeling petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the Inferior Court or Tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, may be by way of guiding the Inferior Court or Tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the Inferior Court or Tribunal should have made. Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well.
16. In Kishorilal v. Sales Officer, District Land Development Bank and Ors. (2006) 7 SCC 496, the Apex Court was dealing with an order whereby the learned Single Judge had reversed the finding of the Board of Revenue. An LPA was preferred and the Division Bench dismissed the same holding that it was not maintainable on the premises that the learned Single Judge had exercised the jurisdiction under Article 227 of the Constitution of India. Their Lordships while dealing with the maintainability of the appeal before the Division Bench expressed thus:
13. The learned Single Judge of the High Court, in our opinion committed an error in interfering with the findings of fact arrived at by the Board of Revenue. The Division Bench of the High Court also wrongly dismissed the LPA without noticing that an appeal would be maintainable if the writ petition was filed under Articles 226 and 227 of the Constitution of India as was held by this Court in Sushilabai Laxminarayan Mudliyar v. Nihalchand Waghajibhai Shaha.
17. From the aforesaid enunciation of law it is quite vivid and luminiscent that the pleadings in the writ petition, nature of the order passed by the learned Single Judge, character and the contour of the order, directions issued, nomenclature given, the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper technical manner that an order passed in a writ petition, if there is assail to the order emerging from the Inferior Tribunal or Subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. Phraseology used in exercise of original jurisdiction under Article 226 of the Constitution in Section 2 of the Act cannot be given a restricted and constricted meaning because an order passed in a writ petition can tantamount to an order under Article 226 or 227 of the Constitution of India and it would depend upon the real nature of the order passed by the learned Single Judge. To elaborate; whether the learned Single Judge has exercised his jurisdiction under Article 226 or under Article 227 or both would depend upon various aspects and many a facet as has been emphasized in the aforequoted decisions of the Apex Court. The pleadings, as has been indicated hereinabove, also assume immense significance. As has been held in the case of Surya Dev Rai (supra), a writ of certiorari can be issued under Article 226 of the Constitution against an order of a Tribunal or an order passed by the Subordinate Court. In quintessentially, it cannot be put in a straitjacket formula that any order of the learned Single Judge that deals with an order arising from an Inferior Tribunal or the Subordinate Court is an order under Article 227 of the Constitution of India and not an order under Article 226 of the Constitution. It would not be an overemphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co- exit, overlap or imbricate. In this context it is apt to note that there may be cases where the learned Single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of the case.
18. In view of our aforesaid analysis we are disposed to hold that the law laid down in the cases of Lakhan Lal Sonkar (supra), M.S. Wakankar (supra) and Smt. Shiva Dubey (Jheera) (supra), lay down the law correctly being in consonance and accord of the decisions of the Apex Court and the decision rendered in M/s. Ram and Co. (supra), does not lay down the law soundly and accordingly the same is hereby overruled.
19. Let the matter be listed before the appropriate Division Bench.
K.K. Lahoti, J.
1. I have had the benefit of going through the judgment prepared by my learned brother Dipak Misra, J. I would like to add few more words in respect of writ appeal jurisdiction of Division Bench under Section 2 of the Adhiniyarn of 2005, in particular, in respect of matters arising out of orders passed by the Courts and Tribunals.
2. The M.P. Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyarn, 2005 (hereinafter referred to 'Adhiniyarn, 2005') has come into force with effect from the first date of July, 1981. This Adhiniyarn received the assent of his Excellency the President of India on 28th March, 2006.The assent was first published in the Madhya Pradesh Gazette (Extra-ordinary), dated 5-4-2006. Before the enactment of Adhiniyarn, 2005, Letter Patent Appeal was provided under Clause 10 of Letters Patent. The aforesaid clause was providing an appeal to the High Court from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of the decree or order made in the exercise of the appellate jurisdiction by a Court subject to the superintendence of the High Court and not being an order made in the exercise of revisional jurisdiction) of one Judge of the High Court to the Division Bench. The aforesaid provision was providing appeal from the order and judgment of Single Judge to the Division Bench but excluding an appeal in respect of the judgment and orders passed under the power of superintendence.
3. By M.P. Uchcha Nyayalaya (Letters Patent Appeal Samapti) Adhiniyarn, 1981, which was enacted in the year 1981, under Section 2, right of letters patent appeal was abolished. A Full Bench of this Court considered the vires of this Letters Patent Appeal Samapti Adhiniyarn in Balkishan Das v. Perfect Pottery Co. Ltd. : AIR1985MP42 held that the law affecting the inherent jurisdiction of High Court which was conferred by the Letters Patent, while constituting and organizing the High Court, could not be taken away by a law passed in exercise of powers under Entry 11-A (as introduced by the 42nd Amendment) of the Constitution. But the Full Bench judgment of the High Court has been set aside by the Apex Court in Jamshed N. Guzdar v. State of Maharashtra : AIR2005SC862 . Thereafter, the State enacted the Adhiniyarn of 2005. Section 2 provides an appeal to the Division Bench of the High Court from a judgment and order of one Judge of the High Court made in exercise of the original jurisdiction under Article 226 of the Constitution of India. The proviso of Section 2 provides that no such appeal shall lie against an interlocutory order or against an order passed an exercise of supervisory jurisdiction under Article 227 of the Constitution of India. For ready reference relevant Section 2(1) is reproduced as under:
2. (1) An appeal shall be from a judgment or order passed by one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India to a Division Bench comprising of two Judges of the same High Court: Provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.
