A.K. Ganguly, C.J.
1. This writ appeal has been filed challenging the judgment dated 12.2.2007 passed by a learned Single Judge of the writ Court in W.P.(C) No. 13052 of 2006.
2. On a perusal of the said judgment, it appears that the writ petitioner was the defendant in Civil Suit No. 62 of 2004. In this said suit, the writ petitioner-defendant filed her written statement. The appellant was the opposite party in the writ petition and the plaintiff in the said suit.
3. By the impugned judgment, learned Judge of the writ Court held that the order which was passed by the learned Civil Judge (Senior Division), Parlakhemundi in Civil Suit No. 62 of 2004 cannot be sustained and His Lordship was pleased to set aside the said order dated 21.8.2006 passed by the Civil Judge (Senior Division), Parlakhemundi.
4. By the said order, learned Civil Judge (Senior Division) inter alia held that there was delay in filing the counter claim and the counter claim was filed by the defendant in the suit without the leave of the Court and the Court also held that the defendant was not diligent in the proceeding relating to counter claim which was filed after the issues were settled and as a result whereof the suit got stalled. On the aforesaid grounds, the counter claim was rejected and the suit was fixed for hearing on 4.9.2006.
5. This Court is not going into the correctness or otherwise of the said order on merits since the suit between the parties is pending.
6. Learned counsel for the appellant urged that the writ petition should not have been entertained as the disputes relate to property between private parties and the writ Court by interfering with the order passed by the Civil Court stalled the suit which was fixed for hearing on 4.9.2006.
7. In the writ petition, the only opposite party was the appellant herein and the appellant is Utkal Baptist Mandali Sammilani which is certainly not an authority within the meaning of Article 12 of the Constitution. This Court does not understand how a writ petition can lie against the opposite party which is a private religious organization. This is very serious infirmity about the maintenance of the writ petition.
8. The language of Article 226 of the Constitution is very wide and it is provided that the High Courts shall have powers to issue, in relation to the area where it exercises jurisdiction various writs mentioned in the said Article or any directions or orders in the nature of writs to any person or authority. The said expression 'person' has received judicial interpretation by Supreme Court and various High Courts on the question whether writ can be issued against any private person.
9. This question came up for consideration in the case of Shri Sohan Lal v. Union of India and Anr. a Constitution Bench judgment of the Supreme Court, reported in : [1957]1SCR738 . In that case Jagan Nath, a displaced person and a refugee from Pakistan, filed a writ petition in the High Court of Punjab under Article 226 of the Constitution of India against Union of India and one Sohan Lal and prayed for appropriate relief directing Union of India and also Sohan Lal to restore to him the possession of his house. High Court directed Sohan Lal to restore possession to Jagan Nath. Then, Sohan Lal appealed to the Supreme Court against the said High Court order and one of the contentions was whether a writ of Mandamus can lie against any private individual. In that context Justice Imam, speaking for the unanimous Court, held that the eviction of the Jagan Nath was in contravention of express provisions of Section 3 of the Public Premises (Eviction) Act and was illegal. The property in dispute was in the possession of Sohan Lal, but there was no evidence and no finding by the High Court that Sohan Lal acted in collusion with Union of India or that he had any knowledge that the eviction of Jagan Nath was illegal. In the context of those facts, the learned Judges of the Supreme Court held as follows:..Normally, a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an order is made against a person directing him to do some particular thing, specified in the order, which appertains to his office and is in the nature of a public duty (Halsbury's Laws of England, Vol. 11, Lord Simonds Edition, p. 84). If it had been proved that the Union of India and the appellant had colluded and the transaction between them was merely colourable entered into with a view to deprive Jagan Nath of his rights, jurisdiction to issue a writ to or make an order in the nature of mandamus against the appellant might be said to exist in a Court...
10. This question again came up before the Constitution Bench of the Supreme Court in the case of Engineering Mazdoor Sabha and Anr. v. Hind Cycles Ltd. reported in : (1962)IILLJ760SC . In that case, a writ was issued against an Arbitrator acting under Section 10A of Industrial Disputes Act, 1947 and it was held that even though the Arbitrator was a private person but an arbitrator under Section 10A of Industrial Disputes Act is not the same as a private arbitrator. An arbitrator appointed under Section 10A of the Act is discharging statutory duties.
11. It was held that a writ under Article 226 may lie against an award pronounced by an Arbitrator under Section 10A of the Industrial Disputes Act, 1947 and the arbitrator, though a private individual, is amenable to writ jurisdiction as he was discharging his duty under a Statute.
12. In Division Bench Judgment of Orissa High Court in the case of Ghanashyam Misra v. Orissa Association of Sanskrit Learning and Culture reported in AIR 1971 Orissa 212, Chief Justice Mr. G.K. Mishra held that a writ could be issued against Sanskrit Council constituted under a Government Resolution while it was holding an examination since it was performing a public duty though the Council is not a statutory body.
