As a result of frequent interference by the
Hon’ble High Court either under Article 226 or
227 of the Constitution with pending civil and at
times criminal cases, the disposal of cases by
the civil and criminal courts gets further
impeded and thus causing serious problems in
the administration of justice. This Court hopes
and trusts that in exercising its power either
under Article 226 or 227, the Hon’ble High Court
will follow the time honoured principles
discussed above. Those principles have been
formulated by this Court for ends of justice and
the High Courts as the highest courts of justice
within their jurisdiction will adhere to them
strictly.”
(emphasis added)
Thus, we are of the view that judicial orders of civil
courts are not amenable to a writ of certiorari under Article
226.
We are also in agreement with the view of the
referring Bench that a writ of mandamus does not lie
against a private person not discharging any public duty.
Scope of Article 227 is different from Article 226.
We may also deal with the submission made on behalf
of the respondent that the view in Surya Dev Rai stands
approved by larger Benches in Shail, Mahendra Saree
Emporium and Salem Advocate Bar Assn and on that
ground correctness of the said view cannot be gone into by
this Bench. In Shail, though reference has been made to
Surya Dev Rai, the same is only for the purpose of scope
of power under Article 227 as is clear from para 3 of the
said judgment.
maintainability
There is no discussion on the issue of
of
a
petition
under
Article
226.
In
Mahendra Saree Emporium, reference to Surya Dev Rai
is made in para 9 of the judgment only for the proposition
that no subordinate legislation can whittle down the
jurisdiction conferred by the Constitution.
Similarly, in
Salem Bar Assn. in para 40, reference to Surya Dev Rai
is for the same purpose. We are, thus, unable to accept the
submission of learned counsel for the respondent.
Accordingly, we answer the question referred as
follows :
“(i) Judicial orders of civil court are not
amenable to writ
jurisdiction under Article
226 of the Constitution;
(ii)
Jurisdiction under Article 227 is
distinct from
jurisdiction
from
jurisdiction
under Article 226.
Contrary view in Surya Dev Rai is overruled.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2548 OF 2009
RADHEY SHYAM & ANR.
VERSUS
CHHABI NATH & ORS.
Dated;FEBRUARY 26, 2015
Judges in pursuance of an order dated April 15, 2009 passed
by the bench of two Hon’ble Judges to consider the
correctness of the law laid down by this Court in Surya Dev
Rai vs. Ram Chander Rai and others 1 that an order of
civil court was amenable to writ jurisdiction under Article
1
2003 (6) SCC 675
Page 1
Civil Appeal No.2548 of 2009
226 of the Constitution.
The reference order, inter alia,
reads:-
Page 2
Civil Appeal No.2548 of 2009
30. .........Therefore, this Court unfortunately is
in disagreement with the view which has been
expressed in Surya Dev Rai insofar as correction
of or any interference with judicial orders of civil
court by a writ of certiorari is concerned.
31.
Under Article 227 of the Constitution, the
High Court does not issue a writ of certiorari.
Article 227 of the Constitution vests the High
Courts with a power of superintendence which is
to be very sparingly exercised to keep tribunals
and courts within the bounds of their authority.
Under Article 227, orders of both civil and criminal
courts can be examined only in very exceptional
cases when manifest miscarriage of justice has
been occasioned. Such power, however, is not to
be exercised to correct a mistake of fact and of
law.
32. The essential distinctions in the exercise of
power between Articles 226 and 227 are well
known and pointed out in Surya Dev Rai and
with that we have no disagreement. But we are
unable to agree with the legal proposition laid
down in Surya Dev Rai that judicial orders
passed by a civil court can be examined and then
corrected/reversed by the writ court under Article
226 in exercise of its power under a writ of
certiorari. We are of the view that the aforesaid
proposition laid down in Surya Dev Rai, is
contrary to the ratio in Mirajkar and the ratio in
Mirajkar has not been overruled in Rupa Ashok
Hurra [2002 (4) SCC 388].
33. In view of our difference of opinion with the
views expressed in Surya Dev Rai, matter may
be placed before His Lordship the Hon’ble the
Chief Justice of India for constituting a larger
Bench, to consider the correctness or otherwise of
the law laid down in Surya Dev Rai on the
question discussed above.”
2.
Since this Bench has to decide the referred question, it
is not necessary to mention the facts of the case in detail.
Suffice it to say that assailing an interim order of civil court
in a pending suit, the defendant-respondent filed a writ
Page 3
Civil Appeal No.2548 of 2009
petition before the Allahabad High Court and the High Court
having vacated the said interim order granted in favour of
the plaintiff-appellant, the appellant moved this Court by
way of a special leave petition, inter alia, contending that
the writ petition under Article 226 was not maintainable
against the order of the civil court and, thus, the impugned
order could not be passed by the High Court. On behalf of
the respondent, reliance was placed on the decision of this
Court in Surya Dev Rai laying down that a writ petition
under Article 226 was maintainable against the order of the
civil court and thus it was submitted that the High Court
was justified in passing the impugned order.
3.
As already mentioned, the Bench of two Hon’ble
Judges who heard the matter was not persuaded to follow
the law laid down in Surya Dev Rai. It was observed that
the judgment in Surya Dev Rai
did not correctly
appreciate the ratio in the earlier Nine Judge judgment of
this Court in Naresh Shridhar Mirajkar and others vs.
State of Maharashtra2
wherein this Court came to the
conclusion that “Certiorari does not lie to quash the
judgments of inferior courts of civil jurisdiction (para 63)”.
With reference to the observations in Surya Dev Rai for
2
AIR 1967 SC 1 = 1966 (3) SCR 744
Page 4
Civil Appeal No.2548 of 2009
not following the conclusion in Mirajkar, the referring
Bench inter alia observed:
“25.
In our view the appreciation of the ratio in
Mirajkar by the learned Judges, in Surya Dev
Rai, with great respect, was possibly a little
erroneous and with that we cannot agree.
26. The two-Judge Bench in Surya Dev Rai did
not, as obviously it could not overrule the ratio in
Mirajkar, a Constitution Bench decision of a nine-
Judge Bench. But the learned Judges justified their
different view in Surya Dev Rai, inter alia on the
ground that the law relating to certiorari changed
both in England and in India. In support of that
opinion, the learned Judges held that the
statement of law in Halsbury, on which the ratio in
Mirajkar is based, has been changed and in
support of that quoted paras 103 and 109 from
Halsbury’s Laws of England, 4th Edn. (Reissue),
Vol. 1(1). Those paras are set out below:
“103. The prerogative remedies of
certiorari, prohibition and mandamus:
historical
development.—Historically,
prohibition was a writ whereby the royal
courts of common law prohibited other
courts from entertaining matters falling
within the exclusive jurisdiction of the
common law courts; certiorari was issued
to bring the record of an inferior court into
the King’s Bench for review or to remove
indictments for trial in that court;
mandamus was directed to inferior courts
and tribunals, and to public officers and
bodies, to order the performance of a
public duty. All three were called
prerogative writs;...
