Surinder Singh Nijjar, C.J.
1. By orders dated 9th October, 2007 and 15th November, 2007, these groups of writ petitions were referred to the Chief Justice for constituting an appropriate Bench for re-examining and/or reconsidering the matter regarding Constitutional issues raised in the order of reference. The reference has been made in the following terms:
54. In the result, I am of the considered view that the objections regarding maintainability of these writ petitions on the ground that (1) a writ petition under Article 226 of the Constitution of India against an order passed by a statutory Tribunal exercising judicial functions is not maintainable and it is only an application under Article 227 that would be maintainable; and (2) a writ petition under Article 226 of the Constitution of India against an order passed by a statutory Tribunal exercising judicial functions is not maintainable within the scope of the rules framed by this Court, - require re-consideration and, therefore, I direct that the cause papers of these petitions be placed before the Hon'ble the Chief Justice for appropriate orders being passed.
2. The reference has been made in Writ Petition Nos. 898 of 2007 and 269 of 2007. Therefore, it would be necessary to make a brief reference to the facts of that case.
3. The petitioner is a Society registered under the Societies Registration Act, 1961 and it runs the Bhowanipur Gujarati Education Society at premises at 5, Lala Lajpat Ray Sarani, Calcutta 700020 (hereinafter referred to as the Society). The Society had sold/transferred the 1st floor of the premises to several persons including UCO Bank on the basis of ownership on March 31, 1992. The aforesaid Bank had made some constructions on the 1st floor of the building which would be suitable for Banking operation including the location of strong boxes. The Kolkata Municipal Corporation passed a demolition order dated 10th September, 1990 under Section 400(1) of the Calcutta Municipal Corporation Act, 1980. Aggrieved by the demolition order, the writ petitioners filed a statutory appeal before the Municipal Building Tribunal under Section 400(3) of the Calcutta Municipal Corporation Act, 1980. The aforesaid appeal has been dismissed by the Municipal Building Tribunal by order dated September, 26, 2006. This order was challenged by the writ petitioner by filing a writ petition under Article 226 of the Constitution of India. The petitioner has raised a number of legal pleas including violation of Article 14 of the Constitution as well as statutory provisions of the Calcutta Municipal Corporation Act, 1980 against the order of demolition and the subsequent order of the Tribunal. On the basis of the aforesaid grounds the petitioner has claimed issue of writs in the nature of certiorari, mandamus and prohibition. It is prayed that the orders passed by the various Authorities including the Tribunal be quashed and a direction be issued to the Authority to decide the matter afresh in accordance with law after observing due procedure.
4. When the matter came up for hearing before the learned Single Judge, a preliminary objection was raised as to the maintainability of the writ petition under Article 226 of the Constitution of India. In support of this preliminary objection, reliance was placed on the decision of a Division Bench of this Court in the case of Kanak Projects Ltd. v. Amrita Bazar Patrika Pvt. Ltd. and Ors. reported in 2007(2) CHN 492. It was submitted that the orders passed by the respective Tribunals forming subject matter of challenge in these petitions being orders passed in exercise of judicial functions, its validity or propriety cannot be questioned in a petition under Article 226 of the Constitution and the remedy of the petitioners lie in an application under Article 227 of the Constitution of India. It was also submitted that the extent of power and authority exercised by a High Court under Article 227 being wider than power conferred on it under Article 226, the petitioners without being subjected to hardship, may well seek remedy before the alternative forum. Regarding the scope and extent of powers exercisable by a High Court under Article 227 of the Constitution, the learned Counsel for the Municipal Corporation relied on the decisions of the Supreme Court namely, judgment of the Supreme Court in the case of Surendra Nath Bibra v. Stephen Court Ltd. reported in : [1966]3SCR458 ; State of Gujarat v. Vakhatsinghji Vajesinghi Vaghela reported in : [1968]3SCR692 ; Umaji Keshao Meshram v. Smt. Radhikabai, and Anr. reported in : [1986]1SCR731 . It was also submitted that the learned Single Judge has no alternative but to follow the decision in Kanak Projects (supra), even if the learned Single Judge was not in agreement with the principle of law laid down therein. In support of this submission, learned Counsel relied upon a Division Bench judgment of this Court in the case of Sib Nath Koley v. West Bengal and Ors. reported in : AIR2007Cal223 . When an observation was made by the learned Single Judge that the decision in Kanak Projects (supra) did not consider decisions of the Supreme Court of high authority on the point, it was submitted that even if the learned Single Judge was inclined to take a view different from the one expressed by the Division Bench, the learned Single Judge can only make a reference to a Division Bench. No reference could be made to a Larger Bench. In support of this, reliance was placed on the Special Bench decision of this Court in the case of Ahamed Hossain Sk. v. State of West Bengal and Ors. reported in 2001(2) CHN 762.
5. On the other hand, Counsel for the writ petitioners placed reliance on a number of judgments of the Supreme Court in support of the submissions that the same had not been noticed by the Division Bench and hence, it does not lay down the law correctly. On the basis of the judgments of the Supreme Court, it was submitted that even an order passed by a Tribunal exercising judicial functions may be assailed by a person aggrieved thereby under Article 226 of the Constitution.
6. Learned Single Judge had also asked Mr. Ashok Banerjee, learned Senior Counsel of this Court, to assist the Court as amicus curiae. Learned Senior Counsel invited the attention of the Court to the judgment of the Division Bench to demonstrate apparent inconsistencies therein and ultimately submitted that in view of the authoritative pronouncement of the Constitution Bench of the Supreme Court in the case of L. Chandra Kumar and Ors. v. Union of India reported in : [1997]228ITR725(SC) , a writ petition under Article 226 of the Constitution would definitely be maintainable against an order passed by a Tribunal over which the High Court exercises power of superintendence under Article 227 of the Constitution. It was also submitted that the point of maintainability could be decided by the learned Single Judge based on the judgments of the Supreme Court irrespective of whatever has been laid down by the Division Bench. In support of this submission learned Counsel relied on the judgment of the Supreme Court in the case of Mamleshwar v. Kanhaiya Lal reported in : [1975]3SCR834 and Bakul Rani Dey v. Nani Bala Debi reported in 86 CWN 943. However, ultimately the learned Counsel submitted that in keeping with the judicial propriety and discipline, the issue ought to be referred by the learned Single Judge to a Division Bench in case the learned Single Judge had reason not to follow the decision of the Division Bench.
7. At this stage it would be apposite to notice the facts and the law laid down in Kanak Projects (supra). In this case the Division Bench consisting of Hon'ble Justice Bhaskar Bhattacharya and the Hon'ble Justice Prabuddha Sankar Banerjee was considering two appeals filed against the orders of the learned Single Judge in two separate writ petitions challenging the order passed by the Debts Recovery Tribunal (hereinafter referred to as the Tribunal). Both the writ petitions seem to have been moved before the learned Single Judge during the Puja Vacation. In the first writ petition an order dated 29th May, 2006 was passed by the Tribunal directing maintenance of status quo. This order was subsequently extended on different occasions. The Division Bench noticed that the status quo was continued till the presentation of the writ application. The next date of hearing before the Tribunal was fixed on 2nd November, 2006. The Division Bench also noticed that on the very first date of moving the writ application, the learned Single Judge by order dated 11th October, 2006 disposed of the same by directing the Tribunal not to extend the order of status quo before disposing of the application for condonation of delay in filing the stay application upon which such order of status quo had been passed. It was also directed that the application for condonation of delay and the main application should be disposed of by November 30, 2006 at the latest. The learned Single Judge did not issue any writ in the nature of prohibition, although a prayer for mandamus had been made, asking the Tribunal not to give effect to the said order dated 29th May, 2006. Further, no writ in the nature of certiorari was issued even though a prayer had been made. The Second writ application was moved on 13th October, 2006 praying for a direction for taking effective steps for completion of the sale of the property which was stayed by virtue of the existing order of status quo granted by the Tribunal. Taking note of these facts, the Division Bench observed as follows:
5. The same learned Judge, sitting in the vacation, passed an interim order by directing the Receiver-cum-Chairman of the Asset Sale Committee, constituted by the Tribunal by order dated February 11, 2004, which had been stayed by the subsequent order of status quo, to take step to expeditiously complete the sale of the disputed property, and at any rate, within eight weeks from the date of that interim order. Such interim order was passed by the learned Single Judge knowing fully well that the order of status quo was subsisting at least till November 2, 2006 and that the Tribunal was required to decide whether the said order of status quo should be extended in the event the delay in filing the application was condoned. Moreover, by the said interim order, the learned Single Judge virtually granted the entire relief claimed in the second writ application before decision on merit.
