Page 1

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2374 OF 2015 [Arising out of SLP(C) No. 10203 of 2014]

Sh Jogendrasinhji Vijaysinghji ... Appellant

Versus

State of Gujarat & Ors. ... Respondents

WITH

C.A. NOS. 2375-76 OF 2015 (@ SLP(C) NO.11756-57/2014) C.A. NO. 2717 OF 2015 (@ SLP(C) NO. 12027/2014) C.A. NOS. 2669-2716 OF 2015 (@ SLP(C) NO.14264-14311/2014) C.A. NOS. 2378-2385 OF 2015 (@ SLP(C) NO.17496-17503/2014) C.A. NO. 2386 OF 2015 (@ SLP(C) NO. 18398/2014) C.A. NOS. 2387-2388 OF 2015 (@ SLP(C) NO. 19567-68/2014) C.A. NO. 2665 OF 2015 (@ SLP(C) NO. 20828/2014) C.A. NOS. 2389-2390 OF 2015 (@ SLP(C) NO. 20975-76/2014) C.A. NOS. 2391-2392 OF 2015 (@ SLP(C) NO. 30033-34/2014) C.A. NOS. 2662-2663 OF 2015 (@ SLP(C) NO. 34183-84/2014) C.A. NOS. 2141-2144 OF 2015 (@ SLP(C) NOS. 6504-6507) (CC NO 858-861/2015) C.A. NO. 2664 OF 2015 (@ SLP(C) NO. 20809/2014)

J U D G M E N T

Dipak Misra, J.

In this batch of appeals, by special leave, the appellants

call in question the legal substantiality of the judgment and

Page 2

order dated 26.12.2013 passed by the Special Bench of the

High Court of Gujarat in a bunch of Letters Patent Appeals

preferred under Clause 15 of the Letters Patent.  

2. As the factual matrix would unveil, the Division Bench

that referred the matter to a larger Bench, noticed conflict in

Revaben Wd/o. Ambalal Motibhai and others v. Vinubhai

Purshottambhai  Patel  and  others1 and  Dilavarsinhsinh

Khodubha Jadeja v. State of Gujarat and others2 and at

that  juncture  framed  two  questions.   The  Special  Bench

adverted to the facts necessitating the reference in detail and

took note of the preliminary objections of the learned counsel

for  the  State  as  regards  the  maintainability  of  the  Letters

Patent  Appeal  on  many  a  score  and  thereafter  thought  it

appropriate to frame the questions afresh and accordingly it

formulated questions.   

3. At the outset, we may state that though eight questions

have been drawn up by the special Bench yet we are disposed

to  think  that  they  can  really  be  put  into  three  basic

compartments, namely:  

1  2013 (1) GLH 440 2  1995 (1) GLH 58

2

Page 3

(i) In  what  context  the  phrase  ‘original  jurisdiction’

appearing  in  Clause  15  of  the  Letters  Patens  should  be

construed,  that  is,  by  taking  into  consideration  the  plain

meaning of the same as the Court’s power to hear and decide

the matter  before  any other  court  and review the same;  or

should it be construed in the context with the power of the

Court to issue a writ under Article 226 of the Constitution of

India, which is always original.

(ii) Assuming the words “to issue to any person or authority”

as contained in Article 226 of the Constitution are interpreted

so  as  to  include  the  tribunal  or  the  Court,  then  in  such

circumstances, would it be the correct proposition of law to

say  that  appellate  tribunal  is  not  amenable  to  a  writ  of

certiorari  and  the  only  remedy  available  to  the  litigant  to

challenge the order passed by an appellate tribunal is under

Article  227  of  the  Constitution  and,  ancillary  one,  when  a

petition assails an order of the tribunal, be it a tribunal of first

instance  or  an  appellate  tribunal,  should  it  be  necessarily

treated as a petition under Article 226 of the Constitution of

India in every case or it would depend upon facts of each case,

3

Page 4

more particularly the grounds of challenge and the nature of

order passed.  

(iii) Whether in a petition for issue of a writ of Certiorari under

Article  227 of  the Constitution of  India,  the  tribunal/Court

whose order is impugned in a petition must be a party to the

petition so that the writ sought from the Court can be issued

against the tribunal/Court, but if the petition is for the relief

under Article 227 only, then the tribunal/Court whose order

is  under  assail  need  not  be  a  party-respondent  on  the

reasoning that by entertaining a petition under Article 227 of

the  Constitution,  the  High  Court  exercises  its  power  of

superintendence  which  is  analogous  to  the  revisional

jurisdiction.  

4. The  special  bench  as  is  evincible  from  the  judgment

impugned, has delved into the questions framed by it, if we

permit ourselves to say so, at great length and recorded its

conclusions in seriatum.   It  is  necessary to reproduce the

relevant conclusions, which are as follows:-

“(iii) When a writ is issued under Article 226 of the  Constitution,  it  is  issued  in  exercise  of  its original jurisdiction whether against the Tribunal or inferior Court or administrative authority.

4

Page 5

(iv) The power exercised under Article 226 of the Constitution is in exercise of original jurisdiction and not supervisory jurisdiction.    

xxx     xxx xxx

(vii) A writ of certiorari lies in appropriate cases against  the  order  of  Tribunal  or  Court subordinate  to  the  High  Court  where  such  a Court, or Tribunal acts not only as an authority of  first  instance  but  even  if  such  a  Court  or Tribunal  acts  as  an  appellate  or  revisional authority provided a case for a writ of certiorari is made  out  to  the  satisfaction  of  the  Court concerned.   Thus,  if  an  appellate  or  revisional order of the Court or Tribunal, subordinate to a High Court, suffers from a patent error of law or jurisdiction, the same could be challenged before the High Court with the aid of Article 226 of the Constitution and it could not be said that such an appellate or revisional  order of  the Court or Tribunal  could  be  challenged  with  the  aid  of Article 227 alone.   

xxx xxx xxx

(ix) The term “original jurisdiction” as contained in  Clause  15  of  the  Letters  Patent  should  be understood in context with the power of the High Court to issue a high prerogative writ like a writ of certiorari under Article 226 of the Constitution of India.  It is that original power to issue a writ under  Article  226  of  the  Constitution  of  India which  makes  the  proceedings  original  and  the exercise  of  such  power  will  always  be  original jurisdiction.

(x) If the Special Civil Application is described as one  not  only  under  Article  226  of  the Constitution,  but also under  Article  227 of  the Constitution  of  India  and  the  Court  or  the Tribunal whose order is sought to be quashed, is

5

Page 6

not  made  a  party,  the  application  is  not maintainable as one for the relief of certiorari in the absence of the concerned Tribunal or Court as  party,  but  the same may be  treated as  one under Article 227 of the Constitution of India.  If the Court or Tribunal is not impleaded as a party respondent in the main petition, then by merely impleading  such  court  or  tribunal  for  the  first time in the Letters Patent Appeal will not change the  nature  and  character  of  the  proceedings before  the  learned  Single  Judge.   By  merely impleading such a Court or Tribunal for the first time in the LPA, the appeal could not be said to be  maintainable,  if  the  proceedings  before  the learned Single Judge remained in the nature of supervisory proceedings under Article 227 of the Constitution.

(xi) If the learned Single Judge, in exercise of a purported  power  under  Article  227  of  the Constitution sets aside the order of Tribunal or Court below and at the same time, the essential conditions  for  issue  of  writ  of  certiorari  are absent,  no  appeal  will  be  maintainable  against such  order  in  view  of  the  specific  bar  created under Clause 15 of the Letters Patent itself and such an order can be challenged only by way of a Special Leave Petition before the Supreme Court.

To put it very explicitly, take a case where a petition  is  only  under  Article  227  of  the Constitution  of  India,  invoking  superintending powers of the High Court and not under Article 226 of the Constitution of India.  After examining the  matter,  if  the court  finds  substance  in  the petition and sets aside the order of an authority, court or a tribunal, then against such an order, an LPA would not lie on the argument that since the court has set aside the order it has decided the matter on merits having found substance in the same.