** *
109. The nature of certiorari and
prohibition.—Certiorari
lies
to
bring
decisions of an inferior court, tribunal,
public authority or any other body of
persons before the High Court for review
so that the court may determine whether
they should be quashed, or to quash such
decisions. The order of prohibition is an
order issuing out of the High Court and
Page 5
Civil Appeal No.2548 of 2009
directed to an inferior court or tribunal or
public authority which forbids that court or
tribunal or authority to act in excess of its
jurisdiction or contrary to law. Both
certiorari and prohibition are employed for
the control of inferior courts, tribunals and
public authorities.”
The aforesaid paragraphs are based on general
principles which are older than the time when
Mirajkar was decided are still good. Those
principles nowhere indicate that judgments of an
inferior civil court of plenary jurisdiction are
amenable to correction by a writ of certiorari. In
any event, change of law in England cannot dilute
the binding nature of the ratio in Mirajkar and
which has not been overruled and is holding the
field for decades.
27.
It is clear from the law laid down in
Mirajkar in para 63 that a distinction has been
made between judicial orders of inferior courts of
civil jurisdiction and orders of inferior tribunals or
court which are not civil courts and which cannot
pass judicial orders. Therefore, judicial orders
passed by civil courts of plenary jurisdiction stand
on a different footing in view of the law
pronounced in para 63 in Mirajkar. The passage
in the subsequent edition of Halsbury (4th Edn.)
which has been quoted in Surya Dev Rai does
not show at all that there has been any change in
law on the points in issue pointed out above.
28.
The learned Judges in Surya Dev Rai
stated in SCC para 18, p. 687 of the Report that
the decision rendered in Mirajkar was considered
by the Constitution Bench in Rupa Ashok Hurra
v. Ashok Hurra and wherein the learned Judges
took a different view and in support of that, the
following para from Rupa Ashok Hurra has been
quoted: (Surya Dev Rai case, SCC pp. 687-88,
para 18)
“(i) that it is a well-settled principle that
the technicalities associated with the
prerogative writs in English law have no
role to play under our constitutional
scheme; (ii) that a writ of certiorari to call
for records and examine the same for
Page 6
Civil Appeal No.2548 of 2009
passing appropriate orders, is issued by a
superior court to an inferior court which
certifies its records for examination; and
(iii) that a High Court cannot issue a writ
to another High Court, nor can one Bench
of a High Court issue a writ to a different
Bench of the High Court; much less can
the writ jurisdiction of a High Court be
invoked to seek issuance of a writ of
certiorari to the Supreme Court. The High
Courts are not constituted as inferior
courts in our constitutional scheme.”
29.
We are constrained to point out again that
in Rupa Ashok Hurra the Constitution Bench did
not take any view which is contrary to the views
expressed in Mirajkar. On the other hand, the
ratio in Mirajkar was referred to with respect and
was relied on in Rupa Ashok Hurra. Mirajkar
was referred to in SCC para 8, p. 399 and again in
SCC para 11 on p. 402 and again in SCC para 59,
p. 418 and also in SCC para 60, p. 419 of Rupa
Ashok Hurra. Nowhere even any whisper of a
divergence from the ratio in Mirajkar was
expressed. Rather passages from Mirajkar have
been quoted with approval.
30. In fact the question which was referred to the
Constitution Bench in Rupa Ashok Hurra is
quoted in para 1 of the judgment and it is clear
from the perusal of the said paragraph that the
question for consideration in Rupa Ashok Hurra
was totally different. Therefore, this Court
unfortunately is in disagreement with the view
which has been expressed in Surya Dev Rai
insofar as correction of or
any interference with judicial orders of civil court
by a writ of certiorari is concerned.”
4.
Thus, the question to be decided is whether the view
taken in Surya Dev Rai that a writ lies under Article 226 of
the Constitution against the order of the civil court, which
has been doubted in the reference order, is the correct view.
Page 7
Civil Appeal No.2548 of 2009
5.
We have heard learned counsel for the parties.
We have also heard learned counsel for the petitioner in
SLP (C) No.25828 of 2013 as the said SLP was tagged to
the present appeal and also the intervenor in person in
I.A. No.2 of 2011.
6.
Learned counsel for the appellant submitted that
the view taken in the referring order deserves to be
approved for the reasons given in the said order and
contrary view in Surya Dev Rai may be overruled. It is
submitted that the bench of nine Judges in Mirajkar has
categorically held that the order of the civil court was not
amenable to writ jurisdiction under Article 226 and the said
view still holds the field.
The reasons for not following the
said view in Surya Dev Rai
submission
is
supported
by
are not sound in law.
learned
counsel
for
This
the
petitioner appearing in SLP (Civil) No.25828 of 2013 as also
by the Intervenor in person.
7.
On the contrary, learned senior counsel for the
respondent supported the view taken in Surya Dev Rai
which is based on decisions of this Court relied upon
therein. According to him, the scope of writ jurisdiction was
wide enough to extend to an order of the civil court. There
Page 8
Civil Appeal No.2548 of 2009
was no reason to exclude the civil courts from the
expression “any person or authority” in Article 226 of the
Constitution.
Conceptually, a writ of certiorari could be
issued by a superior court to an inferior court.
He also
pointed out that though the judgment in Surya Dev Rai is
by a Bench of two judges, the same has been referred with
approval in larger bench judgments in Shail vs. Manoj
Kumar3,
Mahendra
Saree
Emporium
(II)
vs.
G.V.
Srinivasa Murthy4 and Salem Advocate Bar Assn(II) vs.
Union of India5 and on that ground correctness of the said
view is not open to be considered by this Bench.
8.
We have given anxious consideration to the rival
submissions.
9.
It will be appropriate to refer to some of the leading
judgments of this Court on the scope of writ jurisdiction in
the present context, including those referred to in Surya
Dev Rai and the referring order.
10.
In T.C. Basappa vs. T. Nagappa6, question before
this Court was as to the scope of jurisdiction under Article
226 in dealing with a writ of certiorari against the order of
the Election Tribunal. This Court considered the question in
3
4
5
6
2004 (4) SCC 785
2005 (1) SCC 481
2005 (6) SCC 344
AIR 1954 SC 440= (1955) 1 SCR 250
Page 9
Civil Appeal No.2548 of 2009
the background of principles followed by superior courts in
England which generally formed the basis of decisions of
Indian Courts.