8. Both these orders being challenged in two appeals were decided by a common judgment dated November 22, 2006. The submissions of the learned Counsel appearing for the parties were noticed.
9. However, the Division Bench did not enter into the merits of the controversy involved and the appeals were decided only on the question of maintainability of the writ petition. It was observed by the Division Bench as follows:
16. After hearing the learned Counsel for the parties and after going through the provisions contained in Article 226 as well as Article 227 of the Constitution of India, we are of the firm view that the extents of those two provisions are definitely different. It is preposterous to suggest that the makers of our Constitution were ignorant of the scope of the two provisions and after incorporating Articled 226 in the Constitution of India, inserted the next article covering the self-same subject.
10. It was further observed as follows:
19. In the case before us, the moment it is established that the writ petitioners wanted to challenge a judicial order passed by the Tribunal over which this High Court has power of superintendence, the appropriate provision applicable is article 227 of the Constitution of India. Whether in view of existence of alternative remedy by way of appeal before the Appellate Tribunal, a High Court exercising jurisdiction under Article 227 of the Constitution will entertain the application in a given case, is a different question but in such a situation, there is no scope of moving an application under Article 226 of the Constitution of India for the purpose of disputing the correctness of the interlocutory judicial order of the Tribunal. We are, however, quite conscious that administrative orders passed by any Subordinate or Tribunal e.g. orders taking disciplinary action against an employee of such Courts or Tribunal are amenable to its jurisdiction under Article 226 of the Constitution of India. We are also not unmindful of the fact that as pointed out by the Apex Court in the case of Surya Dev Rai (supra), in exceptional cases where the order of a judicial authority is without jurisdiction, the Writ Court can issue certiorari and quash the proceedings; but in the case before us, His Lordship did not quash the proceedings by issuing a writ in the nature of certiorari but simply passed direction upon the Tribunal not to extend the status quo without disposing the application for condonation of delay. Even in the aforesaid case of Surya Dev Rai (supra) relied upon by Mr. Kundu, the Apex Court accepted the position that the scope of Article 226 and Article 227 are different as would appear from the following observations:
Upon a review of decided cases and a survey of the occasions wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stand almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers leveling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general differences between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the Inferior Court or Tribunal to the High Court, the High Court if inclined to exercise its jurisdiction may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances may warrant, may be by way of guiding the Inferior Court or Tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the Inferior Court or Tribunal should have made. Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well.
11. The Division Bench has also held that under the Appellate Side Rules framed by this Court, on the facts in that case, only a petition under Article 227 would be maintainable. It was observed as follows:
20. Moreover, in the rules framed by this Court for the exercise of its jurisdiction, separate provisions have been made governing the mode of exercise of power under Article 226 and Article 227 of the Constitution of India. According to those rules, exercise of power under Article 227 of the Constitution is part of the civil or criminal revisional jurisdiction of the Appellate Side of this Court, and a litigant, if dissatisfied with any order passed by a Judge in exercise of power under Article 227 of the Constitution of India, should approach the Supreme Court of India direct whereas in case of an order passed by a learned Single Judge exercising jurisdiction under Article 226 of the Constitution, remedy lies before a Division Bench of this Court. Therefore, merely because in some of the High Courts, combined applications under Article 226/227 of the Constitution of India are entertained in accordance with the rules framed by those High Courts, such fact cannot enable a learned Judge of this Court who is bound by the Appellate Side Rules and the Writ Rules framed by this Court to entertain an application under Article 226 of the Constitution of India against an interlocutory judicial order passed by a Tribunal. The Supreme Court, in the case of Surya Dev Rai (supra), as pointed out above, has accepted the position that the practice of entertaining combined application under those two Articles has been deprecated by various authorities. Even the Court-fees payable on an application under Article 226 of the Constitution of India varies according to nature of writs prayed for or the nature, of the order impugned while a fixed Court-fee is payable on the application under Article 227 of the Constitution of India according to the West Bengal Court-fees Act.
21. We enquired from the Registry as regards the determination conferred by the Hon'ble Chief Justice upon the Judges during the Puja Vacation. We are informed that on October 11, 2006 and October 13, 2006, the two days on which those writ applications were moved before the learned Single Judge, the learned Single Judge was not conferred with the determination under Article 227 of the Constitution of India and such determination was given to Hon'ble Justice P.K. Dev. Therefore, there is even no scope of argument that the point taken by Mr. Deb was a technical one and the said application should be treated as one under Article 227 of the Constitution because His Lordship had inherent lack of jurisdiction to entertain an application under Article 227 of the Constitution of India in the absence of conferment of such power by the Hon'ble Chief Justice. Apart from the aforesaid fact, according to the Rules framed by this Court, there is no scope of exercising power under Article 227 by a Judge sitting in Original Side. Only against orders passed by the Tribunal constituted under Article 323A/323B of the Constitution of India, there is scope of moving a combined application under Article 226 and 227 of the Constitution of India in view of the decision of the Apex Court in the case of L. Chandra Kumar v. Union of India reported in AIR 1997 SC 1125 and in appropriate cases, such application can be moved before a Division Bench in the original side but the Debt Recovery Tribunal is not such a Tribunal. Be that as it may, since the Hon'ble Chief Justice did not confer any determination upon the learned Single Judge to take up an application under Article 227 and such determination was given to a different Judge, His Lordship was even legally unauthorized to convert the application under Article 226 of the Constitution of India filed before His Lordship to one under Article 227 for the purpose of deciding the same by himself.
12. On the basis of the aforesaid reasons the Division Bench recorded the conclusions in the following words:
22. Over and above in the case before us, although writs in the nature of Mandamus, Prohibition and Certiorari were prayed for, His Lordship did not issue any of those writs and simply passed a guiding direction upon the Tribunal and thus, it is apparent that His Lordship exercised power of superintendence by exercising authority under Article 227 of the Constitution.
23. We have already pointed out that although the question of jurisdiction was specifically raised, the learned Single Judge kept that question open and nevertheless, allowed the purported writ application. We are unable to approve the order passed by the learned Single Judge in such circumstances and accordingly, set aside the order only on the ground that an application under Article 226 of the Constitution of India is not maintainable against a judicial order of the Tribunal within the scope of the rules framed by this Court and at the same time, His Lordship was not even authorised by the Hon'ble Chief Justice to entertain an application under Article 227 and as such, His Lordship had inherent lack of jurisdiction to entertain the same after converting the same to an application under Article 227.
