Supreme Court of India
STATE OF MADHYA PRADESH & ORS.versusVISAN KUMAR SHIV CHARAN LAL
- Citation
- 2008 INSC 1403
- Decided
- 5 December 2008
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
A Letters Patent Appeal is maintainable; the nature of the relief and controversy, not the petition’s nomenclature, determines the applicable article and the right of appeal.
Summary
The State of Madhya Pradesh filed a Letters Patent Appeal against a Division Bench order that had dismissed a writ petition under Article 227 seeking to quash a Labour Court order passed under Section 10 of the Industrial Disputes Act, 1947. The High Court held the appeal non‑maintainable, relying on the petition’s nomenclature as an Article 227 proceeding. The Supreme Court examined whether the label of the writ petition controls the maintainability of a Letters Patent Appeal and held that it does not; the nature of the relief sought and the substantive controversy determine the applicable article. Consequently, an appeal against the Single Judge’s order is permissible even where the petition mentions Article 227. The Court set aside the High Court’s order and allowed the appeal, directing the Division Bench to hear the matter on its merits.
Issues considered
- Whether a Letters Patent Appeal is maintainable against a judgment of a Single Judge in a writ petition filed under Article 227 of the Constitution.
- Whether the nomenclature of the writ petition (Article 226 vs. Article 227) governs the applicability of the Letters Patent provision on appeal.
- Interpretation of Section 2 of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaya Pith Ko Appeal) Act, 2005 in relation to appeals from orders passed under Article 227.
Legislation cited
- Constitution of Indias. 225, s. 226, s. 227
- Industrial Disputes Act, 1947s. 10
Subjects
Letters Patent AppealArticle 226Article 227maintainabilitywrit petitionLabour CourtIndustrial Disputes ActSupreme CourtHigh Courtjurisdictionnomenclature
Judgment
[2008) 17 S.C.R. 156
e '
-'.
A STATE OF MADHYA PRADESH & ORS.
''
v. +--
VISAN KUMA_~ SHIV CHARAN LAL
(Civil Appeal No. 7134 of 2008)
..
r
DECEMBER 05, 2008
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
- ~ . SHARMA, JJ.] .
.. '
1
..
Letters Patent (Madhya Pradesh-High Court)
c
. Letters Patent Appeal - Against order passed in a
petition under Article 227 of the Constitution seeking quashing
. of the order of Labour Court - Maintainability of - Held:
Maintainable - Nomenclature description of the writ petition
- \
is of no consequence in determining an LPA, but what is to
·D
be considered is the nature of controversy - Constitution of
India, 1950 -Articles 226 and 227 - Industrial Disputes Act,
1947 u/s. 10- Madhya Pradesh Uchcha Nyayalaya (Khand
,;--
Nyaya Pith Ko Appeal) Act, 2005 - s. 2.
E A writ petition under Article 227 of the Constitution
of India was filed seeking quashing of the order of Labour ,,__
·•
Court passed in a reference made uls. 10 ·of Industrial
Disputes Act, 1947. On dismissal of the writ petition, a
~
Letters Patent appeal was filed. which was dismissed by
F Division Bench of High Court as not maintainable on the
f r
ground that the order was in a petition under Article 227
9f the Constitution. Hence, the present appeal.
---
Allowing the appeal, the Court
G HELD: 1. The High Court was not justified in holding
that the Letters Patent Appeal was not maintainable..The -I=
High Court seems to have gone· by the nomenclature ~ ~
H
description of the writ petition to be one under Article 227
156
-
;,,
·sTATE OF MADHYA PRADESH & ORS. v. VISAN 157
KUMAR SHIV CHARAN LAL
-f
of the Constitution. The High Court did not consider the A
nature of the controversy and the prayer involved in the
Writ petition. The prayer was to quash the order of the
Labour Court. The nomenclature is of no consequence.