This Court held that while broad and
fundamental norms regulating exercise of writ jurisdiction
had to be kept in mind, it was not necessary for Indian
Courts to look back to the early history or procedural
technicalities of the writ jurisdiction in England in view of
express constitutional provisions. Certiorari was meant to
supervise “judicial acts” which included quasi judicial
functions of administrative bodies. The Court issuing such
writ quashed patently erroneous and without jurisdiction
order but the Court did not review the evidence as an
appellate court nor substituted its own finding for that of
the inferior Tribunal. Since the said judgment is followed in
all leading judgments, relevant observations therein may be
extracted :
“5. The principles upon which the superior
courts in England interfere by issuing writs of
certiorari are fairly well known and they have
generally formed the basis of decisions in our
Indian courts. It is true that there is lack of
uniformity even in the pronouncements of
English Judges, with regard to the grounds upon
which a writ, or, as it is now said, an order of
certiorari, could issue, but such differences of
opinion are unavoidable in Judge-made law
which has developed through a long course of
years. As is well known, the issue of the
prerogative writs, within which certiorari is
included, had their origin in England in the
King's prerogative power of superintendence
Page 10
Civil Appeal No.2548 of 2009
over the due observance of law by his officials
and tribunals. The writ of certiorari is so named
because in its original form it required that the
King should be “certified of” the proceedings to
be investigated and the object was to secure by
the authority of a superior court, that the
jurisdiction of the inferior Tribunal should be
properly exercised [Vide Ryots of Garabandho v.
Zamindar of Parlakimedi 70IA 129. These
principles were transplanted to other parts of
the King's dominions. In India, during the British
days, the three chartered High Courts of
Calcutta, Bombay and Madras were alone
competent to issue writs and that too within
specified limits and the power was not
exercisable by the other High Courts at all. “In
that situation” as this court observed in Election
Commission, India v. Saka Venkata Subba Rao
[(1953) SCR 1144]
“the makers of the Constitution having
decided to provide for certain basic
safeguards for the people in the new set
up, which they called fundamental rights,
evidently thought it necessary to provide
also a quick and inexpensive remedy for
the enforcement of such rights and,
finding that the prerogative writs, which
the courts in England had developed and
used
whenever
urgent
necessity
demanded immediate and decisive
interposition, were peculiarly suited for
the purpose, they conferred, in the
States' sphere, new and wide powers on
the High Courts of issuing directions,
orders, or writs primarily for the
enforcement of fundamental rights, the
power to issue such directions ‘for any
other purpose' being also included with a
view apparently to place all the High
Courts in this country in somewhat the
same position as the Court of King's
Bench in England.”
6. The language used in Articles 32 and 226 of
our Constitution is very wide and the powers of
the Supreme Court as well as of all the High
Courts in India extend to issuing of orders, writs
or directions including writs in the nature of
Page 11
Civil Appeal No.2548 of 2009
habeas corpus, mandamus, quo warranto,
prohibition and certiorari as may be considered
necessary for enforcement of the fundamental
rights and in the case of the High Courts, for
other purposes as well. In view of the express
provisions in our Constitution we need not now
look back to the early history or the procedural
technicalities of these writs in English law, nor
feel oppressed by any difference or change of
opinion expressed in particular cases by English
Judges. We can make an order or issue a writ in
the nature of certiorari in all appropriate cases
and in appropriate manner, so long as we keep
to the broad and fundamental principles that
regulate the exercise of jurisdiction in the
matter of granting such writs in English law.
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]:
“Whenever anybody 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.”
The second essential feature of a writ of
certiorari is that the control which is exercised
through it over judicial or quasi-judicial tribunals
or bodies is not in an appellate but supervisory
capacity. In granting a writ of certiorari the
superior court does not exercise the powers of
an appellate tribunal. It does not review or
reweigh the evidence upon which the
determination of the inferior tribunal purports to
be based. It demolishes the order which it
considers to be without jurisdiction or palpably
Page 12
Civil Appeal No.2548 of 2009
erroneous but does not substitute its own views
for those of the inferior tribunal. The offending
order or proceeding so to say is put out of the
way as one which should not be used to the
detriment of any person [Vide Per Lord Cairns in
walshall’s Overseers vs. London and North
Western Railway Co. 4 AC 30, 39].
8. The supervision of the superior court
exercised through writs of certiorari goes on two
points, as has been expressed by Lord Summer
in King v. Nat Bell Liquors Limited [(1922) 2 AC
128, 156]. One is the area of inferior jurisdiction
and the qualifications and conditions of its
exercise; the other is the observance of law in
the course of its exercise. These two heads
normally cover all the grounds on which a writ of
certiorari could be demanded. In fact there is
little difficulty in the enunciation of the
principles; the difficulty really arises in applying
the principles to the facts of a particular case.
9. Certiorari may lie and is generally granted
when a court has acted without or in excess of
its jurisdiction. The want of jurisdiction may arise
from the nature of the subject-matter of the
proceeding or from the absence of some
preliminary proceeding or the court itself may
not be legally constituted or suffer from certain
disability by reason of extraneous circumstances
[Vide Halsbury, 2 Edn. Vol IX]. When the
jurisdiction of the court depends upon the
existence of some collateral fact, it is well
settled that the court cannot by a wrong
decision of the fact give it jurisdiction which it
would not otherwise possess [Vide Banbury vs.
Fuller, 9 Exch 111; R. v. Income Tax Special
Purposes Commissioners, 21 QBD 313].
10. A tribunal may be competent to enter upon
an enquiry but in making the enquiry it may act
in flagrant disregard of the rules of procedure or
where no particular procedure is prescribed, it
may violate the principles of natural justice. A
writ of certiorari may be available in such cases.
An error in the decision or determination itself
may also be amenable to a writ of certiorari but
it must be a manifest error apparent on the face
of the proceedings, e.g. when it is based on
Page 13
Civil Appeal No.2548 of 2009
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. The essential features of the remedy
by way of certiorari have been stated with
remarkable brevity and clearness by Morris, L.J.
in the recent case of Rex v. Northumberland
Compensation Appellate Tribunal [ (1952) 1 KB
338]. The Lord Justice says:
“It is plain that certiorari will not issue as
the cloak of an appeal in disguise. It does
not lie in order to bring up an order or
decision for re-hearing of the issue raised
in the proceedings. It exists to correct
error of law when revealed on the face of
an order or decision or irregularity or
absence of or excess of jurisdiction when
shown.”
11. In dealing with the powers of the High Court
under Article 226 of the Constitution, this Court
has expressed itself in almost similar terms
[ Vide Veerappa Pillai v. Raman & Raman Ltd.
(1952) SCR 583] and said:
“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.
However extensive the jurisdiction may
be, it seems to us that it is not so wide or
large as to enable the High Court to
convert itself into a court of appeal and
examine for itself the correctness of the
decision impugned and decide what is
the proper view to be taken or the order
to be made.”