13. The first question that arises in the reference is as to whether a writ petition under Article 226 of the Constitution of India is maintainable to challenge the orders of a statutory Tribunal performing judicial functions. The Division Bench has concluded that the moment it is established that the writ petitioners wanted to challenge a judicial order passed by the Tribunal over which this High Court has power of superintendence, the appropriate provision applicable would be Article 227 of the Constitution of India. In our opinion, the aforesaid conclusion cannot be supported by any precedent of either this Court or the Supreme Court. Rather the legal position appears to be somewhat different, if not otherwise. The Supreme Court has consistently held that decision of a Tribunal would be amenable to the extraordinary jurisdiction of the High Court under Article 226 of the Constitution as and when the Tribunal acts in excess of its jurisdiction, exercises the jurisdiction erroneously or on irrelevant considerations resulting into manifest injustice. In this context it would be appropriate to make a reference to some of the prominent judgments.
14. In the case of The Bharat Bank Ltd. Delhi v. The Employees of the Bharat Bank Ltd. reported in : (1950)NULLLLJ921SC , it is clearly laid down as follows:
11. It is well known that a writ of certiorari can issue only against an order of a judicial or quasi-judicial tribunal and if it is permissible for the High Court to issue a writ of certiorari against an industrial tribunal, which fact was not seriously disputed before us, I find it difficult to hold that the tribunal does not come within the purview of Article 136. If a sub-ordinate Court acts in excess of its jurisdiction or assumes a jurisdiction which it does not possess, the appellate Court can always interfere and do what is contemplated to be done by a writ of certiorari.
15. In the case of G. Veerappa Pillai v. Raman & Raman Ltd. reported in : [1952]1SCR583 , it has been clearly held as follows:
20. Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice.
16. The aforesaid ratio of law has been consistently reiterated by the Supreme Court. In the case of T.C. Basappa v. T. Nagappa and Anr. reported in : [1955]1SCR250 , it has been held as follows:
7. One of the fundamental principles in regard to the issuing of a writ of 'certiorari', is, that the writ can be availed of only to remove or adjudicate on the validity of judicial acts. The expression 'judicial acts' includes the exercise of quasi-judicial functions by administrative bodies or other authorities or persons obliged to exercise such functions and is used in contrast with what are purely ministerial acts. Atkin L.J. thus summed up the law on this point in Rex v. Electricity Commissioners 1924-1 KB 171 at p.205(C):
Whenever any body or persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs.
17. In the case of Hari Vishnu Kamath v. Ahmed Ishaque reported in : [1955]1SCR1104 , the Supreme Court laid down the law as follows:
6. The first question that arises for decision in this appeal is whether High Courts have jurisdiction under Article 226 to issue writs against decisions of Election Tribunals. That Article confers on High Courts power to issue appropriate writs to any person or authority within their territorial jurisdiction, in terms absolute and unqualified, and Election Tribunals functioning within the territorial jurisdiction of the High Courts would fall within the sweep of that power. If we are to recognize or admit any limitation on this power, that must be founded on some provision in the Constitution itself. ******
21. ***** On these authorities, the following propositions may be taken as 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.
23. It may therefore be taken as settled that a writ of 'certiorari' could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the fact of the record.... The fact is that what is an error apparent on the fact of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.
18. In the case of Syed Yakoob v. K.S. Radhakrishnan and Ors. reported in : [1964]5SCR64 , it has been held as follows:
The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 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.
19. Again in the case of Dwarka Nath v. Income Tax Officer reported in : [1965]57ITR349(SC) , it has been observed as follows:
4. ******** This article is couched in comprehensive phraseology and it ex-facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression 'nature', for the said expression does not equate the writs that can be issued in India with those in England, but only draws and analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself. To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the article and others may be evolved to direct the article through defined channels. This interpretation has been accepted by this Court in C. Basappa v. Nagappa : [1955]1SCR250 and Irani v. State of Madras : [1962]2SCR169 .
5. But we are satisfied that this case falls directly within the confines of the certiorari jurisdiction as understood in England. It is well settled that a writ of certiorari can be issued only to quash a judicial or a quasi judicial act and not an administrative act. ******
20. In the case of Ramesh v. Gendalal Motilal Patni reported in : [1966]3SCR198 , the Supreme Court observed as follows:
16. We are concerned here with the exercise of extraordinary original civil jurisdiction. The High Court does not hear an appeal or revision. The High Court is moved to intervene and to bring before itself, the record of a case decided by or pending before a Court or tribunal or any authority within the High Court's jurisdiction. A petition to the High Court invoking this jurisdiction is a proceeding quite independent of the original controversy. The controversy in the High Court, in proceedings arising under Article 226 ordinarily is whether a decision of or a proceeding before, a Court or tribunal or authority, should be allowed to stand or should be quashed, for want of jurisdiction or on account of errors of law apparent on the fact of the record. A decision in the exercise of this jurisdiction, whether interfering with the proceeding impugned or declining to do so, is a final decision in so far as the High Court is concerned because it terminates finally the special proceeding before it. ******
21. In the case of Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor, Sabha and Ors. reported in : (1980)ILLJ137SC , it is held as follows:
******Broadly stated, the principle of law is that the jurisdiction of the High Court under Article 226 of the Constitution is limited to holding the judicial or quasi-judicial tribunals or administrative bodies exercising the quasi-judicial powers within the leading strings of legality and to see that they do not exceed their statutory jurisdiction and correctly administer the law laid down by the statute under which they act ******
22. In our opinion, the aforesaid enunciation of the law leaves little manner of doubt that a writ petition under Article 226 of the Constitution of India would be maintainable to ensure that any Tribunal over which the High Court exercises power of superintendence, judicial as well as administrative, do not act in excess of the jurisdiction vested in the Tribunal. We are, therefore, unable to affirm the proposition of law laid down by the Division Bench that no writ petition under Article 226 would be maintainable to correct the errors committed by a Tribunal exercising judicial functions. To approve such a proposition would strike at the very foundation of the extraordinary jurisdiction bestowed upon the High Court under Article 226 of the Constitution of India.
23. In the case of G. Veerappa Pillai (supra) it has been clearly laid down that the powers vested in the High Court under Article 226 are obviously intended to enable the High Court to issue such writs as are referred to under Article 226 in cases where the decisions or the pending proceedings of the Tribunals have resulted in manifest injustice. Again in the case of Dwarka Nath (supra) it has been emphasized by the Supreme Court that Article 226 of the Constitution is couched in comprehensive phraseology and it ex-facie confers a wide power on the High Courts to reach injustice wherever it is found. These powers under Article 226 are available to be exercised by the High Court to remove manifest injustice unfettered by technicalities and procedural restrictions. The only caveat on the exercise of power under Article 226 is that the High Courts would be cautious and circumspect in exercise thereof to remove defects/decisions of the inferior Tribunals which if permitted to stand would result in manifest injustice.
24. In coming to the conclusion, that writ petition under Article 226 would not be maintainable to correct an error committed by Tribunal exercising judicial functions the Division Bench, in our opinion, has erroneously placed reliance on the judgments of the Supreme Court in the cases of Surya Dev Rai v. Ram Chander Rai and Ors. reported in : AIR2003SC3044 and L. Chandra Kumar v. Union of India and Ors. reported in : [1997]228ITR725(SC) .
25. Before we proceed to consider the judgments of the Supreme Court relied upon by the Division Bench, we may notice here some of the principles laid down by the Supreme Court relating to interpretation of the Supreme Court judgments in the case of Union of India and Ors. v. Dhanwanti Devi and Ors. reported in : (1996)6SCC44 :
9. ...It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution.
