Kerala High Court
Madhyamam Broadcasting Limited vs Asianet Satellite Communications Ltd on 30 January, 2013
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY, THE 4TH DAY OF DECEMBER 2017/13TH AGRAHAYANA, 1939
OP(C).No. 3281 of 2017 (O)
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ORDER DT.1.11.2017 IN B.P.No.433 OF 2017 OF TDSAT, NEW DELHI.
PETITIONER/PETITIONER:
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MADHYAMAM BROADCASTING LIMITED,
HAVING ITS REGISTERED OFFICE AT,15/594C,
VELLIPARAMBA P.O., KOZHIKODE,
KERALA-673008, REPRESENTED BY ITS DEPUTY CEO, SAJID M.
BY ADVS. SRI.T.A.SHAJI (SR.)
SRI.RENJITH B.MARAR
SMT.LAKSHMI.N.KAIMAL
SMT.RESHMI JACOB
SRI.P.S.SYAMKUTTAN
SRI.R.ANAS MUHAMMED SHAMNAD
SRI.P.VISHNU (PAZHANGANAT)
RESPONDENTS/RESPONDENTS:
---------------------------------------------
1. ASIANET SATELLITE COMMUNICATIONS LTD,
REPRESENTED BY ITS MANAGING DIRECTOR,
REGISTERED OFFICE 2A, SECOND FLOOR, LEELA INFO PARK,
TECHNO PARK, KAZHAKKOOTTAM, KARYAVATTOM P.O.,
TRIVANDRUM-695581, KERALA.
2. ASIANET DIGITAL CABLE PVT. LTD.,
REPRESENTED BY ITS MANAGING DIRECTOR,
REGISTERED OFFICE 2A, SECOND FLOOR,
LEELA INFO PARK, TECHNO PARK, KAZHAKKOOTTAM,
KARYAVATTOM P.O., TRIVANDRUM-695 581, KERALA.
3. TELECOM REGULATORY AUTHORITY OF INDIA,
REPRESENTED BY ITS REGISTRAR,
MAHANAGAR DOORSANCHAR BHAWAN,
JAWAHARLAL NEHRU MARG, NEW DELHI-110002.
R1 & R2 BY SRI.SAJI VARGHESE
THIS OP (CIVIL) HAVING COME FOR ADMISSION ON 04-12-2017, ALONG
WITH OP(C)No.3301/2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C).No. 3281 of 2017 (O)
-------------------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 - A COPY OF CARRIAGE AGREEMENT DATED 30/01/2013.
EXHIBIT P2 - A COPY OF CARRIAGE AGREEMENT DATED 26/03/2015.
EXHIBIT P3 - TRUE COPY OF THE AGREEMENT BETWEEN RESPONDENT NO.1 AND
KERALA KAUMUDI DATED 25/04/2013.
EXHIBIT P4 - TRUE COPY OF THE AGREEMENT BETWEEN RESPONDENT NO.1 AND
KERALA KAUMUDI DATED 05/08/2015.
EXHIBIT P5 - TRUE COPY OF THE AGREEMENT BETWEEN RESPONDENT NO.1 AND
INDO ASIAN NEWS CHANNEL LTD. DATED 28/06/2011.
EXHIBIT P6 - TRUE COPY OF THE AGREEMENT BETWEEN RESPONDENT NO.1 AND
JEEVAN TV DATED 01/02/2014.
EXHIBIT P7 - TRUE COPY OF THE AGREEMENT BETWEEN RESPONDENT NO.1 AND
JEEVAN TV DATED 28/07/2015.
EXHIBIT P8 - TYPED COPY OF THE AGREEMENT BETWEEN RESPONDENT NO.1 AND
GN INFORMEDIA DATED 28/02/2017.
EXHIBIT P9 - A TYPED COPY OF THE RIO PUBLISHED BY THE RESPONDENT NO.1 IN
TERMS OF THE 2017 REGULATIONS WHICH COME INTO EFFECT FROM
01/08/2017.