These passages indicate with sufficient fullness
the general principles that govern the exercise
Page 14
Civil Appeal No.2548 of 2009
of jurisdiction in the matter of granting writs of
certiorari under Article 226 of the Constitution”.
11.
It is necessary to clarify that expression “judicial acts”
is not meant to refer to judicial orders of civil courts as the
matter before this Court arose out of the order of Election
Tribunal and no direct decision of this Court, except Surya
Devi Rai, has been brought to our notice where writ of
certiorari may have been issued against an order of a
judicial court.
In fact, when the question as to scope of
jurisdiction arose in subsequent decisions, it was clarified
that orders of judicial courts stood on different footing from
the quasi judicial orders of authorities or Tribunals.
12.
In Ujjam Bai vs. State of U.P nd, matter was referred
.
to a Bench of seven Judges on the scope of writ of certiorari
against an order of assessment under the provisions of
Sales Tax law passed in violation of a fundamental right.
Majority of six judges took the view that except an order
under a void law or an ‘ultra vires’ or ‘without jurisdiction’
order, there could be no violation of fundamental right by a
quasi judicial order or a statutory authority and such order
could not be challenged under Article 32. A writ of certiorari
could however, lie against a patently erroneous order under
nd
AIR 1962 SC 1621 = (1963) 1 SCR 778
Page 15
Civil Appeal No.2548 of 2009
Article 226. It was observed that judicial orders of Courts
stood on different footing. Ayyangar, J. observed :
“Before concluding it is necessary to advert to
one matter which was just touched on in the
course of the arguments as one which might be
reserved for consideration when it actually
arose, and this related to the question whether
the decision or order of a regular ordinary Court
of law as distinguished from a tribunal or quasi-
judicial authority constituted or created under
particular statutes could be complained of as
violating a fundamental right. It is a salutary
principle that this Court should not pronounce
on points which are not involved in the
questions raised before it and that is the reason
why I am not dealing with it in any fullness and
am certainly not expressing any decided opinion
on it. Without doing either however, I consider it
proper to make these observations. There is not
any substantial identity between a Court of law
adjudicating on the rights of parties in the lis
before it and designed as the High Courts and
this Court are to investigate inter alia whether
any fundamental rights are infringed and vested
with power to protect them, and quasi-judicial
authorities which are created under particular
statutes and with a view to implement and
administer their provisions. I shall be content to
leave the topic at this.”
13.
In Mirajkar, a nine Judge Bench judgment, a judicial
order of High Court was challenged as being violative of
fundamental right.
This Court by majority held that a
judicial order of a competent court could not violate a
fundamental right. Even if there was incidental violation, it
could not be held to be violative of fundamental right.
Gajendragaddkar, CJ, observed :
Page 16
Civil Appeal No.2548 of 2009
“37.
..........The
argument
that
the
impugned order affects the fundamental rights
of the petitioners under Article 19(1), is based
on a complete misconception about the true
nature and character of judicial process and of
judicial decisions. When a Judge deals with
matters brought before him for his adjudication,
he first decides questions of fact on which the
parties are at issue, and then applies the
relevant law to the said facts. Whether the
findings of fact recorded by the Judge are right
or wrong, and whether the conclusion of law
drawn by him suffers from any infirmity, can be
considered and decided if the party aggrieved
by the decision of the Judge takes the matter up
before the appellate court. But it is singularly
inappropriate to assume that a judicial decision
pronounced by a Judge of competent jurisdiction
in or in relation to a matter brought before him
for adjudication can affect the fundamental
rights of the citizens under Article 19(1). What
the judicial decision purports to do is to decide
the controversy between the parties brought
before the court and nothing more. If this basic
and essential aspect of the judicial process is
borne in mind, it would be plain that the judicial
verdict pronounced by court in or in relation to a
matter brought before it for its decision cannot
be said to affect the fundamental rights of
citizens under Article 19(1).
38. .......... Just as an order passed by the court
on the merits of the dispute before it can be
challenged only in appeal and cannot be said to
contravene the fundamental rights of the
litigants before the Court, so could the
impugned order be challenged in appeal under
Article 136 of the Constitution, but it cannot be
said to affect the fundamental rights of the
petitioners. The character of the judicial order
remains the same whether it is passed in a
matter directly in issue between the parties, or
is passed incidentally to make the adjudication
of the dispute between the parties fair and
effective. On this view of the matter, it seems to
us that the whole attack against the impugned
order based on the assumption that it infringes
the petitioners' fundamental rights under Article
19(1), must fail.
Page 17
Civil Appeal No.2548 of 2009
41.
It is true that the opinion thus expressed
by Kania, C.J., in the case of A.K Gopalan [1950
SCR 88] had not received the concurrence of the
other learned Judges who heard the said case.
Subsequently, however, in Ram Singh v. State of
Delhi [1951 SCR 451], the said observations
were cited with approval by the Full Court. The
same principle has been accepted by this Court
in Express Newspapers (Private) Ltd., v. Union of
India [1959 SCR 12], and by the majority
judgment in Atiabari Tea Co., Ltd. v. State of
Assam [1961 (1) SCR 809.”
Explaining
observations
in
earlier
judgments
in
Budhan Choudhary vs. State of Bihar7 and Parbhani
Tranport Coop. Society Ltd. vs. Regional Transport
Authority8 that a judicial order could be violative of Article
14, it was observed :
“45. Naturally, the principal contention which
was urged on their behalf before this Court was
that Section 30 CrPC, infringed the fundamental
right guaranteed by Article 14, and was,
therefore, invalid. This contention was repelled
by this Court. Then, alternatively, the appellants
argued that though the section itself may not be
discriminatory, it may lend itself to abuse
bringing about a discrimination between persons
accused of offences of the same kind, for the
police may send up a person accused of an
offence under Section 366 to a Section 30
Magistrate and the police may send another
person accused of an offence under the same
section to a Magistrate who can commit the
accused to the Court of Session. This alternative
contention was examined and it was also
rejected. That incidentally raised the question as
to whether the judicial decision could itself be
said to offend Article 14. S.R. Das, J., as he then
was, who spoke for the Court considered this
contention, referred with approval to the
7 AIR 1955 SC 191 = (1955) 1 SCR 1045
8 AIR (1960) SC 801 = (1960) 3 SCR 177
Page 18
Civil Appeal No.2548 of 2009
observations made by Frankfurter, J., and Stone,
C.J., of the Supreme Court of the United States in
Snowden v. Hughes [ (1944) 321 US1] and
observed that the judicial decision must of
necessity
depend
on
the
facts
and
circumstances of each particular case and what
may superficially appear to be an unequal
application of the law may not necessarily
amount to a denial of equal protection of law
unless there is shown to be present in it an
element
of
intentional
and
purposeful
discrimination. Having made this observation
which at best may be said to assume that a
judicial decision may conceivably contravene
Article 14, the learned Judge took the precaution
of adding that the discretion of judicial officers is
not arbitrary and the law provides for revision by
superior courts of orders passed by the
subordinate Courts. In such circumstances, there
is hardly any ground for apprehending any
capricious discrimination by judicial tribunals.