26. In the case of State of Orissa and Ors. v. Md. Illiyas reported in : AIR2006SC258 , the Supreme Court reiterates the law, as follows:
12. ...Reliance on the decision without looking into the factual background of the case before it, is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving judgment that constitutes a precedent..
A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent..
A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in an Act of Parliament.
27. Keeping in the forefront the aforesaid observations, an examination of the two judgments relied upon by the Division Bench does not support the conclusions recorded by the Division Bench. In the case of Surya Dev Rai (supra) the Supreme Court considered the question as to whether in view of the amendment in Section 115 of the Civil Procedure Code brought in by Act 46 of 1999 with effect from 1-7-2002, an aggrieved person would be completely deprived of the remedy of judicial review, if he has lost in the original and the appellate Court, though a case of gross failure of justice has occurred. On consideration of a whole gamut of case law, the Supreme Court observed as follows:
5. As a preclude to search for answer to the question posed it becomes necessary to recollect and restate a few well established principles relating to the constitutional jurisdiction conferred on the High Court under Articles 226 and 227 of the Constitution in the backdrop of the amended Section 115 of the Civil Procedure Code.
28. In para 9 considering the nature and scope of the writ of certiorari it was observed as follows:
9. The nature and scope of the writ of certiorari and when can it issue was beautifully set out in a concise passage, quoted hereafter, by Lord Chancellor Viscount Simon in Ryots of Garabandho and other Villages v. Zamindar of Parlakimedi and Anr. . 'The 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 or a 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 Sovereign's Superior Courts, and in particular the Court of King's Bench, process and exercise over inferior jurisdictions. This principle has been transplanted to other parts of the King's dominions, and operates, within certain limits, in British India.
29. In paragraph 10 the Supreme Court reiterates the well-settled principles on which the writ of certiorari is issued, as follows:
10. Article 226 of the Constitution of India preserves to the High Court power to issue writ of certiorari amongst others. The principles on which the writ of certiorari is issued are well settled. It would suffice for our purpose to quote from the 7 - Judge Bench decision of this Court in Hari Vishnu Kamath v. Ahmad Ishawue and Ors. : [1955]1SCR1104 . The four propositions laid down therein were summarized by the Constitution Bench in the Custodian of Evacuee Property, Bangalore v. Khan Saheb Abdul Shukoor etc. : [1961]3SCR855 as under:
a. ...the High Court was not justified in looking into the order of December 2, 1952, as an appellate Court, though it would be justified in scrutinizing that order as if it was brought before it under Article 226 of the Constitution for issue of a writ of certiorari. The limit of the jurisdiction of the High Court in issuing writs of certiorari was considered by this Court in Hari Vishnu Kamath v. Ahmad Ishaque : [1955]1SCR1104 and the following four propositions were laid down:
(1) Certiorari will be issued for correcting errors of jurisdiction;
(2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of it undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice;
(3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous.
(4) An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings, e.g. when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision..
15. Any authority or body of persons constituted by law or having legal authority to adjudicate upon questions affecting the rights of a subject and enjoined with a duty to act judicially or quasi-judicially is amenable to the certiorari jurisdiction of the High Court. The proceedings of judicial Courts subordinate to High Court can be subjected to certiorari..
21. Certiorari jurisdiction though available is not to be exercised as a matter of course. The High Court would be justified in refusing the writ of certiorari if no failure of justice has been occasioned.
30. In our opinion, the proposition of law laid down by the Division Bench would be contrary to the observations of the Supreme Court reproduced above. However, in support of its conclusion the Division Bench has placed reliance upon the observations made by the Supreme Court in paragraph 25. A perusal of the observations contained in paragraph 25 would show that the Supreme Court merely noticed that it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement. This was clearly to emphasise that for all practical purposes the distinction between Article 226 and 227 has been obliterated. In our opinion, the Division Bench erred in deducing therefrom that the Supreme Court in this judgment had concluded that a combined petition under Articles 226 and 227 is not maintainable. In the same paragraph where the Supreme Court had observed that 'the distinction between the two jurisdictions stands almost obliterated in practice', it is also observed as follows:
25. ...In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made.
31. These observations are in tune with the proposition of law laid down in the case of Dwarka Nath (supra), that the High Court in exercise of its power under Article 226 has the power to mould the relief, to suit the facts and circumstances of a particular case.
32. In paragraph 29 of the same judgment the Supreme Court noticed the judgment of the Constitution Bench in the case of L. Chandra Kumar (supra) and observed that the jurisdiction conferred on the Supreme Court under Article 32 of the Constitution and on the High Courts under Articles 226/227 of the Constitution is part of the basic structure of the Constitution, forming its integral and essential feature, which cannot be tampered with much less taken away even by constitutional amendment, what to speak of a parliamentary legislation.
33. The judgment also approves the observations of a Division Bench of the Delhi High Court in the case of Govind v. State (Govt. of NCT of Delhi) reported in (2003) 6 ILD 468, which were as follows:
29. ...The power of the High Court under Article 226 cannot be whittled down, nullified, curtailed, abrogated, diluted or taken either by judicial pronouncement or by the legislative enactment or even by the amendment of the Constitution. The power of judicial review is an inherent part of the basic structure and it cannot be abrogated without affecting the basic structure of the Constitution....
34. In our opinion, the ratio of law laid down in the judgment of the Supreme Court in the case of Surya Dev Rai (supra) has been wholly misconstrued by the Division Bench. The judgment in Surya Dev Rai (supra) does not lay down the proposition that a writ petition under Article 226 of the Constitution would not be maintainable against an order passed by a Tribunal exercising judicial functions. Rather the Supreme Court emphatically lays down that the proceedings of judicial Courts, subordinate to the High Court can also be subjected to certiorari.
35. This now takes us to the second part of the reference as to what is the nature and scope of the jurisdiction of the High Court under Article 227 of the Constitution of India. In our opinion, the answer has been clearly stated in the case of Chandrasekhar Singh and Ors. v. Siya Ram Singh and Ors. reported in : 1979CriLJ13 . A three - Judge Bench, on the basis of earlier judgments, summed up the law as follows:
11. The only other question that remains to be considered is whether an order under Section 146(1-B) can be interfered with by the High Court in the exercise of its powers under Article 227 of the Constitution. It is admitted that the powers conferred on the High Court under Article 227 of the Constitution cannot in any way be curtailed by the provisions of the Criminal Procedure Code. Therefore, the powers of the High Court under Article 227 of the Constitution can be invoked in spite of the restrictions placed under Section 146(1-D) of the Criminal Procedure Code. But the scope of interference by the High Court under Article 227 is restricted. This Court has repeatedly held that 'the power of superintendence conferred by Article 227 is to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors vide Waryam Singh v. Amarnath. In a later decision, Nagendra Nath Bora v. Commissioner of Hills Division and Appeals, Assam, the view was reiterated and it was held that the power of judicial interference under Article 227 of the Constitution is not greater than the power under Article 226 of the Constitution, and that under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority. In a recent decision, Babhutmal Raichand Oswal v. Laxmibai R. Tarta this Court reiterated the view stated in the earlier decisions referred to and held that the power of superintendence under Article 227 of the Constitution cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as the court of appeal and that the High Court cannot in exercise of its jurisdiction under Article 227 convert itself into a court of appeal.'