EXHIBIT P10- A COPY OF EMAIL DATED 16/01/2017 AND 27/02/2017 SENT BY THE
RESPONDENT TO THE PETITIONER.
EXHIBIT P11- A COPY OF EMAILS DATED 20/04/2017 SENT BY THE PETITIONER TO
THE RESPONDENT.
EXHIBIT P12- A PROOF OF PAYMENT DATED 17/03/2017.
EXHIBIT P13- A COPY OF EMAIL DATED 23/04/2017 SENT BY THE RESPONDENT TO
THE PETITIONER.
EXHIBIT P14- A COPY OF EMAIL DATED 10/07/2017 SENT BY THE RESPONDENT TO
THE PETITIONER.
EXHIBIT P15- ACOPY OF EMAIL DATED 10/07/2017 SENT BY THE PETITIONER TO THE
RESPONDENT.
EXHIBIT P16- A COPY OF THE LETTER DATED 12/06/2017.
EXHIBIT P17- A COPY OF THE LETTER DATED 18/07/2017 SENT BY THE
RESPONDENT TO THE PETITIONER.
EXHIBIT P18- A COPY OF LETTER DATED 14/08/2017 SENT BY THE PETITIONER TO
TRAI.
EXHIBIT P19- A COPY OF EMAIL DATED 18/09/2017 SENT BY THE RESPONDENT TO
THE PETITIONER.
OP(C).No. 3281 of 2017 (O) 2
-------------------------------------
EXHIBIT P20- ACOPY OF EMAIL DATED 23/09/2017 SENT BY THE PETITIONER TO THE
RESPONDENT.
EXHIBIT P21- A COPY OF EMAIL DATED 05/10/2017 SENT BY THE RESPONDENT TO
THE PETITIONER.
EXHIBIT P22- ATRUE COPY O F THE RIO SENT BY THE RESPONDENT NO.1 BY EMAIL
TO THE PETITIONER ALONG WITH EXHIBIT P21 LETTER DATED
05/10/2017.
EXHIBIT P23- TYPED COPY OF RIO.
EXHIBIT P24- A TYPED COPY OF RIO PUBLISHED BY THE RESPONDENT PUBLISHING
RATE FOR CARRIAGE AT RS.8.50 PER SUBSCRIBER PER MONTH.
EXHIBIT P25- A COPY OF ORDER DATED 18/07/2017 PASSED BY BP NO.289 OF 2017.
EXHIBIT P26- A COPY OF ORDER DATED 09/10/2017 PASSED BY THE SUPREME
COURT IN CA.NO.10422.
EXHIBIT P27- COPY OF DISCONNECTION NOTICE DATED 20/10/2017 PUBLISHED BY
THE RESPONDENT IN MATHRUBHUMI NEWS DAILY.
EXHIBIT P28- ATRUE COPY OF B.P.433/2017 FILED BY THE PETITIONER BEFORE THE
LEARNED TELECOM DISPUTES SETTLEMENT AND APPELLATE
TRIBUNAL.
EXHIBIT P29- TRUE COPY OF THE ORDER DATED 01/11/2017 IN B.P.433/2017.
RESPONDENT'S EXTS: NIL
TRUE COPY
P.S.TO JUDGE
dsn
ANIL K. NARENDRAN, J
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O.P.(C)Nos.3281 & 3301 of 2017
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Dated this the 4th day of December, 2017
JUDGMENT
O.P.(C)No.3281 of 2017:- The petitioner who has approached the Telecom Disputes Settlement and Appellate Tribunal, New Delhi (for brevity 'TDSAT') in a Broadcasting Petition, i.e., B.P.No.433 of 2017 filed under Sections 14 and 14A of the Telecom Regulatory Authority of India Act, 1997 (for brevity 'TRAI Act') seeking an order to quash Ext.P27 disconnection notice dated 20.10.2017 issued by the first respondent herein and to direct the said respondent to renew/enter into a carriage agreement with the petitioner at non-discriminatory, uniform and reasonable rate, in terms of Regulation 3(10) and 3(12) of the Telecommunication (Broadcasting and Cable Service) Interconnection (Digital Addressable Cable Televisions Systems) Regulations, 2012. The petitioner has sought for other consequential reliefs, which includes a declaration that the Reference Interconnect Offer for channel carriage (for brevity, 'RIO') published by the first respondent is a sham document, intended as a tool to coerce the broadcasters to enter into and agree to high and exorbitant carriage fee; and a permanent injunction restraining the said respondent not to disconnect the signals of the petitioner's TV channel.