46. It is thus clear that though the observations
made by Frankfurter, J. and Stone, C.J. in
Snowden v. Hughes had been cited with
approval, the question as to whether a judicial
order can attract the jurisdiction of this Court
under Article 32(1) and (2) was not argued and
did not fall to be considered at all. That question
became only incidentally relevant in deciding
whether the validity of the conviction which was
impugned by the appellants in the case of
Budhan Choudhry could be successfully assailed
on the ground that the judicial decision under
Section 30 CrPC, was capriciously rendered
against the appellants. The scope of the
jurisdiction of this Court in exercising its writ
jurisdiction in relation to orders passed by the
High Court was not and could not have been
examined, because the matter had come to this
Court in appeal under Article 132(1); and
whether or not judicial decision can be said to
affect any fundamental right merely because it
incidentally and indirectly may encroach upon
such right, did not therefore call for
consideration or decision in that case. In fact,
the closing observations made in the judgment
themselves indicate that this Court was of the
view that if any judicial order was sought to be
attacked on the ground that it was inconsistent
Page 19
Civil Appeal No.2548 of 2009
with Article 14, the proper remedy to challenge
such an order would be an appeal or revision as
may be provided by law. We are, therefore, not
prepared to accept Mr Setalvad's assumption
that the observations on which he bases himself
support the proposition that according to this
Court, judicial decisions rendered by courts of
competent jurisdiction in or in relation to
matters brought before them can be assailed on
the ground that they violate Article 14. It may
incidentally be pointed out that the decision of
the Supreme Court of the United States in
Snowden v. Hughes was itself not concerned
with the validity of any judicial decision at all.
47. On the other hand, in Parbhani Transport
Cooperative Society Ltd. v. Regional Transport
Authority, Aurangabad Sarkar, J. speaking for the
Court, has observed that the decision of the
Regional
Transport
Authority
which
was
challenged before the Court may have been
right or wrong, but that they were unable to see
how that decision could offend Article 14 or any
other fundamental right of the petitioner. The
learned Judge further observed that the
Regional Transport Authority was acting as a
quasi-judicial body and if it has made any
mistake in its decision there are appropriate
remedies available to the petitioner for
obtaining relief. It cannot complain of a breach
of Article 14. It is true that in this case also the
larger issue as to whether the orders passed by
quasi judicial tribunals can be said to affect
Article 14, does not appear to have been fully
argued. It is clear that the observations made by
this Court in this case unambiguously indicate
that it would be inappropriate to suggest that
the decision rendered by a judicial tribunal can
be described as offending Article 14 at all. It
may be a right or wrong decision, and if it is a
wrong decision it can be corrected by appeal or
revision as may be permitted by law, but it
cannot be said per se to contravene Article 14. It
is significant that these observations have been
made while dealing with a writ petition filed by
the
petitioner,
the
Parbhani
Transport
Cooperative Society Ltd. under Article 32; and
insofar as the point has been considered and
decided the decision is against Mr Setalvad's
contention.”
Page 20
Civil Appeal No.2548 of 2009
Decision of this Court in Prem Chand Garg vs.
Excise Commnr9, setting aside rule of this Court requiring
deposit of security for filing a writ petition, was also
explained as not holding that a judicial order resulted in
violation of fundamental right :
“49. It would thus be seen that the main
controversy in the case of Prem Chand Garg
centered round the question as to whether Article
145 conferred powers on this Court to make
Rules, though they may be inconsistent with the
constitutional provisions prescribed by Part III .
Once it was held that the powers under Article
142 had to be read subject not only to the
fundamental rights, but to other binding statutory
provisions, it became clear that the Rule which
authorised the making of the impugned order was
invalid. It was in that context that the validity of
the order had to be incidentally examined. The
petition was made not to challenge the order as
such, but to challenge the validity of the Rule
under which the order was made. Once the Rule
was struck down as being invalid, the order
passed under the said Rule had to be vacated. It
is difficult to see how this decision can be pressed
into service by Mr Setalvad in support of the
argument that a judicial order passed by this
Court was held to be subject to the writ
jurisdiction of this Court itself. What was held by
this Court was that Rule made by it under its
powers conferred by Article 145 which are
legislative in character, was invalid; but that is
quite another matter.
50. It is plain that if a party desires to challenge
any of the Rules framed by this Court in exercise
of its powers under Article 145 on the ground that
they are invalid, because they illegally contravene
his fundamental rights, it would be open to the
party to move this Court under Article 32. Such a
challenge is not against any decision of this Court,
but against a Rule made by it in pursuance of its
rule-making power. If the Rule is struck down as it
9 AIR 1963 SC 996 = (1963) Supp. 1 SCR 885
Page 21
Civil Appeal No.2548 of 2009
was in the case of Prem Chand Garg, this Court
can review or recall its order passed under the
said Rule. Cases in which initial orders of security
passed by the Court are later reviewed and the
amount of security initially directed is reduced,
frequently arise in this Court; but they show the
exercise of this Court's powers under Article 137
and not under Article 32. Therefore, we are not
satisfied that Mr Setalvad is fortified by any
judicial decision of this Court in raising the
contention that a judicial order passed by the
High Court in or in relation to proceedings brought
before it for its adjudication, can become the
subject-matter of writ jurisdiction of this Court
under Article 32(2). In fact, no precedent has
been cited before us which would support Mr
Setalvad's claim that a judicial order of the kind
with which we are concerned in the present
proceedings has ever been attempted to be
challenged or has been set aside under Article 32
of the Constitution.”
This Court then dealt with the legal position in England
on the question of scope of writ of certiorari against a
judicial order.
Noting that writ of certiorari did not lie
against a judicial order, it was observed :
“62. Whilst we are dealing with this aspect of
the matter, we may incidentally refer to the
relevant observations made by Halsbury on this
point. “In the case of judgments of inferior
courts of civil jurisdiction,” says Halsbury in the
footnote, “it has been suggested that certiorari
might be granted to quash them for want of
jurisdiction [Kemp v. Balne (1844), 1 Dow. & L.
885, at p. 887], inasmuch as an error did not lie
upon that ground. But there appears to be no
reported case in which the judgment of an
inferior court of civil jurisdiction has been
quashed on certiorari, either for want of
jurisdiction or on any other ground
[Halsbury Laws of England Vol.I 1, p.129]”.
