Punjab-Haryana High Court
District Development And Panchayat ... vs Jagdish Singh on 2 December, 1997
Equivalent citations: AIR1998P&H179, (1998)118PLR383, AIR 1998 PUNJAB AND HARYANA 179, (1998) 118 PUN LR 383, (1998) ILR 1 P&H 441, (1998) 1 RECCIVR 432
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S. Aggarwal, J.
1. The learned single Judge of this Court on 7-3-1996 directed the Registry of this Court to place the matter before Hon'ble the Chief Justice for placing the same before the appropriate committee constituted for framing the rules forthwith so that necessary amendments can be made in the High Court Rules relating to writ proceedings and further directed that in the meantime whenever notice or rule nisi is issued to quasi-judicial authorities a positive direction should be sent therein to produce the original record before the High Court on receipt of the notice of rule nisi.
2. A few relevant facts would spell out the grievance of the appellant-Distt. Development and Panchayat Officer, Ferozepur. One Jagdish Singh had filed a writ petition for issuing a writ of certiorari for quashing the order of Distt. Development and Panchayat Officer dated 9-10-1981. The details of the contents of the petition are not material for disposal of the present appeal. When the matter was listed for hearing before the learned single Judge of this Court, it was noted that in number of writ petitions certiorari jurisdiction of this Court is being invoked. Under Article 226 of the Constitution of India, the orders sought to be quashed were of quasi-judicial functionaries like Industrial Tribunal, Labour Court etc. The petitions were filed for quashing the orders so passed but the records of the quasi-judicial authorities had not been called. Explanation of the Registry had been called to explain the reasons for not calling for the records from the quasi-judicial authorities. It was pointed out that there are no rules calling for the records from the Tribunal. Therefore, the learned single Judge examined the issue and held that quasi-judicial authorities are impleaded in the proceedings for issuing a writ of certiorari only for purpose of production of the record. They are necessary and proper parties to be impleaded for purpose of bringing the records to examine the legality and validity of the proceedings of the inferior Tribunal. It is necessary that the moment rule nisi is issued, the record must be summoned so that the High Court can examine the record or see that proceedings before the Tribunal had been properly dealt with. The said order is being challenged in appeal. The State points out the administrative difficulties and also points out that if such a direction is issued, it will result in a large number of records and files in the High Court. It will involve financial implications also.
3. Learned counsel appearing on behalf of the appellant urged that whenever the Court so directs, the records of the quasi-judicial authorities are produced. There has never been any default but a direction to the effect that immediately when rule nisi is issued, the Registry should summon the records, would not be proper and that direction, therefore, should be modified.
4. We know the concept of writ of certiorari borrowed from Anglo Sexon system. In the King v. Electricity Commissioners, (1924) I KB 171 Lord Atkin had expressed the same in the following words :--
"Both writs are of great antiquity, forming part of the process by which the King's Courts restrained Courts of inferior jurisdiction from exceeding their powers. Prohibition restrains the tribunal from proceeding further in excess of jurisdiction; certiorari requires the record or the order of the Court to be sent up to the King's Bench Division, to have its legality inquired into, and, if necessary, to have the order quashed."
The Privy Council in the case Ryots' of Garabandho Villages v. Zamindar of Parlakimedi, AIR 1943 PC 164 referred to the writ of certiorari borrowed from England and approved that writ is issued to correct executive acts which may not be within the relevant parameters. The superior Courts had superintending authority over the inferior quasi-judicial authorities. It can examine the record and issue the writ of certiorari. Lord Viscount Simon held :--
"The ancient writ of certiorari in England is an original writ which may issue out of a superior Court requiring that the record of the proceedings in some cause or matter pending before an inferior Court should be transmitted into the superior Court to be there dealt with. The writ is so named because, in its original Latin form, it required that the King should "be certified" of the proceedings to be investigated, and the object is to secure by the exercise of the authority of a superior Court, that the jurisdiction of the inferior tribunal should be properly exercised. This writ does not issue to correct purely executive acts, but, on the other hand, its application is not narrowly limited to inferior 'Courts' in the strictest sense. Broadly speaking, it may be said that if the act done by the inferior body is a judicial act, as distinguished from being a ministerial act, certiorari will lie. The remedy, in point of principle, is derived from the superintending authority which the Sovereign's Superior Courts, and in particular the Court of King's Bench, possess and exercise over inferior jurisdictions. This principle has been transplanted to other parts of the King's dominions, and operates, within certain limits in British India."
The Supreme Court in one of the earlier decisions in the case of T. C. Basappa v. T. Nagappa, AIR 1954 SC 440 also referred with approval to the observations made by the Privy Council in the case of Ryots of Garabandho Villages (supra) and held:-- -
"As is well known, the issue of the prerogative writs, within which 'certiorari' is included, had their origin in England in the King's prerogative power of superintendence over the due observance of law by his officials and Tribunals. The writ of 'certiorari' is so named because in its original form it required that the King should be "certified of the proceedings to be investigated and the object was to secure by the authority of a superior Court, that the jurisdiction of the inferior Tribunal should be properly exercised, vide --'Ryots of Garabandho v. Zamindar of Parlakimedi', AIR 1943 PC 164 at p. 178(A). These principles were transplanted to other parts of the King's dominions."
