J.B. Pardiwala, R. Tripathi, Jayant Patel, M.R. Shah and A.G. Uraizee, JJ.
This batch of Appeals under Clause 15 of the Letters Patent has been placed before this Special Bench pursuant to the order passed by the Honble the Chief Justice on a reference made by a Division Bench first in point of time on 13th August 2013 while hearing a Letters Patent Appeal No.596 of 2008 arising from a judgment and order passed by a learned Single Judge of this Court in Special Civil Application No.408 of 1993.
It appears that the need to refer the matter to a Larger Bench necessitated since the Referring Bench noticed a conflict between the view expressed by a Division Bench of this Court in the case of Revaben Wd/o Ambalal Motibhai, and others v. Vinubhai Purshottambhai Patel and others, reported in 2013(1) GLH 440, and a Full Bench decision of this Court in the case of Dilavarsinhsinh Khodubha Jadeja v. The State of Gujarat and others, reported in 1995(1) GLH 58.
In such circumstances referred to above, the Division Bench of this Court framed and referred the following two questions :
(1) Whether non-consideration of a Full Bench decision of this Court in Dilavarsinh (supra) has materially impacted outcome of the decision of the Division Bench of this Court in the case of Revaben (supra) ?
(2) Whether the Division Bench of this Court in Revaben (supra) has fallen in inadvertent error in observing that the Division Bench decision in the case of Principal, S.V.Doshi Girls' High School (supra) did not consider the decision of the Hon'ble Supreme Court in the case of Udit Narain Singh (supra) ?
For the sake of convenience, we may state that the decision in the case of Principal S.V.Doshi Girls' High School and another v. Lilaben Somabhai Gadasa is reported in 2012(2) GLH 428 and the decision of the Supreme Court in the case of Udit Narain is also a reported decision titled as Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar and another, reported in AIR 1963 SC 786.
It also appears that the Division Bench, while referring the matter to the Larger Bench, vide order dated 13th August 2013, observed that, it would be open to the learned advocate appearing for the parties to get the additional questions (issues) framed before the Larger Bench which, the Larger Bench may answer. It also observed that it would also be open for the Larger Bench to re-frame or recast the questions referred.
In such circumstances, the entire appeal was referred on the questions of law as well as on merits, to be decided by the Larger Bench.
It was also kept open for the Larger Bench to formulate such other questions which might arise during the course of hearing of the reference, for the effective adjudication of the points involved.
It also appears that the first order passed by the Division Bench referring the issue to a Larger Bench was passed in the Letters Patent Appeal No.596 of 2008 referred to above and, thereafter, since identical issues were raised in connection with other appeals also, the same were also referred to the Larger Bench and accordingly the entire batch of appeals has been placed before this Special Bench.
For the sake of convenience, we have prepared the following index to the judgment:
| Point | Description | Page No. |
| A | Facts necessitating the Reference. | 6 |
| B | The Questions under Reference re-framed comprehensively. | 11 |
| C | Propositions of law as explained in the case ofRevaben (supra). | 13 |
| D | Propositions of Law as explained by the Full Bench in the case of Dilavarsinh (supra). | 19 |
| E | Submissions of the respective counsel. | 22 |
| F | What is the meaning of the word 'writ' and what is 'a writ of certiorari' ? | 34 |
| G | Power of the High Court under Article 226 of the Constitution of India to issue a Writ of Certiorari. | 49 |
| H | Clause 15 of the Letters Patent vis-a-vis the term 'original jurisdiction'. | 62 |
| I | Whether this Court under Article 226 of the Constitution, after annulling the order by granting a writ of certiorari can modulate its order so as to grant an appropriate relief. | 78 |
| J | Maintainability of the intra court appeal under Clause 15 of the Letters Patent against the judgment of the learned Single Judge passed in exercise of the original jurisdiction to issue a writ under Article 226 of the Constitution of India. | 90 |
| K | Whether it is necessary to implead the Tribunal as a party respondent in the writ application, wherein a writ of certiorari or any other high prerogative writ is prayed for by the petitioner and if the authority or the Tribunal, whose order is impugned, is not impleaded as a party respondent, then whether such a petition should be treated as a petition only under Article 227 of the Constitution of India and not under Article 226 of the Constitution of India ? | 114 |
| L | Whether a writ of certiorari is maintainable against an order of a civil court, subordinate to the High Court ? | 131 |
| M | Final Conclusion | 136 |
It appears that the appellants of the Letters Patent Appeal No.596 of 2008 were the original owners of an agricultural land bearing Survey No.208/1 paiki admeasuring 6070 sq.meters situated in Narol, District Ahmedabad. The proceedings under the provisions of the Gujarat Urban Land (Ceiling and Regulation) Act, 1976 were initiated pursuant to the filing of the Form No.1 prescribed under Section 6(1) of the Act of 1976 by the owners with respect to the holding of their land.
The competent authority and Deputy Collector, ULC, Ahmedabad, vide order dated 17th June 1983, declared the land admeasuring 5070 sq.meters as a surplus land. Feeling dissatisfied with such an order being passed by the competent authority, the appellants preferred an appeal under Section 33 of the Act of 1976 before the Urban Land Ceiling Tribunal. The appellate authority, vide order dated 28th February 1989, dismissed the appeal, thereby affirming the order passed by the competent authority under the Act of 1976.
The appellants being dissatisfied, thereafter challenged the order passed by the appellate authority by filing a Special Civil Application No.408 of 1993 under Articles 226 and 227 of the Constitution of India.
The learned Single Judge of this Court, vide judgment and order dated 11th September 2007, rejected the writ-application, thereby confirming the order passed by the appellate authority.
Being dissatisfied with the judgment and order passed by the learned Single Judge rejecting the writ-application, the appellants filed an appeal under clause 15 of the Letters Patent. When the Letters Patent Appeal came up for hearing before the Division Bench of this Court, a preliminary objection was raised by the learned AGP appearing for the State respondents as regards the maintainability of the Letters Patent Appeal. Relying on a decision of this Court in the case of Revaben (supra), it was pointed out by the learned AGP that a Division Bench of this Court in the case of Revaben (supra) has taken the view that if the tribunal whose order is under challenge is not impleaded as a party respondent, then the writ petition would have to be treated as a petition under Article 227 of the Constitution of India and not as a writ petition under Article 226 of the Constitution of India. Indisputably, in the Special Civil Application, the appellate authority, whose order was impugned, was not impleaded as a party respondent. It also appears that the learned AGP, to make good his preliminary objection as regards the maintainability of the Letters Patent Appeal, placed reliance on a Full Bench decision of this Court in the case of The Bhagyodaya Cooperative Bank Limited v. Natvarlal K.Patel and another, reported in 2011(3) GLH (FB) 89, wherein the Full Bench has taken the view that in a writ petition under Article 226 of the Constitution of India, the tribunal or authority whose order is impugned has to be impleaded as a party, but if the petition is under Article 227 of the Constitution of India, then the tribunal or authority need not be impleaded as a party respondent.
It is well settled that an appeal under clause 15 of the Letters Patent would lie only against an order passed by a learned Single Judge in exercise of powers under Article 226 of the Constitution of India, whereas no appeal is maintainable if the order passed by the learned Single Judge is in exercise of his supervisory jurisdiction as conferred under Article 227 of the Constitution of India.
To meet with such a preliminary objection raised by the learned AGP appearing for the State respondents, the learned counsel appearing for the appellants invited the attention of the Honble Judges to a Full Bench decision of this Court in the case of Dilavarsinh (supra). It appears that the Full Bench had to be constituted at the relevant point of time since there were two decisions of this Court : one, in the case of Himatlal K.Parekh v. Competent Authority, reported in 1990(1) GLR 626, and the other in the case of Jasubhai H.Gandhi v. Competent Authority, reported in 1990(2) GLR 1140, taking the view that a Letters Patent Appeal was not maintainable against a judgment of the learned Single Judge of this Court in a petition challenging the order of the Urban Land Tribunal under Section 33 of the Urban Land (Ceiling and Regulation) Act, 1976, because such a petition against the order of the tribunal had to be treated as a petition under Article 227 of the Constitution of India, even if the petition was purported to be one under both, Articles 226 and 227 of the Constitution of India.
The Full Bench of this Court overruled the aforesaid view, and relying on the decision of the Apex Court in the case of Umaji Keshao Meshram and others v. Smt.Radhikabai and another, reported in AIR 1986 SC 1272, held that the Court has to apply the test laid down by the Apex Court in Umajis case (supra).
The Full Bench ruled that a petition under Article 226 of the Constitution of India for a writ of certiorari or a writ in the nature of certiorari would lie against an order of the Urban Land Tribunal passed under Section 33 of the Urban Land (Ceiling and Regulation) Act, 1976 and the orders made in such a petition by the Single Judge are subject to appeal under Clause 15 of the Letters Patent read with Chapter VI, more particularly, Rule 82 of the Gujarat High Court Rules, 1993. The Full Bench also ruled that such would be the position even if the petition was prescribed to be filed under Article 226 in conjunction with Article 227 of the Constitution of India or otherwise. The question referred was answered accordingly.
Thus, before the Referring Bench, two judgments were pressed into service : one, by a Division Bench of this Court in the case of Revaben (supra), and the other, by a Full Bench of this Court in the case of Dilavarsinh (supra).
It also appears that it was brought to the notice of the Referring Bench that the Division Bench, while deciding Revaben (supra), had not considered or referred to the Full Bench decision of this Court in the case of Dilavarsinh (supra).
It also appears that the Referring Bench took notice of the proposition of law laid down in the case of Revaben (supra) that a writ of certiorari would lie in appropriate cases against an order of the tribunal or court subordinate to the High Court, where such a tribunal or court acts as an authority of the first instance, but a writ of certiorari will not lie if such a tribunal or court acts as an appellate authority or revisional authority. The Referring Bench also took notice of the proposition of law laid down in Revaben (supra) that if an appeal or revisional order of the tribunal or court subordinate to the High Court is sought to be challenged before the High Court, the aggrieved party should take the aid of Article 227 of the Constitution of India alone and not Article 226 of the Constitution of India. The Referring Bench noticed that such a proposition of law as laid down in Revaben (supra) was directly in conflict with the Full Bench decision of this Court in Dilavarsinh (supra), because in Dilavarsinh (supra), the Full Bench took the view that even an order passed by the appellate authority under the Urban Land (Ceiling and Regulation) Act, 1976 could be made a subject matter of challenge by a petition under Article 226 of the Constitution of India for a writ of certiorari or a writ in the nature of certiorari.
It is in the aforesaid factual background that the Division Bench of this Court, vide order dated 13th August 2013, had to refer the matter to a Larger Bench.
Having given more than a fair idea as to what necessitated the Reference, we proceed to re-frame the following eight questions comprehensively with a view to make them more elaborate and to the point.
(B) The Questions under Reference re-framed comprehensively :
(1) Whether a writ of certiorari would lie against an order of a tribunal or a court subordinate to the High Court, where such a tribunal or a court acts only as an authority of first instance or it would lie even in cases where a tribunal or a court had acted as an appellate or a revisional authority.
(2) If a tribunal or a court acts as an authority of the first instance and if such original order of the court or the tribunal is challenged by way of a writ-application under Article 226 of the Constitution of India, then such an exercise of power by the court under Article 226 of the Constitution of India could be said to be in exercise of the original jurisdiction and a Letters Patent Appeal would lie against such an order passed by a learned Single Judge under Clause 15 of the Letters Patent, which provides for an appeal to a Division Bench from an order of one Judge in exercise of original jurisdiction, but take a case where the original order passed by a tribunal or a court of the first instance is challenged by way of an appeal or a revision, and such order passed by the appellate or revisional authority is challenged before a Single Judge of the High Court by way of a writ-application under Article 226 of the Constitution of India for a writ of certiorari, and decided, then could it be said that since the subject matter of challenge was an appellate order or a revisional order, the court could not be said to have exercised original jurisdiction so as to make the Letters Patent Appeal maintainable, but the court could only be said to have exercised its power of superintendence under Article 227 of the Constitution of India against which no Letters Patent Appeal lies.
(3) Is it a correct proposition of law that if an original order passed by a tribunal or a court of first instance is challenged by way of an appeal or revision and if such an order passed by the appellate authority is made a subject matter of challenge before the court by way of a writ petition under Articles 226 and 227 of the Constitution of India, the proceedings before the learned Single Judge would cease to be the original proceedings and would just remain supervisory in nature.
(4) In what context the phrase 'original jurisdiction' appearing in Clause 15 of the Letters Patent should be construed. Should it be construed, taking into consideration the plain meaning of the same, as a court's power to hear and decide a matter before any other court can review the matter, or should it be construed in the context with the power of the court to issue a writ under Article 226 of the Constitution of India, which is always original. To put it in other words, whether the expression 'in exercise of original jurisdiction' should be understood in the constitutional context and not otherwise.
(5) Once we read in the phrase 'to issue to any person or authority' contained in Article 226 of the Constitution of India so as to include the tribunal or the court, then in such circumstances, is it a correct proposition of law to say that the appellate tribunal is not amenable to a writ of certiorari, and the only remedy available with the litigant to challenge the order passed by an appellate tribunal would be by way of a petition under Article 227 of the Constitution of India. To put it in other words, is it a correct proposition of law that the term 'authority' as contained in Article 226 of the Constitution of India should be understood as only the original authority and not the appellate authority or a revisional authority.
(6) Is it a correct proposition of law that a petition challenging the order of every tribunal, be it as a tribunal of the first instance or an appellate tribunal, should be necessarily treated as a petition under Article 226 of the Constitution of India in every case, or it would depend on the facts of each case, more particularly, the grounds of challenge. To put it in other words, whether Dilavarsinh (supra) should be understood as laying down an absolute proposition of law that the petition challenging the order of an appellate tribunal had to be necessarily treated as a petition under Article 226 of the Constitution of India in every case.
(7) Is it a correct proposition of law that in a petition for issue of a writ of certiorari under Article 226 of the Constitution of India, the tribunal/court whose order is impugned in a petition must be made a party to the petition so that the writ sought from the court can go against the tribunal/court, but if the petition is for the relief under Article 227 of the Constitution of India only, then the tribunal/court whose order is impugned in a petition need not be impleaded as a party respondent on the reasoning that by entertaining the petition under Article 227 of the Constitution of India, the High Court exercises its power of superintendence, which is analogous to the revisional jurisdiction.
(8) Whether the decision of the Supreme Court in the case of Savitri Devi v. District Collector, Gorakhpur and others, reported in AIR 1999 SC 976, should be understood as laying down a proposition of law that even in a petition under Article 226 of the Constitution of India for issue of a writ of certiorari, the authority, be it a tribunal or a court, whose order is impugned, need not be impleaded as a party respondent or should the observations of the Supreme Court be understood to have been made pertaining to the judicial officers being made parties in the proceedings against a person, authority or State being required to be made a party in a writ petition under Article 226 of the Constitution of India, and a tribunal or a court not being so required in a petition under Article 227 of the Constitution of India.
Having re-framed the questions as aforenoted, we shall now proceed to answer the same, but, in our opinion, it will be more beneficial for better adjudication of the questions if we first look into some of the observations made in the case of Revaben (supra) and Dilavarsinh (supra) respectively.
(C) Propositions of law as explained in the case of Revaben ( supra ) :
In Revaben (supra), the challenge before the learned Single Judge was an order passed by the Gujarat Revenue Tribunal in exercise of its revisional powers under Section 76 of the Bombay Tenancy and Agricultural Lands Act. The original order was passed by the Mamlatdar and ALT, determining the purchase price of the lands. The original order passed by the Mamlatdar and ALT was challenged by way of an appeal before the Deputy Collector (Land Reforms and Appeals), and thereafter, the order passed by the Deputy Collector was challenged further by way of a revision before the Gujarat Revenue Tribunal. The learned Single Judge rejected the application, holding that no case was made out for interference in exercise of powers under Article 227 of the Constitution of India. Such order passed by the learned Single Judge was challenged by way of a Letters Patent Appeal.
Before the Letters Patent Bench, it was argued that the Special Civil Application had been filed both under Articles 226 and 227 of the Constitution of India, and a Letters Patent Appeal would be maintainable although the learned Single Judge may not have mentioned in the order impugned the particular provision of the Constitution of India. It was also argued that once a citizen has invoked Article 226 of the Constitution of India and prays for a relief in the nature of a writ of certiorari for setting aside of an order of any court or tribunal, although the selfsame relief could also be given in exercise of powers under Article 227, yet such a fact is immaterial for the purpose of deciding the question of maintainability of the appeal. The Letters Patent Bench considered the various decisions of the Supreme Court as well as of this High Court including Clause 15 of the Letters Patent and Articles 226 and 227 of the Constitution of India. The Bench also considered the definition of the term 'original jurisdiction' as given in the Black's Law Dictionary, the Law Lexicon, Advanced Law Lexicon and Halsbury's Laws of England, fourth edition. The Bench dismissed the appeal holding that the same was not maintainable, by making the following observations :
"15. In our opinion, for ascertaining whether an order passed by a learned Single Judge is appealable under Clause 15 of the Letters Patent or not, the prime consideration is whether the learned Single Judge exercised original jurisdiction or not.
16. At this stage, we may profitably refer to the definition of the original jurisdiction as given in the Blacks Law Dictionary, Sixth Edition, Centennial Edition, 1891-1991 which is quoted below:
Jurisdiction to consider a case in the first instance. Jurisdiction of court to take cognizance of a cause at its inception, try it, and pass judgment upon law and facts. Distinguished from appellate jurisdiction.
(Emphasis given by us).
16.1 According to Black's Law Dictionary, Ninth Edition, the term "original jurisdiction" means, "A court's power to hear and decide a matter before any other court can review the matter."
(emphasis supplied by us).
16.2 According to The Law Lexicon of P. Ramanatha Aiyar, Second Edition 1997, the phrase "original jurisdiction" means, jurisdiction to entertain cases in the first instance, as distinguished from appellate jurisdiction. The jurisdiction of first instance; the authority of a court to take cognizance of a controversy at the inception of legal proceedings thereon [S.193, Cr.PC and Art.131, Const.]
16.3 According to Advanced Law Lexicon, 3rd Edition, 2009 by P. Ramanatha Aiyar, the phrases Court of original and Court of appellate jurisdiction have been defined as follows: Courts of original jurisdiction are those in which an action has its first source or existence and which do not take jurisdiction of it by appeal. Courts of appellate jurisdiction are those which review causes removed by appeal or error from another court. Similarly, the phrase Court of original jurisdiction has been defined separately as follows: A court of first instance. A court where an action is initiated and first heard.
16.4 Halsbury's Laws of England, Fourth Edition, while explaining "certiorari", in para 165 observes as under:-
"Where the inferior tribunal has acted without jurisdiction certiorari to quash the proceedings may be granted. Want of jurisdiction may arise from the nature of the subject matter, so that the inferior tribunal had no authority to enter on the inquiry, or upon some part of it. It may also arise from the absence of some essential preliminary proceedings. Thus, although the inferior tribunal may have jurisdiction over the subject matter of the inquiry, it may be a condition precedent to the exercise of its jurisdiction that the proceedings should be begun within a specified time, or that some step should have been previously taken by the person who institutes proceedings before the tribunal. Under various statutes certain notices are requisite before the commencement of proceedings; and the omission to serve such notices deprives the inferior tribunal of jurisdiction and affords ground for certiorari.
Similarly, certiorari will issue to quash a determination of a tribunal which, having jurisdiction in the first instance, has proceeded to exceed its jurisdiction by entertaining a matter lying outside its province, or which has otherwise continued upon an inquiry despite the occurrence of a fact ousting its jurisdiction."