The ultimate proposition is set out in the
terms: “Certiorari does not lie to quash the
judgments of inferior courts of civil
Page 22
Civil Appeal No.2548 of 2009
jurisdiction.” These observations would
indicate that in England the judicial orders
passed
by
civil
courts
of
plenary
jurisdiction in or in relation to matters
brought before them are not held to be
amenable to the jurisdiction to issue writs
of certiorari.
63. In Rex. v. Chancellor of St. Edmundsburry
and Ipswich Diocese Ex parte White [(1945) 1
KBD 195] the question which arose was whether
certiorari would lie from the Court of King's
Bench to an ecclesiastical Court; and the answer
rendered by the court was that certiorari would
not lie against the decision of an ecclesiastical
court. In dealing with this question, Wrottesley,
L.J. has elaborately considered the history of the
writ jurisdiction and has dealt with the question
about the meaning of the word ‘inferior' as
applied to courts of law in England in discussing
the problem as to the issue of the writ in regard
to decisions of certain courts. “The more this
matter was investigated,” says Wrottesley, L.J.,
“the clearer it became that the word “inferior”
as applied to courts of law in England had been
used with at least two very different meanings.
If, as some assert, the question of inferiority is
determined by ascertaining whether the court in
question can be stopped from exceeding its
jurisdiction by a writ of prohibition issuing from
the King's Bench, then not only the ecclesiastical
courts, but also palatine courts and admiralty
courts are inferior courts. But there is another
test, well recognised by lawyers, by which to
distinguish a superior from an inferior court,
namely, whether in its proceedings, and in
particular in its judgments, it must appear that
the court was acting within its jurisdiction. This
is the characteristic of an inferior court, whereas
in the proceedings of a superior court it will be
presumed that it acted within its jurisdiction
unless the contrary should appear either on the
face of the proceedings or aliunde.” Mr Sen
relied upon this decision to show that even the
High Court of Bombay can be said to be an
inferior court for the purpose of exercising
jurisdiction by this Court under Article 32(2) to
issue a writ of certiorari in respect of the
impugned order passed by it. We are unable to
Page 23
Civil Appeal No.2548 of 2009
see how this decision can support Mr Sen's
contentions.”
(emphasis
added).
14.
In Rupa Ashok Hurra (supra) it was held that final
order of this Court cannot be challenged under Article 32 as
violative of fundamental right.
Judgment of this Court in
Triveniben vs. State of Gujarat10 was referred to with
approval to the effect that a judicial order could not violate
a fundamental right. It was observed :
“11. In Triveniben v. State of Gujarat speaking
for himself and other three learned Judges of the
Constitution Bench, Oza, J., reiterating the same
principle, observed: (SCC p. 697, para 22)
“It is well settled now that a judgment
of court can never be challenged
under Articles 14 or 21 and therefore
the judgment of the court awarding
the sentence of death is not open to
challenge as violating Article 14 or
Article 21 as has been laid down by
this Court in Naresh Shridhar
Mirajkar v. State of Maharashtra
and also in A.R. Antulay v. R.S.
Nayak [1988 (2) SCC 602], the only
jurisdiction which could be sought to
be exercised by a prisoner for
infringement of his rights can be to
challenge the subsequent events after
the final judicial verdict is pronounced
and it is because of this that on the
ground of long or inordinate delay a
condemned prisoner could approach
this Court and that is what has
consistently been held by this Court.
But it will not be open to this Court in
exercise of jurisdiction under Article
32 to go behind or to examine the
10 (1989) 1 SCC 678
Page 24
Civil Appeal No.2548 of 2009
final verdict reached by a competent
court convicting and sentencing the
condemned prisoner and even while
considering the circumstances in
order to reach a conclusion as to
whether the inordinate delay coupled
with subsequent circumstances could
be held to be sufficient for coming to
a conclusion that execution of the
sentence of death will not be just and
proper.”
12. We consider it inappropriate to burden this
judgment with discussion of the decisions in other
cases taking the same view. Suffice it to mention
that various Benches of this Court reiterated the
same principle in the following cases: A.R.
Antulay v. R.S. Nayak, Krishna Swami v.
Union of India [1992 (4) SCC 605], Mohd.
Aslam v. Union of India [1996 (2) SCC 749],
Khoday Distilleries Ltd. v. Registrar General,
Supreme Court of India [1996 (3) SCC 114],
Gurbachan Singh v. Union of India [1996 (3)
SCC 117], Babu Singh Bains v. Union of India
[1996 (6) SCC 565] and P Ashokan v. Union of
.
India [1998 (3) SCC 56.
13. It is, however, true that in Supreme Court Bar
Assn. v. Union of India [1998 (4) SCC 409 a
Constitution Bench and in M.S. Ahlawat v. State
of Haryana [2000 (1) SCC 278] a three-Judge
Bench, and in other cases different Benches
quashed the earlier judgments/orders of this
Court in an application filed under Article 32 of
the Constitution. But in those cases no one joined
issue with regard to the maintainability of the writ
petition under Article 32 of the Constitution.
Therefore, those cases cannot be read as
authority for the proposition that a writ of
certiorari under Article 32 would lie to challenge
an earlier final judgment of this Court.
14. On the analysis of the ratio laid down in the
aforementioned cases, we reaffirm our considered
view that a final judgment/order passed by this
Court cannot be assailed in an application under
Article 32 of the Constitution of India by an
aggrieved person, whether he was a party to the
case or not.
Page 25
Civil Appeal No.2548 of 2009
15. In fairness to the learned counsel for the
parties, we record that all of them at the close of
the hearing of these cases conceded that the
jurisdiction of this Court under Article 32 of the
Constitution cannot be invoked to challenge the
validity of a final judgment/order passed by this
Court after exhausting the remedy of review
under Article 137 of the Constitution read with
Order XL Rule 1 of the Supreme Court Rules,
1966.”
15.
While the above judgments dealt with the question
whether judicial order could violate a fundamental right, it
was clearly laid down that challenge to judicial orders could
lie by way of appeal or revision or under Article 227 and not
by way of a writ under Article 226 and 32.
16.
Another Bench of three judges in Sadhana Lodh vs.