It is the nature. of the relief sought for and the controversy
involved which determines the Article which is applicable. B
The writ appeal shall be heard by the Division Bench on
--.
merits. [Paras 2, 3 and 14] [170-F; 158-G-H; 159-A]
~
Hari Vishnu Karnath v. Ahmad lshaque and Ors. AIR
1955 SC 233; Umaji Keshao Meshram v. Radhikabai AIR
G
...
,
1986 SC 1272; Sushilabai Laxminarayan Mudliyar v.
Nihalchand Waghajibhai Shaha 1993 Supp. (1) SCC 11;
Mahgalbhai and Ors. v. Radhyshyam (Dr.) AIR 1993 SC 806;
Lokmat Newspapers (P) Ltd. v. Shankarprasad 1999 (6) SCC
275; Surya Dev Rai v. Ram Chander Rai and Ors. AIR 2003
SC 3044; Custodian of Evacuee Property, Bangalore v. Khan D
.., Saheb Abdul Shukoor, etc. 1961 (3) SCR 855; Nagendra
" Nath Bora and Anr. v. Commissioner of Hills Division AIR
1958 SC 398; T.C. Basappa v. T. Nagappa AIR 1954 SC
440; Rupa Ashok Hurra v. Ashok Hurra AIR 2002 SC 1771;
Mis. MMTC Ltd. v. Commissioner of Commercial Tax and E
Ors. 2008 (13) SCALE 682, relied on.
Case Law Reference:
AIR 1955 SC 233 Relied on. Para 5
F
-+' AIR 1986 SC 1272 Relied on. Para 6
1993 supp. (1) sec 11 Relied on. Para 8
AIR 1993 SC 806 Relied on. Para 10
.G
1999 (6) sec 21s Relied on. Para 11
.....,., AIR 2003 SC 3044 Relied on. Para 12
.. '-.
1961 (3) SCR 855 Relied on. Para 12
AIR 1958 SC 398 Relied on. Para 12 H
I
e
158 SUPREME COURT REPORTS [2008] 17 S.C.R.
-
A AIR 1954 SC 440 Relied on. Para 12 +
,,
AIR 2002 SC 1771 Relied on. Para 12
2008 (13) SCALE 682 -Relied on. Para 13
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
B
7134 of 2008.
From the final Judgment and Order dated 25.9.2006 of the -1
High Court of Madhya Pradesh, .Bench at Gwalior in Writ
Appeal No. 315 of 2006.
c
B.S. Banthia for the Appellants. .....
S.K. Dubey, Niraj Sharma, Vikrant Singh Bais and Yogesh
Tiwari for the Respondents.
D The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted. r
2. Challenge in this appeal is to the order passed by the
Division Bench of the Madhya Pradesh High Court Jabalpur
E
Bench holding that the Letters Patent Appeal was not
maintainable. Initially, the matter was agitated by the respondent
No.1 (hereinafter referred to as the 'employee'), before the
Labour Court under reference made under Section 1O of the
Industrial Disputes Act, 1947 (in short the 'Act'), Which was
F decided in favour of respondent no.1. Thereafter the writ {
..,
petition was filed which was dismissed by learned Single Judge.
The Division Bench, as noted above, dismissed the Letters
Patent Appeal on the ground that it was not maintainable as
the order was in terms of Article 227 of the Constitution of India,
G 1950 (in short the 'Constitution'). According to the appellant, the
nomenclature is of no consequence. It is the nature of the relief ,.,.,,
sought for and the controversy involved which determines the
Article which is applicable.
H 3. In addition, the High Court seems to have gone by the
•
STATE OF MADHYA PRADESH & ORS. v. VISAN 159
KUMAR SHIV CHARAN LAL [DR. ARIJIT PASAYAT, J.]
nomenclature discription of the writ petition to be one under A
Article 227 of the Constitution. The High Court did not consider
the nature of the controversy and the prayer involved in the Writ
petition. As noted above, the prayer was to quash the order of
the Labour Court.