36. In spite of this ratio of law having been reiterated by the Supreme Court in paragraph 27 of the judgment in Surya Dev Rai (supra), the Division Bench has on a bare perusal of the provisions contained in Articles 226 and 227 of the Constitution of India observed that 'It is preposterous to suggest that the makers of our Constitution were ignorant of the scope of the two provisions and after incorporating Article 226 in the Constitution of India, inserted the next Article covering the self-same subject'. In coming to this conclusion the Division Bench did not have the benefit of the ratio of law laid down by the Supreme Court in a number of judgments rendered in the last five decades and more. The judgments were apparently not brought to the notice of the Division Bench. We may here notice some of the judgments in which the Supreme Court has laid down the parameters of the jurisdiction of the High Court under Article 226/227 of the Constitution of India.
37. In the case of Umaji Keshao Meshram v. Smt. Radhikabai and Anr. reported in : [1986]1SCR731 , the Supreme Court traced the history of the incorporation of Article 226, 227 and 228 in the Constitution of India. In paragraph 84 it has been observed as follows:
84. A question may well be asked why it was thought necessary to incorporate in the Constitution the jurisdiction and powers conferred by Articles 226, 227 and 228. The answer is obvious. Provisions similar to Articles 227 and 228 already existed in a Constitution Act, namely, in Sections 224 and 225 of the Government of India Act, 1935. The said Sections 224 and 225 were not made subject to the provisions of Part IX of the said Act and of any Order in Council made under the said Act or any other Act or to the provisions of any Act of the appropriate Legislature as the jurisdiction of the existing High Courts was by Section 223 of the said Act. These sections could, therefore, have been amended only by a legislation made by the British Parliament by amending the Government of India Act, 1935. The Government of India Act, 1935 was repealed by Article 395 of the Constitution. It was, therefore, necessary to re-enact these provisions and the only way in which it could be done was to insert them in the Constitution, because were these powers to be treated on the same footing as the other powers and jurisdiction of the existing High Courts, they would have become subject to laws made by the appropriate Legislature. So far as Article 226 is concerned, the power to issue prerogative writs was possessed by the three chartered High Courts only. As the Constitution-makers intended to confer the enlarged power under Article 226 upon all High Courts, and not merely the three Chartered High Courts, this power had to be embodied in an Article of the Constitution. It should also be borne in mind that the jurisdiction under Articles 226, 227 and 228 was intended to be conferred upon all High Courts; not only the existing High Courts but also any other High Court as and when it came to be established in the future. Further, the insertion of Articles 226, 227 and 228 in the Constitution without making them subject to any law to be made by the appropriate Legislature put these Articles beyond the legislative reach of Parliament and the State Legislatures with the result that the jurisdiction conferred by these Articles can only be curtailed or excluded with respect to any matter by a constitutional amendment and not by ordinary legislation.
38. These observations are a complete answer to the opinion expressed by the Division Bench. The Supreme Court also considered the complications that may arise in cases where combined petitions are filed under Articles 226 and 227 of the Constitution. It was observed as under:
106. Petitions are at times filed both under Articles 226 and 227 of the Constitution. The case of Hari Vishnu Kamath v. Syed Ahmad Ishaque : [1955]1SCR1104 before this Court was of such a type. 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 or 227 of the Constitution, and the party chooses to file his application under both these Articles, in fairness and justice to such party and in order not to 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. Such was the view taken by the Allahabad High Court in Aidal Singh v. Karan Singh : AIR1957All414 and by the Punjab High Court in Raj Kishan Jain v. Tulsi Dass and Barham Dutt v. Peoples' Co-operative Transport Society Ltd. New Delhi and we are in agreement with it.
39. As noticed above, the judgment rendered by the Full Bench of the Allahabad High Court in Aidal Singh (supra) has been specifically approved by the Supreme Court. We may notice here two of the arguments raised before the Full Bench:
45. It was argued that if the power under both Articles 226 and 227 was that of superintendence there would be overlapping and one of the two Articles would be redundant. This argument is not sound. It has already been explained why the power of superintendence was embodied in two Articles. It may further be pointed out that it is not unknown that Legislature do confer powers under two provision by way of abundant caution. This can be illustrated by another provision of the Constitution namely Article 225. Under that Article the existing powers of the High Courts are inherited by the High Courts under the Constitution.
The existing power of the High Courts included the power of administrative superintendence Under Section 224 of the Govt. of India Act 1935 over Courts subject to the appellate jurisdiction of the High Court. Why, it may be asked, has this power been again repeated in Article 227? The answer is that it was necessary to repeat it because all the subject-matters though involving in some respects a common power were nevertheless not coterminous in all respects.
46. It was argued that the approach of the Court under the two Articles is different. It is said that while in the case of Article 226 the Court enforces the legal rights of a party, under Art 227 it discharges an obligation to see that the Subordinate Courts do not act beyond their jurisdiction. This argument is based upon a misconception of the powers under Article 226. Under that Article, the Court exercises its jurisdiction for two purposes (1) for the enforcement of fundamental rights, and (2) for any other purpose.
In issuing a writ of certiorari of prohibition against a Court of law, the Court is not normally enforcing a party's fundamental right, but is exercising the power for another purpose, namely, for the purpose of seeing that the inferior Courts do not act beyond their jurisdiction etc. In so far as the Court issues a writ of certiorari or prohibition against a Court of law, the approach of the Court is exactly the same as in issuing an order under Article 227.
40. The same view has been reiterated by the Supreme Court in the case of Mavji C. Lakum v. Central Bank of India reported in 2008 AIR SCW 3460.
41. These observations, in our opinion, make it amply clear that the combined petition filed under Article 226/227 of the Constitution of India can always be treated by the High Court as a petition under Article 226 of the Constitution of India.
42. We are, therefore, unable to accept that since the petition under Article 227 is maintainable against the decision of a Tribunal exercising judicial functions; it would necessarily exclude the exercise of power by the High Court under Article 226 of the Constitution of India.
43. The Division Bench by placing reliance on L. Chandra Kumar (supra) has concluded that a combined writ application under Article 226/227 of the Constitution of India would be maintainable only against orders passed by the Tribunals constituted under Article 323A/323B of the Constitution. Since the Debt Recovery Tribunal has not been established under the aforesaid Articles a writ petition under Article 226 would not be maintainable. Earlier on the Division Bench in paragraph 19 of the judgment has itself observed that it is quite conscious that administrative orders passed by any sub-ordinate Court or Tribunal are amenable to writ jurisdiction under Article 226 of the Constitution of India. It is also noticed that in exceptional cases where the order of a judicial authority is without jurisdiction, the Writ Court can issue certiorari and quash the proceedings.
44. In our opinion, the conclusions are clearly contrary in nature. Once it is accepted that the High Court has the jurisdiction to issue writs under Article 226 of the Constitution of India, no further embargo can be placed on the power of the High Court. This proposition has been emphatically laid down by the Supreme Court in the case of L. Chandra Kumar (supra), as also in the case of Govind (supra), by the Division Bench judgment of the Delhi High Court. The case of Govind (supra) has been specifically approved by the Supreme Court.
45. The Division Bench, however, has further justified its conclusion that a combined petition would not be maintainable under the rules framed by this Court. Only a general statement is made to the effect that merely because combined applications are entertained in other High Courts, it cannot enable a learned Judge of this Court who is bound by the Rules framed by this Court to entertain an application under Article 226 of the Constitution of India against an interlocutory judicial order passed by a Tribunal. The judgment does not indicate as to which particular rule in any manner curtails the jurisdiction of the High Court under Article 226 of the Constitution of India.