13. The Calcutta High Court also has taken the same view in the case of Dr. Sudhir Chandra Neogy v. Calcutta Tramways Company Ltd. reported in : AIR1960Cal396 . The Court held that since the Calcutta Tramways Company Ltd. is a public utility concern and it was shown that the said Company was violating some provision of law for which no adequate remedy was provided, in that event, a writ petition would be maintainable against the Company.
14. In coming to the said conclusion, Calcutta High Court relied on a Division Bench Judgment of Bombay High Court in the case of Corporation of the City of Nagpur v. Nagpur Electric Light and Power Co. Ltd. reported in : AIR1958Bom498 of the report, learned Judges of Bombay High Court relied on the following principles enunciated in 73 Corpus Juris Secundum 998.
As a general rule, a public utility has the duty to give the public reasonable and adequate service at reasonable rates and without delay.
15. Relying on the said principles, learned Judges of Bombay High Court held that a public utility concern has the duty to supply certain commodity to the public. This duty exists independently of statutes. This being the position, learned Judges held that a writ can issue at the instance of any consumer against a public utility concern for its failure to perform its duty under the Electricity Act or under its licence. Similarly, a writ can issue restraining it from abusing its powers under any of the provisions of the Act or under its licence.
16. In the case of Rohtas Industries Ltd and Anr. v. Rohtas Industries Staff Union and Ors. reported in : (1976)ILLJ274SC , the Supreme Court held that the Arbitrator under Section 10A of the Industrial Disputes Act falls within the 'rainbow of statutory tribunals' which are amenable to judicial review. In saying so, learned Judges relied on the previous judgment of the Supreme Court in the case of Engineering Mazdoor Sabha (supra).
17. Subsequently, in the case of Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mohotsav Smarak Trust and Ors. v. V.R. Rudani and Ors. reported in : (1989)IILLJ324SC , it was again held that writ under Article 226 can not only be issued to the statutory authorities and instrumentalities of the State, but it can be issued to any other person or body performing public duty. Such duty need not be imposed by the statute but public trust running a college shall come within the concept of performing public duty. But in paragraph-14 in Anadi Mukta Sadguru, the Supreme Court made it clear that if the rights are purely of a private character no mandamus can be issued. (See: paragraph-14, page 1611 of the report). In paragraph-19 at page 1613 of the report, learned Judges held that the expression 'any person or authority' used in Article 226 are therefore, not to be confined only to statutory authorities and instrumentalities of the State, but it may cover any other person or body performing public duty. The same principle has been elaborated by saying that 'the duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied.'
18. Following the aforesaid principles, it cannot be held that in the instant case, the appellant is discharging any public duty. It is a religious organization and is neither a public utility concern and is certainly not a statutory body. Therefore, such a private organisation on whom no public duty is imposed is not amenable to a writ Court.
19. The same principle has been laid down in the judgment of Queen's Bench Divisions R.v. Disputes Committee of the National Joint Council for the Craft of Dental Technicians and Ors. reported in (1953) 1 All E.R. 327. In that judgment, Chief Justice Lord Goddard speaking for a Three Judge Bench held, 'There is no instance of which I know in the books where certiorari or prohibition has gone to any arbitrator except a statutory arbitrator, and a statutory arbitrator is a person to whom, by statute, the parties must resort. It would be an enormous departure from the law relating to prerogative writs if we were to apply these remedies to an ordinary arbitrator whether he be a single arbitrator or a body of gentlemen called a committee or council'
20. The Apex Court followed the same principle in the case of Engineering Mazdoor Sabha and Rohtas Industries.
The only exception which can be made is in the case of a writ of Habeas Corpus. Such a writ can go against a private individual for the release of a person if he/she is illegally detained by a private individual. (See Mohd. Ikram v. State of U.P. : 1964CriLJ590 (para 12, page 1630 of the report)).
21. But a writ of Mandamus/Certiorari or Prohibition or any direction of the like nature can also be issued against a private individual only if it can be proved that he acted in collusion with a statutory authority as was held in Sohan Lal or was discharging any public duty or was a public utility concern or was acting under a Statute.
22. Going by the aforesaid tests, we hold that in this case the appellant does not come under any of the categories discussed above. As a private religious organization it was not discharging any public duty or statutory duty nor was it acting in collusion with a statutory authority and it is admittedly not a Habeas Corpus proceeding. So the appellant herein and the sole opposite party in the writ petition is not amenable to writ jurisdiction under the Constitution.
23. Learned counsel for the appellant argued that this is not a writ petition under Article 226 of the Constitution but it is a petition under Article 227 of the Constitution and it was urged that the prayer portion of the petition would show that no prayer was made for a writ.
24. This Court cannot appreciate this argument. It is well known that the writ jurisdiction of the High Court is not confined only to issuance of a writ but the High Court can issue direction/orders in the nature of a writ. Apart from that in para-1 of the petition filed before the writ Court it has been mentioned that this is a writ petition. Therefore, having described the petition as a writ petition, the petitioner cannot contend that it is not so in view of non-mentioning of any writ in the prayer portion. It may be that the prayers are vague and inartistic but by non-mentioning of the names of the writ in the prayers, the basic character of the writ petition cannot be altered.