6

Page 7

To put it in other words, once a petition is under  Article  227  of  the  Constitution  of  India, and  while  entertaining  such  a  petition  under Article  227  of  the  Constitution  of  India,  if  the court allows a petition by setting aside the order impugned,  then against  such an order  no  LPA would lie.

xii)  If  a  learned  Single  Judge,  in  exercise  of  a purported  power  under  Article  227  of  the Constitution  modifies  the  order  of Tribunal/Authority  or  Court  below and thereby partly allows a petition to a certain extent, then in such circumstances, it could not be said that the Court exercised its certiorari jurisdiction and no  appeal  will  be  maintainable  against  such order  in  view of  the  specific  bar  created under Clause 15 of the Letters Patent itself.

However,  if  a  learned  Single  Judge,  in purported exercise of power under Article 226 of the  Constitution  of  India,  issues  a  writ  of certiorari, although the same is not maintainable, an appeal under Clause 15 of the Letters Patent would nevertheless be maintainable against such order.

To put it in other words, take a case where a party on his own invokes supervisory jurisdiction under  Article  227  of  the  Constitution  of  India, and in such a petition, the Court issues a writ of certiorari,  then  against  such  an  order  an  LPA would be maintainable.

To put it explicitly clear, take a case where in a petition neither there is a prayer for issue of a writ of certiorari nor the Tribunal/Authority or Court whose order is impugned is impleaded as a party  respondent,  and  despite  such  being  the position, if the Court proceeds to issue a writ of certiorari,  then  against  such  an  order  an  LPA would be maintainable.

7

Page 8

(xiii) A combined application under both Articles 226 and 227 of the Constitution of India can be entertainable  only  when the  court  fees  payable for invoking both the provisions have been paid in aggregate.  If  court fees payable for invoking only one of the Articles 226 and 227 have been affixed,  the  Court  before  dismissing  the application on that ground may give option to the petitioner to choose only one of such provisions, if he does not pay the balance amount of court fees  and  the  application  should  be  treated accordingly.   It  is,  however,  for  the  Court  to decide  whether  the  facts  of  the  case  justify invocation of original jurisdiction or it is a fit case for exercising supervisory jurisdiction.   

xxx xxx xxx

(xv) When a remedy for filing the Revision under Section 115 of the Civil Procedure Code has been expressly barred, then in such a case, a petition under  Article  227  of  the  Constitution  of  India would  lie  and not  a  writ  petition  under  Article 226  of  the  Constitution  of  India.   When  the Parliament has thought fit to restrict the powers under  Section  115  of  the  Code  with  a  definite object, then, under such circumstances an order which is not revisable under Section 115 of the Code of Civil Procedure cannot be challenged by way of filing a Writ Petition under Article 226 of the  Constitution  invoking  extraordinary jurisdiction  of  the  High Court  and that  too  an interlocutory order passed by the Civil Court in a Regular Suit proceedings.”      

5. At  this  juncture,  we  are  obligated  to  state  that  the

conclusions have been recorded by the High Court to cover all

kinds of  possibilities,  but  we are of  the considered opinion

8

Page 9

that  it  may  not  always  be  possible  to  do  so  and  hence,

advertence  in  detail  to  the  said  conclusions  is  neither

necessitous nor warranted.   

6. Having said that, presently we shall proceed to deal with

the first question we have stated hereinbefore.  In this regard,

reference to the authority in  T.C. Basappa v. T. Nagappa

and Another3 would be fruitful.  The controversy before the

Constitution Bench, apart from other aspects, also pertained

to scope of jurisdiction under Article 226 of the Constitution.

Dealing with the said facet, the larger Bench opined that:-

“7. One of the fundamental principles in regard to the issuing of a writ of ‘certiorari’, is, that the writ can be availed of only to remove or adjudicate on the  validity  of  judicial  acts.  The  expression “judicial  acts”  includes  the  exercise  of quasi-judicial functions by administrative bodies or other authorities or persons obliged to exercise such functions and is used in contrast with what are  purely  ministerial  acts.  Atkin,  L.J.  thus summed  up  the  law  on  this  point  in  Rex v. Electricity Commissioners4:

“Whenever anybody or persons having legal authority  to  determine  questions  affecting the rights of subjects and having the duty to act  judicially  act  in  excess  of  their  legal authority, they are subject to the controlling jurisdiction  of  the  King's  Bench  Division exercised in these writs.”

3  AIR 1954 SC 440 4 1924-1 KB  171 at p.205 (C)

9

Page 10

The  second  essential  feature  of  a  writ  of ‘certiorari’ is that the control which is exercised through it over judicial or quasi-judicial tribunals or bodies is not in an appellate but supervisory capacity.  In  granting  a  writ  of  certiorari  the superior court does not exercise the powers of an appellate tribunal. It does not review or reweigh the evidence upon which the determination of the inferior  tribunal  purports  to  be  based.  It demolishes  the  order  which  it  considers  to  be without  jurisdiction  or  palpably  erroneous  but does not substitute its own views for those of the inferior  tribunal.  The  offending  order  or proceeding so to say is put out of the way as one which should not be used to the detriment of any person,  vide  per  Lord  Cairns  in  –  ‘Walsall’s Overseers v. L. & N. W.Rly. Co5.  

8. The supervision of the superior court exercised through writs of ‘certiorari’ goes on two points, as has been expressed by Lord Sumner in  King v. Nat  Bell  Liquors  Limited6.  One  is  the  area  of inferior  jurisdiction  and  the  qualifications  and conditions  of  its  exercise;  the  other  is  the observance of  law in the course of  its  exercise. These two heads normally cover all the grounds on which a writ of ‘certiorari’ could be demanded. In fact there is little difficulty in the enunciation of  the  principles;  the  difficulty  really  arises  in applying the principles to the facts of a particular case.

9. ‘Certiorari’  may  lie  and  is  generally  granted when a court has acted without or in excess of its jurisdiction.  The want  of  jurisdiction may arise from  the  nature  of  the  subject-matter  of  the proceeding  or  from  the  absence  of  some preliminary proceeding or the court itself may not be  legally  constituted  or  suffer  from  certain disability by reason of extraneous circumstances, vide  ‘Halsbury,  2nd edition,  Vol.  IX,  page  880.

5 (1879) 4 AC 30 at p. 39 (D) 6 (1922) 2 AC 128 at p. 156 (E)

10

Page 11

When the jurisdiction of the court depends upon the  existence  of  some  collateral  fact,  it  is  well settled that the court cannot by a wrong decision of the fact give it jurisdiction which it would not otherwise possess, vide Bunbury v. Fuller7 & R. v. Income Tax Special Purposes Commissioners’8

xxx xxx xxx

11. In dealing with the powers of the High Court under Article 226 of the Constitution, this Court has expressed itself in almost similar terms, vide ‘Veerappa Pillai  v.  Raman and Raman Ltd.9 and said:

“Such writs as are referred to in Article 226 are obviously  intended to  enable  the  High Court  to issue them in grave cases where the  subordinate  tribunals  or  bodies  or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of  natural  justice,  or  refuse  to  exercise  a jurisdiction vested in them, or there is  an error apparent on the face of the record, and such  act,  omission,  error  or  excess  has resulted  in  manifest  injustice.  However extensive the jurisdiction may be, it seems to us that it  is not so wide or large as to enable the High Court to convert itself into a court  of  appeal  and examine for  itself  the correctness  of  the  decision  impugned  and decide what is the proper view to be taken or the order to be made.”

These passages indicate  with sufficient  fullness the general principles that govern the exercise of jurisdiction  in  the  matter  of  granting  writs  of ‘certiorari’ under Article 226 of the Constitution.”

7 (1854) 9 EX 111 (F) 8 (1889) 21 QBD 313 (G) 9  AIR 1952 SC 192 at pp. 195-196 (I)

11

Page 12

7. In Hari Vishnu Kamath v. Ahmad Ishaque and Ors.10,

a  seven-  Judge  Bench,  while  dealing  with  the  scope  of

proceeding  under  Article  226  of  the  Constitution,  observed

that there can be no dispute that the orders of the Election

Tribunals  are  subject  to  the  supervisory  jurisdiction  of  the

High Courts under Article 226 and a writ of certiorari under

that Article will be competent against decisions of the Election

Tribunals also.   The Court referred to the decision in  T.C.