46. We are unable to agree with the aforesaid conclusion of the Division Bench. The law has been consistently laid down by the Supreme Court that the power of the High Court to exercise jurisdiction under Article 226/227 of the Constitution of India forms a part of the basic structure of the Constitution. In our opinion, the aforesaid jurisdiction, therefore, cannot be curtailed by any provision contained in any enactment of legislature or any rules framed by the High Court in exercise of its rules making powers under Article 225 of the Constitution of India. These rules are framed for the administrative convenience of the functioning of the High Court and for distribution of the work among the Judges. These rules enable the Chief Justice to allocate judicial as well as administrative functions to individual Judges. The High Court may be divided into Single Bench, Division Bench or a Larger Bench as the Chief Justice deems fit, in his/her discretion. These Rules cannot be interpreted in such a way as to curtail the jurisdiction of the High Court under Articles 226/227 which is conferred by the Constitution of India itself. On the basis of the roster framed by the Chief Justice specific jurisdiction may be exercised by particular Single Benches or Division Benches of the High Court. Beyond that, there can be no curtailment of the jurisdiction conferred on the High Court under Article 226 of the Constitution of India.
47. We are of the considered opinion that the observations of the Division Bench in this regard are inconsistent with the law settled by the Supreme Court in a catena of judgments. In L. Chandra Kumar (supra) the Supreme Court has clearly laid down that there can be no curtailment of the powers of the High Court under Article 226/227 of the Constitution of India. The judgment also does not lay down the proposition that a combined writ petition under Article 226/227 would only be maintainable to challenge the orders passed by the Tribunals established under Article 323A or Article 323B of the Constitution. The Supreme Court in the aforesaid case came to the conclusion that even power conferred on the Parliament under Article 323A and Article 323B for establishment of Tribunals cannot have the effect of denuding the High Court of its powers under Article 226/227 of the Constitution of India. It was concluded that the power of judicial review over legislative action vested in the High Courts under Article 226 and the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. This power of the High Courts to test the constitutional validity of legislations can never be ousted or excluded. It is also held that the Tribunals created under ordinary legislations cannot supplant the powers of the High Court, under Articles 226/227 of the Constitution, though they can play a supplemental role.
48. The judgment also sets out the reasons as to why writ petitions against the judgments/orders of the Tribunals established under Articles 323A and 323B of the Constitution should be heard by a Division Bench. Thereafter, the Supreme Court observed as under:
92. In the view that we have taken, no appeal from the decision of a Tribunal will directly lie before the Supreme Court under Article 136 of the Constitution; but instead, the aggrieved party will be entitled to move the High Court under Articles 226/227 of the Constitution and from the decision of the Division Bench of the High Court the aggrieved party could move this Court under Article 136 of the Constitution.
49. Even, otherwise, the observations of the Division Bench are clearly contrary to the provision contained in The Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Section 18 of the aforesaid Act itself provides that the jurisdiction of the High Court under Article 226/227 of the Constitution of India shall not be affected by the establishment of the Debts Recovery Tribunal. That being so, the observations of the Division Bench are contrary to the express provision contained in Section 18 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. The aforesaid Section is as follows:
18. Bar of Jurisdiction.- On and from the appointed day, no court or other authority shall have, or be entitled to exercise, any jurisdiction, powers or authority (except the Supreme Court, and a High Court exercising jurisdiction under Articles 226 and 227 of the Constitution) in relation to the matters specified in Section 17.
50. To accept the proposition of law laid down by the Division Bench would necessitate deletion of the saving Clause contained within the bracketed portion of the Section. The aforesaid provision made in the Act cannot be rendered nugatory or nullified by placing an interpretation on the provision which does not flow from the plain words used in the Section. It is a settled proposition of law that while construing a provision contained in a statute the Court cannot re-construct the same.
51. In the case of Union of India and Anr. v. Hansoli Devi and Ors. reported in : [2002]SUPP2SCR324 , a five Judge Bench of the Supreme Court has stated the basic principles of interpretation of a statute. The rule stated by Tindal C.J. in Sussex Peerage case (8 ER p.1034) has been quoted with approval, as follows:
9. ...The rule stated by Tindal C.J. in Sussex Peerage case still holds the field. The aforesaid rule is to the effect (ER p. 1057)
If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver.
It is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act....
52. Such being the legal position, it would not be possible to ignore the saving Clause within the bracketed portion of Section 18.
53. It may also be noticed at this stage that the Division Bench did not have the benefit of the judgments which have been adverted to by us earlier in this judgment. The aforesaid judgments were neither cited nor considered. Since the Division Bench has failed to consider a large body of judgments delivered by the Supreme Court resulting in recording of conclusions contrary to the settled law, we have no option but to hold that the judgment of the Division Bench has been rendered 'per incuriam'. The meaning and the nature of the terms 'per incuriam' has been succinctly set out in Black's Law Dictionary- Eighth Edition, as follows:
per incuriam - (Of a judicial decision) wrongly decided, usu. because the judge or judges were ill-informed about the applicable law.
There is at least one exception to the rule of stare decisis. refer to judgments rendered per incuriam. A judgment per incuriam is one which has been rendered inadvertently. Two examples come to mind: first, where the judge has forgotten to take account of a previous decision to which the doctrine of stare decisis applies. For all the care with which attrorneys and judges may comb the case law, errare human est, and sometimes a judgment which clarifies a point to be settled is somehow not indexed, and is forgotten. It is in cases such as these that a judgment rendered in contradiction to a previous judgment that should have been considered binding, and in ignorance of that judgment, with no mention of it, must be deemed rendered per incuriam; thus, it has no authority.... The same applies to judgments rendered in ignorance of legislation of which they should have taken account. For a judgment to be deemed per incuriam, that judgment must show that the legislation was not invoked. Louis - Philippe Pigeon, Drafting and Interpreting Legislation 60 (1988).
As a general rule the only cases in which decisions should have held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some features of the decision or some step in the reasoning on which it is based is found on that account to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam, must in our judgment, consistently with the stare decisis rule which is an essential part of our law, be of the rarest occurrence. Rupert Cross & J.W. Harris, Precedent in English Law 149 (4th ed. 1991).
54. In the case of State of Bihar v. Kalika Kuer alias Kalika Singh and Ors. reported in : [2003]3SCR919 the Supreme Court examined as to in what circumstances a decision can be considered to have been rendered per incuriam. The Supreme Court has quoted with approval a passage in Halsbury's Laws of England (4th Edn.) Vol. 26: Judgment and Orders:
Judicial Decisions as Authorities (pp. 297-98, para 578) as follows:
A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force. A decision should not be treated as given per incuriam, however, simply because of a deficiency of parties, or because the court had not the benefit of the best argument, and, as a general rule, the only cases in which decisions should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority. Even if a decision of the Court of Appeal has misinterpreted a previous decision of the House of Lords, the Court of Appeal must follow its previous decision and leave the House of Lords to rectify the mistake.
55. Again in the case of Govt. of A.P. v. B. Satyanarayana Rao reported in : (2000)IILLJ545SC , it has been held by the Supreme Court as follows: (SCC pp. 264-65, para 8).
The rule of per incuriam can be applied when a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or when a court omits to consider any statute while deciding that issue....
56. In the case of State of U.P. v. Synthetics and Chemicals Ltd. reported in : 1993(41)ECC326 , Supreme Court observed as follows: (SCC pp. 162-63, para 40).
40. 'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. (Young v. Bristol Aeroplane Co. Ltd.) Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law.