Section 2 though provides an appeal against an order or judgment passed by Single Judge of the High Court in exercise of original jurisdiction under Article 226, but excludes any appeal against the supervisory jurisdiction under Article 227. So to decide whether against any order passed by the Single Judge, an appeal is entertain able, the determinative factor would be that the order should have been passed in exercise of the original jurisdiction under Article 226 and should not have been passed in exercise of supervisory jurisdiction under Article 227.
4. Now in the light of aforesaid position, Article 226 of the Constitution may be seen, which provides that 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, orders or writs, including writs in 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. Aforesaid powers are vest in the High Court and is basic structure of the Constitution and there is no iota of doubt that for issuance of any writ in the nature of habeas corpus, mandamus, prohibition, quo warranto or certiorari, the High Court is vested with original jurisdiction and while issuing such a writ, the High Court exercises its original jurisdiction, Article 227 provides that every High Court shall have superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. From the perusal of the aforesaid both the Articles, it is apparent that by Article 226, the Constitution provides writ against any person or authority or Government, while by Article 227, the Constitution provides exercise of power of superintendence over Courts and Tribunals.
5. The Apex Court in Ramesh v. Gendalal Motilal Patni : [1966]3SCR198 , considering this aspect held that the jurisdiction conferred on the High Court by Article 226 can be exercised in respect of any proceeding before any Court or Tribunal within jurisdiction of the High Court by issuing writs of certiorari, mandamus and prohibition.
6. The Apex Court in L. Chandra Kumar v. Union of India and Ors. : [1997]228ITR725(SC) , considering the jurisdiction conferred on the High Court under Article 226/227 held that it is a part of the basic structure of the Constitution and judicial review is permissible of judicial decision. The power of judicial review vested in the High Court under Article 226 is an integral and essential feature of the Constitution. The power vested in the High Court under Article 227 to exercise judicial superintendence over the decision of all Courts and Tribunals within their respective jurisdiction is also a part of the basic structure of the Constitution. The Apex Court considering the question of the power of superintendence of High Court over the Tribunals held that all decisions of the Tribunals rendered in the cases for which they are specifically empowered to adjudicate upon by virtue of their parent statutes will also be subject to scrutiny before a Division Bench of their respective High Courts. However, the Tribunals will continue to act as the only Courts of first instance in respect of the areas of law for which they have been constituted, and it will not be open for litigants to directly approach the High Courts by overlooking the jurisdiction of the Tribunal. The Apex Court held that the High Courts would have writ jurisdiction under Article 226/227 of the Constitution over the Tribunals constituted under Articles 323A and 323B of the Constitution. In Para 99 of the judgment it is held that the Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted.
7. Article 227 of the Constitution provides wide power of superintendence over all Courts and Tribunals with the jurisdiction of High Court. So the litigant who is not provided with a remedy of appeal or revision against an order passed by any Sub-ordinate Court or Tribunal, can invoke powers of the High Court under Article 226 or under Article 227, provided no appeal or revision is provided against such an order or judgment to the High Court. The exercise of jurisdiction under Article 226 of the Constitution is no doubt is an exercise of original jurisdiction of the High Court while exercise of jurisdiction under Article 227 is an exercise of power of superintendence.
8. The Adhiniyam of 2005 provides an appeal against exercise of original jurisdiction under Article 226 of the Constitution but has specifically excluded any appeal, if the High Court (Single Judge) exercise supervisory jurisdiction under Article 227. So where a person invokes powers of the High Court under Article 226 of the Constitution of India, praying for a writ of mandamus, prohibition or certiorari and on exercise of such original jurisdiction by the High Court, an appeal is provided under the Adhiniyam, 2005. Similarly, in a case where a person invokes the power of supervisory jurisdiction of the High Court under Article 227 and on exercise of such supervisory jurisdiction by the High Court under Article 227, no such appeal is provided.
But when a composite petition under Articles 226 and 227 is filed, and on passing an order or judgment in the aforesaid writ petition, then determinative factor will be real nature of exercise of jurisdiction by the Single Judge against which an appeal is filed. If nature of the order is such that the High Court exercised its original jurisdiction under Article 226, writ appeal is entertain able, but in case from the perusal of the order, it is clear that power of superintendence has been exercised under Article 227, writ appeal cannot be entertained.
9. In Umaji Keshao Meshram v. Radhikabai 1986 (Supp) SCC 401, the Apex Court considering the question held thus:
where the facts justify a party in filing an application either under Article 226 or 227, and the party chooses to file his application under both these articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal the Court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order the Courts gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under Clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226.