National Insurance Co. Ltd.11 considered the question
whether remedy of writ will be available when remedy of
appeal was on limited grounds. This Court held :
“6. The right of appeal is a statutory right and
where the law provides remedy by filing an
appeal on limited grounds, the grounds of
challenge cannot be enlarged by filing a petition
under Articles 226/227 of the Constitution on the
premise that the insurer has limited grounds
available for challenging the award given by the
Tribunal. Section 149(2) of the Act limits the
insurer to file an appeal on those enumerated
grounds and the appeal being a product of the
statute it is not open to an insurer to take any
plea other than those provided under Section
149(2) of the Act (see National Insurance Co. Ltd.
v. Nicolletta Rohtagi (2002 (7) SCC 456). This
being the legal position, the petition filed under
Article 227 of the Constitution by the insurer was
wholly misconceived. Where a statutory right to
11 2003 (3) SCC 524
Page 26
Civil Appeal No.2548 of 2009
file an appeal has been provided for, it is not open
to the High Court to entertain a petition under
Article 227 of the Constitution. Even if where a
remedy by way of an appeal has not been
provided for against the order and judgment of a
District Judge, the remedy available to the
aggrieved person is to file a revision before the
High Court under Section 115 of the Code of Civil
Procedure. Where remedy for filing a revision
before the High Court under Section 115
CPC has been expressly barred by a State
enactment, only in such case a petition
under Article 227 of the Constitution would
lie and not under Article 226 of the
Constitution. As a matter of illustration,
where a trial court in a civil suit refused to
grant temporary injunction and an appeal
against refusal to grant injunction has been
rejected, and a State enactment has barred
the remedy of filing revision under Section
115 CPC, in such a situation a writ petition
under Article 227 would lie and not under
Article 226 of the Constitution. Thus, where
the State Legislature has barred a remedy
of filing a revision petition before the High
Court under Section 115 CPC, no petition
under Article 226 of the Constitution would
lie for the reason that a mere wrong
decision without anything more is not
enough to attract jurisdiction of the High
Court under Article 226 of the Constitution.”
(emphasis
added)
17.
This Court in judgment dated 6 December, 1989 in
Civil Appeal No.815 of 1989 Qamruddin vs. Rasul Baksh
& Anr. which has been quoted in Allahabad High Court
Judgment in Ganga Saran vs. Civil Judgeth considered the
issue of writ of certiorari and mandamus against interim
order of civil court and held :
th
AIR 1991 All 114
Page 27
Civil Appeal No.2548 of 2009
“If the order of injunction is passed by a
competent court having jurisdiction in the
matter, it is not permissible for the High Court
under Article 226 of the Constitution to quash
the same by issuing a writ of certiorari. In the
instant case the learned Single Judge of the High
Court further failed to realise that a writ of
mandamus could not be issued in this case. A
writ of mandamus cannot be issued to a private
individual unless he is under a statutory duty to
perform a public duty. The dispute involved in
the instant case was
entirely between two
private parties, which could not be a subject
matter of writ of mandamus under Article 226 of
the Constitution.
The learned Single Judge
ignored this basic principle of writ jurisdiction
conferred on the High Court under Article 226 of
the Constitution. There was no occasion or
justification for issue of a writ of certiorari or
mandamus. The High Court committed serious
error of jurisdiction in interfering with the order
of the District Judge.”
18.
Thus, it has been clearly laid down by this Court that
an Order of civil court could be challenged under Article 227
and
not
under
Article 226.
19.
Rai.
We may now come to the judgment in Surya Dev
Therein, the appellant was aggrieved by denial of
interim injunction in a pending suit and preferred a writ
petition in the High court stating that after CPC amendment
by Act 46 of 1999 w.e.f. 1 July, 2002, remedy of revision
under Section 115 was no longer available. The High Court
dismissed the petition following its Full Bench Judgment in
Ganga Saran to the effect that a writ was not maintainable
Page 28
Civil Appeal No.2548 of 2009
as no mandamus could issue to a private person.
The
Bench considered the question of the impact of CPC
amendment on power and jurisdiction of the High Court to
entertain a writ of certiorari under Article 226 or a petition
under Article 227 to involve power of superintendence. The
Bench noted the legal position that after CPC amendment
revisional jurisdiction of the High Court against interlocutory
order was curtailed. The Bench then referred to the history
of writ of certiorari and its scope and concluded thus :
“18. Naresh Shridhar Mirajkar case was cited
before the Constitution Bench in Rupa Ashok
Hurra case and considered. It has been clearly
held: (i) that it is a well-settled principle that the
technicalities associated with the prerogative
writs in English law have no role to play under
our constitutional scheme; (ii) that a writ of
certiorari to call for records and examine the
same for passing appropriate orders, is issued
by a superior court to an inferior court which
certifies its records for examination; and (iii)
that a High Court cannot issue a writ to another
High Court, nor can one Bench of a High Court
issue a writ to a different Bench of the High
Court; much less can the writ jurisdiction of a
High Court be invoked to seek issuance of a writ
of certiorari to the Supreme Court. The High
Courts are not constituted as inferior courts in
our constitutional scheme.
19. Thus, there is no manner of doubt that the
orders and proceedings of a judicial court
subordinate to the High Court are amenable to
writ jurisdiction of the High Court under Article
226 of the Constitution.
xxxx
24. The difference between Articles 226 and
227 of the Constitution was well brought out in
Umaji Keshao Meshram v. Radhikabai [1986
Supp. SCC 401]. Proceedings under Article 226
Page 29
Civil Appeal No.2548 of 2009
are in exercise of the original jurisdiction of the
High Court while proceedings under Article 227
of the Constitution are not original but only
supervisory. Article 227 substantially reproduces
the provisions of Section 107 of the Government
of India Act, 1915 excepting that the power of
superintendence has been extended by this
article to tribunals as well. Though the power is
akin to that of an ordinary court of appeal, yet
the power under Article 227 is intended to be
used sparingly and only in appropriate cases for
the purpose of keeping the subordinate courts
and tribunals within the bounds of their
authority and not for correcting mere errors. The
power may be exercised in cases occasioning
grave injustice or failure of justice such as when
(i) the court or tribunal has assumed a
jurisdiction which it does not have, (ii) has failed
to exercise a jurisdiction which it does have,
such failure occasioning a failure of justice, and
(iii) the jurisdiction though available is being
exercised in a manner which tantamounts to
overstepping the limits of jurisdiction.
25. Upon a review of decided cases and a
survey of the occasions, wherein the High Courts
have exercised jurisdiction to command a writ of
certiorari or to exercise supervisory jurisdiction
under Article 227 in the given facts and
circumstances in a variety of cases, it seems
that the distinction between the two jurisdictions
stands almost obliterated in practice. Probably,
this is the reason why it has become customary
with the lawyers labelling their petitions as one
common under Articles 226 and 227 of the
Constitution, though such practice has been
deprecated in some judicial pronouncement.
Without entering into niceties and technicality of
the subject, we venture to state the broad
general difference between the two jurisdictions.
Firstly, the writ of certiorari is an exercise of its
original jurisdiction by the High Court; exercise
of supervisory jurisdiction is not an original
jurisdiction and in this sense it is akin to
appellate, revisional or corrective jurisdiction.