57. In our opinion the judgment of the Division Bench in Kanak Projects Ltd. (Supra) clearly falls within these parameters. In such circumstances, the order of the Division Bench would cease to be a binding precedent. In the case of Ahamed Hossain Sk. (supra), the Full Bench has quoted with approval the principles stated in Salmond on Jurisprudence, Twelfth Edition, as follows:
31. It is the ratio decidendi of a judgment that is a binding precedent. The hierarchy of authority with regard to binding precedent is summed up in paragraph 28 at page 158 of Salmond on Jurisprudence, Twelfth Edition, as follows;
The general rule is that a court is bound by the decisions of all courts higher than itself. A High Court Judge cannot question a decision of the Court of Appeal, nor can the Court of Appeal refuse to follow judgments of the House of Lords. A corollary of the rule is that the courts are bound only by decisions of higher courts and not by those of lower or equal rank. A High Court Judge is not bound by a previous High Court decision, though he will normally follow it on the principle of judicial comity, in order to avoid conflict of authority and to secure certainty and uniformity in the administration of justice. If he refuses to follow it, he cannot overrule it; both decisions stand and the resulting antimony must wait for a higher court to settle.
58. We may now consider the submissions which were made by the learned Counsel for the Kolkata Municipal Corporation, Mr. Das Adhikary, as preliminary objections. At the commencement of the hearing of this reference, learned Counsel had submitted that the reference, itself was not maintainable.
59. In our opinion, the ratio of law laid down by the Full Bench of this Court in the aforesaid case of Ahamed Hossain Sk. (supra) does not support the submission made by the learned Counsel. After considering the relevant provisions of the Appellate Side Rules and numerous judgments of the Supreme Court, it has been held as follows:
34. The principles that emerge from the decisions, cited supra, are that the decisions of the Supreme Court are binding on all the Courts, Article 141 of the Constitution embodies the rule of precedent. A Special Bench/Full Bench judgment of that High Court is binding on the question of law decided by it and despite the same if any Division Bench holds to the contrary then a Division Bench has the authority to differ with the Division Bench which has taken a view contrary to the Special Bench judgment. A Single Judge of a High Court is bound by the judgment of another Single Judge and a fortiori judgments of Benches consisting of more Judges than one. So also, a Division Bench of two Judges of a High Court is bound by judgments of another Division Bench of two Judges and Full Bench. A Single Judge or Benches of High Courts cannot differ from the earlier judgments of co-ordinate jurisdiction merely because they hold a different view. When a Division Bench of two Judges differs from the judgment of another Division Bench of two Judges, it has to refer the case to a Full Bench. A Single Judge cannot differ from a decision of a Larger Bench except when that decision or a judgment relied upon in that decision is specifically overruled by a Full Bench or the Supreme Court. However, if the decision of the Larger Bench is inconsistent with the law laid down by a Full Bench or the Supreme Court, the proper course to the Single Judge would be to refer the matter to the Division Bench.
60. A perusal of the aforesaid observations would clearly show that a Single Judge of a High Court is bound not only by judgment of a Division Bench but also of a co-ordinate Bench, i.e., Single Judge. It is also laid down that a Single Judge or Benches of High Courts cannot differ from the earlier judgments of co-ordinate jurisdiction merely because they hold a different view. When a Division Bench of two Judges differs from the judgment of another Division Bench of two Judges, it has to refer the case to a Full Bench. On the other hand, a Single Bench cannot differ from a judgment of a Larger Bench except when that decision or a judgment relied on in the decision has been specifically overruled by the Full Bench or the Supreme Court. If the decision of the Larger Bench is found by the Single Judge to be inconsistent with the law laid down by another Division Bench, Full Bench or the Supreme Court, the proper course to the Single Judge would be to refer the matter to the Division Bench. We are of the considered opinion that, when a Single Judge makes a reference to the Chief Justice for constitution of a larger Bench, it can only mean a reference to a Division Bench, consisting of two Judges. This is precisely the course adopted by the learned Single Judge. The direction issued by the learned Single Judge is to place the papers before the Chief Justice, 'for passing appropriate orders.' This direction cannot be read in isolation. Earlier in the judgment (para 51) the learned Single Judge noticed the observations made by the special Bench in the case of Ahamed Hossain Sk. (supra) that 'if the decision of the Larger Bench is inconsistent with the law laid down by a Full Bench or the Supreme Court, the proper course to the Single Judge would be to refer the matter to the Division Bench.'
61. Therefore, the learned Single Judge observed as follows:
Applying the principle to the facts of the present case, I am inclined to hold that it would be in tune with judicial discipline, propriety and prudence to refer the issue to the Hon'ble the Chief Justice for constituting an appropriate Bench for re-examining and/or reconsidering the important constitutional issue raised herein.
62. The reference would have been incompetent, had the learned Single Judge requested the Chief Justice to constitute a Bench of three or more Judges. Such a reference would be contrary to the law laid down in the case of Pradip Chandra Parija and Ors. v. Pramod Chandra Patnaik and Ors. reported in : [2002]254ITR99(SC) . In this case the matter came to be placed before a five-Judges Bench of the Supreme Court, by reason of an order passed on 24th October, 1996 by a Division Bench of two learned Judges. The two learned Judges observed in that order that they had been taken through the judgment of the Supreme Court delivered by a Bench of three learned Judges. But, 'with utmost respect', they did 'not agree with the reasoning and the conclusions reached therein'. The learned Judges set out four reasons why they disagreed with the judgment. They then directed that these matters 'be placed before a larger Bench of five Judges of this Court. The registry to place the papers before the Hon'ble the Chief Justice for appropriate orders in this case.' The Supreme Court, therefore, considered the questions 'whether two learned Judges of this Court can disagree with the judgment of three learned Judges of this Court and whether, for that reason, they can refer the matter before them directly to a Bench of five Judges.' Answering the aforesaid questions it was held as follows:
6. In the present case the Bench of two learned Judges has, in terms, doubted the correctness of a decision of a Bench of three learned Judges. They have, therefore, referred the matter directly to a Bench of five Judges. In our view, judicial discipline and propriety demands that a Bench of two learned Judges should follow a decision of a Bench of three learned Judges. But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges setting out, as has been done here, the reasons why it could not agree with the earlier judgment. If, then, the Bench of three learned Judges also comes to the conclusion that the earlier judgment of a Bench of three learned Judges is incorrect, reference to a Bench of five learned Judges is justified..
8. We have quoted the relevant portion of the referral order in the present case. By a judicial order the matters before the Bench of two learned Judges were ordered to be placed before a Bench of five learned Judges. The Chief Justice, as master of the cause-lists, was required only to issue consequential administrative decisions.
63. The aforesaid ratio of law has been reiterated by the Supreme Court in the case of Union of India and Anr. v. Hansoli Devi and Ors. reported in : [2002]SUPP2SCR324 . In this case a two-Judge Bench of the Supreme Court (in the case of Union of India and Anr. v. Hansoli Devi and Ors. reported in : AIR2001SC2184 had made the following reference:
10. In the wake of the aforesaid we do feel it expedient also to record that the above-noted two questions require examination by a larger Bench of at least five Judges by reason of the pendency of the various matters in this Court..
12. The Registry is directed to place these matters before the Hon'ble Chief Justice of India for appropriate orders.
64. On the basis of the aforesaid reference, the matter was placed before a five-Judges Bench. In these circumstances, the Constitution Bench observed as follows:
2. ...In view of the aforesaid Constitution Bench decision, the very reference itself made by the two learned Judges was improper and we would have sent the matters to a Bench of three learned Judges for consideration. But since the questions involved are pending in many cases in different High Courts and certain doubts have arisen with regard to the interpretation to the provisions of Section 28-A of the Act, we thought it appropriate to answer the two questions referred....
