Supreme Court of India
RADHEY SHYAM & ANR.versusCHHABI NATH & ORS.
- Citation
- 2015 INSC 160
- Decided
- 26 February 2015
- Disposal
- Matter referred to larger bench
- Bench
- H L DATTU
Holding
Judicial orders of civil courts are not amenable to writ of certiorari under Article 226; jurisdiction under Article 227 is distinct and exclusive for supervising such orders.
Summary
The appellant challenged a writ order of the Allahabad High Court that had vacated an interim injunction granted by a civil court, arguing that a writ of certiorari under Article 226 could not be issued against orders of a civil court. The Supreme Court was asked to reconsider the view expressed in *Surya Dev Rai* that such orders were amenable to writ jurisdiction. Relying on the nine‑Judge decision in *Naresh Shridhar Mirajkar* and subsequent authority, the Court held that judicial orders of civil courts are not subject to writs of certiorari under Article 226, and that control over such orders is exercised only through appellate, revisional or supervisory powers under Article 227. The Court overruled *Surya Dev Rai*, clarified the distinction between Articles 226 and 227, and affirmed that a writ of mandamus cannot be issued against a private individual. Consequently, the High Court’s writ order was held to be beyond its jurisdiction, and the appeal was allowed.
Issues considered
- The correctness of the view in *Surya Dev Rai* that orders of civil courts are amenable to writ jurisdiction under Article 226.
- Whether judicial orders of civil courts can be challenged by a writ of certiorari under Article 226.
- The distinction between the jurisdictions conferred by Articles 226 and 227 of the Constitution.
Legislation cited
- Civil Procedure Code (Amendment) Act, 1999
- Code of Civil Procedure, 1908s. Section 115
- Constitution of Indias. Article 226, s. Article 227
Subjects
Article 226Article 227writ of certioraricivil court ordersjurisdictionSupreme CourtSurya Dev RaiMirajkarsuperintendencerevisionCPC amendment 1999
Judgment
[2015] 3 S.C.R. 197
RADHEY SHYAM & ANR. A
v.
CHHABI NATH & ORS.
(Civil Appeal No. 2548 of 2009 etc.) B
FEBRUARY 26, 2015
[H.L. DATTU, CJI, A.K. SIKRI AND
ADARSH KUMAR GOEL, JJ.] c
Constitution of India, 1950 -Articles 226 and 227 - Writ
of certiorari - Amenability of civil court to the writ jurisdiction
- Reference of matter by Division Bench of Supreme Court
to the present Three Judge Bench to consider the D
correctness of the judgment passed in *Surya Dev Rai case
which held that order of civil court was amenable to writ
jurisdiction u!Art. 226 - Held: Judicial orders of civil court
are not amenable to writ of certiorari u/Art. 226 - Control
of Subordinate courts in dealing with their judicial orders is E
exercised by way of appellate or revisional powers or
powers of superintendence u!Art. 227 - Jurisdiction u!Art.
227 is distinct from jurisdiction u!Art. 226 - *Surya Dev Rai
case overruled.
F
Answering tt~e question referred, the Court
HELD: 1. Writ jurisdiction is constitutionally
conferred on all High Courts. A writ of certiorari lies
against patently erroneous or without jurisdiction
orders of Tribunals or authorities or courts other than G
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
197 H
198 SUPREME COURT REPORTS [2015] 3 S.C.R.
A judicial orders is exercised by way of appellate or
revisional powers or power of superintendence under
Article 227. Orders of civil court stand on different
. footing from the orders of authorities or Tribunals or
courts other than judicial/civil courts. While appellate
B or revisional jurisdiction is regulated by statutes, power
of superintendence under Article 227 is constitutional.
The expression "inferior court" is not referable to
judicial courts. [para 21] [232-0-G]
C Naresh Shridhar Mirajkar and others vs. State of
Maharashtra AIR 1967 SC 1:1966 (3) SCR 744; Rupa
Ashok Hurra 20.02 (4) SCC 388; Ujjam Bai vs. State of U.P.
AIR 1962 SC 1621: (1963) 1 SCR 778 - followed.
D T. C. Basappa vs. T. Nagappa AIR 1954 SC 440 : (
1955) 1 SCR 250; Budhan Choudhary vs. State of Bihar
AIR 1955 SC 191: (1955) 1SCR1045; Parbhani Tranport
Coop. Society Ltd. vs. Regional Transport Authority AIR
(1960) SC 801:(1960) 3 SCR 177; Prem Chand Garg vs.