O.P.(C)Nos.3281 & 3301 of 2017 -2-
2. In B.P.No.433 of 2017, the petitioner sought for an interim injunction restraining the first respondent from disconnecting the signals of its TV channel and an order directing the said respondent to negotiate and enter into a uniform and non-discriminatory carriage agreement with the petitioner. On 1.11.2017, the TDSAT considered the interim reliefs sought for in B.P.No.433 of 2017 with notice to the respondents, who entered appearance on advance notice, and passed Ext.P29 order. The relevant paragraphs of Ext.P29 order read thus;
"The challenge to RIO will have to be considered at the stage of final hearing after the pleadings are complete. However, for the present, the petitioner has to clear the arrears at once or within a reasonable time if it wants to enjoy interim protection. Further, the regulations require the parties to have a written agreement. Hence, the petitioner has to agree for an agreement either on the basis of earlier one which was valid till January 2017 or on RIO basis. Since the terms of RIO are under challenge, it appears that petitioner does not have much option but to continue on the same terms which it was enjoying under the previous agreement.
To enable the petitioner to enter into an adhoc agreement for the period February 2017 onwards, we grant 30 days time and the interim protection will be available only for that period provided petitioner clears the entire dues of the respondents on the basis of terms incorporated in the previous agreement and which was followed by the parties upto January, 2017. On that basis, petitioner claims that the arrears will be approximately Rs.1.35 crores till the O.P.(C)Nos.3281 & 3301 of 2017 -3- month of October, 2017. This claim should be verified by the respondents who should furnish a statement of account in respect of petitioner on the basis of terms and conditions of the old agreement which shall govern the relationship between the parties till further orders. This arrangement will last only till January, 2018 and for the period after January, 2018, the parties should start negotiations well-in-advance and seek further interim order only, if required. The entire arrears till the month of January, 2018 as per the old agreement shall be payable by the petitioner by the end of January, 2018. However, the arrears as standing today, i.e. Rs.1.35 crores (as per petitioner's calculation) must be cleared within 30 days from today either in one lumpsum or in two equal instalments, the first instalment to be payable within 15 days. It is further clarified that for the month of November, December and January, 2018, petitioner is required to pay by calculating the dues on monthly basis.
The payment for the month of January, 2018 must be paid in advance. If the payments are not made by the petitioner as indicated above, the respondents will be at liberty to effect disconnection or exercise all its legal options. Post the matter under the head 'for directions' on 21.12.2017."
(underline supplied)
3. Now, the petitioner is before this Court in this original petition filed under Article 227 of the Constitution of India seeking an order to set aside Ext.P29 order of the TDSAT to the extent it directs the petitioner to enter into a fresh agreement in terms of the existing agreement, and to deposit an amount of Rs.1.35 Crores and to make payments for the O.P.(C)Nos.3281 & 3301 of 2017 -4- months of November, December, 2017 and January, 2018 as per the expired agreement.