4. Section 2 of Madhya Pradesh Uchcha Nyayalaya a!
(Khand Nyaya Pith Ko Appeal) Act, 2005 reads as follows:
;..,.-
-.....
"2(1) An appeal shall lie from a judgment or order passed
by the one Judge of the High Court in exercise of original
jurisdiction under Article 226 of the Constitution of India, c
to a Division bench comprising of two judges of the same
"').
High Court.
Provided that no such appeal shall lie against an
interlocutory order or against an order passed in exercise
D:
of supervisory jurisdiction under Article 227 of the
Constitution of India."
~
5. This Court in Harl Vishnu Karnath v. Ahmad lshaque
and Ord. (AIR 1955 SC 233) held that the High Court while
issuing writ of certiorari under Article 226 of the Constitution E
can only annul a decision of a Tribunal whereas under Article
227 of the Constitution it can issue further directions as well.
As noted above the prayer in the Writ Petition was to set aside
the decision of the Labour Court.
F
6. In Umaji Keshao Meshram v. Radhikabai [AIR 1986
'
---+-
SC 1272] it was noted as follows:
"Under Article 226 an order, direction or writ is to
issue to a person, authority or the State. In a proceeding
under that article the person, authority or State against G
whom the direction, order or writ is sought is a nec~ssary
~
party. Under Article 227, however, what comes up before
... the High Court is the order or judgment of a subordinate
court or tribunal for the purpose of ascertaining whether in
giving such judgment or order that subordinate court or H
.
•"I
~
160 SUPREME COURT REPORTS [2008] 17 S.C.R.
e
.....
A tribunal has acted within its authority and according to law.
Prior to the commencement of the Constitution, the t-
Chartered High Courts as also the Judicial Committee had
held that the power to issue prerogative writs possessed
by the Chartered High Courts was an exercise of original
B jurisdiction (see Mahomedalli Allabux v. lslpailji Abdu/ali
(AIR 1926 Born 332), Raghu.nath Keshav Khadilkar v.
Poona Municipality, (AIR 1945 Born 7) Ryots of
. Garabandho v. Zemind~'r of Parlakimedi (Al R 1943 PC - .,r
164) and Mou/vi Hamid Hasan Nomani v. Banwari/al Roy I
[(1946-47) 74 Ind App 120,130-131]. In the last mentioned
c case which dealt with the nature of a writ of quo warranto,
the Judicial Committee held: .....
/
"In Their Lorqships' opinion any original civil
jurisdiction possessed by the High Court and not
D in express terms c9nferred by the Letters Patent or
later enactments falls within the description of
ordinary original civil jurisdiction." ~
By Article 226 the power of issuing prerogative writs
E possessed by the Chartered. High Courts prior to the
commencement of the Constitution has been made wider
and more extensive and conferred upon every High Court.
The nature of the exercise of the power under Article 226,
however, remains the same as in the case of the power
of issuing prerogative writs possessed-,by the Chartered
F
High Courts. A series of decisions of this Court has firmly
.
.
..__
established that a proceeding under Article 226 is an
original proceeding and when it concerns civil rights, it is
an original civil proceeding '(see, for instance, State of U.P.
v. Vijay Anand Maharaj [(1963) 1_ SCR 1,16], CIT v.
G /shwarlal Bhagwandas [AIR ·1965 SC ·1818], Ramesh v.
' Seth Gendalal Motilal Patni (1966 (3) SCR 198), Arbind
,..,,
-
Kumar Singh v. Nand Kishore Prasad [1968 (3) SCR \
32.2] and Ahmedabad Mfg. &Calico Ptg. Co. Ltd. v. Ram
Tahel Ramnand (AIR 1972 SC 1598)."
H -
STATE OF MADHYA PRADESH & ORS. v. VISAN 161
.... KUMAR SHIV CHARAN LAL [DR. ARIJIT PASAYAT, J.]
7. In para 106, it was noted as follows:. .A
~
"106. The non obstante clause i'n Rule 18, namely,.