Basappa (supra) and other authorities and ruled thus:-

“We  are  also  of  opinion  that  the  Election Tribunals are subject to the superintendence of the  High  Courts  under  Article  227  of  the Constitution,  and that  superintendence  is  both judicial and administrative. That was held by this Court in  Waryam Singh v.  Amarnath11, where it was  observed  that  in  this  respect  Article  227 went further than Section 224 of the Government of  India  Act,  1935,  under  which  the superintendence was purely administrative, and that it restored the position under Section 107 of the Government of India Act, 1915. It may also be noted that while in a ‘certiorari’ under Article 226 the High Court can only annul the decision of the Tribunal, it can, under Article 227, do that, and also  issue  further  directions  in  the  matter.  We must accordingly hold that the application of the appellant  for  a writ  of  ‘certiorari’  and for  other reliefs was maintainable under Articles 226 and 227 of the Constitution.”

In the said case, the court directed as follows:- 10  AIR 1955 SC 233 11  AIR 1954 SC 215

12

Page 13

“Under  the  circumstances,  the  proper  order  to pass is to quash the decision of the Tribunal and remove  it  out  of  the  way  by  ‘certiorari’  under Article  225,and to  set  aside the  election of  the first  respondent  in  exercise  of  the  powers conferred by Article 227.”

8. In Nagender Nath Bora v. The Commissioner of Hills

Division and Appeals,  Assam and others12,  while dealing

with the scope of Articles 226 and 227 of the Constitution, the

Constitution  Bench  referred  to  the  authority  in  Waryam

Singh (supra) and held that:-

“It  is,  thus,  clear  that  the  powers  of  judicial interference under Article 227 of the Constitution with  orders  of  judicial  or  quasi-judicial  nature, are not greater than the powers under Article 226 of the Constitution. Under Article 226, the power of  interference  may  extend  to  quashing  an impugned  order  on  the  ground  of  a  mistake apparent  on the  face  of  the  record.  But  under Article,  227  of  the  Constitution,  the  power  of interference is limited to seeing that the tribunal functions  within  the  limits  of  its  authority. Hence, interference by the High Court, in these cases,  either  under  Article  226  or  227  of  the Constitution, was not justified.”

9. In  this  context,  we  may  usefully  refer  to  another

Constitution Bench decision in State of Uttar Pradesh and

others v. Dr. Vijay Anand Maharaj13, wherein it has been

ruled:-

12  AIR 1958 SC 398 13 AIR 1963 SC 946

13

Page 14

“9. Article 226 confers a power on a High Court to  issue  the  writs,  orders,  or  directions mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose.  This  is  neither  an  appellate  nor  a revisional jurisdiction of the High Court. Though the power is not confined to the prerogative writs issued by the English Courts, it is modelled on the said writs mainly to enable the High Courts to  keep  the  subordinate  tribunals  within bounds.”

10. After so stating, the larger Bench referred to the decision

in  Hamid  Hassan v.  Banwarilal  Roy14 wherein  the  Privy

Council had observed that the original civil jurisdiction which

the  Supreme Court  of  Calcutta  had possessed over  certain

classes  of  persons  outside  the  territorial  limits  of  that

jurisdiction was a matter of original jurisdiction.  Thereafter,

the  Court  referred  to  certain  High  Court  decisions  and

opined:-

“.... It is, therefore, clear from the nature of the power  conferred  under  Article  226  of  the Constitution  and  the  decisions  on  the  subject that the High Court in exercise of its power under Article 226 of the Constitution exercises original jurisdiction,  though  the  said  jurisdiction  shall not  be  confused  with  the  ordinary  civil jurisdiction of the High Court. This jurisdiction, though original  in character as contrasted with its  appellate  and  revisional  jurisdictions,  is exercisable throughout the territories in relation to  which  it  exercises  jurisdiction  and  may,  for convenience,  be  described  as  extraordinary

14  AIR 1947 PC 90

14

Page 15

original  jurisdiction.  If  that  be so,  it  cannot  be contended that a petition under Article 226 of the Constitution is a continuation of the proceedings under the Act.”

11. In  this  context,  reference  to  the  nine-Judge  Bench

decision  in  Naresh  Shridhar  Mirajkar  v.  State  of

Maharashtra and another15 is absolutely imperative.  In the

said  case,  the  Court  was  dealing  with  the  lis  whether  a

judicial  order  passed  by  the  High  Court  could  violate  any

fundamental  right.   The  majority,  speaking  through

Gajendragadkar, C.J., commenting on the order of the High

Court expressed:-

“38. ..... It is singularly inappropriate to assume that a judicial decision pronounced by a Judge of competent  jurisdiction  in  or  in  relation  to  a matter brought before him for adjudication can affect  the  fundamental  rights  of  the  citizens under  Article  19(1).  What  the  judicial  decision purports  to  do  is  to  decide  the  controversy between the parties brought before the court and nothing more. If this basic and essential aspect of the judicial process is borne in mind, it would be plain  that  the  judicial  verdict  pronounced  by court in or in relation to a matter brought before it  for  its  decision  cannot  be  said  to  affect  the fundamental  rights  of  citizens  under  Article 19(1).”

After  so  stating,  the  learned  Chief  Justice  observed

thus:-

15  AIR 1967 SC 1  

15

Page 16

“39. ..... Just as an order passed by the court on the  merits  of  the  dispute  before  it  can  be challenged only in appeal and cannot be said to contravene the fundamental rights of the litigants before the Court, so could the impugned order be challenged  in  appeal  under  Article  136  of  the Constitution, but it cannot be said to affect the fundamental  rights  of  the  petitioners.  The character of the judicial order remains the same whether it is passed in a matter directly in issue between the parties, or is passed incidentally to make the adjudication of the dispute between the parties  fair  and  effective.  On  this  view  of  the matter,  it  seems  to  us  that  the  whole  attack against  the  impugned  order  based  on  the assumption  that  it  infringes  the  petitioners' fundamental  rights  under  Article  19(1),  must fail.”

12. It is apt to note here that the nine-Judge Bench referred

to  Budan  Choudhry  v.  State  of  Bihar16,  Parbhani

Transport Cooperative Society Ltd. v. Regional Transport

Authority, Aurangabad17 and Prem Chand Garg v. Excise

Commissioner,  U.P.  Allahabad18 and  explained  the  same

and eventually held:-

“If the decision of a superior court on a question of its jurisdiction is erroneous, it can, of course, be  corrected  by  appeal  or  revision  as  may  be permissible  under  the  law;  but  until  the adjudication by a superior court on such a point is set aside by adopting the appropriate course, it would not be open to be corrected by the exercise of the writ jurisdiction of this Court.”

16  AIR 1955 SC 191 17  AIR 1960 SC 801 18  AIR 1963 SC 996

16

Page 17

13. In the first decade of this century in Rupa Ashok Hurra

v.  Ashok  Hurra  and  Another19,  the  Constitution  Bench

referred to the  Triveniben v. State of Gujarat20,  reiterated

the same principle and observed:-  

“It is well settled now that a judgment of court can never be challenged under Articles 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to challenge as violating Article 14 or Article 21 as has been laid down by this Court in  Naresh Shridhar Mirajkar v.  State of Maharashtra  (supra) and also in  A.R. Antulay v.  R.S.  Nayak21 ,  the  only  jurisdiction which  could  be  sought  to  be  exercised  by  a prisoner for infringement of his rights can be to challenge  the  subsequent  events  after  the  final judicial verdict is pronounced and it is because of this  that  on  the  ground  of  long  or  inordinate delay a condemned prisoner could approach this Court  and  that  is  what  has  consistently  been held by this Court. But it will not be open to this Court in exercise of jurisdiction under Article 32 to  go  behind  or  to  examine  the  final  verdict reached  by  a  competent  court  convicting  and sentencing  the  condemned  prisoner  and  even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay  coupled  with  subsequent  circumstances could  be  held  to  be  sufficient  for  coming  to  a conclusion  that  execution  of  the  sentence  of death will not be just and proper.”