In L. Chandra Kumar (supra), the Apex Court held thus:
93. Before moving on to other aspects, we may summarise our conclusions on the jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional set-up, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules-However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the High Court concerned may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts. We may add that the Tribunals will, however, continue to act as the only Courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the 'Tribunal concerned.
99. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Courts under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned fails. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. Section 5 (6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.
(Emphasis supplied)
10. The Apex Court in Surya Dev Rai v. Ram Chander Rai and Ors. : AIR2003SC3044 , considering a similar question held thus:
29. The Constitution Bench in L. Chandra Kumar v. Union of India 15 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 a 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 Govind v. State (Govt. of NCT of Delhi) 16, makes an in-depth survey of decided cases including almost all the leading decisions by this Court and holds:
74. The powers of the High Court under Article 226 cannot be whittled down, nullified, curtailed, abrogated, diluted or taken either by judicial pronouncement or by the legislative enactment or even by the amendment of the Constitution. The power of judicial review is an inherent part of the basic structure and it cannot be abrogated without affecting the basic structure of the Constitution'. The essence of constitutional and legal principles, relevant to the issue at hand, has been correctly summed up by the Division Bench of the High Court and we record our approval of the same.34. We arc of the opinion that the curtailment of revisional jurisdiction of the High Court does not take away -- and could not have taken away -- the constitutional jurisdiction of the High Court to issue a writ of certiorari to a Civil Court nor is the power of superintendence conferred on the High Court under Article 227 of the Constitution taken away or whittled down. The power exists, untrammelled by the amendment in Section 115, CPC, and is available to be exercised subject to rules of self-discipline and practice which are well settled.
The Apex Court in Para 38 of the judgment summed up the conclusions in nut-shell as under:
(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 a Subordinate Court has assumed a jurisdiction which it does not have or has filed 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 injustice has occasioned thereby, the High Court may step into exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or a law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the Subordinate Court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said 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 convert itself into a Court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are 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.
The Apex Court found that orders passed by the Sub-ordinate Courts are continued to be subject to certiorari and supervisory jurisdiction of the High Court. The Apex Court also pointed out the circumstances in which the writ jurisdiction under Article 226 of certiorari and of Article 227 is exercised. In this regard, it will be profitable to refer Paras 24 and 25 of the judgment which reads thus:
24. The difference between Articles 226 and 227 of the Constitution was well brought out in Umaji Keshao Meshram v. Kadhikabai 12. 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 correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the Court or Tribunal has assumed a jurisdiction which it does not have (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.
25. Upon a review of decided cases and a survey of the occasions wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in practice, probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement, without entering into niceties and technically of the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate, revisional or corrective jurisdiction. Secondly, in a writ 0f certiorari, the record of the proceedings having been certified and sent up by the Inferior Court or Tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction, the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, may be, by way of guiding the Inferior Court or Tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the Inferior Court or Tribunal should have made. Lastly, the jurisdiction under Article 225 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well.
11. In view of the settled position of the law, in the matter of orders or judgment passed by the Court below or Tribunals, if the Single Judge has exercised the jurisdiction under Article 226 for a writ of certiorari, and for this purpose record of the proceedings having been certified and sent up by the Inferior Court or Tribunal to the High Court and the Single Judge inclined to exercise its jurisdiction has simply annul or quash the proceedings and thereafter do no more, then it is the exercise of power under Article 226 for a writ of certiorari. But in case, the High Court has not only quash or set aside the impugned proceedings, judgment or orders but has also made such directions as facts and circumstances of the case may warrant, may be by way of guiding the Inferior Court or Tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court, then this is an exercise of power of superintendence and in that regard, no writ appeal lies.
12. At this juncture, it would be appropriate to mention a fact that we arc not considering the power of High Court under Article 226 or under Article 227, but are considering the scope of Section 2 of Adhiniyam of 2005 specifically the matters arising out of order passed by Courts or Tribunals. The remedy of appeal has been provided under Section 2. The aforesaid provision specifically provides two circumstances, one of original exercise of the jurisdiction under Article 226 of the Constitution and another supervisory jurisdiction under Article 227 of the Constitution. In first case, the right of appeal is available while in latter, the aforesaid right is not available. In the appeal matter is to be examined in the facts and circumstances of the each case and in case original jurisdiction is not exercised by the High Court under Article 226, right of appeal is not available.
To sum up, the Division Bench while entertaining an appeal under Section 2 of the Adhiniyam of 2005, in particular the matters arising out of the order passed by the Courts or Tribunals, shall satisfy that the Single Judge exercised original jurisdiction under Article 226 of the Constitution of India. While considering it, the Division Bench shall look into the pleadings, relief prayed and order or judgment passed by the Single Judge exercising the jurisdiction. In case the Division Bench is satisfied that the Single Judge has not exercised his original jurisdiction under Article 226 of the Constitution in such a case, no writ appeal will be entertained.