E Excise Commnr AIR 1963 SC 996: (1963) Supp. 1 SCR
885; Triveniben vs. State of Gujarat 1989 (1) SCR 509 :
(1989) 1 sec 678 - relied on.
2. Despite the curtailment of revisional jurisdiction
F uls 115 CPC by Act 46 of 1999, jurisdiction of the High
Court under Article 227 'of the Constitution remains
unaffected, it has been wrongly assumed in certain
quarters that the said jurisdiction has been expanded.
[para 22] [233-8-C]
G
Sadhana Lodh vs. National Insurance Co. Ltd. 2003 (1)
SCR 567: 2003 (3) SCC 524; Waryam Singh and another
vs. Amamath and another AIR 1954 SC 215:1954 SCR
565; Ouseph Mathai vs. M. Abdul Khadir 2001 (5) Suppl.
H SCR 118 : 2002 (1) SCC 319; Shalini Shyam Sheffy vs.
RADHEY SHYAM v. CHHABI NATH 199
Rajendra Shankar Pati! 2010 (8) SCR 836: 2010 (8) SCC A
329; Sameer Suresh Gupta vs. Rahul Kumar Agarwal 2013
(9)sec 374 - relied on.
Ganga Saran vs. Civil Judge AIR 1991 All 114 -
referred to. B
3. The question referred are answered as follows:
"(i) Judicial orders of civil court are not amenable to
writ jurisdiction under Article 226 of the Constitution;
and (ii) Jurisdiction under Article 227 is distinct from C
jurisdiction from jurisdiction under Article 226. The
contrary view in *Surya Dev Rai is overruled. [para 25]
[235-G-H; 236-A]
*Surya Dev R'ai vs. Ram Chander Rai and others 2003
D
(2) Suppl. SCR 290: 2003 (6) SCC 675 - overruled.
Shail vs. Manoj Kumar 2004 (3) SCR 649: 2004 (4)
SCC 785; Mahendra Saree Emporium (II) vs. G. V. Srinivasa
M.urthy 2004 (3) Suppl. SCR 931 :2005 (1) SCC 481; Salem
Advocate Bar Assn (II) vs. Union of India 2005 (1) ·Suppl. E
SCR 929: 2005 (6) SCC 344 '"" referred to.
Case Law Reference
1966 (3) SCR 744 followed Para 13 F
(1955) 1 SCR 250 relied on Para 10
(1963) 1 SCR 778 followed Para 12
(1955) 1 SCR 1045 relied on Para 13 G
(1960) 3 SCR 177 relied on Para 13
(1963) Supp. 1 SCR 885 relied on Para 13
2002 (4) sec 388 followed para 14 H
200 SUPREME COURT REPORTS [2015] 3 S.C.R.
A 1989 (1) SCR 509 relied on Para 14
2003 (1) SCR 567 relied on Para 16
AIR 1991 All 114 referred to Para 17
B 1954 SCR 565 relied on Para 22
2001 (5) Suppl. SCR 118 relied on Para 22
2010 (8) SCR 836 relied on Para 22
c 2013 (9) sec 374 relied on Para 22
2004 (3) SCR 649 referred to Para 24
2004 (3) Suppl. SCR 931 referred to Para 24
D
2005 (1) Suppl. SCR 929 referred to Para 24
2003 (2) Suppl. SCR 290 overruled Para 25
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
E 2548 of 2009.
From the Judgment and Order dated 12.10.2007 of the
High Court of Judicature at Allahabad in Civil Writ Petition
No. 50636 of 2007.
F
with
SLP (C) No. 25828 of 2013.
M. R Calla, Nandini Sen, Deba Prasad Mukherjee,
G Uday Gupta, Shivani M. Lal, Pratiksha Sharma, Ankit
Achariya, Mohan Pandey for the Appellants.
Sushil Kumar Jain, R. D. Upadhyay, Giridhar G.
Upadhyay, Asha Upadhyay, J. P. Tripathi, Abhinav Gupta,
H Aishwary Vikram, Chrishti Jain, Khushbu Jain, Manu
RADHEY SHYAM v. CHHABI NATH 201
Maheshwari (for Pratibha Jain}, Vinayakrao S. Desai A
(Advocate - In - Person). for the Respondents.