14. Recently, in Radhey Shyam & Anr. v. Chhabi Nath &

Ors.22, a three-Judge Bench while dealing with the correctness

19 (2002) 4 SCC 388 20  (1989) 1 SCC 678 21 (1988) 2 SCC 602 22  2015 (3) SCALE 88

17

Page 18

of the law laid down by a two-Judge Bench, as there was a

reference by a Division Bench expressing its doubt about the

ratio laid down in Surya Dev Rai v. Ram Chander Rai and

others23 that judicial orders passed by the Civil Court can be

examined and then corrected/reversed by the writ court under

Article 226 in exercise of  its power under writ of  certiorari,

speaking through one of us (Adarsh Kumar Goel, J.), referred

to number of judgments including some of the decisions we

have cited hereinabove and reproduced the opinion expressed

in Sadhana Lodh v. National Insurance Co. Ltd.24, which is

to the following effect:-

"6. The right of appeal is a statutory right  and where   the   law  provides  remedy by  filing  an appeal  on limited  grounds,   the   grounds   of challenge cannot be enlarged by filing  a  petition under  Articles  226/227  of  the Constitution on the premise that the insurer has limited  grounds available for challenging the award given by the Tribunal.  Section  149(2)  of  the  Act  limits  the insurer to file an appeal  on those  enumerated grounds  and  the appeal being a product of the statute it is not open to an insurer  to  take any plea  other  than  those  provided  under  Section 149(2)  of  the  Act  (see  National Insurance Co. Ltd. v. Nicolletta Rohtagi25).  This being the legal position, the  petition  filed  under  Article  227 of  the Constitution by the insurer  was  wholly misconceived.  Where a statutory right to file an appeal has been provided for, it is not open to the

23  (2003) 6 SCC 675 24  (2003) 3 SCC 524 25 (2002) 7 SCC  456

18

Page 19

High Court to entertain a petition under Article 227 of the Constitution.  Even if where a remedy by way of an appeal  has not been provided for against the order and judgment  of  a  District Judge,  the  remedy  available  to  the aggrieved person is to file a revision before the High Court under   Section  115  of  the  Code  of  Civil Procedure.   Where  remedy  for  filing  a  revision before  the  High  Court  under  Section  115  CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226  of  the  Constitution.   As  a  matter  of illustration, where a trial court  in  a  civil  suit refused  to grant  temporary  injunction  and  an appeal  against  refusal   to   grant injunction has been rejected, and a State enactment has  barred the  remedy of filing revision under Section  115 CPC,  in  such  a  situation  a  writ petition under Article 227 would lie  and  not  under  Article 226  of  the Constitution. Thus, where the State Legislature  has  barred  a  remedy  of  filing  a revision  petition  before  the  High  Court  under Section 115 CPC, no petition under Article 226 of the Constitution would lie for the reason that a mere  wrong  decision  without  anything  more  is not  enough  to  attract jurisdiction of the High Court under Article 226 of the Constitution."

    15. After  so  stating,  the  three-Judge  Bench  referred  to

Surya Dev Rai (supra), the analysis made by the two-Judge

Bench and ultimately came to hold thus:-

“....  There  are  no  precedents  in  India  for  High Courts  to  issue  writs  to  subordinate  courts. Control  of  working  of  subordinate  courts  in dealing  with  their  judicial  orders  is  exercised by   way   of  appellate  or  revisional  powers  or power  of  superintendence  under  Article 227. Orders  of  civil  court  stand  on  different  footing

19

Page 20

from  the  orders  of  authorities  or  Tribunals  or courts  other  than  judicial/civil  courts.   While appellate or  revisional  jurisdiction is   regulated by  statutes,  power  of superintendence  under Article  227  is  constitutional.   The   expression "inferior court" is not referable to judicial courts, as rightly observed in the referring order in paras 26 and 27 quoted above.”

After so stating, the Court proceeded to hold as follows:-  

“The Bench in  Surya Dev  Rai also  observed in para 25 of its judgment that distinction between Articles  226  and  227  stood  almost  obliterated. In para 24 of the said judgment distinction in the two  articles  has  been  noted.   In  view  thereof, observation  that  scope  of  Article  226  and  227 was  obliterated  was  not  correct  as  rightly observed  by  the  referring  Bench  in  Para  32 quoted  above.   We  make  it  clear  that  though despite the curtailment of revisional jurisdiction under  Section  115  CPC  by  Act  46  of  1999, jurisdiction of the High Court under Article 227 remains  unaffected,  it   has  been  wrongly assumed  in  certain  quarters   that   the   said jurisdiction   has  been   expanded.    Scope  of Article  227  has  been  explained  in  several decisions  including  Waryam Singh  and another vs.   Amarnath  and  another (supra),  Ouseph Mathai  vs.  M.  Abdul  Khadir26,  Shalini   Shyam Shetty  vs.  Rajendra Shankar Patil27 and Sameer Suresh Gupta vs. Rahul  Kumar  Agarwal28.”

The eventual conclusions read as follows:-

“23.   Thus, we are of the view that judicial orders of  civil  courts  are  not  amenable  to  a  writ  of certiorari  under  Article  226.    We  are  also  in agreement with the view of  the referring Bench that a writ of mandamus does not lie against a

26 (2002) 1 SCC 319 27 (2010) 8 SCC 329 28 (2013) 9 SCC 374

20

Page 21

private person not discharging any public duty. Scope of Article 227 is different from Article 226.

24.   We may also deal with the submission made on  behalf  of  the  respondent  that  the  view  in Surya Dev Rai stands approved by larger Benches in  Shail,  Mahendra Saree Emporium and  Salem Advocate  Bar  Assn and  on  that  ground correctness of the said view cannot be gone into by this Bench.   In  Shail, though reference has been made to Surya Dev Rai, the same is only for the purpose of scope of power under Article 227 as is clear from para 3  of  the said judgment. There  is  no  discussion  on  the  issue  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  Salem Bar  Assn. in para  40,  reference  to  Surya  Dev  Rai is  for  the same purpose.   We are, thus, unable to accept the  submission  of  learned  counsel  for  the respondent.

25.    Accordingly,  we  answer  the  question referred as follows:

"(i)    Judicial  orders  of  civil  court  are  not amenable to writ jurisdiction under Article 226 of the Constitution;

(ii)        Jurisdiction under Article 227 is distinct from jurisdiction from jurisdiction under Article 226.

Contrary view in Surya Dev Rai is overruled."

16. The  aforesaid  authoritative  pronouncement  makes  it

clear as day that an order passed by a civil court can only be

21

Page 22

assailed under Article 227 of the Constitution of India and the

parameters of challenge have been clearly laid down by this

Court in series of decisions which have been referred to by a

three-Judge  Bench  in  Radhey  Shyam (supra),  which  is  a

binding  precedent.  Needless  to  emphasise  that  once  it  is

exclusively assailable under Article 227 of the Constitution of

India, no intra-court appeal is maintainable.   

17. The next aspect that has to be adverted to is under what

situation,  a  Letters  Patent  Appeal  is  maintainable  before  a

Division Bench.  We repeat at the cost of repetition, we have

referred to series of judgments of this Court which have drawn

the  distinction  between  Article  226  and  227  of  the

Constitution of India and the three-Judge Bench in  Radhey

Shyam (supra)  has  clearly  stated  that  jurisdiction  under

Article 227 is distinct from jurisdiction under Article 226 of

the Constitution and, therefore, a letters patent appeal or an

intra-court appeal in respect of an order passed by the learned

Single Judge dealing with an order arising out of a proceeding

from a Civil  Court would not lie before the Division Bench.

Thus, the question next arises under what circumstances a

22

Page 23

letters  patent  appeal  or  an  intra-court  appeal  would  be

maintainable before the Division Bench.   

18. In Umaji Keshao Meshram and Others v. Radhikabai

and Another29, this Court has held thus:-

“106. The  non  obstante  clause  in  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 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  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 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  the  High  Court  is  concerned  is illogical because Rules 1, 4 and 7 use the words “be 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  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

29 1986 (Supp) SCC 401

23

Page 24

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 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 XVII of the  Appellate  Side  Rules  does  not  and  cannot possibly  have  the  effect  of  barring  a  right  of appeal  conferred  by  the  Letters  Patent.  As  we have  seen above,  an intra-court  appeal  against the  judgment  of  a  Single  Judge  in  a  petition under Article 226 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.