(Emphasis given by us).
17. An important question of law fell for the consideration of a five-judge-bench of the Karnataka High Court in the case of GURUSHANTH PATTEDAR VS. MAHABOOB SHAHI KULBURGA MILLS, GULBURGA AND ANOTHER reported in AIR 2005 Karnataka 377 (F.B), whether an order passed by a learned Single Judge in a petition filed under Article 227 of the Constitution was appealable under Section 4 of the Karnataka High Court Act, 1961.
17.1 Section 4 of the Karnataka High Court Act, 1961 reads as under:-
"4. Appeals from decisions of a single Judge of the High Court:- An appeal from a judgment, decree or sentence passed by a single Judge in the exercise of the original jurisdiction of the High Court under this Act or under law for the time being in force, shall lie to and be heard by a Bench consisting of two other Judges of the High Court" (emphasis supplied)
17.2 The Full Bench of the Karnataka High Court, after careful reading of Section 4, made the following observations:-
"A careful reading of the aforesaid provision makes it clear that a right of appeal has been provided under Section 4 of the Act against a judgment or order of a learned single Judge only if it is passed in the exercise of original jurisdiction of the High Court and not otherwise. The word 'jurisdiction' means the power to hear and determine a case and the phrase "original jurisdiction" means the power to entertain cases in the first instance. Thus, a Court of original jurisdiction is one in which an action has its origin and it also means that the litigation may be brought originally in that Court. In order to know when this Court exercises original jurisdiction, it will have to be found out in each case whether the issues raised in the petition arose for adjudication for the first time before the High Court or had they been already raised and adjudicated upon by any Court or tribunal subordinate to it."
18. Thus, if an order passed by the tribunal or court subordinate to High court is the subject-matter of challenge in High Court on merit, the exercise of such jurisdiction cannot be said to be original in nature but it is really in exercise of power of superintendence except only in cases where the conditions for issue of a writ of certiorari are satisfied. But the issue of writ of certiorari can only be possible, as pointed out by Halsbury's Laws of England quoted above, if the concerned tribunal or the court subordinate to High Court while passing the order impugned exercises original jurisdiction and not the appellate or revisional jurisdiction. On the other hand,it is well settled that the power of revision or superintendence is really a part of exercise of appellate jurisdiction and the order of the subordinate authority on exercise of power merges with the revised order. (See SHANKAR RAMCHANDRA ABHYANKAR V. KRISHNAJI DATTATRAYA BAPAT reported in AIR 1970 SC 1)."
Finally, in para 41, the Bench laid down the propositions for determining the tests which are required to be applied for considering the maintainability of an appeal under Clause 15 of the Letters Patent.
"41. From our above discussions, the following answers emerge out for determining the tests which are required to be applied for considering the maintainability of an appeal under Clause 15 of the Letters Patent:
1. The learned Single Judge must have exercised original writ jurisdiction as distinguished from appellate jurisdiction, revisional jurisdiction or power of superintendence in order to maintain an appeal under clause 15 of the Letters Patent.
2. A writ of certiorari lies in appropriate cases against the order of a tribunal or court subordinate to High court where such court or tribunal acts as an authority of first instance but it will not be at all maintainable if such court or tribunal act as appellate or revisional authority. Thus, if an appellate or revisional order of the court or tribunal subordinate to a High Court is sought to be challenged before High Court, the aggrieved party should take the aid of Article 227 alone and not Article 226 of the Constitution.
3. If a Special Civil Application is filed even with a prayer of certiorari against the order of the court or tribunal which did not exercise original jurisdiction as a court or tribunal of the first instance but exercised an appellate or revisional jurisdiction, such Special Civil Application does not come within the purview of Article 226 of the Constitution for issue of the writ of certiorari nor can refusal of exercise of such jurisdiction be described as passing of order in original writ jurisdiction so as to maintain an appeal under clause 15 of the Letters Patent.
4. If the Special Civil Application is described as one not only under Article 226 but also under Article 227 of the Constitution of India and the court or tribunal whose order is sought to be quashed is not made party, the application is not maintainable as one for the relief of certiorari in the absence of the concerned tribunal or court as party but the same may be treated as one under Article 227 of the Constitution of India.
5. If a learned Single Judge in exercise of a purported power under Article 227 of the Constitution sets aside the order of the tribunal or court below and at the same time, the essential conditions for issue of writ of certiorari are absent, no appeal will be maintainable against such order in view of specific bar created under clause 15 of the Letters Patent itself and such order should be challenged only by way of Special Leave Petition before the Supreme Court.
6. However, if a learned Single Judge in purported exercise of power under Article 226 issues a writ of certiorari although the same is not maintainable for any lawful reason, an appeal under Clause 15 of the Letters Patent would nevertheless be maintainable because an order passed without jurisdiction is also required to be challenged in the same way as if it was passed by a forum with the required jurisdiction.
7. A combined application under both Articles 226 and 227 of the Constitution of India can be entertainable only when the court fees payable for invoking both the provisions have been paid in aggregate. If such combined application is filed, it is for the office to point out whether court fees payable for invoking both the provisions have been paid or not. If court fees payable for invoking only one of the Articles 226 and 227 have been affixed, the court before dismissing the application on that ground may give option to the petitioner to choose only one of such provisions if he does not pay the balance amount of court fees and the application should be treated accordingly. It is, however, for the court to decide whether the facts of the case justify invocation of original jurisdiction or it is a fit case for exercising supervisory jurisdiction.
(D) Propositions of Law as explained by the Full Bench in the case of Dilavarsinh ( supra ) :
In Dilavarsinh (supra), the Full Bench answered the question, whether the petitions against an order of the tribunal under the Urban Land (Ceiling and Regulation) Act, 1976, when purported to be filed under Article 226 of the Constitution of India in conjunction with Article 227 of the Constitution of India or otherwise, praying for a writ in the nature of a certiorari, were maintainable in view of the two decisions of this Court, which we have referred to above.
A contention was urged before the Full Bench that an order passed by the tribunal under the said Act could only be challenged under Article 227 of the Constitution of India and, therefore, a Letters Patent Appeal would not be maintainable against the order passed by a learned Single Judge in such matters.
The Full Bench took into consideration Section 33 of the Act, which provides for an appeal against the order passed by the competent authority under the Act. The Full Bench also considered various other decisions of this Court, but placed strong reliance on the Supreme Court decision in the case of Umaji Keshao Meshram (supra). The Full Bench also considered the scope of a writ of certiorari and the nature of an order of the tribunal. In paras 12 and 13 of the decision, the Full Bench made the following observations :
"12. Writ of certiorari would lie against the orders of subordinate courts and inferior Tribunals. The High Court has power of superintendence over its Tribunals within its territory, under Article 227 and, therefore, such Tribunals are inferior Tribunals, amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution so that writs of certiorari and prohibition can issue against them. If such Tribunal assumes wrong jurisdiction, it can be stopped by a writ of prohibition and if it makes an order, which falls within the scope of the writ of certiorari, the same can be quashed under Article 226. The object of the writ of certiorari is to secure that the jurisdiction of the inferior Tribunal should be properly exercised. This writ is issued to direct inferior courts, Tribunal or authorities, to transmit to the Court record of proceedings pending therein for scrutiny and, if necessary, for quashing the same. As held by the Supreme Court in Harbans Lal v. Jagmohan Saran, AIR 1986 SC 302, a writ in the nature of certiorari may be issued if the order of the inferior Tribunal or Subordinate . Court suffers from the error of jurisdiction, or from a breach of the principles of natural justice, or is vitiated by a manifest or apparent error of law. The expression 'Tribunal', would include within its ambit, adjudicating bodies, provided they are constituted by the State and are investing with judicial, as distinguished from purely administrative or executive, functions, (see Durga Shankar Mehta v. Raghuraj Singh, AIR 1954 SC 520). As held by the Supreme Court in All Party Hill Leaders' Conference, Shillong v. Captain WA., Sangma, AIR 1977 SC 2155, the principal test, which must, necessarily, be present for determining the character of the Authority as Tribunal, is whether that authority is empowered to exercise any adjudicating power of the State and whether the same has been conferred on it by any statute or a statutory rule. It is clear from the provisions of Section 33 of the Act that the said Tribunal, which is he Appellate Authority, is statutorily prescribed and has appellate powers over the orders made by the Competent Authority under the Act. The Tribunal clearly exercises adjudicating power while deciding such appeals. The requirement of hearing is also statutorily incorporated and would constitute manner of exercise of the appellate power statutorily prescribed. The Urban Land Tribunals under the provisions of the said Act is the legal authority to determine question affecting the rights of the parties and has the duty to act judicially. It therefore, follows that against the orders made by such Tribunal, a writ of certiorari or a writ in the nature of certiorari, can issue under Article 226 of the Constitution. In other words, the aggrieved party would be justified in invoking the provisions of Article 226 of the Constitution for a writ of certiorari against the order made by the Urban Land Tribunal in exercising of its judicial functions conferred on it by Section 33 of the said Act. The decisions of this Court, referred to above, proceed on an assumption that an order of the Tribunal could be challenged only under Article 227, and that the petitions even if filed under Article 266 against such orders, should be treated as petitions under Article 227. For the reasons aforesaid, we are, with respect, unable to subscribe to this view.
13. In the present case, the grounds taken in the writ petition, unmistakably, go to show that it was a petition under Article 226 and from the order of the learned single Judge, it would appear that the petition was considered, both under Articles 226 and 227. We are of the view that Letters Patent Appeal under Clause 15 would lie against an order made by the single Judge in such petitions challenging the order of the Urban Land, Tribunal passed under Section 33 of the Act. The aforesaid decisions of this Court, to the extent it is held that the petitions, filed under Article 226, or both under Articles 226 and 227 against an order of the Urban Land Tribunal were to be treated, in substance and in essence, as petitions under Article 227 and, therefore, no Letters Patent Appeal lies against the orders made by a single Judge in such petitions, are, therefore, in our opinion, in conflict with the decisions of the Supreme Court, in Umaji's case (AIR 1986 SC 1272) (supra), Sushilabai's case (AIR 1992 SC 185 (supra) and Mangalbhai (AIR 1993 SC 806) (supra), and for reasons aforesaid no longer good law to the extent of the above conflict. In our opinion a petition under Article 226 for a writ of certiorari or a writ in the nature of certiorari would be lie against an order of the Urban Land Tribunal passed under Section 33 of the Urban Land (Ceiling and Regulation) Act, 1976, and orders made in such petitions by the single Judge are subject to appeal under Clause 15 of the Letters Patent, read with Chapter VI, more particularly, Rule 82 of the Gujarat High Court Rules, 1993. This would be so, even if the petition is purported to be filed under Article 226, in conjunction with Article 227 or otherwise. The question referred to us is answered accordingly. The matter will now be placed before the Division Bench for further proceedings."
(E) Submissions of the respective counsel :
Submissions canvassed by Mr.Kamal B.Trivedi, the learned Advocate General, on behalf of the State:
Mr.Trivedi contended that the view taken by the Division Bench of this Court in Revaben's case (supra) is directly in conflict with a Full Bench decision of this Court in the case of Dilavarsinh (supra). Mr.Trivedi submitted that according to the decision of the Full Bench in the case of Dilavarsinh (supra), an order passed by the Appellate Tribunal under Section 33 of the Urban Land Ceiling Act, could be challenged by way of a writ-application under Article 226 of the Constitution of India, and if a case is made out, then the Court could well be justified in issuing a writ of certiorari. On the other hand, according to Mr.Trivedi, the Division Bench of this Court in Revaben (supra) without adverting to the Full Bench decision in the case of Dilavarsinh (supra) has taken the view that if an appellate order or an order passed by the revisional authority is challenged, then the same has, necessarily, to be under Article 227 of the Constitution of India and not by way of a writ-application under Article 226 of the Constitution of India, because the proceedings would cease to be the original proceedings once the original order passed by the authority merges with the Appellate Authority. Mr.Trivedi submitted that the right of appeal against the decision of a Single Judge of this High Court against the judgment and order passed in a petition under Article 226 of the Constitution of India flows from Clause 15 of the Letters Patent. According to Mr.Trivedi, the original jurisdiction referred to in Clause 15 should be understood in the constitutional context, more particularly in the context of the power of the High Court to issue a writ which is always original and not otherwise. Mr.Trivedi submitted that while considering the scope of a Letters Patent Appeal, what is required to be taken into account is the order of the learned Single Judge, passed under Article 226 of the Constitution of India, in exercise of its original jurisdiction and not the order passed by the Court or the Tribunal at the first instance, in exercise of its original jurisdiction. Mr.Trivedi also submitted that irrespective of the fact whether the order impugned is passed by a Court or the Tribunal at the first instance in exercise of the original jurisdiction or by a Court or the Tribunal in the second instance in exercise of its appellate or revisional jurisdiction, such an order can always be challenged by a writ petition under Article 226 of the Constitution seeking a writ of certiorari, provided all the requisite conditions for the issue of a writ of certiorari are satisfied, and the order of the learned Single Judge passed in such proceedings could be challenged by way of a Letters Patent Appeal.
Mr.Trivedi submitted that in a catena of decisions of the Supreme Court as well as this High Court, a petition challenging the order of a Court or a Tribunal at the second instance, passed in exercise of its appellate or revisional jurisdiction, has been held to be maintainable under Article 226 of the Constitution, and consequently, the Letters Patent Appeal against such orders has also been held to be maintainable. Mr.Trivedi relied on the following decisions:-
(i) Mangalbhai v. Dr. Radhey Shyam, (1992) 3 SCC 448
(ii) Lokmat Newspapers Pvt.Ltd. v. Shankarprasad, (1999) 6 SCC 275;
(iii) Ashok K. Jha v. Garden Silk Mills Ltd., (2009) 10 SCC 584;
(iv) Dilavarsinh Khodubha v. State of Gujarat, 1995 (1) GLR 110 (FB);
Mr.Trivedi also tried to convince us that in a petition under Article 226 of the Constitution, the authority whose order is sought to be impugned, need not be impleaded as a party respondent and even in the absence of such an authority before the Court, a writ of certiorari could always be issued. Mr.Trivedi submitted that a petition which is otherwise fulfilling all the conditions for being treated as one under Article 226 of the Constitution of India for issue of a writ of certiorari should not be treated as one only under Article 227 of the Constitution of India because the authority whose order is impugned is not joined as a party respondent in the petition.
According to Mr.Trivedi, in the case of Udit Narain Singh Malpaharia (supra), the Supreme Court held that it was implicit in such a proceeding that a Tribunal or an 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 with the High Court and that if such a Tribunal or the authority is not made a party to the writ-application, it can easily ignore the order of the Court and consequently, will not be liable to contempt. Thus, according to Mr.Trivedi, joining of the Courts, Tribunals and authorities whose orders may be under challenge in a writ petition filed before this Court is not a factum, which could be said to be decisive for determining the maintainability of the Letters PatentAppeal. If they are necessary parties, but not joined, then in such circumstances, at the best the Court may refuse to issue a writ as prayed for in a petition which is otherwise a petition under Article 226 of the Constitution.
Mr.Trivedi also invited our attention to yet one another decision of the Division Bench of this Court in the case of Principal, S.V.Doshi Girls' High School (supra), wherein a view has been taken relying on the decision of the Supreme Court in the case of Savitri Devi (supra) that it is not necessary to join a Court or a Tribunal as a party respondent whose order is being impugned in the petition.
Mr. Trivedi also tried to convince us that the power to issue a writ of certiorari or the power to pass an order in the nature of a certiorari must be considered in the context with the constitutional provision, namely, Article 226 of the Constitution of India. The technicalities of English writs should not come in the way of the Court in issuing of a writ of certiorari even in the absence of the authority whose order is sought to be challenged. Mr.Trivedi submitted that the times have changed. The English writs were altogether different. The basic idea in impleading the authority whose order is sought to be challenged as a party respondent in a petition under Article 226 of the Constitution is that the authority shall certify the record and transmit it to the High Court for its perusal. According to Mr.Trivedi, there is no question nowadays to certify the record and transmit it to the High Court because practically, all documents on which reliance is sought to be placed by the petitioner would be before the Court annexed with the petition. In such circumstances, impleadment of the authority would be just an empty formality.
Submissions of Mr.Mihir Thakore, the learned senior advocate :
Mr.Thakore practically adopted all the submissions which were canvassed by Mr.Trivedi, the learned Advocate General, so far as the concept of original jurisdiction to be understood in context with the constitutional provisions is concerned. Mr.Thakore in principle agreed to the proposition that if the order of an authority or the Tribunal is sought to be challenged by way of a writ-application under Article 226 of the Constitution, then such authority or the Tribunal should be impleaded as a party respondent in the petition. However, according to Mr.Thakore, such impleadment of the authority or the Tribunal should be on the principle that the Court should not decide a writ-application in the absence of the necessary or proper parties. According to Mr.Thakore, if the authority or the Tribunal is not joined as a party respondent, then in such circumstances, the Court may be justified in rejecting the petition on the ground of non-joinder of the necessary or proper parties, but the Court cannot say that since the authority or the Tribunal is not joined as a party respondent, it has necessarily to consider the petition under Article 227 of the Constitution of India only and not as a writ-application under Article 226 of the Constitution. Mr.Thakore also tried to convince us that Article 226 is couched in a very broad language. It not only confers power on the High Court to issue a writ of certiorari, but it also has the power to pass an appropriate order in the nature of a certiorari. If the petition is with a prayer for passing of an order in the nature of a certiorari, then in such circumstances, there is no question of directing the Court or the Tribunal to certify the record and transmit to the High Court.
Mr. Thakore also submitted that the distinction drawn by the Division Bench of this Court in Revaben's case (supra) as regards the Tribunal of the first instance and the Appellate Tribunal, is not tenable in law because now it is well settled that the term "any person or authority" contained in Article 226 of the Constitution would include a Court or the Tribunal, and once a Court or the Tribunal is read into Article 226 of the Constitution, then there is no justification from keeping the Appellate Tribunal or a Tribunal exercising revisional jurisdiction not being amenable to issue of a writ of certiorari.
Mr.Thakore led much emphasis on the decision of the Supreme Court in Umaji's case (supra). Relying on the decision of the Supreme Court in Umaji's case (supra), Mr.Thakore submitted that if the facts otherwise justify a party in invoking the writ jurisdiction of the High Court under Article 226 of the Constitution, then only because the same relief could be granted by the High Court in exercise of the power under Article 227 of the Constitution would be no ground to refuse to issue a writ of certiorari under Article 226 of the Constitution. Mr.Thakore placed strong reliance on a Full Bench decision of the Bombay High Court in the case of Jagdish Balwantrao Abhyankar v. State of Maharashtra and others, reported in AIR 1994 (Bom.) 141 and submitted that the nomenclature should not matter and if the jurisdiction of the High Court is invoked by the party under Article 226 of the Constitution, it should not be treated as one under Article 227 of the Constitution only because the Court or the Tribunal whose judgment is impugned before it is subject to the power of superintendence. It should not be inferred that the High Court has exercised jurisdiction under Article 227 and not under Article 226 of the Constitution. According to Mr.Thakore, such an approach would not be in consonance with the basic principles of law. Mr.Thakore led much emphasis on the fact that the result of such reasoning would amount to deprivation of the right of appeal to a party, who may have purposefully chosen to invoke the jurisdiction under Article 226 of the Constitution. The test, according to Mr.Thakore, on the question of maintainability of a Letters Patent Appeal is not whether the subject matter can be looked into under Article 227 of the Constitution. Mr.Thakore also submitted, placing reliance on the Full Bench decision of the Bombay High Court referred to above, that if the facts justify filing of an application either under Article 226 or under Article 227 of the Constitution and the party chooses to file application under both these Articles, the Court ought to treat the application as one filed under Article 226 of the Constitution, if the substantial part of the order appealed against is under Article 226. If in deciding such an application made under Article 226 and 227 of the Constitution, the Single Judge of the High Court grants ancillary direction which pertains to Article 227, then by the reason of such ancillary direction being given in the order, the petition should not be treated as the one under Article 227 of the Constitution, but should be treated as the one under Article 226 of the Constitution, so that a party is not deprived of his valuable right of an intra-court appeal under Article 15 of the Letters Patent.