The Judgment of the Court was delivered by
ADARSH KUMAR GOEL J. 1. This matter has been B
placed before the Bench of three 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 c
to writ jurisdiction under Article 226 of the Constitution. The
reference order, inter alia, reads:-
30. ......... Therefore, this Court unfortunately is in
disagreement with the view which has been expressed
0
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 E
the Constitution vests the High Courts with a power of
superintendence which is to be vel}' sparingly exercised
to keep tribunals and courts within the bounds of their
authority. Under Article 227, orders of both civil and F
criminal courts can be examined only in very
exceptional cases when manifest miscarriage ofjustice
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 G
between Articles 226 and 227 are well known and
pointed out in Surya Dev Rai and with that we have
1 2003 (6) sec 675 H
202 SUPREME COURT REPORTS [2015] 3 S.C.R.
A 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
B 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].
c
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
D 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,
E 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
petition before the Allahabad High Court and the High Court
having vacated· the said interim order granted in favour of
F the plaintiff-appellant, the appellantmoved 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
G respondent, reliance was placed on the decision of this
Court in SufYa 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
H justified in passing the impugned order.
RADHEY SHYAM v. CHHABI NATH 203
[ADARSH KUMAR GOEL J.]
3. As already mentioned, the Bench of two Hon'ble A
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. Stale of B
Maharashtra 2 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 not following the
conclusion in Mirajkar, the referring Bench inter alia C
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 D
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. E
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 F
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:
, G
"103. The prerogative remedies of certiorari,
prohibition and mandamus: historical development.-
Historically, prohibition was a writ whereby the royal
2 AIR 1967 SC 1 = 1966 (3) SCR 744 H
204 SUPREME COURT REPORTS (2015] 3 S.C.R.
A 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
B 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; ...
c * • •
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
D 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 directed to
an inferior court or tribunal or public authority which
E 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."
F 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
G 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.
H 27. It is clear from the law laid down in Mirajkar in para
RADHEY SHYAM v. CHHABI NATH 205
[ADARSH KUMAR GOEL J.]
63 that a distinption has been made between judicial A
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 B
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. C
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 D
Hurra and wherein the learned Judges took a different
view and in support 'vf that, the following para from
Rupa Ashok Hurra has been quoted: (Surya Dev Rai
sec
. case, pp. 687-88, para 18)
E
"(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 F
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 diffe,rent Bench of the G
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 H
206 SUPREME COURT REPORTS [2015] 3 S.C.R.
A 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
B 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 secpara 11 on p. 402 and again
in sec para 59, p. 418 and also in sec para 60, p.
C 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. ·
o 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,
E this Court unfortunately is in disagreeme'}t 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."
F 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.
G 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.
H 6. Learned counsel for the appellant submitted that the
RADHEY SHYAM v. CHHABI NATH 207
[ADARSH KUMAR GOEL J.]
view taken in the referring order deserves to be approved A
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 B
the field. The reasons for not following the said view in
Surya Dev Rai are not sound in law. This submission is
supported by learned counsel for the petitioner appearing
in SLP (Civil) No.25828 of 2013 as also by the Intervenor
in person. c
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 D
wide enough to extend to an order of the civil court. There
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 E
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 Shai/ vs. Manoj
Kumar, Mahendra Saree Emporium (II) vs. G. V. F
Srinivasa Murthy4 and Sa/em Advocate Bar Assn(//) vs.
Union of lndia 5 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. G
a 2004 (4) sec 785
4 2005 (1) sec 481
5 2005 (6) sec 344 H
208 SUPREME COURT REPORTS [2015] 3 S.C.R.
A 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 tlie referring order.
B 10. In T.C. Basappa vs. T. Nagappa 6 , 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 the background of principles followed by superior courts
C 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
D 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 i
such
writ quashed patently erroneous and without jur\sdiction
E 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 follo~ed in all
·leading judgments, rel!:lvant observations therein may be
F 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 fonned the
basis of decisions in our Indian courts. It is true that
G there is Jack of u1hiformity even in the
pronouncements of English Judges, with regard to
the grouryds upon which a writ, or, as it is now said,
H 6 AIR 1954 SC 440='(1955) 1 SCR 250
RADHEY SHYAM v. CHHABI NATH 209
[ADARSH KUMAR GOEL J.)
an order of certiorari, could issue, but such A
differences of opinion are unavoidable in Judge-made
Jaw 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 B
superintendence 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 C
authority of a superior court, that the jurisdiction of
the inferior Tribunal should be properly exercised
[Vide Ryots of Garabandho v. Zamindar of
Parlakimedi 70/A 129. These principles were
0
transplanted to other parts of the King's dominions.