107. Petitions  are  at  times  filed  both  under Articles  226  and  227  of  the  Constitution.  The case  of  Hari  Vishnu  Kamath v.  Syed  Ahmad Ishaque30 before this Court was of such a type. Rule 18 provides that where such petitions are filed  against  orders  of  the  Tribunals  or authorities specified in Rule 18 of Chapter XVII of the  Appellate  Side  Rules  or  against  decrees  or orders of courts specified in that rule, they shall be  heard  and  finally  disposed  of  by  a  Single Judge. The question is whether an appeal would lie from the decision of the Single Judge in such a case. In our opinion, where the facts justify a party in filing an application either under Article 226 or  227 of  the  Constitution,  and  the  party chooses to file his application under both these articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal the court ought to treat the application as  being  made  under  Article  226,  and  if  in deciding the matter, in the final order the court gives  ancillary  directions  which  may  pertain  to Article 227, this ought not to be held to deprive a party of the right of appeal under clause 15 of the Letters Patent where the substantial part of the

30 (1955) 1 SCR 1104 : AIR 1955 SC 233

24

Page 25

order  sought  to  be  appealed  against  is  under Article  226.  Such  was  the  view  taken  by  the Allahabad  High  Court  in  Aidal  Singh v.  Karan Singh31 and  by  the  Punjab  High  Court  in  Raj Kishan Jain v.  Tulsi Dass32 and  Barham Dutt v. Peoples’  Cooperative Transport Society Ltd.,  New Delhi33 and we are in agreement with it.”

19. Similar  view  was  reiterated  in  Sushilabai

Laxminarayan  Mudliyar  and  others  v.  Nihalchand

Waghajibhai  Shaha  and  others34,  which  arose  from  the

High Court of Bombay.   

20. In  Mangalbhai  and  Others  v.  Radhyshyam35 the

dismissal of an application for eviction by the Deputy Collector

and Rent Controller and its assail in appeal not resulting in

success, compelled the landlord to file a writ petition under

Articles 226 and 227 of the Constitution of India before the

Bombay  High  Court.   Before  this  Court,  an  objection  was

raised with regard to the maintainability of the letters patent

appeal.  This Court referred to the decision in Umaji Keshao

Meshram case (supra) and opined as follows:-

“6. Applying the correct ratio laid down in Umaji Keshao Meshram case  (supra) and perusing the writ petition filed in the present case as well as the order passed by the learned Single Judge we

31 AIR 1957 All 414 : 1957 All LJ 388 (FB) 32 AIR 1959 Punj 291 33 AIR 1961 Punj 24 : ILR (1961) 1 Punj 283 34  1993 Supp. (1) SCC 11 35 (1992) 3 SCC 448

25

Page 26

are  clearly  of  the  view  that  the  present  case clearly falls within the ambit of Article 226 of the Constitution.  In  Umaji  Keshao  Meshram  case (supra) it was clearly held that:

“Where  the  facts  justify  a  party  in  filing  an application either under Article 226 or 227 of the Constitution, and the party chooses to file his  application  under  both  these  Articles,  in fairness and justice to such party and in order not  to  deprive  him  of  the  valuable  right  of appeal the court ought to treat the application as being made under Article 226 ….”

7. The  learned  Single  Judge  in  his  impugned judgment  dated  December  11,  1987  nowhere mentioned  that  he  was  exercising  the  powers under  Article  227  of  the  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  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 the Constitution and in that view of the matter  the  Letters  Patent  Appeal  was maintainable before the High Court.”

21. In Lokmat Newspapers Pvt. Ltd. v. Shankarprasad36,

the controversy arose from the order passed by the Labour

Court  which  had  secured  affirmation  from  the  Industrial

Tribunal.  The said orders were challenged by the respondent 36 (1999) 6 SCC 275

26

Page 27

therein by filing a writ petition under Articles 226 and 227 of

the Constitution of India before the High Court.  The Court

adverted to the facts and also the order passed by the learned

Single Judge and in that context ruled:-

“As seen earlier, he was considering the aforesaid writ petition 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  for  the appellant  that  the  learned  Single  Judge  had refused to interfere only under Article 227 of the Constitution of India when he dismissed the writ petition of the respondent.”

Thereafter, the learned Judges referred to the authority

in Umaji Keshao Meshram (supra) and ruled:-

“The aforesaid decision squarely gets attracted on the facts of the present case. It was open to the respondent to 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  conclusion  directly flows from the  relevant averments 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 attracted for preferring appeal against the judgment of the learned Single Judge.”

27

Page 28

22. In  Kishorilal  v.  Sales  Officer,  District  Land

Development Bank and Others37, a recovery proceeding was

initiated  by  the  respondent-Bank  therein  and  the  land

mortgaged to the Bank were sold.  An appeal preferred before

the Joint Registrar, Cooperative Societies was dismissed and a

further  appeal  was  preferred  before  the  Board  of  Revenue

which interfered with the order passed by the Joint Registrar.

The  order  passed  by  the  Board  of  Revenue  was  called  in

question by the District Land Development Bank, which was

allowed by the learned Single Judge.  A letters patent appeal

was  preferred  challenging  the  order  of  the  learned  Single

Judge  which  opined  that  the  order  passed  by  the  learned

Single Judge was not maintainable as he had exercised the

jurisdiction  under  Article  227  of  the  Constitution  of  India.

Dealing with the maintainability of the appeal, the two-Judge

Bench held that:-

“The learned Single Judge of the High Court, in our  opinion,  committed  an  error  in  interfering with the findings of fact arrived at by the Board of Revenue. The Division Bench of the High Court also wrongly dismissed the LPA without noticing that an appeal would be maintainable if the writ petition was filed under Articles 226 and 227 of the  Constitution  of  India  as  was  held  by  this

37 (2006) 7 SCC 496

28

Page 29

Court  in  Sushilabai  Laxminarayan  Mudliyar v. Nihalchand Waghajibhai Shaha38.”

23. In Ashok K. Jha and others v. Garden Silk Mills Ltd.

and  Another39,  as  the  factual  matrix  would  reveal,  the

employees  had  approached  the  Labour  Court  for  certain

reliefs.  The Labour Court on consideration of the facts and

law,  declined  to  grant  the  relief.   Being  dissatisfied,  the

employees and the Union preferred a joint appeal before the

Industrial Court, Surat which set aside the order of the Labour

Court  and  issued  certain  directions  against  the  employer.

The employer called in question the defensibility of the order of

the Industrial Court by filing a Special Civil Application under

Article  226 and 227 of  the  Constitution of  India before  the

High Court of Gujarat.   The learned Single Judge dismissed

the petition.  Being grieved by the aforesaid order, a letters

patent  appeal  was preferred under  clause  15 of  the Letters

Patent.  The Division Bench allowed the appeal and set aside

the judgment and order passed by the learned Single Judge.  A

contention  was  raised  before  this  Court  pertaining  to

maintainability of letters patent appeal under clause 15 of the

Letters  Patent.   R.M.  Lodha,  J.  (as  His  Lordship  then was) 38 1993 Supp (1) SCC 11 39 (2009) 10 SCC 584

29

Page 30

speaking for the Court, referred to the authorities in  Umaji

Keshao  Meshram (supra),  Ratnagiri  Dist.  Central  Coop.

Bank Ltd. v. Dinkar Kashinath Watve40, Ramesh Chandra

Sankla v. Vikram Cement41 and stated thus:-  

“36. If the judgment under appeal falls squarely within four corners of Article 227, it goes without saying  that  intra-court  appeal  from  such judgment  would  not  be  maintainable.  On  the other  hand,  if  the  petitioner  has  invoked  the jurisdiction  of  the  High  Court  for  issuance  of certain writ  under  Article  226, although Article 227  is  also  mentioned,  and  principally  the judgment  appealed  against  falls  under  Article 226, the appeal would be maintainable. What is important to be ascertained is the true nature of order passed by the Single Judge and not what provision  he  mentions  while  exercising  such powers.   

37. We  agree  with  the  view  of  this  Court  in Ramesh Chandra Sankla (supra) that a statement by a learned Single Judge that he has exercised power under Article 227, cannot take away right of  appeal  against  such  judgment  if  power  is otherwise  found  to  have  been  exercised  under Article 226. The vital factor for determination of maintainability  of  the  intra-court  appeal  is  the nature of  jurisdiction invoked by the party and the true nature of principal order passed by the Single Judge.”