Submissions of Mr.Asim Pandya, the learned advocate who appeared as an intervenor on behalf of the Gujarat High Court Advocates' Association:
Mr.Pandya submitted that in view of the clear language of Article 226 of the Constitution, the High Court would not be justified in following the technicalities of the traditional writs.
Mr.Pandya submitted that Article 226 of the Constitution does not rule out issuance of an order or a writ in the nature of certiorari against the orders/judgments passed by a subordinate Tribunal or Court exercising appellate or revisional jurisdiction. Mr.Pandya submitted that there is absolutely no requirement of joining a Tribunal or the Court in the proceeding under Article 226 of the Constitution for the issue of a writ in the nature of certiorari.
According to Mr.Pandya, the decision of the Supreme Court in Udit Narain Singh (supra) could be termed as per incurium since it failed to take notice of the seven-Judge Bench decision of the Supreme Court in Hari Vishnu Kamath v. Ahmed Ishaque, reported in AIR 1955 SC 233. According to Mr.Pandya, the observations of the Supreme Court in the case of Udit Narain Singh (supra) as regards the requirement of joining the Tribunal or the Court as the party respondent could be termed as obiter dicta and not as a binding precedent.
Mr.Pandya submitted that since all Courts and the Tribunal are subordinate to the High Court under Article 227 of the Constitution, it does not make any difference so far as the adjudication of a lis between the parties or implementation of the order passed by the High Court is concerned, if a Tribunal or a Court is not joined as a party in the proceeding for the writ in the nature of certiorari.
Mr.Pandya submitted that Article 227 should be invoked as a last resort in cases of a highly exceptional and extraordinary nature because a mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227 of the Constitution.
Mr.Pandya submitted that Article 227 of the Constitution speaks of the power of superintendence over only subordinate Courts and the Tribunals. As against that, Article 226 speaks of "any person or authority". According to Mr.Pandya, there was no necessity to provide the words "Courts and Tribunals" specifically in Article 226, as the words "order, direction or writs in the nature of certiorari" were comprehensive enough to provide a judicial control over the subordinate Courts, Tribunals and other quasi-judicial authorities.
Mr.Pandya submitted that ordinarily, a writ of certiorari is issued to correct the errors apparent on the face of the record or a palpably illegal order or an order passed in violation of the prescribed procedure or where no proceeding is prescribed, and order passed in violation of the principles of natural justice. The judicial order or the quasi-judicial order ordinarily cannot be challenged as violative of the fundamental rights, and therefore, a writ of certiorari is generally not meant for the enforcement of the fundamental right, but it is meant to achieve "any other purpose" as stated in Article 226 of the Constitution.
Mr.Pandya also explained to us the difference between the post constitutional legal system in India and the legal system which prevailed in England. According to Mr.Pandya, the phraseology "writs in the nature of" is consciously used in the light of a new set up created under the Constitution of India. Mr.Pandya submitted that in England, the Crown is always a nominal plaintiff and the proceedings are titled as "Rex/Regina v. ___Tribunal". In India, the State representing all three wings viz. the Executive, the Legislature and the Judiciary is usually joined as a respondent, and therefore, it is not necessary to join the Tribunal or the Court as a respondent. Mr.Pandya submitted that Article 227 of the Constitution vests the power of superintendence over all Courts and the Tribunals in the High Court. Thus, all the Courts and the Tribunals being judicially subordinate to the High Court, any writ, order or direction can be issued to such subordinate Tribunals or the Courts, whether they are joined as a party respondent or not. In England, there is no corresponding provision like Article 227 and therefore, the Tribunal would be joined as a party respondent in a certiorari proceeding.
Mr.Pandya, relying on the decision of the Supreme Court in Hari Vishnu Kamath (supra) submitted that the non-joinder of a Tribunal or a Court in a certiorari proceeding is not a fundamental defect. He would submit that joining a Tribunal as a party respondent is just a matter of convenience. According to Mr.Pandya, the Court is concerned with the offending order and not the offender, as observed by the Supreme Court.
Mr.Pandya also brought to our notice that in our country, there is no practice at least after the commencement of the Constitution of India, whereby the subordinate Court or the Tribunal certifies the record to the High Court for examination when a petitioner is seeking quashing of the order of the Tribunal or the Court. The practice prevailing after independence is that the petitioner would himself produce a certified record/order of the subordinate Court or the Tribunal for the examination of the legality of the proceeding. Thus, according to Mr.Pandya, once the record is brought before the High Court, it can be quashed irrespective of the fact whether a Tribunal or a Court is joined as a party or not.
Mr.Pandya, in support of his submissions, tried to draw the analogy of a writ of habeas corpus by relying on the decision of the Supreme Court in Kanu Sanyal v. District Magistrate, Darjeeling, AIR 1973 SC 2684. In the said decision, the Supreme Court held in general that when a writ of habeas corpus is prayed for, the body of the person detained must be produced with the writ, but production in the Court of the person detained is not a pre-requisite to the exercise of jurisdiction, and in a proper case, may be excused or dispensed with. Drawing the analogy from the decision of the Supreme Court in Kanu Sanyal (supra), Mr.Pandya submitted that calling for the record is not a pre-requisite for issue of a writ of certiorari or in the nature of a certiorari.
Mr.Pandya lastly submitted that a writ of certiorari could be issued even against the orders passed by a Civil Court arising from the civil proceedings. He submitted that the decision of the Supreme Court in Surya Dev Rai (supra) makes such a legal position very clear. However, in a subsequent decision of the Supreme Court in the case of Radhey Shyam v. Chhabi Nath (supra), the Bench doubted the correctness of the view taken in Surya Dev Rai and has merely referred the question to the Larger Bench. He submitted that so long as the reference is not decided by the Larger Bench, Surya Dev Rai's case (supra) holds the field.
Written submissions of Shri Vinayakrao Shantilal Desai, a third party intervenor, in C.A No.11141/13 in LPA No. 1149 of 2013.
Mr. Desai submitted that the Full Bench decision of this Court in the case of Dilavarsinh (supra) and Bhagyodaya Co-operative Bank Limited (supra) are in personam and not in rem. They fail ex facie to refer to, rely upon, get circumscribed by and restricted to the express words-cum-inbuilt exclusions, limitations, restrains of and under "Clause 15" of the Amended Letters Patent, 1865. They in themselves are per incuriam and not the decisions in rem.
According to the intervenor, a œCourt or tribunal? qua the exclusive judiciary on its judicial side for its judicial act, specifically covered under Article 227, is not a œperson or authority? expressly or otherwise included under Article 226 read with Article 367 (1) and Section 3(42) of the General Causes Act, 1897 or read with Article 12 respectively, as the case may be.
According to the intervenor, the original jurisdiction is necessarily vested by law in a court or Tribunal of first instance; but, there is no original jurisdiction vested by law in the High Court under Article 226 over any Court or Tribunal and/or over its any judicial act whether of decree or order or of award or order, as the case may be.
It was submitted that a real executive-cum-ostensible judiciary; a quasi-judiciary, on its quasi-judicial side, in the exercise of its quasi-judicial power, for its quasi-judicial act; and, on the other hand, an exclusive judiciary, on its exclusive judicial side, in the exercise of it exclusive judicial jurisdiction, for its exclusive judicial act, are wholly distinct concepts from each other and not one and the same.
The constitutional proceedings under Article 226 and Article 227 are mutually exclusive of one another and collectively exhaustive of the High Courts powers under the Constitution of India and not let thereby made inter-changeable, inter-convertible, inter-substitutable.
The respective laws and precedents applicable to and binding on the respective acts of quasi-judiciary and exclusive-judiciary are essentially, inherently, intrinsically different from one another and not inter-applicable, inter-binding, inter-exchangeable.
It was further submitted that a court whose decree or order or a tribunal whose award or order, as the case may be, is sought to be challenged in a writ petition is personally independent of, disinterested in, let to be maintaining his stature in respect of the matter therein accordingly only.
A courts or tribunals judgment, decree, award, order is impugned; but, no relief is claimed personally against itself therein. A court or tribunal is neither personally liable, nor called upon, nor permitted to answer and contest the claim to the relief therein.
Judicial independence of a court or tribunal is affected by impleading it a party therein. Judicial act of a Court or tribunal is interfered with upon impleading it a party therein.
œAdditional protection? qua the immunity to the Judge of a court or tribunal under Sections 2(a), 3(1) and 4 of the Judges (Protection) Act, 1985 already immunes him from and absolutely bars any court proceeding against him for his judicial act, subject to only Section 3(2) thereof; œunder any law for the time being in force to take such action? as amongst others the œ Supreme Court or any High Court? may take, such as, under Article, 136 or Article 227 respectively.
The Honble Supreme Court Division Bench (4-Judge Bench) decision of Udit Narain Singh is also in personam; not in rem. œAdditional Member, Board of Revenue, Bihar?, was already the party-respondent therein. No lis arose much less the pro-and-con pleadings, submissions, speaking reasons for the judgment pro-and- contra thereon are reached-and-recorded therein on a point in dispute, such as, whether the aforesaid party-respondent therein was a œtribunal? qua a quasi-judicial tribunal on its quasi-judicial side in its quasi-judicial act; or, as the case may be, a œjudiciary? on its purely judicial side in its purely judicial act and whether he was or was not susceptible to be impleaded qua a party-respondent at all in the petition for œdirections, orders or writs, including writs the nature certiorari? under Article 226 of the Constitution of India.
The Honble Supreme Courts Larger Constitution Bench (7-Judge Bench) in Ujjam Bai AIR 1962 SC 1621 and its still larger Constitution Bench (9-Judge Bench) in Naresh Mirajkar AIR 1963 SC 786; though in each case in seisin of the lis arisen from the respective quasi-judicial and purely judicial sides and oral submissions too in this behalf advanced under Article12 advisedly, did not to reach-and-record its respective speaking judgments thereon either way. The point in dispute in this behalf was thereby treated res integra and relegated to appropriate determination thereon in futuro.
(F) What is the meaning of the word 'writ' and what is 'a writ of certiorari' ?
A Plain Dictionary meaning of the word œwrit? is as under:-
œa form of written command to act or not act in some way?
As per Law Lexicon œwrit? is explained as under:-
œin general is the king's precept, in writing under seal, issuing out of some court, to the sheriff, or other person, and commanding something to be done touching a suit or action, or giving commission to have it done (terms de la ley : 1 Inst. 73) also a writ is said to be a formal letter of king's sealed with a seal, directed to some judge, officer, or minister, etc., at the suit or plaint of a subject, requiring to have a thing done, for cause briefly expressed, which is to be discussed in the proper court, according to law (Tomlins Law Dic.) a written command, precept, or formal order issued by a court, directing or enjoying the person or persons to whom it is addressed to do or refrain from doing some act specified therein.?
As per the Black's Law Dictionary, the term œwrit? has been explained as under:-
œa court's written order, in the name of a state or other competent legal authority, commanding the addressee to do or refrain from doing some specified act.?
'Writ of Certiorari' : 'Certiorari' is a Latin word being the passive form of the word 'certiorare' meaning 'informed' and occurred in the original Latin words of the writ which translated read 'we being desirous for certain reasons, that the said record should by you be certified to us'. 'Certiorari' was essentially a royal demand for information; the King wishing to be certified of some matter, orders that the necessary information be provided for him. A certiorari is an original writ issuing out of a Chancery or King's Bench, directed in the King's name, to the Judges or officers of inferior courts, commanding them to return the record of a cause pending before them, with a view to provide the party speedy justice or such other justice as he shall assign to determine the cause.
Professor De Smith gives an interesting historical background of this writ. Initially, it was essentially a royal demand for information. The King would wish to be certified of some matter and direct that necessary information be provided to him. The King issued numerous such writs. The people frustrated with the judicial process in the courts increasingly sought remedy from the King himself in the form of a royal writ. This resulted in interventions in the judicial process and, in due course, the remedy by way of writ was issued by the King's Court rather than the King himself. Eventually, writs came to be issued in standard forms. Prof. De Smith points out that the writ system has a "hint of paradox" since certiorari which was initially an executive command aimed at avoiding judicial proceedings became the central mechanism for judicial control of executive action.
The essential features of a writ of certiorari including a brief history have been very exhaustively explained by His Lordship B.K.Mukherjea, J. in T.C.Basappa v. T.Nagappa and another, reported in AIR 1954 SC 440. The Court held that a writ in the nature of certiorari could be issued in 'all appropriate cases and in appropriate manner' so long as the broad and fundamental principles were kept in mind. Those principles were delineated as follows :
"In granting a writ of certiorari, the superior court does not exercise the powers of an appellate tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous, but does not substitute its own views for those of the inferior tribunal. The supervision of the superior court exercised through writ of certiorari comes on two points : one, is the area of inferior jurisdiction and the qualifications and conditions of its exercise, and another, is the observations of law in the course of its exercise. Certiorari may lie and is generally granted when a court has acted without or in excess of its jurisdiction."
(emphasis supplied)
Relying on T.C.Basappa (supra), the constitution Bench of the Supreme Court in the case of Hari Vishnu Kamath (supra), laid down the following propositions as well established :
(1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior court or tribunal acts without jurisdiction or in excess of it, or fails to exercise it.
(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 such exercise of powers would be that the court will not review the findings of facts reached by the inferior court or tribunal, even if they be erroneous.
The Court explained that a court which has jurisdiction over a subject matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy if a superior court were to rehear the case on the evidence and substitute its own finding in certiorari.
In Syed Yakoob v. K.S.Radhakrishnan and others, reported in AIR 1964 SC 477, His Lordship P.B.Gajendragadkar, CJ., speaking for the constitution Bench, placed the matter beyond any position of doubt by holding that the writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals. The observations of the court in para 7 are worth taking note of :
"7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised."
In Surya Dev Rai v. Ram Chandra Rai, reported in 2003(6) SCC 675, a bench of two Judges held that the certiorari jurisdiction though available should not be exercised as a matter of course. The High Court would be justified in refusing the writ of certiorari if no failure of justice had been occasioned. In exercising the certiorari jurisdiction, the procedure ordinarily followed by the High Court is to command the inferior court or tribunal to certify its record or proceedings to the High Court for its inspection so as to enable the High Court to determine, whether on the face of the record the inferior court has committed any of the errors as explained by the Supreme Court in Hari Vishnu Kamath (supra) occasioning failure of justice.
From the aforesaid, it could be said in terms of a jurisdictional error that want of jurisdiction may arise from the nature of the subject matter so that the inferior court or tribunal might not have the authority to enter on the inquiry. It may also arise from the absence of some essential preliminary, or from the absence of jurisdictional fact. Where the jurisdiction of a body depends upon a preliminary finding of fact in a proceeding for a writ of certiorari, the court may determine, whether or not that finding of fact is correct. The reason is that by wrongly deciding such a fact, the court or tribunal cannot give itself the jurisdiction.
In Anisminic Limited v. Foreign Compensation Commission, reported in (1969)2 AC 147, the House of Lords has given a very broad connotation to the concept of 'jurisdictional error'. It has been laid down in Anisminic that a tribunal exceeds jurisdiction not only at the threshold when it enters into an inquiry which it is not entitled to undertake, but it may enter into an enquiry within its jurisdiction in the first instance and then do something which would deprive it of its jurisdiction and render its decision a nullity. In the words of Lord Reid:
"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 bad 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 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."
So far as the errors of law are concerned, a writ of certiorari could be issued if an error of law is apparent on the face of the record. To attract the writ of certiorari, a mere error of law is not sufficient. It must be one which is manifest or patent on the face of the record. Mere formal or technical errors, even of law, are not sufficient, so as to attract a writ of certiorari. As reminded by the Supreme Court time and again, this concept is indefinite and cannot be defined precisely or exhaustively and so it has to be determined judiciously on the facts of each case. The concept, according to the Supreme Court in K.M.Shanmugam v. SRVS (P) Ltd and others, reported in AIR 1963 SC 1626, 'is comprised of many imponderables... it is not capable of precise definition, as no objective criterion could be laid down, the apparent nature of the error, to a large extent, being dependent upon the subjective element.' A general test to apply, however, is that no error could be said to b apparent on the face of the record if it is not 'self-evident' or 'manifest'. If it requires an examination or argument to establish it, if it has to be established by a long drawn out process of reasoning, or lengthy or complicated arguments, on points where there may considerably be two opinions, then such an error would cease to be an error of law. See Satyanarayan Laxminarayan Hedge v. Millikarjun Bhavanappa Tirumale, reported in AIR 1960 SC 137)
However, in our opinion, such a test should not be applied in a straitjacket formula and may fail because what might be considered by one Judge as an error self-evident, might not be considered so by another Judge.
At this stage, it may not be out of place to remind ourselves of the observations of the Supreme Court in Syed Yakoob (supra) on this point.
"Where it is manifest or clear that the conclusion of law recorded by an inferior court or tribunal is based on an obvious misinterpretation of the relevant statutory provision, or something in ignorance of it, or maybe even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. Certiorari would also not lie to correct mere errors of fact even though such errors may be apparent on the face of the record. The writ jurisdiction is supervisory and the court exercising it is not to act as an appellate court. It is well settled that the writ court would not reappreciate the evidence and substitute its own conclusion of fact for that recorded by the adjudicating body, be it a court or a tribunal. A finding of fact, howsoever erroneous, recorded by a court or a tribunal cannot be challenged in proceedings for certiorari on the ground that the relevant and material evidence adduced before the court or the tribunal was insufficient or inadequate to sustain the impugned finding.
It is also well settled that adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the tribunal and these points cannot be agitated before the writ court."
In the aforesaid context, it will be profitable for us to refer to the decision of the Supreme Court in the case of Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union and another, reported in AIR 2000 SC 1508. The Supreme Court observed as under:
"The findings of fact recorded by a fact finding authority duly constituted for the purpose and which ordinarily should be considered to have become final, cannot be disturbed for the mere reason of having been based on materials or evidence not sufficient or credible in the opinion of the writ court to warrant those findings had any right, as long as they are based upon such materials which are relevant for the purpose or even on the ground that there is yet another view which can be reasonably and possibly undertaken."
However, we may clarify that findings of fact based on 'no evidence' or purely on surmises and conjectures or which are perverse could be challenged by way of a certiorari as such findings could be regarded as an error of law.
Thus, from the various decisions referred to above, we have no hesitation in reaching to the conclusion that a writ of certiorari is a high prerogative writ and should not be issued on mere asking. For issue of a writ of certiorari, the party concerned has to make out a definite case for the same and is not a matter of course. To put it pithily, certiorari shall issue to correct errors of jurisdiction, that is to say, absence, excess or failure to exercise and also when in the exercise of undoubted jurisdiction, there has been illegality. It shall also issue to correct an error in the decision or determination itself, if it is an error manifest on the face of the proceedings. By its exercise, only a patent error can be corrected but, not also a wrong decision. It should be well remembered at the cost of repetition that certiorari is not appellate but only supervisory.