But subsequently went on to hold that since there is an express provision in the Constitution, the High Court and the Supreme Court need not look into the earlier history of writ petitions under the English Law. In appropriate cases writ of certiorari can be issued keeping in view the broad and fundamental principles that regulates the exercise of jurisdiction in grant of such writs. In other words, that English law has not to be followed in its letter and spirit. In paragraph 6 it was held :--
"(6) The language used in Articles 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders, writs or directions including writs in the nature of 'habeas corpus, mandamus, quo warranto, prohibition and certiorari' as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well. In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of 'certiorari' in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law."
The said question had further been considered by the single Judge of Pepsu High Court in the case Firm Ram Chand Chiranji Lal v. The Appellate Authority, District (Deputy Commissioner), Bhatinda, AIR 1954 Pepsu 76. in the cited case a writ petition had been filed for certiorari under Article 226 of the Constitution of India. The said petition had been admitted. Subsequently, an application was filed for summoning the records of the Deputy Commissioner. The same was disallowed. Chief Justice of Pepsu High Court subsequently while hearing the main petition held :--
"In fact my opinion is that in application for a writ of certiorari it is ordinarily necessary that the record of the proceedings of the lower Court or the inferior officer, as the case may be, should be sent for and this is implied in the very nature of the writ."
The said view point that record must always be sent had been considered by the Full Bench of Travancore High Court in the case P. Joseph John v. The State, AIR 1953 Tra-Co. 363. In the cited case an application was presented in the original petition directing the State to produce the documents. The documents were not produced. The full Bench held that rules had not been framed by the High Court as regards the procedure applicable to original petitions. In the absence of such rules, it cannot be regarded that respondent was at fault. The proper return in order of issuing notice was held to be that the records must be submitted. Reliance strongly was being placed by the defending counsel on the observations of the Supreme Court in the case Messrs. Ghaio Mal & Sons v. State of Delhi, AIR 1959 SC 65. To appreciate the findings of the Supreme Court, reference can well be made to the facts of that case. In the cited case a writ petition had been filed. It was followed by an application. The High Court had directed :--
"Let the order rejecting the petitioners' application be brought to Court by an officer or official of the department concerned."
The record was not produced. Serious exception in this regard was taken and the Supreme Court in paragraph 6 held :--
"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 bye-pass the Court. We are bound to observe that the facts appearing on the records before us disclose a state of affairs which does not reflect any credit on the administration of the erstwhile State of Delhi. We must, however, say, in fairness to the learned Solicitor General, that he promptly produced the entire records before us during the hearing of this appeal."
A Division Bench of this Court in the case of Kans Raj Nathu Ram v. Deputy Excise and Taxation Commissioner Jullundur, AIR 1965 Punjab 284 had also the occasion to deal with the same question. The statement of facts reveal that this Court had directed the department a number of times to produce the record. The same was not produced. Relying on the case of Messrs Ghaio Mal & Sons (supra), it was held :--
"Without repeating what the learned Chief Justice of India observed in M/s. Ghaio Mal and Sons v. State of Delhi, AIR 1959 SC 65, we would only record that this Court is not impressed by the efficiency of this department in dealing with the production of the record in the case in hand. The full record should have been produced or made available to the Court initially with the return or at least on subsequent dates of hearing; they were, however, not produced in spite of specific orders till today. We have also before us affidavits from the Deputy Excise and Taxation Commissioner, the Assistant District Attorney, Excise and Taxation Commissioner's Office, Punjab Patiala, and the Excise and Taxation Officer, Gurdaspur. Almost all of them, so far as relevant to the non-production of the record, betray an attitude on the part of the officers which this Court is unable to appreciate; it is an attitude of indifference towards this Court's orders and discloses absence of requisite anxiety to comply with them with due promptitude and sense of responsibility. It may be recalled that on 21-7-1964 this Court had expressly suggested that, if necessary, a special messenger be sent to get the relevant records. Why this was not done is not explained."
Lastly, we will refer to the Full Bench decision of the Delhi High Court at Simla in the case Suraj Parkash v. State of Punjab, AIR 1968 Delhi 30. The Full Bench held :--
"This unfortunate situation seems to reflect inexcusable inefficiency and incompetence on the pan of those entrusted with the custody of these important official records. The indifference shown by the authorities concerned towards the proper preservation and safe custody of these records, in respect of which the Government's department is answerable to this Court under the Constitution, so far as its quasi-judicial functions are concerned, cannot but be deplored by this Court. It betrays ignorance of the law laid down by the Supreme Court in Ghaio Mal and Sons v. State of Delhi, AIR 1959 SC 65, that when a superior Court issues a rule on the application for certiorari, it is incumbent on the body exercising quasi-judicial function, to whom the rule is addressed, to produce the entire relevant record before the Court along with its return."