24. At this juncture, we think it appropriate to reproduce a

passage from  Ramesh Chandra Sankla (supra) which has

been quoted  in  Ashok Jha (supra).   In  the  said  case,  the

40  (1993) Supp (1) SCC 9 41  (2008) 14 SCC 58

30

Page 31

two-Judge  Bench  while  dealing  with  the  maintainability  of

letters patent appeal under clause 15 of the Letters Patent has

ruled that:-  

“47. In our judgment, the learned counsel for the appellant  is  right  in  submitting  that nomenclature of the proceeding or reference to a particular article of the Constitution is not final or conclusive. He is also right in submitting that an observation by a Single Judge as to how he had dealt with the matter is also not decisive. If it were so,  a  petition  strictly  falling  under  Article 226 simpliciter  can be  disposed of  by  a  Single Judge observing  that  he  is  exercising  power  of superintendence  under  Article  227  of  the Constitution.  Can  such  statement  by  a  Single Judge take away from the party aggrieved a right of appeal against the judgment if  otherwise the petition is under Article 226 of the Constitution and  subject  to  an  intra-court/letters  patent appeal?  The  reply  unquestionably  is  in  the negative….”

25. From  the  aforesaid  pronouncements,  it  is  graphically

clear  that  maintainability  of  a  letters  patent  appeal  would

depend upon the pleadings in the writ petition, the nature and

character of the order passed by the learned Single Judge, the

type of directions issued regard being had to the jurisdictional

perspectives in the constitutional  context.   Barring the civil

court, from which order as held by the three-Judge Bench in

Radhey Shyam (supra) that a writ petition can lie only under

Article 227 of the Constitution, orders from tribunals cannot

31

Page 32

always be regarded for all purposes to be under Article 227 of

the  Constitution.   Whether  the  learned  Single  Judge  has

exercised the jurisdiction under Article 226 or under Article

227  or  both,  needless  to  emphasise,  would  depend  upon

various aspects that have been emphasised in the aforestated

authorities of this Court.  There can be orders passed by the

learned  Single  Judge  which  can  be  construed  as  an  order

under both the articles in a composite manner, for they can

co-exist, coincide and imbricate.  We reiterate it would depend

upon the nature, contour and character of the order and it

will be the obligation of the Division Bench hearing the letters

patent  appeal  to discern and decide whether the order has

been  passed  by  the  learned  Single  Judge  in  exercise  of

jurisdiction under Article 226 or 227 of the Constitution or

both.    The  Division  Bench  would  also  be  required  to

scrutinize whether the facts of the case justify the assertions

made in the petition to invoke the jurisdiction under both the

articles and the relief prayed on that foundation.   Be it stated,

one  of  the  conclusions  recorded  by  the  High  Court  in  the

impugned judgment pertains to demand and payment of court

32

Page 33

fees.  We do not intend to comment on the same as that would

depend upon the rules framed by the High Court.  

26. The next facet pertains to the impleadment of the Court

or tribunal as a party.  The special Bench has held that even if

application is described as one not only under article 226 of

the  Constitution,  but  also  under  article  227,  the  Court  or

tribunal whose order is sought to be quashed, if not arrayed

as a party, the application would not be maintainable as one

of  the  relief  of  certiorari,  in  the  absence  of  the  concerned

tribunal or Court as a party, cannot be granted.  It has also

been held that if the Court or tribunal has not been impleaded

as party-respondent in the main writ petition, then by merely

impleading such Court or tribunal for the first time in letters

patent appeal would not change the nature and character of

the proceeding before the learned Single Judge and, therefore,

intra-court appeal would not be maintainable.   To arrive at

the said conclusion, the High Court has referred to  Messrs.

Ghaio Mal & Sons v.  State of  Delhi  and others42,  Hari

Vishnu Kamath (supra) and relied upon a four-Judge Bench

judgment  in  Udit  Narain  Singh  Malpaharia  v.  Addl.

Member, Board of Revenue43. 42  AIR 1959 SC 65 43  AIR 1963 SC 786

33

Page 34

27. In  Hari Vishnu Kamath (supra), after referring to the

decision in T.C. Basappa (supra) and quoting a passage from

Corpus Juris Secundum, Volume 14 at page 123, which deals

with the nature of certiorari, it has been laid down:-

“11. The  writ  for  quashing  is  thus  directed against a record, and as a record can be brought up only through human agency, it  is  issued to the person or authority whose decision is to be reviewed. If  it is the record of the decision that has to be removed by ‘certiorari’,  then the fact that  the  tribunal  has  become  ‘functus  officio’ subsequent to the decision could have no effect on  the  jurisdiction  of  the  court  to  remove  the record. If it is a question of issuing directions, it is conceivable that there should be in existence a person  or  authority  to  whom  they  could  be issued, and when a ‘certiorari’ other than one to quash the decision is proposed to be issued, the fact that the tribunal has ceased to exist might operate as a bar to its issue. But if the true scope of  ‘certiorari’  to  quash  is  that  it  merely demolishes the offending order,  the presence of the offender before the court, though proper, is not necessary for the exercise of the jurisdiction or to render its determination effective.  

12. Learned  counsel  for  the  first  respondent invites our attention to the form of the ‘order nisi’ in a writ of ‘certiorari’,  and contends that as it requires the court or tribunal whose proceedings are to be reviewed, to transmit the records to the superior court, there is, if the tribunal has ceased to exist, none to whom the writ could be issued and none who could be compelled to produce the record. But then, if the writ is in reality directed against  the  record,  there  is  no  reason  why  it should  not  be  issued  to  whosoever  has  the custody thereof.  The following statement  of  the

34

Page 35

law in  Ferris on the Law of Extraordinary Legal Remedies is apposite:

“The writ is directed to the body or officer whose determination is to be reviewed, or to any other person having the custody of the record or other papers to be certified.””

28. In Ghaio Mal & Sons (supra), the Court found a specific

fact was not brought on record and evasive replies were filed

which  were  wholly  unconvincing.   In  that  context,  the

Constitution  Bench,  speaking  through  S.R.  Das,  C.J.

observed:-

“... It is needless to say that the adoption of such dubious devices is  not  calculated to  produce a favourable impression on the mind of the court as to the good faith of the authorities concerned in the matter. We must also point out that when a superior court issues a rule on an application for certiorari it is incumbent on the inferior court or the quasi-judicial  body,  to whom the rule is addressed, to produce the entire records before the court along with its return. The whole object of a writ of certiorari is to bring up the records of the inferior court or other quasi-judicial body for examination by  the  Superior  Court  so that  the latter may be satisfied that the inferior court or the quasi-judicial body has not gone beyond its jurisdiction  and  has  exercised  its  jurisdiction within the limits fixed by the law. Non-production of the records completely defeats the purpose for which  such  writs  are  issued,  as  it  did  in  the present case before the High Court. We strongly deprecate this attempt on the part of the official respondents to bypass the court.”

35

Page 36

29. In Udit Narain Singh Malpaharia (supra), as the facts

would  demonstrate  the  counsel  for  the  respondent  therein

raised  a  preliminary  objection  that  the  persons  in  whose

favour  the  Board  decided  the  petition  had  not  been  made

parties before the High Court.  Be it noted, in the said case a

country  liquor  shop  was  settled  in  favour  of  the  appellant

therein. After expiry of the said licence, it was renewed in his

favour in 1962 which was called in question by one Phudan

Manjhi before the Deputy Commissioner for substituting his

name in place of his father on the basis of the lot drawn in

favour of his father.  The Deputy Commissioner rejected the

same  which  was  assailed  by  Phudan  Manjhi  before  the

Commissioner of Excise who remanded the case to the Deputy

Commissioner to consider the fitness of Phudan Manjhi to get

the license and to consider his claim on certain parameters.