Jn 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 E
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 F
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, G
which the courts in England had developed and used
whenever urgent necessity demanded immediate and
decisive interposition, were peculiarly suited fnr the
purpose, they conferred, in the States' sphere, new
and wide powers on the High Courts of issuing H
210 · SUPREME COURT REPORTS (2015] 3 S.C.R.
A 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
B as th.e 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
c extend to issuing of orders, writs or directions including
writs in the nature of 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,
D for other purposes as well. .Jn 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
E 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 ofjurisdiction in the matter of granting such
F
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
G 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
H
RADHEY SHYAM v. CHHABI NATH 211
[ADARSH KUMAR GOEL J.]
summed up the law on this point in Rex v. Electricity A
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 B
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 c
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 o
reweigh the evidence upon which the determination of
the inferior tribunal purports to be based. It demolishes
the order which it considers to be without jurisdiction
or palpably erroneous but does not substitute its own
views for those of the inferior tribunal. The offending E
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]. F
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 G
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
H
212 SUPREME COURT REPORTS (2015] 3 S.C.R.
A certiorari could be demanded. In fact there is little
difficulty in the enunciation of the principles; the difficulty
really ari~es in applying the principles to the facts of a
particular case.
B 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
c itself may 'not be legally constituted or suffer from
certain disability by reason of extraneous circumstances
[Vide Halsbury, 2"d 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
D 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].
E 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
F 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
clear ignorance or disregard of the provisions of law.
G 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 bf Rex v.
H
RADHEY SHYAM v. CHHABI NATH 213
[ADARSH KUMAR GOEL J.]
Northumberland Compensation Appellate Tribunal [ A
(1952) 1 KB 338]. The Lord Justice says:
"It is plain that cerliorari 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 B
raised in the proceedings. It exists to correct error of
Jaw when revealed on the face of an order or decision
or irregularity or absence of or excess of jurisdiction
when shown."
c
11. In dealing with the powers of the High Court under
Arlicle 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 D
obviously intended to enable the High Courl 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 E
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 F
it is not so vyide or large as to enable the High Courl
to convert itself into a courl 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." G
These passages indicate with sufficient fullness the
general principles that govern the exercise of
jurisdiction in the matter of granting writs of certiorari
H
214 SUPREME COURT REPORTS [2015] 3 S.C.R.
A 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
sElection 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
C 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. 7, matter was
referred to a Bench of seven Judges on the scope of writ
o 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
E · 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 Article 226. It was observed
that judicial orders of Courts stood on different footing.
F 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
G consideration when ii 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
H 7 AIR 1962 SC 1621 = (1963) 1 SCR 778
RADHEY SHYAM v. CHHABI NATH 215
[ADARSH KUMAR GOEL J.]
under particular statutes could be complained of as A
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 B
opinion on it. Without doing either however, I consider
it proper to make these obseNations. There is not any
substantial identity between a Court of law adjudicating
on the rights of parties in the tis before it and designed
as the High Courts and this Court are to investigate C
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
0
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 E
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 :
F
"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 ofjudicial process
and of judicial decisions. When a Judge deals with G
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 H
216 SUPREME COURT REPORTS [2015] 3 S.C.R.
A 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
B 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
c 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
D
decision cannot be said to affect the fundamental rights
of citizens µnder Article 19(1).
38. .......... Just as an order passed by the court on
the merits of the dispute before it can be challenged
E 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.
F
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
G
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.
41. It is true that the opinion thus expressed by Kania,
H
RADHEY SHYAM v. CHHABI NATH 217
[ADARSH KUMAR GOEL J.]