Secondly, in a writ of certiorari, the record of the
proceedings having been certified and sent up
by the inferior court or tribunal to the High
Court, the High Court if inclined to exercise its
jurisdiction, may simply annul or quash the
Page 30
Civil Appeal No.2548 of 2009
proceedings and then do no more. In exercise of
supervisory jurisdiction, the High Court may not
only quash or set aside the impugned
proceedings, judgment or order but it may also
make such directions as the facts and
circumstances of the case may warrant, maybe,
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.
20.
It is the above holding, correctness of which was
doubted in the referring order already mentioned above.
21.
It
is
true
that
this
Court
has
laid
down
that
technicalities associated with the prerogative writs in
England have no role to play under our constitutional
scheme. There is no parallel system of King’s Court in India
and of all other courts having limited jurisdiction subject to
supervision of King’s Court.
Courts are set up under the
Constitution or the laws. All courts in the jurisdiction of a
High Court are subordinate to it and subject to its control
and supervision under Article 227.
Writ jurisdiction is
constitutionally conferred on all High Courts.
Broad
principles of writ jurisdiction followed in England are
applicable to India and a writ of certiorari lies against
Page 31
Civil Appeal No.2548 of 2009
patently erroneous or without jurisdiction orders of Tribunals
or authorities or courts other than judicial courts. There are
no precedents in India for High Courts to issue writs to
subordinate courts.
Control of working of subordinate
courts in dealing with their judicial orders is exercised by
way
of
appellate
or
revisional
superintendence under Article 227.
powers
or
power
of
Orders of civil court
stand on different footing from the orders of authorities or
Tribunals or courts other than judicial/civil courts. While
appellate or revisional jurisdiction is regulated by statutes,
power
of
superintendence
constitutional.
under
Article
227
is
The expression “inferior court” is not
referable to judicial courts, as rightly observed in the
referring
order
in
paras
26
and
27
quoted above.
22.
The Bench in Surya Dev Rai also observed in para 25
of its judgment that distinction between Articles 226 and
227stood almost obliterated.
In para 24 of the said
judgment distinction in the two articles has been noted. In
view thereof, observation that scope of Article 226 and 227
was obliterated was not correct as rightly observed by the
referring Bench in Para 32 quoted above. We make it clear
that though despite the curtailment of revisional jurisdiction
Page 32
Civil Appeal No.2548 of 2009
under Section 115 CPC by Act 46 of 1999, jurisdiction of the
High Court under Article 227 remains unaffected, it has
been wrongly assumed in certain quarters that the said
jurisdiction has been expanded.
Scope of Article 227 has
been explained in several decisions including Waryam
Singh
and
another
vs.
Amarnath
and
anotherst,
Ouseph Mathai vs. M. Abdul Khadir12, Shalini Shyam
Shetty
vs.
Rajendra
Shankar
Patil13
and
Sameer
Suresh Gupta vs. Rahul Kumar Agarwal14. In Shalini
Shyam Shetty, this Court observed :
“64. However, this Court unfortunately discerns
that of late there is a growing trend amongst
several High Courts to entertain writ petition in
cases of pure property disputes. Disputes
relating to partition suits, matters relating to
execution of a decree, in cases of dispute
between landlord and tenant and also in a case
of money decree and in various other cases
where disputed questions of property are
involved, writ courts are entertaining such
disputes. In some cases the High Courts, in a
routine manner, entertain petitions under Article
227 over such disputes and such petitions are
treated as writ petitions.
65. We would like to make it clear that in view
of the law referred to above in cases of property
rights and in disputes between private
individuals writ court should not interfere unless
there is any infraction of statute or it can be
shown that a private individual is acting in
collusion with a statutory authority.
66. We may also observe that in some High
Courts there is a tendency of entertaining
st
AIR 1954 SC 215=1954 SCR 565
12 2002 (1) SCC 319
13 2010 (8) SCC 329
14 2013 (9) SCC 374
petitions under Article 227 of the Constitution by
terming them as writ petitions. This is sought to
be justified on an erroneous appreciation of the
ratio in Surya Dev and in view of the recent
amendment to Section 115 of the Civil
Procedure Code by the Civil Procedure Code
(Amendment) Act, 1999. It is urged that as a
result of the amendment, scope of Section 115
CPC has been curtailed. In our view, even if
the scope of Section 115 CPC is curtailed
that has not resulted in expanding the
High Court’s power of superintendence. It
is too well known to be reiterated that in
exercising its jurisdiction, High Court must follow
the regime of law.
67. As a result of frequent interference by the
Hon’ble High Court either under Article 226 or
227 of the Constitution with pending civil and at
times criminal cases, the disposal of cases by
the civil and criminal courts gets further
impeded and thus causing serious problems in
the administration of justice. This Court hopes
and trusts that in exercising its power either
under Article 226 or 227, the Hon’ble High Court
will follow the time honoured principles
discussed above. Those principles have been
formulated by this Court for ends of justice and
the High Courts as the highest courts of justice
within their jurisdiction will adhere to them
strictly.”
(emphasis added)
23.
Thus, we are of the view that judicial orders of civil
courts are not amenable to a writ of certiorari under Article
226.
We are also in agreement with the view of the
referring Bench that a writ of mandamus does not lie
against a private person not discharging any public duty.
Scope of Article 227 is different from Article 226.
24.
We may also deal with the submission made on behalf
of the respondent that the view in Surya Dev Rai stands
approved by larger Benches in Shail, Mahendra Saree
Emporium and Salem Advocate Bar Assn and on that
ground correctness of the said view cannot be gone into by
this Bench. In Shail, though reference has been made to
Surya Dev Rai, the same is only for the purpose of scope
of power under Article 227 as is clear from para 3 of the
said judgment.
maintainability
There is no discussion on the issue of
of
a
petition
under
Article
226.
In
Mahendra Saree Emporium, reference to Surya Dev Rai
is made in para 9 of the judgment only for the proposition
that no subordinate legislation can whittle down the
jurisdiction conferred by the Constitution.
Similarly, in
Salem Bar Assn. in para 40, reference to Surya Dev Rai
is for the same purpose. We are, thus, unable to accept the
submission of learned counsel for the respondent.
25.
Accordingly, we answer the question referred as
follows :
“(i) Judicial orders of civil court are not
amenable to writ
jurisdiction under Article
226 of the Constitution;
(ii)
Jurisdiction under Article 227 is
distinct from
jurisdiction
from
jurisdiction
under Article 226.
Page 35
Civil Appeal No.2548 of 2009
Contrary view in Surya Dev Rai is overruled.”
26.
The matters may now be listed before the appropriate
Bench for further orders.
........................................CJI.
[H.L. DATTU]
............................................J.
[A.K. SIKRI]
.............................................J.
[ ADARSH KUMAR
GOEL ]
NEW DELHI
FEBRUARY 26, 2015
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