One  Bhagwan Rajak,  who was not  an applicant  before  the

Deputy  Commissioner,  filed  an  application  before  the

Commissioner  alleging  that  there  should  have  been  fresh

advertisement  for  the  settlement  of  the  shop.   The

Commissioner allowed his application and directed the Deputy

Commissioner to take steps for fresh settlement of the shop in

36

Page 37

accordance with the rules.  The said order was assailed before

the  Board  of  Revenue  which  dismissed  the  petition  and

directed  that  unless  the  Deputy  Commissioner  came  to  a

definite  conclusion  that  Phudan  Manjhi  was  unfit  to  hold

licence, he should be selected as a licensee in accordance with

rules.   As  a  result  of  the  said  proceedings,  the  appellant’s

licence  stood  cancelled  and  the  Deputy  Commissioner  was

directed  to  hold  a  fresh  settlement  giving  preferential

treatment to Phudan Manjhi.   A writ petition was filed under

Article  226  of  the  Constitution  before  the  High  Court  for

quashment of the said orders and before the writ court neither

Phudan  Manjhi  nor  Bhagwan  Rajak  in  whose  favour  the

Board of Revenue had decided was made a party.  During the

pendency  of  an  appeal  before  this  Court,  the  Deputy

Commissioner  had  conducted  an  enquiry  and  come  to  the

conclusion that Phudan Manjhi was not fit to be selected for

grant  of  licence  and  he  was  waiting  for  making  a  fresh

settlement.  In course of hearing of the appeal, a preliminary

objection was raised by the learned counsel for the respondent

that  as  Phudan  Manjhi  and  Bhagwan  Rajak  who  were

necessary parties to the writ petition were not made parties,

37

Page 38

the High Court was justified in dismissing the writ petition in

limini.   This Court accepted the preliminary objection holding

that the law on the subject is well settled that a person who is

a necessary party is one without whom no order can be made

effectively  and  a  proper  party  is  one  in  whose  absence  an

effective order can be made but his presence is necessary for

complete and final decision on the question involved in the

proceeding.  After so stating, the four- Judge Bench proceeded

to deal with the nature of writ of certiorari and reproduced a

passage from King v. Electricity Commissioners44, which is

as follows:-

“8. “....Wherever any body of persons having legal authority  to  determine  questions  affecting  the rights  of  subjects,  and  having  the  duty  to  act judicially,  act  in  excess  of  their  legal  authority they are subject to the controlling jurisdiction of the  King's  Bench  Division  exercised  in  these writs.” Lord  Justice  Slesser  in  King v.  London  County Council45 dissected the concept of judicial act laid down by Atkin, L.J., into the following heads in his judgment: “Wherever any body of persons (1) having legal authority (2) to determine questions affecting  rights  of  subjects  and  (3)  having  the duty  to  act  judicially  (4)  act  in  excess  of  their legal authority — a writ of certiorari may issue.” It will be seen from the ingredients of judicial act that  there  must  be  a  duty  to  act  judicially.  A tribunal,  therefore,  exercising  a  judicial  or

44  1924 1 KB 45 (1931) 2 KB 215, (243)

38

Page 39

quasi-judicial  act  cannot  decide  against  the rights of a party without giving him a hearing or an  opportunity  to  represent  his  case  in  the manner  known  to  law.  If  the  provisions  of  a particular  statute  or  rules made thereunder  do not  provide  for  it,  principles  of  natural  justice demand it. Any such order made without hearing the affected parties would be void. As a writ of certiorari will be granted to remove the record of proceedings  of  an inferior  tribunal  or  authority exercising  judicial  or  quasi-judicial  acts,  ex hypothhesi it  follows  that  the  High  Court  in exercising its jurisdiction shall also act judicially in  disposing  of  the  proceedings  before  it.  It  is implicit in such a proceeding that a tribunal or authority  which  is  directed  to  transmit  the records must be a party in the writ proceedings, for,  without  giving  notice  to  it,  the  record  of proceedings cannot be brought to the High Court. It is said that in an appeal against the decree of a subordinate  court,  the  court  that  passed  the decree need not be made a party and on the same parity of reasoning it is contended that a tribunal need  not  also  be  made  a  party  in  a  writ proceeding. But there is an essential distinction between  an  appeal  against  a  decree  of  a subordinate  court  and  a  writ  of  certiorari  to quash the order of a tribunal or authority: in the former,  the  proceedings  are  regulated  by  the Code of Civil Procedure and the court making the order  is  directly  subordinate  to  the  appellate court  and  ordinarily  acts  within  its  bounds, though sometimes wrongly or even illegally, but in the  case  of  the  latter,  a  writ  of  certiorari  is issued to quash the order of a tribunal which is ordinarily  outside  the  appellate  or  revisional jurisdiction of the court and the order is set aside on  the  ground  that  the  tribunal  or  authority acted without or in excess of jurisdiction. If such a tribunal or authority is not made party to the writ,  it  can easily  ignore the  order  of  the High Court quashing its order, for, not being a party, it

39

Page 40

will  not  be  liable  to  contempt.  In  these circumstances whoever else is a necessary party or  not  the  authority  or  tribunal  is  certainly  a necessary  party  to  such  a  proceeding.  In  this case,  the  Board  of  Revenue  and  the Commissioner of Excise were rightly made parties in the writ petition.”

Thereafter, the Court proceeded to lay down thus:-

“9. The  next  question  is  whether  the  parties whose  rights  are  directly  affected  are  the necessary parties to a writ petition to quash the order of a tribunal. As we have seen, a tribunal or authority performs a judicial or quasi-judicial act after hearing parties. Its order affects the right or rights of one or the other of the parties before it. In a writ of certiorari the defeated party seeks for the quashing of the order issued by the tribunal in favour of  the successful  party.  How can the High  Court  vacate  the  said  order  without  the successful  party  being  before  it?  Without  the presence of the successful party the High Court cannot  issue  a  substantial  order  affecting  his right. Any order that may be issued behind the back of such a party can be ignored by the said party,  with  the  result  that  the  tribunal's  order would be  quashed but the right  vested in  that party by the wrong order of the tribunal would continue to be effective. Such a party, therefore, is a necessary party and a petition filed for the issue of a writ of certiorari without making him a party or without impleading him subsequently, if allowed  by  the  court,  would  certainly  be incompetent. A party whose interests are directly affected is, therefore, a necessary party.

10. In addition, there may be parties who may be described as proper parties, that is parties whose presence is not necessary for making an effective order,  but  whose  presence  may  facilitate  the settling of all the questions that may be involved

40

Page 41

in the controversy. The question of making such a person as a party to a writ proceeding depends upon the judicial discretion of the High Court in the circumstances of each case. Either one of the parties  to  the  proceeding  may  apply  for  the impleading of such a parry or such a party may suo motu approach the court for being impleaded therein.”

After  so  stating,  the  four-Judge  Bench  referred  to

English practice as recorded in  Halsbury’s Laws of England,

Vol.  11,  3rd Edn.  (Lord  Simonds’) and  a  Division  Bench

judgment of  the Bombay High Court in  Ahmedalli v. M.D.

Lalkaka46 and a Full Bench decision of Nagpur High Court in

Kanglu Baula v. Chief Executive Officer47 and summarized

thus:  

“To summarise: in a writ of certiorari not only the tribunal or authority whose order is sought to be quashed but also parties in whose favour the said order is issued are necessary parties. But it is in the  discretion  of  the  court  to  add  or  implead proper  parties  for  completely  settling  all  the questions that may be involved in the controversy either suo motu or on the application of a party to the writ or an application filed at the instance of such proper party.”

30. The  High  Court,  as  we  find,  relied  on  the  aforesaid

decision  to  form  the  foundation  that  unless  a  Court  or  a

tribunal is made a party, the proceeding is not maintainable.

What has been stated in Hari Vishnu Kamath (supra), which 46  AIR 1954 Bom 33, 34 47  AIR 1955 Nag. 49

41

Page 42

we have reproduced hereinbefore is that where plain question

on issuing directions arises, it is conceivable that there should

be in existence a person or authority to whom such directions

could  be  issued.   The  suggestion  that  non-existence  of  a

tribunal might operate as a bar to issue such directions is not

correct  as  the  true  scope  of  certiorari  is  that  it  merely

demolishes the offending order and hence, the presence of the

offender before the Court, though proper is not necessary for

the exercise of the jurisdiction or to render its determination

effective.  

31. In  Udit  Narain  Singh (supra),  the  fulcrum  of  the

controversy  was  non-impleadment  of  the  persons  in  whose

favour the Board of Revenue had passed a favourable order.