"Notwithstanding anything contained in Rules 1, 4 and 17
of this chapter", makes it abundantly clear why that rule
uses the words "finally disposed of'. As seen above, under B
Rules 1 and 17, applications under Articles 226 and 227
are required to be heard and disposed. of by a Division
-.. Bench. Rule 4, however: gives power to a Single Judge
'• to issue rule nisi on an application under Article 226 but
precludes him from passing any final order on such
application. It is because a Single Judge has no power
c
under Rules 1, 4 and 17 to hear and dispose of a petition
under Article 226 or 227 that the non obstante clause has
been introduced in Rule 18. The use of the words "be
heard and finally disposed of by a Single Judge" in Rule
18 merely clarifies the position that in such cases the D
power of the Single Judge is not confined merely to issuing
.'!-
a rule nisi. These words were not intended to bar a right
of appeal. To say that the words "finally disposed of' mean
finally disposed of so far as th.e High Court is concerned
is illogical because Rules 1, 4 and 7 use the words "be E
heard and disposed of by a Divisional Bench" and were
the reasoning of the Full Bench correct, it would mean that
so far as the High Court is concerned, when a Single
Judge hears a matter and disposes it of, it is finally
disposed of and when a Division Bench disposes it of, it F
'\
-+- is not finally disposed of. The right of appeal against the
judgment of a Single Judge is given by the Letters Patent
which have been continued in force by Article 225 of the
Constitution. If under the Rules of the High Court, a matter
is heard and disposed of by a Single Judge, an appeal G
lies against his judgment unless it is barred either under
..... the Letters Patent or some other enactment. The word
"finally" used in Rule 18 of Chapter XVI I of the· Appellate
~ Side Rules does not and cannot possibly have the effect
of barring a right of appeal conferred by the Letters Patent. H
"
162 SUPREME COURT REPORTS [2008] 17 S.C.R.
e
....
A As we have seen above, an intra-court appeal against the
judgment of a Single Judge in a petition under Article 226 -r-
is not barred while clause 15 itself bars an intra-court
appeal against the judgment of a Single Judge in a petition
under Article 227."
B'
8. In Sushilabai Laxminarayan Mud/iyar v. Nihalchand
Waghajibhai Shaha [1993 Supp. (1) SCC 11] this court with
reference to an unreported judgment in Ratnagiri District -~
(
Central Co-operative Bank Ltd. v. Dinkar Kashinath Watve,
C.A. No: 520of1989 decided on 27.1.1989 held as follows:
c
"Even when in the cause title of an application both /
Article 226 and Article 227 of the Constitution have been
mentioned, the learned single Judge is at liberty to decide, -
according to facts of each particular case, whether the said
D application ought to be dealt with only under Article 226
of the Constitution. For determining the question of
maintainability of an appeal against such a judgment of the .....
Single Judge the Division bench has to find out whether
in substance the judgment has been passed by the learned
E Single Judge in exercise of the jurisdiction under Article
226 of the Constitution. In the event in passing his
judgment on an application which had mentioned in its
cause title both Articles 226 and 227, the Single Judge has
in fact invoked only his supervisory powers under Article
F 227, the appeal under clause 15 would not lie. The clause I
i
15 of the Letters Patent expressly bars appeals against •--f-
orders of Single Judges passed under revisional or
supervisory powers. Even when the learned Single Judge's
order has' been passed under both the articles, for
deciding the maintainability against such an order what
G.
would be relevant is the principal or main relief granted by
the judgment passed by learned Single Judge and not the
ancillary directions given by him. The expression 'ancillary'
....,
means, in the context, incidental or consequential to the
~
main part of the order.
H
164 SUPREME COURT REPORTS "[2008] 17 S.C.R.
A . application as being made under Article 226, and if in
r
deciding the matter, in the final order the Court gives
ancillary directions which may pertain to Article 227, this - ....