25. Learned counsel in order to sustain the writ petition further urged that a writ of certiorari is maintainable against an order of the civil Court and in support of the same, learned Counsel for the appellant referred to the judgment of the Supreme Court in the case of Surya Dev Rai v. Ram Chander Rai and Ors. reported in : AIR2003SC3044 . In paragraph-34 (Page 3055 of the report), the learned Judges of the Hon'ble Supreme Court held, after discussing several decisions, that curtailment of revisional jurisdiction of the High Court cannot take away its constitutional jurisdiction to issue a writ of certiorari to a civil Court nor the power of superintendence conferred on the High Court under Article 227 of the Constitution can be curtailed. There can be no dispute with the aforesaid proposition.
26. It is one thing to say that the High Court's jurisdiction under Article 226 against civil Court order is not taken away by an amendment to the revisional jurisdiction of the High Court but it is quite another thing to contend that the writ petition would lie against a private body or individual in a property dispute between the parties where the said private party is not coming under any one of the categories discussed hereinabove. Therefore, the jurisprudence which has been developed by the Hon'ble Supreme Court in the case discussed hereinabove cannot lost sight of. So, the decision in Surya Dev Rai must be understood in that context. It may be that in a case before the civil Court the respondent/opposite party is either a State or its instrumentalities or it may be a person falling in any one of the aforementioned categories. In such a situation, those person may be amenable to the writ jurisdiction of the High Court subject to the guidelines given in Surya Dev. But otherwise in all cases of private or property disputes between the private parties, the writ cannot go against a private person in the way the writ petition has been framed in this case.
27. Even after holding in Surya Dev Rai that a writ of certiorari ' is available against an order of the civil Court or that its order are subject to supervisory jurisdiction under Article 227 of the Constitution, learned Judges have-laid down the restriction which the Court should follow before issuing a writ of certiorari against civil Courts order or before exercising supervisory jurisdiction under Article 227 of the Constitution. Those guidelines in paragraph-38 are as follows:
(a) Certiorari, under Article 226 of the Constitution is issued for correcting gross errors of jurisdiction, i.e., when a subordinate Court is found to have acted (i) without jurisdiction-by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(b) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step into exercise its supervisory jurisdiction.
(c) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.
(d) A patent error is an error which is self evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take one view the error cannot be called gross or patent.
(e) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate Court and error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(f) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(g) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate Courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of subordinate Court as the Court should have made in the facts and circumstances of the case.
28. In the instant case, it cannot be said that any error has been committed by the civil Court which cannot be corrected in an appeal to be filed against the same by the aggrieved party from the final judgment. Therefore, going by the aforesaid parameters, interference with the order of the Civil Court by the learned Judge of the writ Court has not been made in proper exercise of discretion under Article 226 of the Constitution. In the case of Surya Dev Rai, it has been held that mere errors of law or fact if they do not cause gross injustice cannot be corrected in exercise of jurisdiction under Article 227 of the Constitution.
29. In another Division Bench judgment of this Court in the case of Susant Kumar Roy v. Mira Roy and Ors. reported in : AIR2007Ori26 to which one of us is a party, similar questions of maintainability of a writ petition against civil Courts order came up for consideration. In that decision, the Division Bench considered the following judgments:
1. Mahamed Hanif v. The State of Assam reported in : [1970]2SCR197 .
2. M/s. Hindustan Steel Limited, Rourkela v. Smt. Kalyani Banerjee and Ors. reported in : [1973]3SCR1 .
3. State of Rajasthan v. Bhawani Singh reported in : AIR1992SC1018 .
4. Mohan Pandey v. Usha Rani Rajgaria reported in : [1992]3SCR904 .
5. Prasanna Kumar Roy Karmakar v. State of W.B. and Ors. reported in : [1996]3SCR912 .
6. P.R. Muriidharan and Ors. v. Swaml Dharmanada Theertha Padar and Ors. reported in : (2006)4SCC501 .
After considering all those judgments, the Division Bench in Susanta Kumar Roy held that Extraordinary High Prerogative writ jurisdiction of High Court should not be invoked to decide property disputes among private parties keeping in view the guidelines laid down in Surya Dev Rai's case.
30. In view of the law laid down by the Supreme Court in the aforesaid judgments, this Court, in the facts and circumstances of this case holds that the learned Single Judge of the writ Court ought not to have entertained the writ petition and interfered with the order passed by the learned Civil Judge. This Court holds that the writ petition is not maintainable and the order of the learned Single Judge dated 12.2.2007 passed in W.P.(C) No. 13052 of 2006 is set aside.
The writ appeal is thus allowed. The suit may proceed expeditiously.
This Court makes it clear that nothing said in the judgment, will in any way affect the merits of the case of the parties in the said suit.
B. N. Mahapatra, J.
31. I agree.