There  was  violation  of  fundamental  principles  of  natural

justice.  A party cannot be visited with any kind of adverse

order in a proceeding without he being arrayed as a party.  As

we  understand  in  Hari  Vishnu  Kamath (supra),  the

seven-Judge  Bench  opined  that  for  issuance  of  writ  of

certiorari, a tribunal, for issue of purpose of calling of record,

is a proper party, and even if the tribunal has ceased to exist,

there would be some one incharge of the tribunal from whom

42

Page 43

the records can be requisitioned and who is bound in law to

send the records.  The larger Bench has clearly stated that

while issuing a writ of certiorari, the Court merely demolishes

the defending order, the presence of the offender before the

Court  though  proper  but  is  not  necessary  for  exercise  of

jurisdiction.  The said finding was recorded in the context of a

tribunal.   

32. In this context, we may profitably refer to the decision in

Savitri Devi (supra) wherein a three-Judge Bench, though in

a different context, had observed thus:-

“Before parting with this case, it is necessary for us to point out one aspect of the matter which is rather disturbing. In the writ petition filed in the High Court as well as the special leave petition filed in this Court, the District Judge, Gorakhpur and  the  4th  Additional  Civil  Judge  (Junior Division),  Gorakhpur are shown as respondents and in the special leave petition, they are shown as  contesting  respondents.  There  was  no necessity for impleading the judicial officers who disposed of the matter in a civil proceeding when the writ petition was filed in the High Court; nor is there any justification for impleading them as parties  in  the  special  leave  petition  and describing  them as  contesting  respondents.  We do  not  approve  of  the  course  adopted  by  the petitioner  which  would  cause  unnecessary disturbance  to  the  functions  of  the  judicial officers  concerned.  They  cannot  be  in  any  way equated to the officials of the Government. It is high time that the practice of impleading judicial officers disposing of civil  proceedings as parties

43

Page 44

to  writ  petitions  under  Article  226  of  the Constitution  of  India  or  special  leave  petitions under Article 136 of the Constitution of India was stopped.  We  are  strongly  deprecating  such  a practice.”

33. The High Court after referring to the controversy involved

in  Savitri Devi (supra) has opined thus:-

“In our opinion, the observations of the Supreme Court  pertained  to  the  judicial  officers  being made  parties  in  the  proceedings  as  against  a person, authority or a State being made a party in a petition under Article 226 and a Court or a Tribunal not being so required in a petition under Article 227 of the Constitution of India.”

After so stating, the High Court has proceeded to express

the  view  that  it  is  not  a  binding  precedent  and  thereafter

opined:-

“We  are  of  the  opinion  that  although  in  Hari Vishnu Kamath (supra), the Supreme Court may have observed that the presence of the Tribunal would be proper yet may not be necessary for the exercise  of  the  jurisdiction  or  to  render  its determination effective, but the said principle has been more elaborately explained and made clear by  the  Supreme  Court  in  Udit  Narain (supra) laying  down  as  an  absolute  proposition  of  law that no writ could be issued under Article 226 of the  Constitution  without  the  Tribunal,  whose order is sought to be impugned, is made a party respondent.”

34. As  we  notice,  the  decisions  rendered  in  Hari  Vishnu

Kamath (supra),  Udit  Narain  Singh  (supra)  and  Savitri

44

Page 45

Devi (supra) have to be properly understood.  In Hari Vishnu

Kamath (supra),  the larger Bench was dealing with a case

that arose from Election Tribunal which had ceased to exist

and expressed the  view how it  is  a proper  party.   In  Udit

Narain Singh (supra), the Court was really dwelling upon the

controversy  with  regard  to  the  impleadment  of  parties  in

whose  favour  orders  had  been  passed  and  in  that  context

observed that tribunal is a necessary party.   In Savitri Devi

(supra),  the  Court  took  exception  to  courts  and  tribunals

being  made  parties.   It  is  apposite  to  note  here  that

propositions laid down in each case has to be understood in

proper  perspective.   Civil  courts,  which decide matters,  are

courts in the strictest sense of the term.  Neither the court nor

the  Presiding  Officer  defends  the  order  before  the  superior

court it does not contest.  If the High Court, in exercise of its

writ jurisdiction or revisional jurisdiction, as the case may be,

calls for the records, the same can always be called for by the

High court without the Court or the Presiding Officer being

impleaded  as  a  party.   Similarly,  with  the  passage  of  time

there have been many a tribunal which only adjudicate and

they  have  nothing  to  do  with  the  lis.   We  may  cite  few

45

Page 46

examples; the tribunals constituted under the Administrative

Tribunals  Act,  1985,  the  Custom,  Excise  &  Service  Tax

Appellate Tribunal, the Income Tax Appellate Tribunals, the

Sales  Tax  Tribunal  and  such  others.   Every  adjudicating

authority may be nomenclatured as a tribunal but the said

authority(ies) are different that pure and simple adjudicating

authorities and that is why they are called the authorities.  An

Income Tax Commissioner, whatever rank he may be holding,

when he adjudicates, he has to be made a party, for he can

defend his order.  He is entitled to contest.  There are many

authorities under many a statute.  Therefore, the proposition

that  can safely  be culled out  is  that  the  authorities  or  the

tribunals, who in law are entitled to defend the orders passed

by them, are necessary parties and if they are not arrayed as

parties, the writ petition can be treated to be not maintainable

or the court may grant liberty to implead them as parties in

exercise of its discretion.  There are tribunals which are not at

all required to defend their own order, and in that case such

tribunals  need  not  be  arrayed  as  parties.  To  give  another

example:- in certain enactments, the District Judges function

as Election Tribunals from whose orders a revision or a writ

46

Page 47

may lie depending upon the provisions in the Act.   In such a

situation, the superior court, that is the High Court, even if

required to call for the records, the District Judge need not be

a party.   Thus, in essence, when a tribunal or authority is

required to  defend its  own order,  it  is  to  be  made a  party

failing which the proceeding before the High Court would be

regarded as not maintainable.   

35. We have stated in the beginning that three issues arise

despite  the  High  Court  framing  number  of  issues  and

answering it at various levels.  It is to be borne in mind how

the  jurisdiction  under  the  letters  patent  appeal  is  to  be

exercised cannot exhaustively be stated.  It will depend upon

the  Bench  adjudicating  the  lis  how  it  understands  and

appreciates  the  order  passed  by  the  learned  Single  Judge.

There  cannot  be  a  straight-jacket  formula  for  the  same.

Needless to say, the High Court while exercising jurisdiction

under Article 227 of the Constitution has to be guided by the

parameters  laid  down  by  this  Court  and  some  of  the

judgments  that  have  been  referred  to  in  Radhey  Shyam

(supra).

47

Page 48

36. In  view  of  the  aforesaid  analysis,  we  proceed  to

summarise our conclusions as follows:-

(A) Whether  a  letters  patent  appeal  would  lie  against  the

order  passed  by  the  learned  Single  Judge  that  has

travelled to him from the other tribunals or authorities,

would depend upon many a facet.  The Court fee payable

on a petition to make it under Article 226 or Article 227

or  both,  would  depend  upon  the  rules  framed  by  the

High Court.

(B) The order passed by the civil court is only amenable to

be  scrutinized  by  the  High  Court  in  exercise  of

jurisdiction under Article 227 of the Constitution of India

which is  different  from Article  226 of  the Constitution

and  as  per  the  pronouncement  in  Radhey  Shyam

(supra), no writ can be issued against the order passed

by the civil court and, therefore, no letters patent appeal

would be maintainable.  

(C) The writ petition can be held to be not maintainable if a

tribunal  or  authority  that  is  required  to  defend  the

impugned order has not been arrayed as a party, as it is

a necessary party.

48

Page 49

(D) Tribunal being or not being party in a writ petition is not

determinative  of  the maintainability  of  a letters  patent

appeal.  

37. Having recorded our conclusions in seriatim, we think it

appropriate that the matters should be remanded to the High

Court to be heard by the Division Bench in accordance with

the principles laid down in this judgment and accordingly we

so direct.  Resultantly, with the modifications in the order of

the High Court, the appeals stand disposed of.  There shall be

no order as to costs.

..................................J.    [Dipak Misra]

................................. J.            [Adarsh Kumar Goel]

New Delhi July 6, 2015  

49