_ought not to be held to deprive a party of the right of appeal
under clause 15 of the Letters Patent where the substantial
B part of the order sought to be appealed against is under
Article 226. Rule 18 of the Bombay High Court Appellate
..
Side Rules read with clause 15 of the Letters Patent
-~
provides for appeal to the Division Bench of the High Court ,/
from a judgment of the learned Single Judge passed on a
c writ petition under Article 226 of the Constitution. In the
present case the Division Bench was clearly wrong in
holding that the appeal was not maintainable against the
order of the learned Single Judge."
10. In Mangalbhai -& Ors. v. Radhyshyam (Dr.) [AIR 1993
D SC 806) it was, inter alia, observed as follows:
''The learned Single Judge in his impugned judgment r
dated December 11, 1987 nowhere mentioned that he was
exercising the powers under Article 227 of the
E Constitution. The learned Single Judge examined the
matter on merit and set aside the orders of the Rent
Controller as well as the Resident Deputy Collector on the
ground that the aforesaid judgments were perverse. The
findings of the Rent Controller and Resident Deputy
F Collector were set aside on the ·question of habitual
defaulter as well as on the ground of bona fide need. Thus - ..,. - .
in the totality of the facts and circumstances of the case,
the pleadings of the ·parties in the writ petition and the
judgment of the learned Single Judge leaves no manner
of doubt that it was an order passed under Article 226 of
G
the Constitution and in that view of the matter the Letters
Patent' Appeal was maintainable befc;>re the High Court.
After t~king the aforesaid view one course open was to
. er
set aside the order of the Division Bench and to remand >=
the matter for being disposed of on. merits by the Division
H
STATE OF MADHYA PRADESH & ORS. v. VISAN 165
KUMAR SHIV CHARAN LAL [DR. ARIJIT PASAYAT, J.]
Bench of the High Court. However, taking in view the fact A
........ that this litigation is going on for nearly a decade and also
"'"'!"-
the fact that even the learned Single Judge in his impugned
order dated December 11, 1987 had remanded the case
to the Rent Controller, we considered it proper in the
interest of justice to hear the appeal on merits against the B
judgment of the learned Single Judge. We have heard
learned counsel for the parties at length on the merits of
.,' the case."
11. In Lokmat Newspapers (P) Ltd. v. Shankarprasad
(1999 (6) sec 275] it was observed as follows:
c
"It is, therefore, obvious that the writ petition invoking
jurisdiction of the High Court both under Articles 226 and
227 of the Constitution had tried to make out a case for
---\ the High Court's interference seeking issuance of an D
appropriate writ of certiorari under Article 226 of the
._, Constitution of India. Basic averments for invoking such a
jurisdiction were already pleaded in the writ petition for the
High Court's consideration. It is true, as submitted by
learned coun$el for the appellant, that the order of the E
learned Single Judge nowhere stated that the Court was
considering the writ petition under Article 226 of the
Constitution of India. It is equally true that the learned Single
Judge dismissed the writ petition by observing that the
courts below had appreciated the contentions and rejected F
\ the complaint. But the said observation of the learned
.....
Single Judge did not necessarily mean that the learned
Judge was not inclined to inte~ere under Article 227 of the
Constitution of India only. The said observation equally
supports the conclusion that the learned Judge was not
G
inclined to interfere under Articles 226 and 227. As seen
earlier, he was considering the aforesaid writ petition
( -i-. moved under Article 226 as well as Article 227 of the
Constitution of India. Under these circumstances, it is not
..... possible to agree with the contention of learned counsel
H
I
r
166 SUPREME COURT REPORTS [2008] 17 S.C.R.
e
A for the appellant that the learned Single Judge had refused
to interfere only under Article 227 of the Constitution of r
India when he dismissed the writ petition of the respondent. ..-.
In this connection, it is profitable to have a look at the
decision of this Court in the case of Umaji Keshao
B Meshram v. Radhikabai [1986 Supp.sec ;401]. In that
case 0. Chinnappa Reddy and D.P. Madon, JJ.,
considered the very sam~ question in the light of clause
15 of the Letters Patent of the Bombay High Court. Madon,
J., speaking for the Court in para 107 of the Report at p.