C.J., in the case of A.K Gopalan [1950 SCR 88) had A
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 B
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."
c
Explaining observations in earlier judgments in Budhan
Choudhary vs. State of Bihar'1 and Parbhani Tranport
Coop. Society Ltd. vs. Regional Transport Authority9 that
a judicial order could be violative of Article 14, it was
observed: D
"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 ~as, therefore, invalid. This contention E
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 F
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 G
examined and it was a/so rejected. That incidentally
8 AIR 1955 SC 191,. =. (1955) 1 SCR 1045
9 AIR (1960) SC 801 = (1960) 3 SCR 177 H
218 SUPREME COURT REPORTS [2015] 3 S.C.R.
A 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
observations made by Frankfurter, J., and Stone, C.J.,
B 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
c 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
D
conceivably contravene Article 14, the teamed 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
E subordinate Courts. In such circumstances, there is
hardly any" ground for apprehending any capricious
discriminatior:i by judicial tribunals.
46. It is thus clear that though the observations made
by Frankfurter, J. and Stone, C.J. in Snowden v.
F
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
G became only incidentally relevant in deciding whether
the validity of the conviction which was impugned by
the appellants in the case of Budhan Chaudhry could
be successfully assailed on the ground that the judicial
decision under Section 30 CrPC, w~s capriciously
H rendered against the appellants. The scope of the
RADHEY SHYAM v. CHHABI NATH 219
[ADARSH KUMAR GOEL J.]
jurisdiction of this Court in exercising its writ jurisdiction A
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 B
incidentally arid 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 C
attacked on the ground that it was inconsistent 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
0
accept MrSetalvad'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 . E
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
~d F
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 G
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 H
220 SUPREME COURT REPORTS (2015] 3 S.C.R.
A 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
B 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
c 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
D
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
E and decided the decision is against Mr Setalvad's
contention."
Decision of this Court in Prem Chand Garg vs.
Excise Commnr10 , setting aside rule of this Court requiring
F 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
G question as to whether Article 145 conferred powers on
this Court to make Rules, though they may be
inconsistent with the constitutional provisions
H 10 AIR 1963 SC 996 = (1963) Supp. 1 SCR 885
RADHEY SHYAM v. CHHABI NATH 221
· [ADARSH KUMAR GOEL J.)
prescribed by Part Ill . Once it was held that the powers A
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 B
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. C
It is difficult to .~ee 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.
0
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 E
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 F
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 was in the case of Prem Chand Garg, this
Court can review or recall its order passed under the G
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. H
222 SUPREME COURT REPORTS (2015] 3 S.C.R.
A 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
B 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
c 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
D 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
E 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. Baine (1844), 1 Dow. & L. 885,
F at p. 887], inasmuch as an error did not lie upon that
ground. But there appears to b·e 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
G [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 jurisdiction." These
observations would indicate that in England the
H
RADHEY SHYAM v. CHHABI NATH 223
[ADARSH KUMAR GOEL J.]
judicial orders passed by civil courts of plenary A
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 B
Ipswich Diocese Ex parte White [(1945) 1KBD195] the
question which arose was whether certiorari would lie
·from the Court of King's Bu1ch to an ecclesiastical
Court; and the answer rendered by the court was that
certiorari would not lie against the decision of an C
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 D
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. E
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, F
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 G
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 H
224 SUPREME COURT REPORTS [2015) 3 S.C.R.
A 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
B the impugned order passed by it. We are unable to see
how this decision can support Mr Sen's contentions."
(emphasis added).
c 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 Gujarat11 was referred to with
approval to the effect that a judicial order could not violate
o 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
E 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
F
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
G
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
H 11 (1989) 1 sec 678
RADHEY SHYAM v. CHHABI NATH 225
[ADARSH KUMAR GOEL J.]
ground of long or inordinate delay a condemned A
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 final
verdict reached by a competent court convicting and B
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 C
of the sentence of death will not be just and proper."
12. We con~ider it inappropriate to burden this
judgment with discussion of the decisions in other
cases taking the same view. Suffice it to mention that D
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 E
General, Supreme Court of/ndia [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) F
sec 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) sec 278] a ·three-Judge Bench, and in other cases G
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 H
226 SUPREME COURT REPORTS [2015] 3 S.C.R.
A under Articfe 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.
B 14. On .fhe 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
C he was a party to the case or not.
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
o 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."
E
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
F 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.12 considered the question
whether remedy of writ will be available when remedy of
G appeal was on _limited grounds. This Court held : 0
"6. The right of appeal is a statutory right and where
the law provides remedy by filing an appeal on limited
H 12 2003 (3) sec 524
RADHEY SHYAM v. CHHABI NATH 227
[ADARSH KUMAR GOEL J.]
grounds, the grounds of challenge cannot be enlarged A
by filing a petition under Articles 2261227 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 B
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 C
227 of the Constitution by the insurer was wholly
misconceived. Where a statutory right to file an appeal
has been provided for, it is not open to the High Court
to entertain a petition under Article 227 of the
0
Constitution. Even if where a remedy by way of an
appeal has no.t 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. E
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 F
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 G
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 H
228 SUPREME COURT REPORTS (2015) 3 S.C.R.
A 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."