A writ of certiorari being a high prerogative writ is issued by a superior court in respect of the exercise of judicial or quasi-judicial functions by another authority, when the contention is that the exercising authority had no jurisdiction or exceeded the jurisdiction. It cannot be denied that the tribunals or the authorities concerned in this batch of Appeals had the jurisdiction to deal with the matter. However, the argument would be that the tribunals had acted arbitrarily and illegally and that they had failed to give proper findings on facts and the circumstances of the case. We may only say that while adjudicating a writ-application for a writ of certiorari, the court is not sitting as a court of appeal against the order of the tribunals to test the legality thereof with a view to reach a different conclusion. If there is any evidence, the court will not examine whether the right conclusion is drawn from it or not. It is a well established principle of law that a writ of certiorari will not lie where the order or decision of a tribunal or authority is wrong in matter of facts or on merits. (See R. v. Nat Bell Liquors Ltd., (1922)2 AC 128 (PC))
We may quote with profit a decision of the Supreme Court in the case of Satyanarayan Laxminarayan Hedge (supra) to understand the true purport and meaning of an error apparent on the face of the record or an error which could be termed as self-evident. The facts of that case were as below:
The respondent made an application in the Revenue Court of the Mamlatdar of Sirsi praying for the delivery of possession of property which the appellant was on that date possessing as the tenant under him on the basis of a 'Mulegeni' deed executed by the respondent's predecessor-in-interest in favour of the appellant's predecessor-in-interest. The case was governed by the Bombay Tenancy and Agricultural Lands Act, 1948, and one of the questions in controversy was whether before applying for the delivery of possession, it was incumbent upon the respondent to have given a notice terminating the tenancy. The Mamlatdar made an order for possession in favour of the respondent. The Collector allowed the appeal and set aside the order of the Mamlatdar. The Bombay Revenue Tribunal, to whom the matter was taken up on appeal, held that as the respondent had failed to terminate the tenancy by notice before instituting the action for ejectment, he was not entitled to entertain the application for recovery of possession.
Thereafter, the respondent made an application to the High Court of Bombay under Article 227 of the Constitution of India for the quashing of the order of the Revenue Tribunal and the Collector and for the restoration of the order of the Mamlatdar. The High Court was of the opinion that the Tribunal had committed an error which was apparent on the face of the record in holding that an order of possession could not be made unless a notice terminating the tenancy had been given before the institution of the proceeding and it issued a writ of certiorari quashing the order of the Tribunal and restoring that of the Mamlatdar.
An appeal was filed against the order of the High Court and the Honourable Supreme Court reversed that order on the ground that the alleged error in the judgment of the Bombay Revenue Tribunal, namely that an order for possession should not be made unless a previous notice required by Section 14 of the Bombay Tenancy and Agricultural Lands Act, 1948, had been given, was not an error apparent on the face of the record so as to be capable of being corrected by a writ of certiorari and the following observations were made by the Honourable Court :
"An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ."
Article 227 of the Constitution corresponds to Section 107 of the Government of India Act, 1915. However wide it may be than the provisions of Section 115 of the Code of Civil Procedure, it is well established that the High Court cannot, in exercise of its power under that section, assume appellate powers to correct every mistake of law.
Where there is no question of assumption of excessive jurisdiction or refusal to exercise jurisdiction or any irregularity or illegality in the procedure or any breach of any rule of natural justice, but, if anything, it may merely be an erroneous decision which error, not being apparent on the face of the record, cannot be corrected by the High Court in revision under Sec. 115 of the Code of Civil Procedure or under Article 227 of the Constitution."
We may also quote with profit one more decision of the Supreme Court explaining the true scope of issue of writ of certiorari and what is an error apparent on the face of the record, which could be corrected by issue of a high prerogative writ like certiorari. In the case of Ebrahim Aboobakar and another v. Custodian General of Evacuee Property, New Delhi, reported in AIR 1952 SC 319, the Supreme Court made the observations in paras 13 and 14, which we quote below :
"13. The remaining three questions canvassed before us, unless they are of such a nature as would make the decision of the respondent dated the 13th May 1950 a nullity, cannot be the subject-matter of a writ of 'certiorari'.It is plain that such a writ cannot be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong. Indeed, it must be shown before such a writ is issued that the authority which passed the order acted without jurisdiction or in excess of it or in violation of the principles of natural justice. Want of jurisdiction may arise from the nature of the subject-matter, so that the inferior court might not have authority to enter on the inquiry or upon some part of it. It may also arise from the absence of some essential preliminary or upon the existence of some particular facts collateral to the actual matter which the court has to try and which are conditions precedent to the assumption of jurisdiction by it. But once it is held that the court has jurisdiction but while exercising it, it made a mistake, the wronged party can only take the course prescribed by law for setting matters right inasmuch as a court has jurisdiction to decide rightly as well as wrongly. The three questions agitated before us do not seem to be questions which bear upon the jurisdiction of the court of appeal, or its authority to entertain them.
14. It was contended that no court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which the limit of its jurisdiction depends and that the questions involved in the appeal before the respondent were collateral to the merits of the case. As pointed out by Lord Esher, M. R., in 'REG v. INCOME-TAX COMMISSIONERS', (1888) 21 QBD 313, the formula enunciated above is quite plain but its application is often misleading. The learned Master of the Rolls classified the cases under two categories thus :
"When an inferior court or tribunal or body which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. 'But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists, as well as the jurisdiction', on finding that it does exist, to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts', including the existence of the preliminary facts on which the further exercise of their jurisdiction depends'; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction."
The tribunal constituted to hear appeals under section 24 has been constituted in these terms :
"Any person aggrieved by an order made under section 7, section 16, section 19 or section 38 may prefer an appeal in such manner and within such time as may be prescribed :
(a) to the Custodian, where the original order has been passed by a Deputy or Assistant Custodian;
(b) to the Custodian-General,, where the original order has been passed by the Custodian, an Additional Custodian or an Authorized Deputy Custodian."
Like all courts of appeal exercising general jurisdiction in civil cases, the respondent has been constituted an appellate court in words of the widest amplitude and the legislature has not limited his jurisdiction by providing that such exercise will depend on the existence of any particular state of facts. Ordinarily, a court of appeal has not only jurisdiction to determine the soundness of the decision of the inferior court as a court of error, but by the very nature of things it has also jurisdiction to determine any points raised before it in the nature of preliminary issues by the parties. Such jurisdiction is inherent in its very constitution as a court of appeal. Whether an appeal is competent, whether a party has 'locus stand' to prefer it, whether the appeal in substance is from one or another order and whether it has been preferred in proper form and within the time prescribed, are all matters for the decision of the appellate court so constituted. Such a tribunal falls within class 2 of the classification of the Master of the Rolls. In these circumstances it seems to us that the order of the High Court of Punjab that a writ of certiorari' could not issue to the respondent quashing the order of the 13th May 1950 was right. We are further of the opinion that none of the contentions raised has any merit whatsoever."
The Supreme Court in Parry and Co. Limited v. Commercial Employees Association, AIR 1952 SC 179, held :
"No certiorari is available to quash a decision passed with jurisdiction by an inferior tribunal on the mere ground that such a decision is erroneous. The High Court cannot, under Article 226 of the Constitution exercise powers of an appellate Court and correct what it considers to be an error in the decision of the inferior tribunal."
In another case, the same Court held:
"A certiorari cannot be granted to quash the decision of the appellate tribunal on these points on the ground that the decision is wrong" - 'Ebrahim Aboobakar v. The Custodian General of Evacuee Property', 1952 Mad WN 502 (SC)." It is, therefore, clear that in all findings on matters of fact and interpretation of law except in cases of defective jurisdiction, the decision of the tribunal must be deemed to be final.
The position is authoritatively summed up in Halsbury's Laws of England Vol.IX in para 1492 where it is laid down thus:
"Where proceedings are regular upon their face and the Magistrate had jurisdiction, the superior Court will not grant the Writ of Certiorari on the ground that the court below has misconceived a point of law. When the Court below has jurisdiction to try a matter it cannot be deemed to exceed or abuse its jurisdiction merely because it incidentally misconceives a statute or admits illegal evidence or convicts without evidence. No Writ will be granted on the ground that the decision is wrong in matters of fact and the Court will not hear evidence impeaching the decision on facts."
Similarly in the case reported in - 'Colonial Bank of Australasia v. Willan', (1874) LR 5 PC 417, it is observed by their Lordships thus: "The question is whether the inferior court has jurisdiction to enter upon the enquiry and not whether there has been miscarriage of the procedure in the course of enquiry." At page 443 of the same case, the learned Judges observed - "An adjudication by a Judge having jurisdiction over the subject-matter is, if no defect appears on the face of it, to be taken as conclusive of facts stated therein."The case in (1874) LR 5 PC 417 has been approvingly cited by Fazl Ali, J. who held - 'Brij Raj Krishna v. S.K.Shaw and Brothers', AIR 1951 SC 115 that an error of law does not constitute an error of jurisdiction and that a wrong decision on facts or law cannot be questioned in a civil Court.
It being open to the tribunals to come to one or the other conclusion on the materials before them, it cannot by any means be said that the decisions are incorrect so as to attract the extraordinary jurisdiction for interference by a writ of certiorari. In a Kings Bench decision in R. v. Brighton and Area Tribunal, (1950)1 All England Reporter 948, Lord Goddard, CJ. Observed that:
"As the tribunal had observed all the formalities of the Act, had offended against none of its provisions or against the regulations made under it, there was no ground for holding that the tribunal's determination was not in accordance with law and therefore the motions for Certiorari and Mandamus should be refused".
The purpose of certiorari, as we understand, is only to confine the inferior tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non-exercise or the illegal assumption of it and not to correct errors of finding of fact or interpretation of law committed by them in the exercise of powers vested in them under the statute. The accepted rule is that where a Court has jurisdiction it has a right to decide every question which crops up in the case and whether its decision is correct or otherwise, it is bound to stand until reversed by a competent Court. The Supreme Court in Veerappa Pillai. Messrs Raman and Raman Ltd., 1952-7 DLR (SC) 220 observed :
"such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases, when the subordinate tribunals or bodies or officers act wholly without jurisdiction or in excess of it or in violation of natural justice or refuse to exercise jurisdiction vested in them or there is an error on the face of the record and such act, omission, error or excess has resulted in manifest injustice. However expensive the jurisdiction may be, it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide "what is the proper view to be taken or otherwise to be made."
Having given more than a fair idea of what is a writ of certiorari and when the court would be justified in issuing a writ of certiorari, we shall now proceed to examine the power of the High Court to issue a writ of certiorari.
(G) Power of the High Court under Article 226 of the Constitution of India to issue a Writ of Certiorari:
Articles 226 and 227 of the Constitution of India are placed in juxtaposition. Marginal note of Article 226 of the Constitution of India is 'power of High Courts to issue certain writs'.
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, 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.
Article 227 of the Constitution of India follows immediately after Article 226. Its marginal note is 'power of superintendence over all courts by the High Court'.
227. Power of superintendence over all courts by the High Court.” (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
At the very outset, what strike one is that there are two separate Articles in the Constitution dealing with two distinct matters, one, which is described in the marginal note as the power to issue writs and which is dealing in Article 226 of the Constitution, and the other, which is differently described in the marginal note as the power of superintendence and which is dealing in Article 227 of the Constitution. The very fact that the Constitution contains two separate provisions in respect of two powers which are described differently in two separate Articles, which stand next door to each other, would indicate that the framers of the Constitution must have contemplated two separate and distinct powers and that the power to issue writ was considered by them as a power distinct and separate from the power of superintendence.
The word 'superintendence' is not used in Article 226 of the Constitution at all. Similarly, the word 'writs' is not referred to in Article 227 of the Constitution at all.
The analysis of the two Articles would also bare out a conclusion that the power conferred under them are distinct and separate. A perusal of Article 227 of the Constitution would indicate that the power of superintendence conferred on the High Court is a power that is confined to courts and tribunals in relation to which it exercises jurisdiction. On the other hand, the power conferred on the High Court under Article 226 is not a power that is confined to courts and tribunals, but it extends to any person or authority including, in appropriate cases, any Government within the territorial jurisdiction of the High Court.
Under Article 226 of the Constitution, therefore, the High Court can issue writs, orders or directions not only to courts or tribunals over which it has power of superintendence, but also to other persons and authorities including the Government over which it has no power of superintendence.
Further, the power of superintendence under Article 226 of the Constitution of India is a dual power. It comprises not only judicial but also administrative control over bodies over which it is exercised. On the other hand, in the power contemplated under Article 226 of the Constitution of India, the conception of administrative control over bodies over which it is exercised is conspicuous by its absence. A control is confined to the judicial aspect only. The relationship contemplated in the former case is both judicial and administrative, whereas in the later case it is only judicial.
In the aforesaid context, we may profitably refer to a recent pronouncement of the Supreme Court in the case of Shalini Shyam Shetty and another v. Rajendra Shankar Patil, reported in 2010 AIR SCW 6387, wherein the Supreme Court in details has explained the distinction between the two Articles i.e. 226 and 227 of the Constitution of India. The Supreme Court observed that the power to issue writs underwent a sea-change with the coming of the Constitution from 26th January 1950. Now writs can be issued by the High Courts only under Article 226 of the Constitution of India, and by the Supreme Court, only under Article 32 of the Constitution of India. The Bench proceeded to observe that no writ petition can be moved under Article 227 of the Constitution of India nor can a writ be issued under Article 227 of the Constitution of India. Therefore, a petition filed under Article 227 of the Constitution of India cannot be called a writ petition. This is clearly the Constitutional position.
In para 54 of the decision, the Court also observed as under:
"54. In a rather recent decision of the Supreme Court in case of Surya Dev Rai v. Ram Chander Rai and others, reported in (2003) 6 SCC 675 : (AIR 2003 SC 3044 : 2003 AIR SCW 3872), a two- Judge Bench of this Court discussed the principles of interference by High Court under Article 227. Of course in Surya Dev Rai (supra) this Court held that a writ of Certiorari is maintainable against the order of a civil Court, subordinate to the High Court (para 19, page 668 of the report). The correctness of that ratio was doubled by another Division Bench of this Court in Radhey Shyam and another v. Chhabi Nath and others [(2009) 5 SCC 616] : (2009 AIR SCW 4006) and a request to the Honourable Chief Justice for a reference to a larger Bench is pending. But insofar as the formulation of the principles on the scope of interference by the High Court under Article 227 is concerned, there is no divergence of views."
In para 57, the Court observed that Articles 226 and 227 of the Constitution of India stood on a substantially different footing. Prior to the Constitution, the Chartered High Courts as also the Judicial Committee of the Privy Council could issue prerogative writs in exercise of their original jurisdiction.
In para 58, the Court observed that after the Constitution, every High Court has been conferred with the power to issue writs under Article 226 of the Constitution of India, and those are original proceedings.
In para 60 and 61, the Court made the following observations:
"60. Another distinction between these two jurisdictions is that under Article 226, High Court normally annuls or quashes an order or proceeding but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior Tribunal should have made. {See Surya Dev Rai (AIR 2003 SC 3044 : 2003 AIR SCW 3872) (supra), para 25 page 690 (of SCC) : (Para 25 of AIR, AIR SCW) and also the decision of the Constitution Bench of this Court in Hari Vishnu Kamath v. Ahmad Ishaque and others, [AIR 1955 SC 233, para 20 page 243]}.
61. Jurisdiction under Article 226 normally is exercised where a party is affected but power under Article 227 can be exercised by the High Court suo motto as a custodian of justice. In fact, the power under Article 226 is exercised in favour of persons or citizens for vindication of their fundamental rights or other statutory rights. Jurisdiction under Article 227 is exercised by the High Court for vindication of its position as the highest judicial authority in the State. In certain cases where there is infringement of fundamental right, the relief under Article 226 of the Constitution can be claimed ex debito justiciae or as a matter of right. But in cases where the High Court exercises its jurisdiction under Article 227, such exercise is entirelydiscretionary and no person can claim it as a matter of right. From an order of a Single Judge passed under Article 226, a Letters Patent Appeal or an intra-Court Appeal is maintainable. But no such appeal is maintainable from an order passed by a Single Judge of a High Court in exercise of power under Article 227. In almost all High Courts, Rules have been framed for regulating the exercise of jurisdiction under Article 226. No such rule appears to have been framed for exercise of High Court's power under Article 227 possibly to keep such exercise entirely in the domain of the discretion of High Court."
In para 62, the Court thereafter proceeded to lay down principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution of India. They are as under:
"(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.
(b) In any event, a petition under Article 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 Article 227 and have been discussed above.
(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 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 orders of Court or Tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (AIR 1954 SC 215) (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the Tribunals and Courts subordinate to it, 'within the bounds of their authority'.
(f) In order to ensure that law is followed by such Tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of Tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the Tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar v. Union of India and others, reported in (1997) 3 SCC 261 : (AIR 1997 SC 1125 : 1997 AIR SCW 1345) and therefore abridgement by a Constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 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 Article 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 just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality."
In para 64, the Court observed that a writ petition was a remedy in public law which might be filed by any person but the main respondent should be either the Government, Governmental agencies or a State or instrumentalities of a State within the meaning of Article 12. Private individuals cannot be equated with State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. Under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ would be issued must have some statutory or public duty to perform.
Thus, from the above, it is clear that the power to issue a writ of certiorari flows from Article 226 of the Constitution of India only.
Although in Shalini Shyam Shetty (supra), the Supreme Court in para 58 has very clearly stated that the powers to issue writs under Article 226 are original proceedings, yet we would like to elaborate the same by referring to few more decisions of the Supreme Court rendered earlier in point of time, which makes it clear that a Single Judge of a High Court, when exercises powers under Article 226 of the Constitution of India, he exercises extraordinary original jurisdiction (what may be called for convenience-sake, as constitutional jurisdiction) and this jurisdiction is distinct from revisional jurisdiction and appellate jurisdiction of a High Court.
In Ahmedabad Manufacturing and Calico Printing Company v. Rarnfahel, reported in AIR 1972 SC 1598, the Supreme Court pointed out in para 12 at p.1603 as under :
"Article.227 of the Constitution no doubt, does not confer on the High Court power similar to that of an ordinary court of appeal. The material part of this Article substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 except that the power of superintendence has been extended by this article to Tribunals as well, Section 107 according to preponderance of judicial opinion clothed the High Courts with a power of judicial superintendence apart from and independently of the provisions of the other laws conferring on them revisional jurisdiction. The power under Art.227 of the Constitution 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 : see Waryam Singh v. Amaranth, 1954 SCR 565 : (AIR 1954 SC 215). At this stage we consider it proper to refer to some of the judicial pronouncements by this Court with regard to the right of appeal under Art.133 from interlocutory orders.......... Under Art.226 of the Constitution it may in this connection be pointed out that the High Court does not hear an appeal or a revision; that Court is moved to interfere after bringing before itself the record of a case decided by or pending before court, a tribunal or an authority, within its jurisdiction. A decision in the exercise of this extraordinary jurisdiction which finally disposes of the proceedings is a final order, in an original proceeding, an appeal or a revision on the other hand is generally considered to be a continuation of the original suit or proceeding and in a case, where the High Court deals with an appeal of a revision finality for the purpose of Article 133 must attach to the whole of the matter so that after the decision of the High Court the matter is not a live one."