-1
c 473, made the following pertinent observations: (SCC p.
473, para 107)
"107. Petitions are at times filed both under Articles
226 and 227 of the Constitution. The case of Hari
Vishnu Karnath v. Syed Ahmad lshaque (AIR
D 1955 SC 233) before this Court was of such a
type. Rule 18 provides that where such petitions are
filed against orders of the tribunals or authorities
specified in Rule 18 of Chapter XVII of the
Appellate Side Rules or against decrees or orders
E of courts specified in that rule, they shall be heard
and finally disposed of by a Single Judge. The
question is whether an appeal would lie from the
decision of the Single Judge in such a case. In our
opinion, where the facts justify a party in filing an
F application either under Article 226 or 227 of the
Constitution, and the party chooses to file his --J,-
application under both these articles, in fairness
and justice to such party and in order not to deprive
him of the valuable right of appeal the court ought
G to treat the application as being made under Article
226, and if in deciding the matter, in the final order
the court gives ancillary directions which may
pertain to Article 227,, this ought not to be held to -r
deprive a party of the right of appeal under clause !
15 of the Letters Patent where the substantial part
H
'
~
STATE OF MADHYA PP.ADESH & ORS. v. VISAN 167
KUMAR SHIV CHARAN LAL [OR. ARIJIT PASAYAT, J.)
-.,: of the arder sought to be appeaied against is under A
Article 226. Such was the view taken by the
Allahabad High Court in Aida/ Singh v. Karan
Singh (AIR 1957 All 414) and by the Punjab High
Court in Raj Kishan Jain v. Tutsi Dass (AIR 1959
·Punj 291) and Barham Dutt v. Peoples' Coop. B
Transport Society Ltd. (AIR 1961 Punj 24) and we
are in agreement with it."
r. -
' The aforesaid decision squarely gets attracted on the facts
of the present case. It was open to the respondent to
'C
invoke the jurisdiction of the High Court both under Articles
226 and 227 of the Constitution of India. Once such a
jurisdiction was invoked and when his writ petition was
dismissed on merits, it cannot be said that the learned
Single Judge had exercised his jurisdiction only under
Article 226 (sic 227) of the Constitution of India. This D
. conclusion directly flows from the relevant avennents made
in the writ petition and the nature of jurisdiction invoked by
the respondent as noted by the learned Single Judge in
his judgment, as seen earlier. Consequently, it could not
be said that clause 15 of the Letters Patent was not E
attracted fc~_r preferring appeal against the judgment of the
learned Single Judge. It is also necessary to note that the
appellant being the respondent in letters patent appeal
joined issues on merits and did not take up the contention
that the letters patent appeal was not maintainable. For all F
... "'I"\ these reasons, therefore, the primary objection to the
maintainability of the letters patent appeal as canvassed
by learned counsel for the appellant, has to be repelled.
Point 1 is, therefore, answered in the affirmative against
the appellant and in favour of the respondent. It takes us G
to the consideration of points arising for our decision on
~ merits."
·- 12. In Surya Dev Rai v. Ram Chander Rai & Ors. [AIR
'
2003 SC 3044] after referring to· decisions in Custodian of
H
168 SUPREME COURT REPORTS [2008) 17 S.C.R.
A Evacuee Property, Bangalore v. Khan Saheb Abdul Shukoor,
etc. [1961 (3) SCR 855] and Nagendra Nath Bora & Anr. v.
Commissioner of Hills Division [AIR 1958 SC 398], T.C.