B
(emphasis added)
17. This Court in judgment dated 61h December, 1989
, in Civil Appeal No.815 of 1989 Qamruddin vs. Rasul
c Baksh & Anr. which has been quoted in Allahabad High
Court Judgment in Ganga Saran ·vs. Civil Judge 13
considered the issue of writ of certiorari and mandamus
against interim order of civil court and held :
"If the order of injunction is passed by a competent
D
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
E of the High <;ourt 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
F 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.
G 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."
H 13 AIR 1991 All 114 .
RADHEY SHYAM v. CHHABI NATH 229
[ADARSH KUMAR GOEL J.]
18. Thus, it has been clearly laid down by this Court A
that an Order of civil court could be challenged under Article
227 and not under Article 226.
19. We may now come to the judgment in Surya Dev
Rai. Therein, the· appellant was aggrieved by denial of B
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•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 C
Ganga Saran to the effect that a writ was not maintainable
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 D
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 : E
"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 we/1-
settled principle that the technicalities associated with F
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 G
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 Jess can the writ jurisdiction of a High Court be H
230 SUPREME COURT REPORTS [2015] 3 S.C.R.
A 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
B 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
c 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 are in exercise of the
original jurisdiction of the High Court while proceedings
D
under Article 227 of the Constitution are not original but
only supervisory. Article 227 substantiaily reproduces
the provisions of Section 107 of the Government of
India Act, 1915 excepting that the power of
E superintendence has been extended by this article to
tribunals a~ 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
F 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
G 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.
H
RADHEY SHYAM v. CHHABI NATH 231
[ADARSH KUMAR GOEL J.]
25. Upon a review of decided cases and a survey of A
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 B
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. C
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
0
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 E
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 F
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 G
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 H
232 SUPREME COURT REPORTS · [2015] 3 S.C.R.
A 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.
B 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
c 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
D 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
E 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
F appellate or revisional powers or power of superintendence
under Article 227,. 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
G ·superintendence under Article 227 is constitutional. The
expression "inferior court" is not referable to judicial courts,
as rightly observed i.n the referring order in paras 26 and
27 quoted above.
H 22. The Bench in Surya Dev Rai also observed in para
RADHEY SHYAM v. CHHABI NATH 233
[ADARSH KUMAR GOEL J.]
25 of its judgment that distinction between Articles 226 and A
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 B
that though despite the curtailment of revisional jurisdiction
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 C
been explained in several decisions including Waryam
Singh and another vs. Amarnath and another14, Ouseph
Mathai vs. M. Abdul Khadir15, Shalini Shyam Shetty vs.
Rajendra Shankar Pati/ 16 and Sameer Suresh Gupta vs.
0
Rahu/ Kumar Agarwa/17• 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 E
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 F
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
G
14 AIR 1954 SC 215=1954 SCR 565
15 2002 (1) sec 319
1a 201 o (8) sec 329
11 2013 (9) sec 374 H
234 SUPREME COURT REPORTS [2015] 3 S.C.R.
A treated as wnt 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
B 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
C there is a tendency of entertaining 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
o 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
E 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.
F 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 ge.ts further impeded and thus causing serious
G 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
H for ends of justice and the High Courts as the highest
RADHEY SHYAM v. CHHABI NATH 235
[ADARSH KUMAR GOEL J.]
courts of justice within their jurisdiction will adhere to A
them strictly."
(emphasis added)
23. Thus, we are of the view that judicial orders of civil B
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. c
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 Shait, Mahendra
Saree Emporium· and Salem Advocate Bar Assn and on
0
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. There is no discussion on the issue E
of maintainability 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 F
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 G
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 H
236 SUPREME COURT REPORTS [2015] 3 S.C.R.
A jurisdiction from jurisdiction under Article 226.
Contrary view in Surya Dev Rai is overruled."
26. The matters may now be listed before the
B appropriate Bench for further orders.
Kalpana K. Tripathy Matters referred to
appropriate Bench.
. '
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