Dua, J. further observed in Para. 13 at p. 1604:
"As such power under Art.227 may also be exercised suo motu. In the present case Art.227 appears to us to have been used in effect as a substitute for Art.226 for seeking a direction in nature of a writ for quashing the orders of the subordinate tribunals. At least it appears that the proceeding before the High Court was so treated by all concerned. We should, however, not be understood to express our approval of the use of Article 227 for seeking relief by way of writs or directions in the nature of writs for which purpose Art.226 is expressly and in precise language designed. From that point of view if otherwise the High Court, while disposing of a petition under Art.227, finally settles some points affecting the rights of the parties then to that extent the impugned order may be considered to operate as a final order just as an order made under Art.226 would."
In Election Commission v. Venkat Rao, reported in AIR 1953 SC 210, the Supreme Court pointed out in para 6 at p.212 as under:
"Turning now to the question as to the powers of a High Court under Art.226, it will be noticed that Art.225 continues to the existing High Courts the same jurisdiction and powers as they possessed immediately before the commencement of the Constitution. Though there had been some conflict of judicial opinion on the point, it was authoritatively decided by the Privy Council in Ryots of Garabandho v. Zamindar of Parlakimedi, AIR 1943 PC 164 that the High Court of Madras - the High Courts of Bombay and Calcutta were in the same position - had no power to issue what were known as high prerogative writs beyond the local limits of its original civil jurisdiction, and the power to issue such writs within those limits was derived by the Court as successor of the Supreme Court which had been exercising jurisdiction over the Presidency Town of Madras and was replaced by the High Court established in pursuance of the Charter Act of 1861. The other High Courts in India had no power to issue such writs at all.
In that situation, the makers of the Constitution, having decided to provide for certain basic safeguards for the people in the new set up which they called fundamental rights, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and, finding that the prerogative writs, which the Courts in England had developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they conferred, in the State's sphere, new and wide powers on the High Courts of issuing directions, orders or writs primarily for the enforcement of fundamental rights, the power to issue such directions, etc. for any other purpose' being also included with a view apparently to place all the High Courts in this country in somewhat the same position as the Court of King's Bench in England. But wide as were the powers thus conferred, a two-fold limitation was placed upon their exercise. In the first place, the power is to be exercised 'throughout the territories in relation to which it exercises jurisdiction' that is to say, the writs issued by the Court cannot run beyond the territories subject to its jurisdiction. Secondly, the person or authority to whom the High Court is empowered to issue such writs must be 'within those territories', which clearly implies that they must be amenable to its jurisdiction either by residence or location within those territories."
Patanjali Sastri, C.J. further observed in para 7 at p. 213:
"Such limitation is indeed a logical consequence of the origin and development of the power to issue prerogative writs as a special remedy in England. Such power formed no part of the original or the appellate jurisdiction of the Court of King's Bench. As pointed out by Prof. Holds worth (History of English Law. Vol. I, p. 212) these writs had their origin in the exercise of the King's prerogative power of superintendence over the due observance of the law by his officials and tribunals, and were issued by the Court of King's Bench-habeas corpus, that the King may know whether his subjects mere lawfully imprisoned or not; certiorari, that he may know whether any proceedings commenced against them are conformable to the law, mandamus, to ensure that his officials did such acts as they were bound to do under the law, and prohibition to oblige the inferior tribunals in his realm to function within the limits of their respective jurisdiction. See also the introductory remarks in the judgement in AIR 1943 PC 164. These writs were thus specifically directed to the persons or authority against whom redress was sought and were made returnable in the Court issuing them and, in case of disobedience, were enforceable by attachment for contempt. These characteristics of the special form of remedy rendered it necessary for its effective use that the persons or authorities to whom the Court was asked to issue these writs should be within the limits of its territorial jurisdiction."
In State of Uttar Pradesh v. Vijay Anand, reported in AIR 1963 SC 946 (a reference of which could be found in Shalini (supra) at para 58), the Supreme Court in para 9 at p.915 of the reported observed as under:
"Article 226 confers a power on a High Court to issue the writs, orders, or directions mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. This is neither an appellate nor a revisional jurisdiction of the High Court. Though the power is not confined to the prerogative writs issued by the English Courts, it is modelled on the said writs mainly to enable the High Courts to keep the sub ordinate tribunals within bounds. Before the Constitution, the chartered High Courts, that is, the High Courts at Bombay, Calcutta and Madras, were issuing prerogative writs similar to those issued by the King's Bench Division, subject to the same limitations imposed on the said writs. In Venkatarathnam v. Secy. of State, ILR 53 Mad 979 : (AIR 1930 Mad 896), a Division Bench of the Madras High Court consisting of Venkatasubba Rao and Madhavan Nair, JJ. held that the jurisdiction to issue a writ of certiorari was original jurisdiction. Ryots of Garabandho v. Zamindar of Parlakimedi, AIR 1938 Mad 722, another Division Bench of the same High Court, consisting of Leach, C.J., and Madhavan Nair, J., considered the question again incidentally and came to the same conclusion and held that a writ of certiorari is issued only in exercise of the original jurisdiction of the High Court. In Ramayya v. State of Madras. AIR 1952 Mad 300, a Division Bench, consisting of Govinda Menon and Ramaswami Gounder, JJ., considered the question whether the proceedings under Article 226 of the Constitution are in exercise of the original jurisdiction or revisional jurisdiction of the High Court; and the learned Judges held that the power to issue writs under Art.226 of the Constitution is original and the jurisdiction exercised is original jurisdiction. In Hamid Hasan v. Banwarilal Roy, (1947) 2 Mad LJ 32 at p. 35: (AIR 1947 PC 90 at p. 93), the Privy Council was considering the question whether the original civil jurisdiction which the Supreme Court of Calcutta possessed over certain classes of persons outside the territorial limits of that jurisdiction has been inherited by the High Court. In that context the Judicial Committee observed:
'It cannot be disputed that the issue of such writs is a matter of original jurisdiction.'
It is therefore, clear from the nature of the power conferred under Art.226 of the Constitution and the decisions on the subject that the High Court in exercise of its power under Art.226 of the Constitution exercises original jurisdiction, though the said jurisdiction shall not be confused with the ordinary civil jurisdiction of the High Court. This jurisdiction, though original in character as contrasted with its appellate and revisional jurisdiction, is exercisable throughout the territories in relation to which it exercises jurisdiction and may, for convenience, be described as extraordinary original jurisdiction. If that be so, it cannot be contended that a petition under Art.226 of the Constitution is a continuation of the proceedings under the Act."
In Tata Engineering and Locomotive Company Limited v. The Assistant Commissioner of Commercial Taxes and another, reported in AIR 1967 SC 1401, the Supreme Court observed in para 8 at p.1403 as under :
"The power and jurisdiction of the High Court under Art.226 of the Constitution has been the subject of exposition from this Court. That it is extraordinary and to be used sparingly goes without saying. In spite of the very wide terms in which this jurisdiction is conferred the High Courts have rightly recognized certain limitations on this power. The jurisdiction is not appellate and it is obvious that it cannot be a substitute for the ordinary remedies at law. Nor is its exercise desirable if facts have to be found on evidence. The High Court, therefore, leaves the party aggrieved to take recourse to the remedies available under the ordinary law if they are equally efficacious and declines to assume jurisdiction to enable such remedies to be bypassed."
The aforenoted decisions make the position of law as clear as a noonday that when a learned Single Judge of a High Court exercises power under Article 226 of the Constitution of India, he exercises extraordinary original jurisdiction and this jurisdiction is distinct from revisional jurisdiction and appellate jurisdiction of the High Court. The proceedings before the learned Single Judge under Article 226 of the Constitution of India would remain original proceedings and the words of the Section should be understood to mean, exercise of powers under Article 226 of the Constitution of India, which is always original.
Having understood the nature of the proceedings under Article 226 of the Constitution of India and the power of the Court to issue writ, the time has now come to understand the true meaning and purport of the term 'original jurisdiction' in context with the right to file an appeal against the judgment of the learned Single Judge passed in exercise of original jurisdiction under Clause 15 of the Letters Patent.
(H) Clause 15 of the Letters Patent vis-a-vis the term 'original jurisdiction: Clause 15 of the Letters Patent of this High Court provides:
"And we do further ordain that an appeal shall lie to the said High Court of Judicature at Bombay from the judgement (not being a judgement passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to S.108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court, from a judgement of one Judge of the said High Court or one Judge of any Division Court, pursuant to S.108 of the Government of India Act, made on or after the first day of Feb. 1929 in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgement declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court of such Division Court shall be to us, or heirs or successors in our or their Privy Council, as hereinafter provided." An analysis of the provisions of Clause 15 of the Letters Patent makes it clear that no appeal lies against any one of the following categories of judgments;
(1) Judgement passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court;
(2) order made in the exercise of revisional jurisdiction; and
(3) a sentence or order passed or made in exercise of the power of superintendence under the provisions of S.107 of the Government of India Act (1915), or in the exercise of criminal Jurisdiction.
Clause 15 of the Letters Patent provides for an appeal against the judgment of a single Judge of the High Court; and if an order passed by a learned single Judge amounts to a "judgment", an appeal would lie unless the appeal is specifically barred as falling under one or the other of the three categories which have been set out hereinabove.
A Division Bench of the Calcutta High Court in Sukhendu v. Hare Krishna, reported in AIR 1953 Calcutta 636 had the occasion to trace the entire history of the Letters Patent of the Calcutta High Court. The Letters Patent of the Bombay High Court which applies to our High Court as well, are on the same lines as the Letters Patent of the Calcutta High Court. His Lordship Das, J., speaking for the Division Bench in that case, pointed out that a difference of opinion arose between different High Courts as to whether an appeal would lie from the judgment of a learned Judge of any one of three High Courts viz. High Courts of Madras, Bombay and Calcutta sitting singly in a Civil Revision case. In consequence of the divergence of opinion between the different High Courts on the question whether an appeal lay under Cl.15 of the Letters Patent against a judgment of a single Judge exercising powers of revision, the Letters Patent came to be amended on March 11, 1919, by substituting the words "not being an order made in exercise of revisional jurisdiction and not being a sentence or order passed or made in exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, 1915, or in the exercise of criminal jurisdiction" for the words "not being a sentence or order passed or made in any criminal trial."
The Letters Patent was further amended on December 9, 1927; and the words "pursuant to S.108 of the Government of India Act" were substituted for the words "pursuant to Section 13 of the said recited Act". The meaning of the expression "pursuant to S.108 of the Government of India Act" came to be considered by the Special Bench of the Calcutta High Court in Chairman, Budge Municipality v. Mongru Mia, AIR 1953 Cal 433. It was a case arising out of an application under Art.226 of the Constitution. It was observed by the learned Chief Justice of the Calcutta High Court in that case that by virtue, first, of S.38(1) of the Interpretation Act, 1889, which applied to the Government of India Act, 1935, and then of Section 8 of the General Clauses Act which applied to the Constitution, the reference to S.108 of the Government of India Act in Cl.15 of the Letters Patent must be construed as reference to Art.225 of the Constitution. After the amendment of the Letters Patent which came into force on March 11, 1919, it was specifically provided that no appeal lay against an order of a learned single Judge made in exercise of revisional jurisdiction and again no appeal lay under clause 15 of the Letters Patent against a decision of a learned single Judge of the High Court if the order was passed by him in exercise of the power of superintendence under the provisions of S.107 of the Government of India Act, 1915 or in the exercise of criminal jurisdiction.
At this stage, it must be made clear that the power which the High Court exercises under Art.227 of the Constitution is a power of judicial superintendence over subordinate Courts and Tribunals situated within the State, such a power of judicial superintendence was, for the first time, conferred upon the High Courts by the Indian High Courts Act, 1861. Subsequently, the power was conferred by Section107 of the Government of India Act, 1915 and Section 224 of the Government of India Act, 1935. The Supreme Court in Waryam Singh and another v. Amarnath and another, AIR 1954 SC 215 has held that the power under Art.227 was a power of judicial superintendence available not only against the decisions of subordinate Courts but also against decisions of all Tribunals functioning within the State over which the High Court exercised jurisdiction.
In Revaben (supra), the Division Bench of this Court explained the definition of the term 'original jurisdiction' as jurisdiction to consider a case in the first instance. A court's power to hear and decide a matter before any other court can review the matter. In Revaben (supra), the Court also considered the meaning of the term 'original jurisdiction' as explained in Advanced Law Lexicon, 3rd Edition 2009 by P.Ramanatha Aiyar, which states that courts of original jurisdiction are those in which an action has its first source or existence and which do not take jurisdiction of it by appeal. A court where an action is initiated and first heard.
By placing reliance on the term 'original jurisdiction' as explained by the different authors, the court took the view that once an original order passed by an authority in the first instance is challenged before the appellate authority and the original order gets merged with the appellate authority's order and if such order of the appellate authority is challenged by way of a writ-application under Article 226 of the Constitution of India, the Court could not be said to be exercising original jurisdiction because the original order was further tested by the appellate authority and, therefore, it could not be said that the High Court took cognizance of the matter in the first instance.
In our opinion, there is an error to a certain extent in the decision of the Division Bench in the case of Revaben (supra) so far as the interpretation of the term 'original jurisdiction' is concerned.
The term 'original jurisdiction' as contained in Clause 15 of the Letters Patent should be understood in context with the power of the High Court to issue a prerogative writ like a writ of certiorari under Article 226 of the Constitution of India. We have already explained the nature of the proceedings under Article 226 of the Constitution of India. We have shown, relying on various decisions of the Supreme Court, that the proceedings are always original.
It is that original power to issue writ under Article 226 of the Constitution of India which makes the proceedings original and the exercise of such power will always be original jurisdiction. In the aforesaid context, we may refer to the term 'original' as explained in Black's Law Dictionary, 6th Edition. The term 'original' as defined in Black's Law Dictionary, 6th Edition, is as under:
"Original. Primitive; first in order; bearing its own authority, and not depriving authority from an outside source; as original jurisdiction, original writ, etc. As applied to documents, the original is the first copy or archetype; that from which another instrument is transcribed, copied or imitated...."
According to the Corpus Juris Secundum, Volume 67, under the English practice, writs were divided into two classes, original and judicial. The technical meaning that the term "original writ" had in the practice of England does not exist in American jurisdictions. It has been said that a capias is an original judicial writ, and certiorari has been held to be original in nature. According to the Judicial Officers Law Lexicon, Second Edition by Justice C.K. Thakkar, original writ was the beginning or foundation of a real action at Common Law. It was a mandatory letter issuing out of the Common Law, or ordinary jurisdiction of the Court of Chancery, under the Great Seal, and in the sovereign's name addressed to the sheriff of the country where the injury was committed, containing a summary statement of the cause of complaint, and requiring him to command the defendant to satisfy the claim, and, on his failure to comply, then to summon him to appear in one of the superior Courts of Common Law. A writ of certiorari was issued not ex debito justitiae, but ex mera gratia, and were sometimes denominated discretionary writs.
Since the issue revolves around a writ of certiorari, we must consider the observations of Viscount Simon in Ryots of Garabandho v. Zamindar of Parlakimedi, AIR (30) 1943 P.C 164, which is reproduced below:-
œThe ancient writ of certiorari in England is an original writ which may issue out of a superior Court requiring that the record of the proceedings in some cause or matter pending before an inferior court should be transmitted into the Superior Court to be there dealt with. The writ is so named because, in its original Latin form, it required that the King should be certified of the proceedings to be investigated, and the object is to secure by the exercise of the authority of as. Superior Court, that the jurisdiction of the inferior tribunal should be properly exercised. This writ does not issue to correct purely executive acts, but, on the other hand, its application is not narrowly limited to inferior Courts in the strictest sense. Broadly speaking, it may be said that if the act done by the inferior body is a judicial act, as distinguished from being a ministerial act, certiorari will lie. The remedy in point of principle, is derived from the superintending authority which the Sovereigns Superior Courts, and in particular the Court of Kings Bench, possess an exercise over inferior jurisdiction. This principle has been transplanted to other parts of the Kings dominions and operates, within certain limits, in British India.?
We want to lay stress on the sentence beginning with the words "the remedy in point of principle etc. etc." It is thus, clear that it was in exercise of the power of superintendence which the Superior Courts possessed over inferior jurisdictions that the writ was issued. If there is no supervisory or other similar jurisdiction in a Court, it is difficult to see how it can issue a writ of certiorari. Such jurisdiction is conferred upon the High Courts in this country by Article 226 of the Constitution and the power to issue a writ of certiorari is in exercise of that jurisdiction.
If Article 226 and 227 of the Constitution is read closely, it suggests that the High Court can, in discharge of its function as a Court of law, pass any order which it considers proper and such an order shall apply to every person or authority which would include a Court or the Tribunal or in appropriate cases to any Government within the State, for which the High Court is established and no person or authority of the Government, within that State, can put himself or itself outside the reach of the High Court and that the High Court will be the judge of the character and quality of the order as also of the form, which it might take.
Since we are on the issue of original jurisdiction, a thought has come to our mind that what could be our answer if there would have been an argument before us that the High Court of Gujarat has no original jurisdiction, and, therefore, it cannot issue any writs.
It is true that this High Court has no original civil or criminal jurisdiction. But what we have to consider is whether such a jurisdiction is necessary for the issue of writs. In Venkataratnam v. Secy. of State AIR (17) 1930 Mad 896, Venkatasubba Rao, J. made the following observations :
œI must guard myself against being understood that the term original jurisdiction in this context connotes that the writ cannot be issued outside the limits of the city. This is not the sense in which that expression is used. The jurisdiction in exercise of which the writ is granted is original as contrasted with appellate. This jurisdiction termed Original is not to be confused with original civil jurisdiction mentioned in cl. 12. Letters Patent. The last mentioned jurisdiction can be exercised by its very nature within certain local limits. But the jurisdiction possessed by the High Court in the matter of certiorari is supervisory or corrective and on the English analogy extends over all inferior tribunals amenable to its authority.? (vide p. 902). (Note: Venkatarathnam (supra) has been relied and quoted with approval by the Supreme Court in Vijay Anand (supra). In the same case, the observations of Wallis, C.J., in 'Chief Commissioner of Income Tax v. North Anantpur Gold Mines, Ltd., AIR (8) 1921 Mad 524 are quoted, which being pertinent to the present discussion, are reproduced here. His Lordship observes:
"Now the issuing of the writ of mandamus to secure the performance of a public duty where no adequate remedy existed by action or otherwise was, it seemed to me clearly an exercise of original jurisdiction. It was a proceeding originating in the court issuing it, and might be directed in a proper case to any class of public officer, executive or judicial.
His Lordship further observes:
Having regard to these alternatives it must be held that in India this Court's power to issue the writs of certiorari falls within its original jurisdiction as distinguished from its appellate or other jurisdiction and it is in this sense that the expression 'original jurisdiction' is used in S.110, Govt. of India Act."
Orders in his 'Commentary on the Common Law of England'(1911, page 1020) states as follows:
"Even among Courts of Record a distinction came to be recognized as soon as the ascendancy of the King's Court was established over local tribunal Courts of record were divided into Superior and Inferior Courts of Record, the latter being so called because, like courts not of Records, their proceedings are subject to the supervisor of the High Court of Justice or some other Superior Court. This supervision is exercised by means of various writs, of which the writs of mandamus, certiorari and prohibition are the most important."
Hammond in his 'Concise Legal History of England' writes thus:
"Furthermore, the Kings Bench not only exercised its criminal jurisdiction and the civil jurisdiction which it took from the Court of Common Pleas, but it took to superintending the workings of the inferior courts throughout the country. At one time it even tried to exercise a supervision over the court of Exchequer, but this proved unsuccessful; but the inferior courts it did very effectively control by means of the following writs, which are often spoken of as the 'prerogative writs' namely, Mandamus, Prohibition, Certiorari and Error."