Basappa v. T. Nagappa [AIR 1954 SC 440] and Rupa Ashok
Hurra v. Ashok Hurra [AIR 2002 SC 1771], this Court held at
B paragraphs 17, 19 & 25 as follows: '·
"17. From the aforesaid enunciation of law it is quite
vivid and luminescent that the pleadings in the writ petition,
nature of the order passed by the learned Single Judge,
character and the contour of the order, directions issued,
c nome_nclature given the jurisdictional prospective in the
constitutional context are to be perceived. It cannot be said
in a hypertechnical manner that an order passed in a writ
petition, if there is assail to the order emerging from the
inferior tribunal or subordinate Court has to be treated all
D the time for all purposes to be under Article 227 of the
Constitution of India. Phraseology used in exercise of
original jurisdiction under Article 226 of the Gonstitution in
Section 2 of the Act· cannot be given a restricted and
constricted meaning because an order passed in a writ
E petition can tantamount to an order under Article 226 or
227 of the Constitution of India and it would depend upon
the real nature of the order passed by the learr:i.ed Single
Judge. To elaborate; whether the learned Single Judge has
exercised his jurisdiction under Article 226 or under Article
F 227 or both would depend upon various aspects and many
a facet as has been emphasized in the afore quoted
decisions of the apex Court. The pleadings, as has been
indicated hereinabove, also assume immense
significance. As has been held in the case of Surya Devi
·G Rai (supra) a writ of certiorari can be issued under Article
226 of the Constitution against an order of a Tribunal or
an order passed by the sub ordinate court. In
quintessentiality, it cannot be put in a state jacket formula
that any order of the learned judge that deals with an order
arising from an inferior tribunal or the sub ordinate court
H
STATE OF MADHYA PRADESH & ORS. v. VISAN 169
KUMAR SHIV CHARAN LAL [DR. ARIJIT PASAYAT, J.)
is an order under Article 227 of the Constitution of India, A
-t and not an order under Article 226 of the Constitution. It
would not be an over emphasis to state that an order in a
writ petition can fit into the subtle contour of Articles 226
and 227 of the Constitution in a composite manner and
they can coincide, co-exit, overlap imbricate. In this context B
it is apt to note that there may be cases where the learned
single judge may feel disposed or inclined to issue a writ
.
r- to do full and complete justice because it is to be borne in
mind that Article 226 of the Constitutions is fundamentally
a repository and reservoir of justice based on equity and c
good conscience. It will depend upon factual matrix of the
case.
.. 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 D
under Article 226 of the Constitution.
25. Upon a review of decided cases and a survey
of the occasions, wherein the High Courts have exercised
juri~diction to command a writ of certiorari or to exercise e:
supervisory jurisdiction under Article 227 in the given facts
and circumstances in a variety of_ cases, it seems that the
distinction between the two jurisdictio,ns stands almost
obliterated in practice. Probably, this is the reason why it
\
has become customary with the lawyers labelling their F
\ petitions as one common under Articles 226 and 227 of
-'r -
""'" 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
G
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
H
-·
170 SUPREME COURT REPORTS · [2008) 17 S.C.R.
e
A the proceedings having been certified and sent up by the
inferior court or tribunal to the High Court, the High Court t-
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
B quash or set aside the impugned proceedirlgs, 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 !'Jlanner --{
. \
c
in which it would now proceed further or .afresh as
commended to 9r 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 Y-
Article 226 of the Constitution is capable of being
D
exercised on a prayer made by or on behalf of the party
aggrieved; the supervisory jurisdiction is capable of being (
)t
exercised suo motu as well."
L
13. The above position was highlighted in Mis. MMTC Ltd. !
E v. Commissioner of Commercial Tax & Ors. [2008 (13)
SCALE 682]. l'
14. In view of what has been stated above, the High Court
was not justified in holding that the ~~tters Patent Apeeal was
F not maintainable. In addition, a bareJeading of this ·court's
earlier order shows that the impugned order is clearly . f-
(
~-
erroneous. The imp_u.gned order is set aside. The writ appeal
shall be neard bythe Division Bench on merits.
15. The appeal is allowed.
G
K.K.T. Appeal allowed.
'r. ' ~
,,..._
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