5. Having referred to some of the precedents, we can easily draw the necessary conclusion. The writ of certiorari is like the writ of prohibition. It is a judicial writ of antiquity. The superior Courts exercise control over the inferiror Courts of jurisdiction. It is intended to bring before the Court the record of. proceedings of inferior Courts and to quash them if the inferior Courts had acted in excess of the jurisdiction. The meaning of the certiorari for purposes of our Constitution that broad proposition should be taken to be the same as under the English law. As already referred to above, so long as we keep the Broad principles of the English law in view, there need not be a strict compliance of the same. The Supreme Court considered it in the case Dwarka Nath v. Income-tax Officer, Special Circle, D Ward, Kanpur, AIR 1966 SC 81. The Supreme Court held that the High Courts can issue the writs as understood in English but the High Courts can mould the reliefs to meet the peculiar and complicated requirements of our own country. It was observed :--
"This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice whereever it is found. The Constitution designedly used a wide language in describing the nature of the power, the.purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years ir comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself. To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the article and other may be evolved to direct the article through defined channels."
In other words, it is not absolutely necessary whenever a writ of certiorari is issued, the records must be summoned.
6. In this regard, therefore, we can travel back to the High Court Rules & Orders, Volume 5 which deals with such situations. Under Volume 5, Chapter 4, Part F of the High Court Rules and Orders, the rules have been framed relating to proceedings under Article 226 of the Constitution. Rules 22 and 29 are relevant because they refer to petitions and written statements along with annexures thereto. They are being reproduced below for the sake of facility :--
"22. Petition and annexures thereto.-- (1) Every petition shall be accompanied by --
(i) Such documents on which the petitioner relies or their certified or photostat copies or copies attested either by the petitioner's counsel or sworn to by the petitioner to be true copies of the originals and where such documents happen to be in a language other than English, their translations certified by counsel to be correct; and
(ii) a correct copy meant for the use of the Court type written (first carbon impression), cyclo-styled or printed, of the petition and the annexures thereto.
(2) Every document shall bear an annexure mark on the right hand top corner of its opening sheet. Each annexure mark shall consist of the letter 'P' followed by the serial number of the documents; for example, p1. p2, p3.
(3) Every petition and the copies of translations attached thereto shall be type written, cyclostyled or printed in double space on one petition paper demi fool scap size with quarter margin.
29. Written statement or return.-- A written statement or a return to the petition answering each paragraph of the petition separately shall be filed in the office and a copy delivered to the petitioner or his counsel three days before the date fixed for hearing and the matter will be heard and disposed of on the date fixed notwithstanding the fact that the same has been filed or not.
(2) The provisions of Rules 20 and 22 and of order VIII of the Code of Civil Procedure, 1908, shall apply mutatis mutandis to written statements and returns.
(3) Every document accompanying a written statement or return shall bear an annexure mark on the right hand top corner of its opening sheet. Each annexure mark shall consist of the letter 'R' followed by the serial number of the document; for example Rule 1, Rule 2, Rule 3."
It is abundantly clear from perusal of these rules that whenever a petition is to be filed, certified, photostat or attested copies by the petitioner's counsel or respondent's counsel have to be appended with the petition or the written statement. In other words, the copies of the records are available for adjudication of the rights. If incorrect copies are submitted, necessarily objection would be taken and, therefore, little difficulty would be felt in deciding of those writ petitions for quashing the orders of the quasi-judicial authorities. Once such is the position and the facts are not in controversy, it becomes unnecessary that the records must be submitted whenever rule nisi is issued. We find ourselves difficult to subscribe the view of the Full Bench of Travancore High Court in the case P. Joseph John, (AIR 1953 Trav Co 363) (supra) that such record must be submitted immediately. The High Court Rules framed therein takes care of that situation. In all other cases as already referred to above including in the case of Messrs, Ghaio Mal & Sons (AIR 1959 SC 65) (supra), the Supreme Court and in the subsequent decisions from different High Courts referred to above, strong exception was taken when in a pending writ petition despite the order of the Court when record was not produced, serious exception was taken. Indeed there can be no two opinions that when the Court so directs or feel the necessity, original records must be made available.
7. Not only that many writ petitions are filed for guashing the orders of the inferior tribunals where a pure question of law has to be determined. There is no controversy of facts. We feel that it will be totally unnecessary in such like cases to call for the records, particularly as noticed by the learned single Judge when petition was coming up for hearing after many years. In some cases this may tantamount to staying the proceedings even when the Court had not so directed, if the records are summoned automatically. We, therefore, hold that unless the Bench while issuing the rule nisi direct that record should be produced and summoned, there is no necessity for summoning the record automatically. To that extent, therefore, the order of the learned single Judge is modified.
8. For these reasons, we allow the appeal and modify the order of the learned single Judge in the terms stated above.