Thus, the authorities clearly indicate that the writs are not issued in the exercise of original civil or criminal jurisdiction but in the exercise of supervisory jurisdiction and that the term 'original jurisdiction' is used in the sense that the writs originate in the High Court. (see Reghunath Keshav Khadilkar v. Pouna Municipality, AIR 1945 Bombay 7)
In our opinion, while considering the scope of appeal under Clause 15 of the Letters Patent Act, what is necessary to be taken into consideration is the order of the learned Single Judge passed under Article 226 of the Constitution of India in exercise of its original jurisdiction and not the order passed by a court or tribunal of the first instance in exercise of its original jurisdiction. The expression 'in exercise of original jurisdiction' should be understood in the constitutional context and not otherwise.
In the aforesaid context, we may quote with profit a Full Bench decision of the Madhya Pradesh High Court in the case of Manoj Kumar v. Board of Revenue and others, reported in AIR 2008 Madhya Pradesh 22. The observations made in paras 65 and 66 of the report are as under:
"65. We have already analysed the distinction between the original and supervisory jurisdiction. If the entire provision is scrutinised in a purposive manner it is clear that the Legislature has intended to make a distinction between an order passed in exercise of original jurisdiction under Article 226 of the Constitution and an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution. It has to be borne in mind that the power of the High Court under Article 226 of the Constitution are not confined to prerogative writs inasmuch as it can issue directions, orders, writs and can mould the relief to meet the peculiar requirements. The powers conferred on the High Court under the said Article is of wide expanse. In Director of Settlements, A. P. and others v. M. R. Apparao and another, (2002)4 SCC 638 : (AIR 2002 SC 1598) it has been held that the power under Article 226 is essentially a power upon the High Court for issuance of high prerogative writs for enforcement of fundamental rights as well as non-fundamental or ordinary legal rights, which may come within the expression 'for any other purposes'. The powers of the High Courts under Article 226 though are discretionary and no limits can be placed upon their discretion they must be exercised along the recognized lines and subject to certain self imposed restrictions. It is a constitutional power conferred on the High Court to see no man is subject to injustice by violation of law. In exercise of this Article the High Court is expected to erase injustice and not to make justice a byproduct.
66. When the provision has made two distinctions and the legislative intendment is clear, such intention is to be understood in accord with the view expressed by the Apex Court. When the Legislature has used the terms 'in exercise of original jurisdiction' and 'supervisory jurisdiction' it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. That is the purpose of the said provision and if the Section is understood in entirety it is clear as day."
Thus, there is no gainsaying that the power to issue writ is original and the jurisdiction exercised is original jurisdiction. Proceedings under Article 226 of the Constitution of India are in exercise of the original jurisdiction of the High Court, whereas proceedings initiated under Article 227 of the Constitution of India are supervisory in nature. When a writ is issued under Article 226 of the Constitution of India, it is issued in exercise of original jurisdiction, whether against a tribunal of the first instance or an appellate tribunal or a tribunal exercising revisional powers conferred under a particular statute. The exercise of supervisory power and power of superintendence is not to be equated with the original or supervisory jurisdiction.
The Division Bench in Revaben's case (supra) also placed reliance on a five Judge Bench decision of the Karnataka High Court in the case of Gurushanth Pattedar v. Mahaboob Shahi Kulburga Mills, Gulburga and another, reported in AIR 2005 Karnataka 377, to understand the meaning of the term 'original jurisdiction'.
In the Full Bench decision of the Karnataka High Court, the question was with regard to the interpretation of Section 4 of the Karnataka High Court Act, 1961, which provides for appeals from decision of a Single Judge of a High Court in the exercise of original jurisdiction of the High Court. Section 4 of the Act, 1961 has been reproduced in the report, which reads as under:
"4. Appeals from decisions of a single Judge of the High Court:- An appeal from a judgment, decree or sentence passed by a single Judge in the exercise of the original jurisdiction of the High Court under this Act or under law for the time being in force, shall lie to and be heard by a Bench consisting of two other Judges of the High Court".
(Emphasis supplied)
The Bench took the view that the right of appeal had been provided under Section 4 of the Act against a judgment or order of a learned Single Judge only if it was passed in the exercise of the original jurisdiction of the High Court and not otherwise. The Bench explained that the word 'jurisdiction' would mean the power to hear and determine a case and the phrase 'original jurisdiction' was one in which the action had its origin and would also mean that the litigation should have been brought originally in that court. It proceeded further to observe that in order to know as to when the court exercises original jurisdiction, it would have to be found out in each case whether the issues raised in the petition arose for adjudication for the first time before the High Court or they had already been raised and adjudicated by any court or tribunal subordinate to it.
In our opinion, the Full Bench of the Karnataka High Court was in substance considering a question, whether an order passed by a learned Single Judge in a petition filed under Article 227 of the Constitution of India was appealable or not under Section 4 of the Act, 1961. The Bench, in our opinion, had no occasion to address the issue of original jurisdiction in the context with which we have considered in the present case.
Whether the court could have been said to have issued a writ of certiorari or not, would depend on the facts of the case including the nature of the final order which the court may pass in the petition including the form of notice or Rule Nisi issued to the respondents.
In a given case although a petition may be styled as one under Article 226 of the Constitution of India for issue of a writ of certiorari, but if the court finds that no case for issue of a writ of certiorari has been made out, then in such circumstances, the court may simply revise the order in exercise of power under Article 227 of the Constitution of India and decide the petition. In such circumstances, naturally, the Appeal under Clause 15 of the Letters Patent would not lie. Therefore, the test which has been laid down by the Full Bench of the Karnataka High Court to ascertain, whether the court exercised original jurisdiction or not, could at best be termed as one of the tests to ascertain the true nature of the power exercised by the court.
The Division Bench in Revaben's case (supra) also placed reliance on the decision of the Supreme Court in the case of Ramesh Chandra Sankhla v. Vikram Cement, reported in AIR 2009 SC 713, to fortify its view that if the original order gets merged with the appellate order and if such an appellate order is challenged before the High Court under Article 226 of the Constitution of India, then such proceedings would cease to be original proceedings and would remain in the nature of supervisory proceedings. It appears that in Ramesh Chandra Sankhla (supra), the order which was passed by the Labour Court was carried further before the Industrial Court. Although the Supreme Court held that the nomenclature of the proceedings or reference to a particular Article of the Constitution of India was not final or conclusive because an observation by a learned Single Judge as to how he has dealt with the matter was also not decisive, had it been so, a petition strictly falling under Article 226 of the Constitution of India simplicitor could be disposed of by a learned Single Judge observing that he had exercised power of superintendence under Article 227 of the Constitution of India. The Supreme Court observed that such a statement by a learned Single Judge would not take away from the party aggrieved, a right of appeal against the judgment, if otherwise a petition was under Article 226 of the Constitution of India and subjected to an intra court/LPA.
However, the Supreme Court in para 33 of the report proceeded to observe that on the facts and in the circumstances of the case the petitions which were instituted by the company and decided by a Single Judge of a High Court were not original proceedings under Article 226 of the Constitution of India.
Such observations of the Supreme Court, in our opinion, should not be construed to convey that only because the order of the Labour Court was confirmed further by the Industrial Court and it was the order of the Industrial Court which was made the subject matter of challenge, the proceedings automatically ceased to be original.
If a case for a writ of certiorari is made out even to get the order of the Industrial Court passed in appeal set-aside, then in such circumstances, the petition under Article 226 of the Constitution of India could definitely be said to be maintainable.
In the aforesaid context, we may also refer with profit to a five Judge Bench decision of the Supreme Court in State of U.P. v. Mohammad Nooh, reported in AIR 1958 SC 86.
In the said case, the Supreme Court observed that the existence of adequate legal remedies was not per se a bar to the issue of certiorari, and in an appropriate case, it would be the duty of the superior court to issue a writ of certiorari to correct the errors of inferior court or tribunal called upon to exercise judicial or quasi judicial functions. The Bench made the following observations in para 11 as under :
"11. On the authorities referred to above it appears to us that there may conceivably be cases - and the instant case is in point - where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent and loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice, which cannot be obliterated or cured on appeal or revision. If an inferior Court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court's sense of fair play the superior Court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the Court or tribunal of first instance, even if an appeal to another inferior Court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what a ex facie was a nullity for reasons aforementioned. This would be so all the more if the tribunals holding the original trial and the tribunals hearing the appeal or revision were merely departmental tribunals composed of persons belonging to the departmental hierarchy without adequate legal training and background and whose glaring lapses occasionally come to our notice. The superior Court will ordinarily decline to interfere by issuing certiorari and all we say is that in a proper case of the kind mentioned above it has the power to do so and may and should exercise it. We say no more than that."
(emphasis supplied)
At this stage, we may clarify one thing that the view expressed by the Supreme Court in Mohammad Nooh's case (supra) to the effect that the court should exercise the power to issue a writ of certiorari all the more if the tribunals holding the original control and the tribunals hearing the appeal or revision were merely the departmental proceedings composed of persons belonging to the departmental hierarchy without adequate legal training and background and whose glaring lapses occasionally come to the notice of the court, did not find favour with a seven Judge Bench decision in the case of S.S.Rathore v. State of Madhya Pradesh, reported in AIR 1990 10.
To a limited extent, the Supreme Court in S.S.Rathore (supra), held that the distinction adopted in Mohammad Nooh's case between the court and the tribunal, being appellate or the revisional authority, was one without any legal justification. The Court proceeded to observe that the powers of adjudication ordinarily vested in courts were being exercised under the law by tribunals or other constitutional authorities. That being the position, the Court found no justification for the distinction between the courts and tribunals in regard to the principle of merger. However, so far as the power of the Court to issue a writ of certiorari even against an appellate order is concerned has not been disturbed in any manner by the Supreme Court in S.S.Rathore's case (supra).
Thus, in the overall view of the matter, we hold that the view taken by the Division Bench of this Court in Revaben's case (supra) that a writ of certiorari would lie only against the order of a tribunal or a court, where such court or tribunal acts as an authority of first instance, but it will not be maintainable if such court or tribunal acts as an appellate or revisional authority, needs to be revised.
At the cost of repetition, we may state that once any authority or person as contained in Article 226 of the Constitution of India includes a court or a tribunal, then there is no reason why the appellate tribunal should be kept out of a writ of certiorari. Further, when all other conditions for issue of a writ of certiorari are found by the court while examining the order passed by the appellate tribunal, then the court would be well justified in exercising its power under Article 226 of the Constitution of India for a writ of certiorari. However, this would all depend on the individual facts and circumstances of each case.
At the same time, we also clarify that the decision of the Full Bench of this Court in Dilavarsinh (supra) should not be understood as laying down an absolute proposition of law that the petition challenging the order of appellate tribunal or even the tribunal of the first instance has to be necessarily treated as a petition under Article 226 of the Constitution of India in every case.
(I) Whether this Court under Article 226 of the Constitution, after annulling the order by granting a writ of certiorari can modulate its order so as to grant an appropriate relief:
The issue whether the High Court under Article 226 of the Constitution, after quashing the order by granting a writ of certiorari can modulate its order so as to grant appropriate relief, was considered by a Division Bench of the Bombay High Court in the case of Mahomed Usman Rahimtoola v. Labour Appellate Tribunal, Bombay, reported in AIR 1952 Bombay 443 (1). His Lordship Chagla, C.J. took the view that when the Court issues the high prerogative writ of certiorari, it directs the judicial tribunal, against which it is acting, to transmit the record to the Court, and if necessary to quash the order which the Tribunal has passed. In issuing the writ the Court does not act as a Court of appeal and, therefore, cannot exercise the power of remanding the matter to the lower Court, which power is exercisable only by a Court acting as an appellate Court. The Court is only concerned with the question as to whether the Tribunal exercising judicial functions has, or has not acted without jurisdiction or whether in the exercise of its jurisdiction it has contravened theprinciples of natural justice. If it has acted without jurisdiction, or if it has contravened the principles of natural justice, then the jurisdiction of this Court is to quash the order without jurisdiction or in contravention of the principles of natural justice. There, the power of the High Court stops. It has no power to go further and to direct the Tribunal to hear the matter again or to deal with that matter in a manner directed by the High Court. It would be left to the Tribunal whether to hear the matter again or not. But that is a matter on which the High Court cannot give any direction.
It appears that the Supreme Court in Surya Dev Rai (supra) has also taken the same view that 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 may simply annul or quash the proceedings and then do no more. The Court proceeded further to observe that in exercise of supervisory jurisdiction under Article 227 of the Constitution of India, 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 the 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 the tribunal should have made. The Court concluded stating that the jurisdiction under Article 226 of the Constitution was capable of being exercised on a prayer made by or on behalf of the party aggrieved, whereas the supervisory jurisdiction was capable of being exercised suo motu as well.
There is no doubt that if we apply the principle on which a writ of certiorari is issued, then the power with the Court is to annul the decision and do no more. However, should this principle be applied mechanically or to put it in other words in stricto senso. Let us take an instance where a litigant comes to this Court for the issue of a writ of certiorari alleging that he has been dismissed from service illegally and that the Tribunal before whom the termination was challenged, has also confirmed the order of dismissal without giving any opportunity of hearing, thereby violating the principles of natural justice and a gross error of law has been committed by the Tribunal. To put it in other words, that there was a failure to exercise jurisdiction or there was an excess in exercising jurisdiction, but that the quasi-judicial tribunal has acted in violation of the principles of natural justice or in violation of the statutory rules governing it, and has caused harm to him by wrongfully terminating his services. In the aforesaid context, for a writ of certiorari, should the Court contend itself by merely quashing the order by which termination was provided for? In other words, will it be a correct approach at the end of the Court to the problem for any and every case where a writ of certiorari is prayed for, the jurisdiction of the Court under Article 226 comes to an end as soon as the impugned order is quashed.
The question which we are posing for our consideration is whether such a view would be denuding the vital power conferred upon the High Court under Article 226 of the Constitution.
We would like to give two simple illustrations:-
Take a case where the High Court reaches to a conclusion after being fully satisfied that the order passed by the Tribunal confirming the dismissal of the petitioner from service is palpably wrong, and holding so, issues a writ of certiorari quashing the same. The question that is bothering us is that what would happen thereafter. Who will order reinstatement of the petitioner in service with back wages or without back-wages or with all consequential benefits, or partial benefits? Now, take a case where the High Court annuls the decision on the ground that no opportunity was given to the petitioner of hearing and that there was a gross violation of the principles of natural justice. If the Court finds that the order was passed in gross violation of the principles of natural justice, then according to the decision of the Supreme Court in the case of T.C. Basappa (supra) and Hari Vishnu Kamath (supra), a writ of certiorari could be issued to annul the issue. What next would follow? After annulling the decision how would the Tribunal proceed? Whether the Tribunal would again rehear the matter after giving opportunity of hearing to the petitioner or it would just keep quiet? In such circumstances, what would be the remedy available with the petitioner? Whether the petitioner should come back to the High Court with a fresh petition praying for a writ of mandamus?
These are the few questions which we need to answer, more particularly having regard to the present day scenario. We are conscious of the fact that in no circumstances while issuing a writ of certiorari, the Court can modify the order, meaning to say, substitute its own order with that of the Tribunal. If the Court has done so, then it necessarily has to be under Article 227 of the Constitution in exercise of the superintending powers and not in exercise of the power to issue writ under Article 226 of the Constitution.
The point which we want to drive at is that in exceptional cases like the instances which we have given above, the Court at times may have to issue a writ of mandamus along with a writ of certiorari. We clarify that this has to be in exceptional case only where the justice demands the Court to exercise such power. Consequential relief is ancillary to the main relief. That is why it is called consequential. The main relief that is sought for in a writ of certiorari is that a quasijudicial tribunal has either failed to exercise its jurisdiction vested in it, or has acted in excess of it and the order has caused some harm to the petitioner and he seeks the relief accordingly. Therefore, consequential order has always to be made if the occasion demands in the interest of justice and the power to grant the main relief would, unless the contrary intention is somewhere expressed, implies the power to grant consequential relief. At this stage, we may state that the expression "for any other purpose" as contained in Article 226 of the Constitution assumes importance.
In the aforesaid context, we may quote with profit the observations of the Supreme Court in the case of Chingleput Bottlers v. Majestic Bottling Company, reported in (1984) 3 SCC 258. In that case, the Supreme Court had the occasion to consider whether along with a writ of certiorari a writ of mandamus could also be issued in a particular set of facts. The Supreme Court made the following observations, which in our opinion, answers the question which we have posed for our consideration.
15. It is true that sometimes it is prudent to couple a writ of certiorari with a writ of mandamus to control the exercise of discretionary power. The following illuminating passages from De Smith's Judicial Review of Administrative Action 4th Edn. at pp. 341 and 544 pithily sum up the function of a writ of mandamus :
"It is now open to a court when granting certiorari to remit the matter to the authority with a direction to reconsider and to decide in accordance with the findings of the court. Apart from this, the role of the courts is limited to ensuring that discretion has been exercised according to law. If, therefore, a party aggrieved by the exercise of discretionary power seeks an order of mandamus to compel the authority to determine the matter on the basis of legally relevant considerations, the proper form of the mandamus will be one to hear and determine according to law; though by holding inadmissible the considerations an which the original decision was based the court may indirectly indicate the particular manner in which the discretion ought to be exercised. In practice the frontier between control of legality and control of the actual exercise of discretion remains indeterminate, for the courts are sometimes observed to cross the boundaries that they have set to their own jurisdiction."
** ** ** ** ** **
"The duty to observe these basic principles of legality in exercising discretion is, unlike the "duty" to apply the law correctly to findings of fact, prima facie enforceable by mandamus. Hence where an authority has misconceived or misapplied its discretionary powers by exercising them for an improper purpose, or capriciously, or on the basis of irrelevant considerations or without regard to relevant considerations, it will be deemed to have failed to exercised its discretion or jurisdiction at all or to have failed to hear and determine according to law, and mandamus may issue to compel it to act in accordance. With the law."
Professor H. W. R. Wade in his Adrninistrative Law, 5th Edn. At p. 638 also defines the purpose of a writ of mandamus in these words:
"Mandamus is often used as an adjunct to certiorari. If a tribunal or authority acts in a matter where it has no power to act at all, certiorari will quash the decision and prohibition will prevent further unlawful proceedings. If there is power to act, but the power is abused (as by breach of natural justice or error on the face of the record), certiorari will quash and mandamus may issue simultaneously to require a proper rehearing. An example is Board of Education v. Rice (1911) AC 179 cited elsewhere; the Board's decision was ultra vires since they had addressed their minds to the wrong question; consequently it was quashed by certiorari and the Board were commanded by mandamus to determine the matter according to law, i.e. within the limits indicated by the House of Lords."
A five-Judge Bench decision of the Madras High Court in the case of Southern Roadways Private Limited v. P.Mathew Rai Veeraswami (died) M.Dhanapalan and others, reported in AIR 1964 Madras 194, has also explained the power of the court in a given case to issue a writ of mandamus after annulling the order by issue of a writ of certiorari. We may quote with profit the following observations of the Full Bench of the Madras High Court as under :
œ15. A power to remand is an incident - though such power can exist only by virtue of a statute of an appellate jurisdiction; obviously, a writ issued in the exercise of an original jurisdiction possessed by the court, cannot either amount to or be likened with an order of remand. That this is the true position has been held by this court in W. A. Nos. 138 to 142 of 1957, where Rajamannar, C.J. delivering the judgment of the court observed :
"This court in the exercise of its jurisdiction under Art. 226 of the Constitution does not act as a court of appeal with reference to a subordinate court; nor does it exercise revisional jurisdiction in respect of such a court. All that this court does is to examine the order of the inferior tribunal to see if there is any defect of jurisdiction or any manifest error of law or any contravention of the rules of natural justice or such other vitiating circumstance. If it finds any, then this court will quash the order. As we have pointed out, a quashing of the order of an appellate tribunal may lead to a re-hearing of the appeal. But that is not because this court directs the Tribunal to do so."