65. In these cases the Supreme Court, however, was not considering a situation where two Judge Bench had referred the matter to a 'Larger Bench', leaving the strength of the Bench to be determined by the Chief Justice of India. But, as noticed above, in the present case, the Learned Single Judge has merely referred the matter to a 'Larger Bench', thus leaving it entirely to the Chief Justice to decide as to whether the matter shall be placed before a Division Bench or a Full Bench.
66. That apart, even otherwise, on receiving the reference it is entirely for the Chief Justice to decide as to whether the matter should be referred to a Division Bench or to a Bench consisting of three or more Judges, in view of the provisions contained in Chapter II and Proviso (ii) of the Rule 1 of the Appellate Side Rules. The aforesaid proviso before and after Amendment, w.e.f. 30.8.1994, was and is as under:
Before Amendment:
(ii) Provided also that, on the requisition of any Division Bench, or whenever he thinks fit, the Chief Justice may appoint a Special Division Bench, to consist of three or more Judges or more Judges, for the hearing of any particular Appeal or any particular question of law arising in an Appeal, or of any other matter.
After Amendment:
Provided also that on the requisition of any Division Bench, or whenever he thinks fit, the Chief Justice may appoint a Special Division Bench, consisting of three or more Judges, for the hearing of any particular Appeal, or any particular question of law arising in an Appeal, or of other matter.
67. This proviso clearly enables the Chief Justice of this Court to constitute Larger Bench, consisting of three or more Judges either on a reference made by a Division Bench, or when he thinks fit. The term 'whenever he thinks fit' clearly gives the discretionary power to the Chief Justice to constitute Benches of three or more Judges. A Special Bench can be constituted for hearing any matter, or any particular question of law. It is not limited only to hearing of appeals. Considering the powers of the Chief Justice for constitution of Benches, the Full Bench of this Court in the case of Ahamed Hossain Sk. (supra) has clearly held as follows:
13. Thus under Chapter VII, a Division Bench of two Judges' can differ from any other Division Bench upon point of law if that Division Bench has taken a view contrary to Full Bench judgment on the point of law and in every other case they shall state the point or points of their difference and can refer the matter for decision of a Full Bench. We may not be understood as stating that the Hon'ble Chief Justice has no power to make a reference to a Larger or Special Bench/Full Bench except on a requisition or reference by a Division Bench. Apart from the specific powers in that behalf conferred under Chapter II, the Chief Justice is invested with and has the inherent power to refer any matter of some importance to a Special Division Bench consisting of three or more Judges.
68. We are in respectful agreement with principles stated above.
69. In our opinion, the judgment in the case of Sibnath Koley (supra) would not be applicable in the facts of the present case. In that case the Learned Single Judge dismissed the writ petitions in spite of the submission being made by the learned Counsel for the petitioners that the Learned Single Judge is bound by a decision of the Division Bench. However, the learned Single Judge held that the earlier judgments of the learned Single Judge as well as Division Bench were not binding as the said judgments and orders had been passed subsilentio and were, therefore, per incuriam. On examination of the facts of that particular case in appeal, Division Bench concluded that the earlier judgments of the learned Single Judge as well as Division Bench had been upheld by the Supreme Court and had not been rendered subsilentio or per incuriam. Thereafter, the Division Bench noticed the judgment of the Supreme Court in the case of State of Bihar v. Kalika Kuer alias Kalika Singh (supra), wherein it has specifically been held as under:
18. ...10. Looking at the matter, in view of what has been held to mean by per incuriam, we find that such element of rendering a decision in ignorance of any provision of the statue or the judicial authority of binding nature, is not the reason indicated by the Full Bench in the impugned judgment, while saying that the decision in the case of Ramkrit Singh was rendered per incuriam. On the other hand, it was observed that in the case of Ramkrit Singh the Court did not consider the question as to whether the Consolidation Authorities are Courts of limited jurisdiction or not. In connection with this observation, we would like to say that an earlier decision may seem to be incorrect to a Bench of coordinate jurisdiction considering the question later, on the ground that a possible aspect of the matter was not considered or not raised before the Court or more aspects should have been gone into by the Court deciding the matter earlier but it would not be a reason to say that the decision was rendered per incuriam and liable to be ignored. The earlier judgment may seem to be not correct yet it will have the binding effect on the later Bench of coordinate jurisdiction. Easy course of saying that earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two ways - either to follow the earlier decision or refer the matter to a larger Bench to examine the issue, in case it is felt that earlier decision is not correct on merits. Though hardly necessary, we may however, refer to a few decisions on the above proposition.
70. In our opinion, these observations make it abundantly clear that even if a judgment may seem to be incorrect yet it will have the binding effect on the later Bench of coordinate jurisdiction. The easy course of describing an earlier judgment as per incuriam is not permissible. In such circumstances, only two courses are open to the subsequent Bench - either to follow the earlier judgment or to refer the matter to a Larger Bench. In the present case the learned Single Judge after consideration of a long string of judgments of the Supreme Court has referred the matter to a Larger Bench. In making the reference the learned Single Judge has opined that the law laid down by the Division Bench is contrary to the law laid down by the Supreme Court. In such circumstances, the learned Single Judge was bound to follow the law laid down by the Supreme Court rather than the law laid down by the Division Bench of the High Court. Therefore, the learned Single Judge was justified in referring the matter to the Chief Justice after recording the reasons for the reservations entertained by the learned Single Judge in following the law laid down by the Division Bench. It is for this reason the learned Single Judge has very carefully observed that 'it would be in tune with the judicial discipline, propriety and prudence to refer the issue to the Hon'ble Chef Justice for constituting an appropriate Bench for reexamination and/or reconsidering the important constitutional issue raised herein.'
71. These observations cannot be equated with the expressions used in the reference orders in the cases of Hansoli Devi and Pradip Chandra Parija (supra) wherein references were directly made to at least five Judges of the Supreme Court, i.e., the Constitution Bench. The learned Single Judge herein has not directly referred the matter to a Bench of three-Judges of this Court, i.e., Full Bench of this Court. Rather, the learned Single Judge has adopted the path prescribed by Hon'ble Gajendragadkar, Chief Justice in the case of Lala Shri Bhagwan (supra), which is as follows:
It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench or, in a proper case, place the papers before the Chef Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matter and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned Judge departed from the traditional way in the present case and chose to examine the question himself.
72. In normal circumstances a reference to a Division Bench would have sufficed. However, in view of the importance of the Constitutional issues raised, the Chief Justice deemed it appropriate to refer the matter to a Full Bench.
73. For the reasons stated above, we are of the opinion, that the course adopted by the learned Single Judge cannot be said to be either contrary to the law laid down by the Supreme Court or the Appellate Side Rules of this Court. We, therefore, hold that the Reference is competent.
74. For the reasons stated above, we are unable to agree with observations made in the aforesaid judgment of the Division Bench in the case of Kanak Projects Ltd (Supra).
75. The Reference is answered as follows:
i) The writ petition under Article 226 of the Constitution of India against an order passed by a statutory Tribunal exercising judicial functions is maintainable.
ii) The writ petition under Article 226 of the Constitution of India against an order passed by a statutory Tribunal exercising judicial functions is maintainable within the scope of the rules framed by this Court.
76. Now, let the individual writ petitions be placed before the learned Single Judge for disposal on merits.
77. Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
Pinaki Chandra Ghose, J.
78. I agree.
Biswanath Somadder, J.
79. I agree.