From this it would therefore follow, that when a writ of certiorari is issued quashing the order of an inferior authority, the superior court can be regarded as having completely disposed of the matter. A fortiori, in a case where it dismisses an application for the issue of a writ. In the former case where the Tribunal is improperly seized of the matter and its order alone is improper, the result of the writ will be to render the matter before the tribunal as still available for disposal. This view conforms to what has been laid down by Denning, L.J. in R. v. Northumberland Compensation Appeal Tribunal, 1952-1 KB 338 at p. 354 where that eminent Judge observed :
"The decision must be quashed and the Tribunal will then be able to hear the case again and give the correct decision."
In a later case, namely R. v. Medical Appeal Tribunal. 1957-1 QB 574 at p. 586 that learned Judge expressed the same idea when he said :
"The order must issue to quash the declaration of the medical appeal tribunal of 13th June 1956. There is no need for a mandamus because the tribunal will no doubt consider the claim afresh and come to a right decision on it."
It is not, however, a mere option in the Tribunal to do so. It will be its statutory duly to take up the application before it and re-hear the same - Vide Sattar Sahib v. State of Madras, ILR 1952 Mad 351 : (AIR 1952 Mad 605).
16. Under the English law, the issue of a writ of certiorari has, generally speaking, only the effect of quashing the impugned order. A party, therefore, not unoften applies in that country for the issue of a writ of certiorari to quash the order and along with it for a mandamus directing the rehearing, the rehearing being consequent on the quashing. But, as pointed out in Basappa v. Nagappa, 1955-1 SCR 250: (AIR 1954 SC 440) and Mahaboob Sheriff v. Mysore State Transport Authority Bangalore. AIR 1960 SC 32, the High Courts in this country are not trammelled by the technicalities of the English procedure. It will be competent for such courts, in appropriate cases, to give directions to the Tribunal, even after quashing the order. But the existence of such a power in those courts does not alter the essential character of the proceedings, which will be the same as in England. In the earlier case cited above, Mukherjea, J. describing the effect of the issue of a writ of certiorari observed :
"The offending order or proceeding, so to say, is put out of the way as one which should not be used to the detriment of any person."
From the foregoing, it will be seen that whenever there is an order under Art. 226 quashing the proceedings before a Tribunal, which has the effect of reopening the proceedings before it, such reopening of the controversy is not because the order issuing the writ is in the nature, of a remand a remand being the peculiar feature of the appellate jurisdiction; but for the reason there is no valid order of the tribunal concluding the controversy between the parties. Secondly, as we have indicated earlier, the subject matter in controversy in the proceedings taken out for the issue of a writ and that which had been adjudicated upon by the Tribunal are distinct. The writ is, and can be, issued under Art. 226 of the Constitution for purposes of enforcing any one or more of the fundamental rights guaranteed under the Constitution; or, for other purposes, like quashing the order of a statutory Tribunal when it had exceeded its jurisdiction or where its order is palpably wrong or one reached contrary to the rules of natural justice. It has, therefore, been held that the existence of a right will be the foundation to the exercise of the jurisdiction of the High Court under Art. 226; See State of Orissa v. Madan Gopal, 1952 SCR 28 : (AIR 1952 SC 12).
To put it in a different way Art. 226 confers power of judicial control on the superior courts to enforce the guaranteed rights under the Constitution, to ensure that the statutory authorities are kept within the bounds of their authority and thus to maintain the rule of law enshrined in our Constitution. A right to obtain a writ is a valuable constitutional right given to an aggrieved party, the issue thereof being regulated by certain well accepted principles. That right is, as we said, distinct from the one which can form the subject-matter of controversy before the Tribunal, The superior court cannot adjudicate on the matter entrusted for adjudication by the Tribunal under the statute, except for the limited purpose of seeing whether a writ should or should not issue. It goes without saying that the Tribunal will have no jurisdiction like the one conferred on the High Court under Art. 226 of the Constitution.?
We are of the opinion that in a given case having regard to the peculiar facts and circumstances and envisaging a situation which may crop up like the instances which we have narrated above, it would be the duty of the concerned advocate to see that there are appropriate pleadings in the petition in that context and an appropriate relief is also prayed for in the petition.
In the aforesaid context, we may quote with profit the observations of the Supreme Court in the case of Prabodh Verma and others v. State of Uttar Pradesh and others, reported in (1984)4 SCC 251, made in para 37 of the report :
"37. The fact that the High Courts and a fortiori this Court have power to. Mould the reliefs to meet the requirements of each case does not mean that the draftsman of a writ petition should not apply his mind to the proper relief which should be asked for and throw the entire burden of it upon the Court. An advocate owes a duty to his client as well as to the court - a duty to his client to give of his best to the case which he had undertaken to conduct for his client and a duty to assist the court to the utmost of his skill and ability in the proper and satisfactory administration of justice. In our system of administration of justice the courts have a right to receive assistance from the Bar and it is the duty of the advocate who drafts a writ petition or any other pleading to ask for appropriate reliefs."
We should not be understood as laying down a proposition of law that in all cases the Court will have the power to mould the relief or grant any consequential relief while issuing a writ of certiorari under Article 226 of the Constitution. Such exercise of power at the end of the Court should be very rare and with great care and circumspection. It is only when the occasion demands and the Court finds that the matter should not be left by just annulling the decision, then in such circumstances, the Court may issue further orders in the form of a writ of mandamus.
We are also supported in taking the aforesaid view by a Division Bench decision of the Calcutta High Court in N.R. Mukherjee and ors. v. Arnold Hartman Just and ors., reported in AIR 1961 (Cal.) 95. In the said decision of the Calcutta High Court, we find reference of the Bombay High Court decision in the case of Mahomed Usman Rahimtoola (supra), which we have referred to above. The Calcutta High Court, after discussing the facts of the Bombay High Court decision, made the following observations:-
œ6. Sinha, J. has directed that the Tribunal should come to a conclusion upon evidence to be adduced by the parties on the question whether the firm indulges in business which is not strictly the business of a Chartered Accountant. The respondent firm has filed a cross-objection against that part of the order and in support of that cross-objection it has been contended that in a proceeding under Art. 226 for a Writ of Certiorari, this Court does not act as a Court of appeal and cannot therefore exercise the power of remanding a matter to the inferior Tribunal. Reliance has been placed for this proposition upon a decision of the Bombay High Court in the case of Mahomed Usman v. Labour Appellate Tribunal, AIR 1952 Bom 443. That decision undoubtedly supports the contention of the respondent firm.
7. With respect, I venture to think that the decision of the Bombay High Court relied upon by Mr.Ginwalla proceeds upon a narrow view of the powers of this Court in a proceeding under Art. 226. Under that Article the High Court has the power of not only issuing Writs in the nature of Mandamus, Certiorari etc. but also the further power of issuing, œdirections? or orders upon a subordinate Tribunal. If in consequence of a Writ of Certiorari the subordinate Tribunal is required to take further steps in accordance with law, there is nothing to prevent the High Court from issuing such directions. The direction given by Mr. Justice Sinha upon the Tribunal to determine the question upon further evidence is, in my opinion, consequential to the Writ of Certiorari issued by him. Such a direction is all the more necessary in view of our decision that both the Tribunal and Mr. Justice Sinha were in error in issuing a Writ of Certiorari on a part of the issue raised by the parties. As a result of our decision the so-called interim award as well as the order of Mr. Justice Sinha issuing the Writ of Certiorari is quashed and the only thing that remains is the reference made by the State of West Bengal under Sec. 10 of the Industrial Disputes Act on the 1st July, 1955. The Tribunal will now have have to adjudicate on that reference, a Writ of Mandamus will certainly lie against the Tribunal directing it to proceed according to law. Reference may be made in this connection to the decision in the case of R. v. Medical Appeal Tribunal, (1957) 1 Q.B. 574, where it has been laid down that if the record of a case is incomplete, a Court issuing a high prerogative writ is not precluded from sending the matter back for the record to be completed.?
We also find that somewhat similar view has been taken by a three Judge Bench decision of the Supreme Court in the case of Gujarat Steel Tubes Limited and ors. v. Gujarat Steel Tubes Mazdoor, reported in 1980 Part-II SCC 593. The observations of the Supreme Court made in paras 78, 79 and 146 supports the view which we have taken. paras 78, 79 and 146 are reproduced below:-
œ78. Dual jurisdictional issues arise here which have been argued at some length before us. The position taken up by Sri Sen was that the High Court could not, under Article 226, direct reinstatement, and even if it felt that the arbitrator had gone wrong in refusing reinstatement, the court could not only demolish the order and direct the arbitrator to reconsider the issue. What belonged, as a discretionary power, to a tribunal or other adjudicatory body, could not be wrested by the writ court. To put it pithily, regarding the relief of reinstatement, the arbitrator could but would not and the High Court would but could not. (We will deal later with the point that the arbitrator had himself no power under Section 11-A of the Act but did have it in view of the vide terms of reference.)?
œ79. The basis of this submission, as we conceive it, is the traditional limitations woven around high prerogative writs. Without examining the correctness of this limitation, we disregard it because while Article 226 has been inspired by the royal writs its sweep and scope exceed hide-bound British processes of yore. We are what we are because our Constitution-framers have felt the need for a pervasive reserve power in the higher judiciary to right wrongs under our conditions. Heritage cannot hamstring nor custom constrict where the language used is wisely wide. The British paradigms are not necessarily models in the Indian Republic . So broad are the expressive expressions designedly used in Article 226 that any order which should have been made by the lower authority could be made by the High Court. The very width of the power and the disinclination to meddle, except where gross injustice or fatal illegality and the like are present, inhibit the exercise but do not abolish the power.?
œ146. In the second chapter of our sum-up, the first thing we decide is that Article 226, however restrictive in practice, is a power wide enough, in all conscience, to be a friend in need when the summons comes in a crisis from a victim of injustice; and, more importantly, this extraordinary reserve power is unsheathed to grant final relief without necessary recourse to a remand. What the tribunal may, in its discretion, do, the High Court too, under Article 226, can, if facts compel, do. Secondly, we hold that the award suffers from a fundamental flaw that it equates an illegal and unjustified strike with brazen misconduct by every workman without so much as identification of the charge against each, the part of each, the punishment for each, after adverting to the gravamen of his misconduct meriting dismissal. Passive participation in a strike which is both illegal and unjustified does not ipso facto invite dismissal or punitive discharge. There must be active individual excess such as master-minding the unjustified aspects of the strike, e.g. violence, sabotage or other reprehensible role. Absent such gravamen in the accusation, the extreme economic penalty of discharge is wrong An indicator of the absence of such grievous guilt is that the Management, after stating in strong terms all the sins of the workmen, took back over 400 of them as they trickled back slowly and beyond the time set, with continuity of service, suggestive of the dubiety of the inflated accusations and awareness of the minor role of the mass of workmen in the lingering strike. Furthermore, even though all sanctions short of punitive discharge may be employed by a Management, in our current conditions of massive unemployment, low wage sand high cost of living, dismissal of several hundreds, with disastrous impact on numerous families, is of such sensitive social concern that, save in exceptional situations, the law will inhibit such a lethal step for the peace of the industry, the welfare of the workmen and the broader justice that transcends transient disputes. The human dimensions have decisional relevance. We hold the discharge orders, though approved by the arbitrator, invalid.?
(J) Maintainability of the intra court appeal under Clause 15 of the Letters Patent against the judgment of the learned Single Judge passed in exercise of the original jurisdiction to issue a writ under Article 226 of the Constitution of India.
In the earlier part of our judgment, we have explained the meaning of the term "writ" as well as "writ of certiorari". We have also quoted Clause 15 of the Letters Patent under which an appeal lies from a decision of the Single Judge to a Division Bench of this Court. We have also explained the term "original jurisdiction" in the context with the constitutional provisions, more particularly Article 226 of the Constitution of India.
Under the Letters Patent, various jurisdictions are conferred upon the High Court. Broadly classified, they are Ordinary Original Civil jurisdiction, Extraordinary Original Civil jurisdiction, Appellate jurisdiction from subordinate Courts, Jurisdiction as to Infants and Lunatics, Insolvency jurisdiction, Criminal jurisdiction, Testamentary jurisdiction and Matrimonial jurisdiction.
We are concerned with the original jurisdiction of this Court to issue a high prerogative writ in exercise of the power under Article 226 of the Constitution.
After the decision of the Supreme Court in the case of Umaji Keshao Mehram (supra), which is considered as one of the leading judgments on this point of maintainability of intra Court appeal, no further discussion in this regard is necessary because the issue is such that there would be no end to the debate. During the course of the hearing of the reference, we have gone through the decision of the Supreme Court in Umaji's case (supra) at length. We would like to quote few paras of the said decision, which are relevant for our purpose:
"99. We are afraid, the Full Bench has misunderstood the scope and effect of the powers conferred by these Articles. These two Articles stand on an entirely different footing. As made abundantly clear in the earlier part of this judgment, their source and origin are different and the models upon which they are patterned are also different. Under Article 226 the High Courts have power to issue directions, orders and writs to any person or authority including any Government. Under Article 227 every High Court has the power of superintendence over all Court and Tribunals throughout the territory in relation to which it exercises jurisdiction. The power to issue writs is not the same as the power of superintendence. By no stretch of imagination can a writ in the nature of habeas corpus or mandamus or quo warranto or prohibition or certiorari be equated with the power of superintendence. These are writs which are directed against persons, authorities andthe State. The power of superintendence conferred upon every High Court by Article 227 is a supervisory jurisdiction intended to ensure that subordinate Courts and Tribunals act within the limits of their authority and according to law....?
œ100. Under Article 226 an order, direction or writ is to issue to a person, authority or the State. In a proceeding under that Article the person, authority or State against whom the direction, order or writ is sought is a necessary party. Under Article 227, however, what comes up before the High Court is the order or judgment of a subordinate Court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate Court or tribunal has acted within its authority and according to law.?
œA series of decisions of this Court has firmly established that a proceeding under Article 226 is an original proceeding and when it concerns civil rights, it is an original civil proceeding.?
œ101. Clause-15 of the Letters Patent of the Bombay High Court gives in such a case a right of intra-Court appeal and, therefore, the decision of a single Judge of that High Court given in a petition under Article 226 would be appealable to a Division Bench of that High Court.?
œ102. It is equally well-settled in law that a proceeding under Article 227 is not an original proceeding.?
œ103. The result is that an intra-Court appeal does not lie against the judgment of a single Judge of the Bombay High Court given in a petition under Art. 228 by reason of such appeal being expressly barred by Clause 15 of the Letters Patent of that High Court.?
œ106. Rule 18 provides that where such petitions are filed against orders of the tribunals or authorities specified in Rule 18 of Chapter XVII of the Appellate Side Rules or against decrees or orders of Courts specified in that Rule, they shall be heard and finally disposed of by a single Judge. The question is whether an appeal would lie from the decision of the single Judge in such a case. In our opinion, where the facts justify a party in filing an application either under Article 226 and 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 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 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.?
Thus, Clause 15 of the Letters Patent provides for an appeal from the judgment of the Court of the original jurisdiction to the High Court in its appellate jurisdiction. Powers of the High Court under Articles 226 and 227 of the Constitution of India are distinct, separate and operate in different fields, even if in some cases, result to beachieved is the same. Proceedings under Article 226 are original in nature. However, the High Court under Article 227 exercises the powers of superintendence over the subordinate Courts and the Tribunals.
The powers contemplated by the Constitution makers under Articles 226 and 227 appear to be different. The former is described as the power to issue certain writs, orders or directions. The latter is described as the power of superintendence. There are two separate articles in the Constitution next door to each other dealing with these powers. The power under Article 226 is only judicial. The power under Article 227 is both judicial and administrative. The power under Article 226 is exercised on the application of a party and for the enforcement of a legal right.
The power under Article 227 can be exercised suo motu by the Court as the custodian of all the justice within the limits of its territorial jurisdiction and for the vindication of its position as such.
The power under Article 227 is a power that can be exercised only over courts and tribunals. On the other hand, the power under Article 226 is a power that can be exercised not only over courts and tribunals but also over other bodies like the Government.
Prior to the Constitution, the power to issue writs could not be considered to be a branch of the power of superintendence because the power of superintendence possessed by the High Courts did not carry with it the power to issue writs. Even under the Constitution, the power of superintendence is treated as a power divorced from the power to issue writs. This is borne out by the fact that the Supreme Court possesses the power to issue writs, yet it does not possess the power of superintendence.
It is thus explicit according to us that there cannot be interchangeability between the jurisdiction of the High Court under Articles 226 and 227 even if occasionally the ultimate result to be achieved may be same or similar in nature. One cannot be substantiated for other.
Proceedings under Article 226 are original in nature. Aggrieved party can canvass grievance relating to infringement of the civil right. In these proceedings, the wrong doer may be a person or an authority and is a necessary party, since has a right to support, justify or defend the act complained of.
In contra distinction, the proceedings under Article 227 are supervisory and superintending in nature. The High Court thereunder exercises the jurisdiction to ascertain and confirm whether the Court or Tribunal has discharged its function within its jurisdiction and according to law. Such Court or Tribunal when they have adjudicated a dispute relating to the contractual right between the parties are not necessary party in a proceeding under Article 227. They have no obligation to defend their orders impugned in the proceedings wherein the aggrieved party claims a relief to quash the same. Such Courts or Tribunals cannot claim to be aggrieved due to quashing of their orders or can legitimate make complaint for non-joinder in a proceeding under Article 227.
When such a decision of the learned Single Judge would be amenable to a challenge under Clause 15 was a question before the Supreme Court in Umaji's case (supra). The Supreme Court answered the same in para 106 of the report. The Supreme Court has laid down that the appeal, lies under Clause 15 on fulfilling, according to us the following conditions:-
(a) The facts involved must warrant filing of petition under Articles 226 and 227;
(b) The party accordingly filing the petition under both the Articles and
(c) Substantial portion of the impugned judgment of the learned Single Judge must be in exercise of the power under Article 226.
The right of appeal cannot, therefore, be availed of merely by filing a petition under Article 226 and 227 of the Constitution unless other conditions are fulfilled. Even otherwise, filing of a petition under Article 226 or both under Article 226 and 227 cannot be left solely to the pleasure of a party. The option in this regard is duly controlled, regulated and guided by the facts involved and the grievance arising there from.
This is the reason why the phrase as contained in para 106 of Umajis case (supra) "where the facts justify a party in filing an application" assumes importance. A party will be justified in filing a writ-application under Article 226 of the Constitution only if all the requisite conditions for a writ of certiorari are made out and the Court is satisfied that the petitioner has made out a case for issue of a writ of certiorari. Once again at the cost of repetition, when we say all conditions for issue of writ of certiorari, means;
(i) certiorari will be issued for correcting errors of jurisdiction;
(ii) certiorari will also be issued when the Court or the Tribunal acts illegally in the exercise of its undoubted jurisdiction; as and when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice;
(iii) the Court issuing a writ of certiorari acts in exercise of its original jurisdiction and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or the Tribunal, even if they be erroneous; and
(iv) 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 i.e. when it is based on clear ignorance or disregard to the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision.
Mr.Thakore, the learned senior advocate appearing for the appellants in one of the appeals is quite justified in submitting that even when the grievance in a given set of facts involved can suitably and adequately be redressed under Article 227, the party could not be said to be acting wholly without justification in filing or styling the petition under Article 226 of the Constitution. If the facts otherwise justify the party in invoking Article 226 of the Constitution for issue of a high prerogative writ like writ of certiorari, then he could not be told that his remedy lies in challenging the order under Article 227 of the Constitution because under Article 227, the Court can not only annul the decision, but can also issue ancillary directions or even substitute the order with the order of the Tribunal.
In our opinion, it would be open to the Court while dealing with a petition filed under Article 226 and/or 227 of the Constitution to determine whether the facts justify the party in filing the petition under Article 226 and/or under Article 227 of the Constitution. In the same manner, it would also be open for the Letters Patent Bench to consider whether the facts justify the party in filing the petition under Article 226 and 227 of the Constitution of India.
We have to bear in mind, as observed by the Supreme Court, that these two Articles stand on entirely different footing and operate in a different field. They cannot as such mutually be exchanged by twisting, even if the result to be achieved or relief claimed may be analogous. The right of appeal under Clause 15 cannot, therefore, be said to have been vested, merely by styling a petition under Article 226 or both under Articles 226 and 227 and/or by articulating the prayer clause with a claim of a writ of certiorari. The same can be invoked only on fulfilling the conditions laid down by the Supreme Court as discussed above.
On the question of maintainability of appeal under Clause 15, the court should be guided by the dictum laid down by the Supreme Court in Umaji's case (supra). The court cannot afford to be generous in making the right available to the parties. Claiming relief under and amenability of the authority whose decision is impugned to the jurisdiction under Article 226 do not settle the nature of proceedings. It solely depends according to the acidic test laid down by the Supreme Court, first, on the facts involved, and secondly, the nature of jurisdiction that could be exercised by the Single Judge. The scope of Clause 15 cannot be permitted to dwindle according to the mechanics adopted by the parties. The right to appeal under Clause 15 is to be settled as guided by the Supreme Court according to the nature of the grievance arising from the facts involved in the case.
At this stage, it may not be out of place to state that the Full Bench decision of this Court in the case of Dilavarsinh (supra) should also not be understood to lay down as an absolute proposition of law that the petition challenging the order of every Tribunal has to be necessarily treated as a petition under Article 226 of the Constitution in every case.
We may also quote with profit one another Division Bench decision of this Court in the case of Ishwarbhai N. Patel v. K.H. Trivedi and ors., reported in 2003 (3) GLH 146. The Bench took into consideration the decision of Dilavarsinh (supra) and made the following observations:-
œ8. In Mohanbhai Ramjibhai v. Dy.Executive Engineer, 1998(2) GLH 44, another Division Bench of this Court examined the question whether a Letters Patent Appeal would lie against the judgment of a Single Judge in a petition challenging the award of the Labour Court. The Division Bench followed the principles laid down in the aforesaid Full Bench decision in Dilavarsinh (supra) and held that since the petitioner had prayed for a writ of certiorari against the award of the Labour Court, the petition was treated as one under Article 226 of the Constitution and Letters Patent Appeal would be maintainable.?
œ9. However, in our view, the law on the subject must now be treated as settled by the recent decision of the Apex Court in Kanhaiyalal Agrawal's case (supra). Having regard to the said decision, all the previous decisions of the Apex Court and also the decisions of this Court including the judgment of the Full Bench in Dilavarsinh Khodubha (supra) and theDivision Bench judgement in Mohanbhai Ramjibhai (supra) will have to be read in light of the said decision of the Supreme Court in Kanhaiyalal Agrawal's case (supra).?
œ10. Before proceeding further, we may also notice the provisions of Article 235 and the decision of the Apex Court in State of Maharashtra v. Labour Law Practitioners' Association, AIR 1998 SC 1233, interpreting the said Article and other Articles in Part V, Chapter VI of the Constitution. Article 235 provides that the administrative control over district Courts and Courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judges shall be vested in the High Court. After a review of its previous decisions and decisions of several High Courts on the subject, the Apex Court has held in the aforesaid decision of State of Maharashtra that bearing in mind the principle of separation of powers and independence of the judiciary, Industrial and Labour Courts are Courts subordinate to the High Court within the meaning of Article 235 of the Constitution and, therefore, appointments of Judges in those Courts will have to be made in consultation with the High Court. The Court also quoted with approval the decision of a Full Bench of the Bombay High Court in the case of Shripatrao Dajisaheb Ghatge v. The State of Maharashtra, AIR 1977 Bombay 384 (FB), wherein the term "Courts" was held to cover all tribunals which were basically Courts performing judicial functions giving judgments which were binding and exercising sovereign judicial power transferred to them by the State. It was held that High Court could exercise its jurisdiction under Article 227 over all such tribunals.
œ11. When a Single Judge has not stated whether he has exercised jurisdiction under Article 226 or 227, while deciding a petition challenging the decision of a Court or Tribunal which is subordinate to the High Court and which is presided over by a sitting or a retired judicial officer, we see no reason why the Letters Patent Bench should not raise a strong presumption that the Single Judge has exercised the jurisdiction under Article 227 of the Constitution. In such a case, the litigant has already had his case tried before atleast two judicial fora - first before the subordinate Court/Tribunal and then before a Single Judge of the High Court. In our view, this perspective may not fail the test of justice, fairness and propriety, if we look at the language of the provisions of Clauses 15 and 44 of the Letters Patent from this angle alongwith the legislative interventions restricting the number of civil appeals.
Clause 15 of the Letters Patent of Bombay High Court as applicable to this Court reads as under:-
"15. Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction :- And we do further ordain that an appeal shall lie to the said High Court of Judicature at Bombay from the judgment not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in exercise of the power of superintendence under the provisions of Sec. 107 of the Government of India Act, or in the exercise of criminal jurisdiction of one Judge of the said High Court or one Judge of any Division Court, pursuant to Sec. 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided, an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, on or after the first day of February, 1929 in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to us. Our heirs or successors in our or Their Privy Council, as hereinafter provided."
Clause 44 of the Letters Patent reads as under:-
"44. Power of the Indian Legislature preserved: And we do further ordain and declare that all the provisions of these Our Letters Patent are subject to the legislative powers of the Government-General in Legislative Council and also of the Government-General in Council under Section seventy-one of the Government of India Act, 1915, and seventy-two of that Act, and may be in all respect amended and altered thereby."
"Accordingly, a Letters Patent Appeal is not maintainable against a judgment not being a sentence or order passed or made in exercise of the powers of under the provisions of Section 107 of the Government of India Act (1915) to Article 227 of the Constitution. A Letters Patent Appeal is also not maintainable against an order made in exercise of revisional jurisdiction. Before insertion of Section 100-A in the Code of Civil Procedure, 1908, a Letters Patent Appeal was not maintainable the judgment of a Single Judge of the High Court in numerically second appeal, without the certificate of the Single Judge who passed the judgment that the case is a fit one for appeal. By Section 100-A inserted by the Code of Civil Procedure (Amendment) Act, 1976, the Letters Patent Appeal against the decision of a Single Judge in numerically "second" appeal was abolished. In view of the amendment of Section 100- A CPC by the Code of Civil Procedure (Amendment) Acts 1999 and 2002 with effect from 1.7.2002, now no Letters Patent Appeal is maintainable even against the judgment of a Single Judge in "first" appeal meaning thereby the Legislature has now abolished the numerically "second" appeal before a "third" judicial forum. In this connection, a reference may be made to the judgment of the Honourable Supreme Court in Municipal Corporation of Brihanmumbai v. State Bank of India, AIR 1999 SC 380 which interpreted Section 100A of the Code of CivilProcedure, 1908 after its insertion by the Amendment Act, 1976 but before its amendment by the Amendment Acts, 1999 and 2002, and also to the judgment of a Full Bench of this Court in Nasik Hing Supplying Co. v. Annapurna Gruh Udyog Bhandar, 2003 (2) GLR 926.
Considered in this light, when a litigant has already had his case considered by the two judicial fora “ first before the subordinate Court/Tribunal and again before a Single Judge of the High Court, we are of the view that it would not be unfair, unjust or improper to hold that a Letters Patent Appeal would not be maintainable against a judgment of a Single Judge in a petition challenging the decision of a Court or Tribunal subordinate to the High Court which is presided over by a sitting or a retired judicial officer.
Accordingly, the following principles would have to be applied while considering the question about maintainability of a Letters Patent Appeal against the judgment of a Single Judge in a petition under Article 226 and/or Article 227 of the Constitution :-
(i) Whether the petitioner has invoked the jurisdiction of this Court under Article 226 or Article 227 and if the learned Single Judge has exercised jurisdiction under Article 226, Letters Patent Appeal would be maintainable.
(ii) If the judgment rendered by the learned Single Judge is in exercise of jurisdiction under Article 227 of the Constitution, Letters Patent Appeal would not be maintainable.
(iii) If the Single Judge has not stated whether he has exercised his jurisdiction under Article 226 or 227 of the Constitution, it would be relevant to examine whether the proceeding in question is an original proceeding or the proceeding challenges the decision of a Tribunal. If the proceeding is original, the petition would obviously be under Article 226.
(iv) If the petition challenges the decision of a Tribunal, further inquiry should ensue. The expression "Tribunal" would include within its ambit adjudicating bodies, provided they are constituted by the State and are invested with judicial, as distinguished purely administrative or executive functions. The principal test of determining the character of the authority as Tribunal is whether that authority is empowered to exercise any adjudicating power of the State and whether the same has been conferred on it by any statute or a statutory rule.
(v) If the Tribunal or the Court has exercised judicial function of the State as explained in the decision of the Apex Court in State of Maharashtra v. Labour Law Practitioners' Association, AIR 1998 SC 1233 and the Tribunal or the Court is subordinate to the High Court within the meaning of Article 235 of the Constitution, then a presumption will be raised that the Single Judge has exercised his jurisdiction under Article 227 of the Constitution.
(vi) If the Single Judge has not stated under which provision he has decided the matter and where the facts justify filing of petition both under Article 226 and Article 227 and the Court has decided the petition on merits, the Letters Patent Bench would consider whether substantial part of the order sought to be appealed against is under Article 226 or not. If it is found that the substantial part of the order sought to be appealed against is under Article 226, the Letters Patent Appeal would be maintainable, but not otherwise.
(vii) If substantial part of the order sought to be appealed against is under Article 226, the Letters Patent Appeal would not become non-maintainable merely because in the final order the Single Judge has given ancillary directions which may pertain to Article 227.
Thus, in our opinion, filing of the writ petition under Articles 226 and 227 of the Constitution or even a writ petition only under Article 226 of the Constitution by itself would not determine that the order passed by the learned Single Judge is under Article 226 of the Constitution, unless in substance the pleadings, reliefs claimed and jurisdiction invoked show that it was under Article 226 of the Constitution. Similarly, the tenor of the order passed by the learned Single Judge or the final relief which the Court may have granted also renders active assistance to determine whether the jurisdiction exercised by the learned Single Judge was under either Article 226 or under Article 227 of the Constitution."
Having bestowed our thoughtful consideration to the core issue, it is clear that if the Single Judge has exercised jurisdiction under Article 226 of the Constitution by issuing a writ of certiorari, and in a given case with an ancillary relief in the form of a writ of mandamus, a Letters Patent Appeal is clearly maintainable under Clause 15. However, if in a given case the petition is only under Article 227 of the Constitution and the Single Judge has modified the order to a certain extent in exercise of its supervisory jurisdiction, or to put it in other words, in exercise of superintending powers and if the ancillary relief is also granted by way of some directions, then such directions could not be said to have been issued by way of a writ of mandamus so as to make a Letters Patent Appeal maintainable against such an order. The reason is plain and simple. It is the main relief which the Court grants is important. If the main relief granted by the Court is in exercise of its superintending powers under Article 227 of the Constitution, then all other directions ancillary in nature will remain in exercise of superintending powers and no Letters Patent Appeal would be maintainable.
In our view, the following tests can be applied to come to the conclusion whether the facts justify the filing of the petition either under Article 226 or under Article 227 of the Constitution.
(i) the first and foremost test that must be applied is the pleadings in the writ petition. This is clear from the observations of the apex Court in the case of Mangalbhai and ors. v. Radhey Shyam, (1992) 3 SCC 448, wherein at para 6 of the judgment, the apex Court has observed that where 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 Single Judge leave no manner of doubt that it was an order passed under Article 226 of the Constitution, a Letters Patent Appeal would be maintainable. Similar observations are to be found in Sushilabhai's case, reported in AIR 1992 SC 185, where a reference is made in para 3 of the judgment to the ground taken in the writ petition, if unmistakably go to show that it was a petition under Article 226, the Letters Patent appeal would be maintainable.
(ii) the second test would be the approach and the observations of the Single Judge as to whether he was exercising the power under Article 226 or under Article 227. The apex Court held this in para 6 of its judgment in Mangalbhai's case (supra) and similar observations are to be found in Sushilabhai's case (supra) in paras 3 and 4 of its judgment. However, we clarify that this would not be the sole consideration because the nomenclature of the proceeding or reference to a particular article of the Constitution in the judgment may not be final or conclusive. As observed by the Supreme Court in Ramesh Chandra (supra), if it were so, a petition strictly falling under Article 226 of the Constitution simplicitor can be disposed of by a Single Judge observing that he was exercising power of superintendence under Article 227 of the Constitution.
At this stage, it is necessary for us to state that the learned Single Judge should clarify, whether any case for a writ of certiorari has been made out by the petitioner as prayed for and if the answer is no, then the learned Single Judge should assign reasons in brief as to why no case for a writ of certiorari has been made out. Such reasons in brief would make the task of the LPA bench relatively easier in deciding whether the LPA is maintainable or not.
(iii) the third factor which is relevant and most important is whether the person, authority or State against whom the writ is sought, was made a party, which is the requirement of a petition under Article 226 of the Constitution, unlike a petition under Article 227 of the Constitution, where the Court or the Tribunal is not required to be made a party. This test emerges from the observations of the apex Court in Umaji's case (supra). We clarify that in the case of Savitri Devi (supra), the apex Court has disapproved the practice of the judicial officers being impleaded as respondents in the petitions filed in the High Court, and the Special Leave Petitions filed in the apex Court. The observations made by the Supreme Court should be understood to unburden the judicial officers being made parties in proceedings as against the persons, authority or a State being required to be made as party in a petition under Article 226 and the Court or a Tribunal not being so required in a petition under Article 227 of the Constitution.
(iv) the fourth factum would be the relief prayed for in the petition. Where the relief prayed for is for issuance of writ in the nature of certiorari, such writ would normally be issued in exercise of powers under Article 226 of the Constitution where such writs are directed against the person, authority or the State. Where however, the reliefs prayed for are in exercise of powers of superintendence conferred upon every High Court under Article 227 of the Constitution, which is a supervisory jurisdiction intended to ensure that the subordinate Courts and the Tribunals act within the limits of the authority and according to law, the exercise of jurisdiction would be under Article 227. This particular test emerges from the observations made in para 99 of the judgment in Umaji's case (supra);
(v) the fifth factor is whether the jurisdiction invoked in the petition irrespective of the lable mentioned in the title of the petition was primarily of original nature, in which case it would be a petition under Article 226 of the Constitution, or whether it was invoked in the nature of supervisory jurisdiction in which case it would be under Article 227 of the Constitution. The observations to this effect are found in para 100 of the decision of the Supreme Court in Umaji's case (supra) where there is a reference to some Privy Council decisions also.
(vi) The sixth test to be applied should be the real nature of the order or the principal relief granted by the Court. Where substantial part of the order is under Article 226 of the Constitution, the mere fact that in the final order the Court gives ancillary direction which may burden to Article 227 of the Constitution out not to deprive the party of a writ of appeal under Clause 15 of the Letters Patent. This testemerges from para 106 of the decision of the Supreme Court in Umaji's case (supra).
In our opinion the sixth test as regards the real nature of the order or the principal relief granted by the Court is a very important test to determine whether the petition in substance was treated by the learned Single Judge as one under Article 226 of the Constitution of India or under Article 227 of the Constitution of India.
We would like to elaborate this test only with a view to explain that the final order or the principal relief will govern the maintainability of the Letters Patent Appeal under Clause 15 of the Letters Patent.
Ordinarily in each and every petition whether the facts justify or otherwise, there is a prayer for issue of a writ of certiorari. However, as discussed in the earlier part of our judgment that by merely praying for a writ of certiorari, the petition which is otherwise under Article 227 of the Constitution will not become automatically a writ
Application under Article 226 of the Constitution. When a petition praying for a writ of certiorari is taken-up for hearing by the learned Single Judge, three courses are open to the Court, - (i) hear the counsel appearing for the petitioner and dismiss the same in limine having not found any substance in the petition; (ii) the Court may find some prima facie case to issue Notice to the other side and after hearing both the side decides the matter one way or the other; and (iii)the Court may find an error apparent on the face of the record and may issue Rule Nisi.
In our opinion, if the court finds no substance in the petition and dismisses the petition in limine thereby confirming the order passed by any authority, Tribunal or a Court, then in such circumstances it could be said that the court did not find any case for issue of a writ of certiorari and against such an order no Letters Patent Appeal would lie.
In a given case the learned Single Judge may come to the conclusion that although the petitioner has not been able to point out any serious infirmity or error apparent on the face of the order impugned, yet may deem fit to modify the order and thereby partly allow the petition. We may give one simple example. Take a case where a Labour Courts award or a Industrial Tribunals award is challenged by way of a petition praying for a writ of certiorari. On the facts and in the circumstances of the case, the learned Single Judge may deem fit to confirm the order of reinstatement but sets aside the order for back-wages. Such is the case of modification of the order and such modification could never be in exercise of the power to issue a writ of certiorari. By a writ of certiorari the Court has no power to modify the order or the award and such modification is permissible only in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.
In such circumstances, it should be held that the Letters Patent Appeal is not maintainable against such modified order and if the party is aggrieved by such an order then the only remedy would be to file a Special Leave Petition before the Honurable Supreme Court.
Take a case where the learned Single Judge is convinced about the serious error in the order impugned which, if not corrected, would lead to a miscarriage of justice. Having noticed such a palpable error on the face of the order, the learned Single Judge sets aside such an order by issuing a writ of certiorari, then against such an order a Letters Patent Appeal would definitely be held to be maintainable. In short, what we want to convey is that rightly or wrongly even in cases where the Letters Patent Appeal is not maintainable, but if the party chooses to file such an appeal, then it is always open for the Letters Patent Bench to reach to the conclusion after perusing the order that the Appeal is not maintainable as it could not be said that the learned Single Judge exercised its power to issue a writ of certiorari.
There is one more aspect of the matter. Take a case where in the first hearing of the petition, the learned Single Judge finds substance in the infirmity pointed out in the order impugned and directs the authority to certify the record and transmit it to the High Court for its consideration and after a bipartite hearing dismisses the petition on merits then in such circumstances it would be open for the Letters Patent Bench to look into the order of the learned Single Judge so as to find out whether any grave error of jurisdiction was really pointed out or not.
We shall now look into a few decisions of the Supreme Court on the issue of maintainability of an intra court appeal under Clause 15 of the Letters Patent.
In Sushilabai Laxminarayan Mudliyar v. Nihalchand Waghajibhai Shaha [1993 Supp. (1) SCC 11], the Supreme Court, with reference to an unreported judgment in Ratnagiri District Central Cooperative Bank Ltd. v. Dinkar Kashinath Watve, C.A. No. 520 of 1989 decided on 27.1.1989, held as follows :
"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 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 un