4. O.P.(C)No.3301 of 2017:- The petitioner, who is the respondent in B.P.No.391 of 2016 filed by the respondent herein before the TDSAT, under Sections 14 and 14A of the TRAI Act is before this Court in this original petition filed under Article 227 of the Constitution of India seeking an order to set aside Ext.P6 order dated 8.11.2017 of the TDSAT in that petition. The respondent herein filed the said petition before the TDSAT seeking an order directing the petitioner herein to pay the amount due as per the terms of carriage agreements dated 1.2.2014 and 28.7.2015 and for other consequential reliefs. The respondent has sought for an order directing the petitioner to pay a sum of Rs.1,95,88,705/- towards carriage fee upto 31.5.2016; Rs.68,55,109.04 being interest calculated at the rate of 18% for delayed payment of the aforesaid dues; Rs.2,20,40,000/- towards carriage fee for the period 2016-17; etc.
5. On receipt of notice in B.P.No.391 of 2016, the petitioner herein entered appearance and filed Ext.P2 written statement in July, 2016. On 21.9.2017, the petitioner herein filed M.A.No.341 of 2017 seeking permission to file additional written statement in B.P.No.391 of 2016. In the said miscellaneous application the TDSAT passed Ext.P4 order O.P.(C)Nos.3281 & 3301 of 2017 -5- dated 26.10.2017. The relevant paragraph of Ext.P4 order reads thus;
"After hearing learned counsel for both the parties at some length, we are not persuaded to permit the respondent to file an additional written statement/reply at this stage of the proceedings when evidence on behalf of both the parties have already been filed by way of affidavit and cross-examination of petitioner's witness is already underway. However, we have been shown some mistakes in the original reply which may be of typographical nature and, therefore, we are persuaded to grant one further opportunity to the respondent to seek necessary amendment in the written statement already filed. If the application seeking such amendment which may be necessary is filed within ten days from today, the same shall be considered otherwise the right of the respondent to seek any amendment shall stand closed."
6. Admittedly, the petitioner herein failed to file an application for amendment of written statement, in terms Ext.P4 order of the TDSAT, within the time limit specified therein. On 8.11.2017, when B.P.No.391 of 2016 was listed before the TDSAT, the learned counsel orally explained some difficulty in filing the application for amendment within the time limit specified in Ext.P4. The TDSAT by Ext.P6 order dated 8.11.2017 declined to bring on record Ext.P5 amended written statement, which was not supported by an application for amendment. However, the right of the petitioner herein to cross-examine the witness of the respondent herein was protected on payment of a cost of Rs.10,000/-. The relevant O.P.(C)Nos.3281 & 3301 of 2017 -6- paragraphs of Ext.P6 order read thus;
"When the matter has been listed today as per last order, learned counsel for the respondent has orally explained some difficulty in filing the application for seeking amendment in the earlier reply/written statement within the time indicated earlier. We wanted to know whether the application is ready today or not. We have been shown copies of amended reply on behalf of respondent along with supporting affidavit and four annexures running into 33 pages altogether. A perusal of the same discloses that it is not an application seeking amendment. It does not contain any prayer and instead respondent has tried to bring on record the amended reply on behalf of respondent along with supporting affidavit. We are not persuaded to take that amended reply on record in view of our earlier order.
It appears that respondent is interested only in delaying the proceeding of this recovery petition and in the facts of the case, we are not persuaded to grant further time to the respondent. Although there has been no stay on the proceeding before the Advocate Commissioner for cross examination of the witnesses, on account of filing of the aforesaid M.A.No.341 of 2017 that proceedings have been effectively kept at bay since 26.9.2017.
If the respondent is seriously inclined to exercise its right of cross examination of the petitioner's witness it should approach the Court of Registrar and get a date for the same fixed within two weeks from today. The Dy. Registrar shall permit cross examination of the petitioner's witness at an early date, preferably, within two weeks from today provided the respondent deposits a cost of Rs.10,000/- O.P.(C)Nos.3281 & 3301 of 2017 -7- for that purpose payable to the other side within two weeks from today." (underline supplied)
7. Now, the petitioner is before this Court in this original petition filed under Article 227 of the Constitution of India to set aside Ext.P6 order of the TDSAT and to allow M.A.No.341 of 2017 filed seeking permission to file additional written statement in B.P.No.391 of 2016.
8. Heard the learned Senior Counsel for the petitioner in O.P.(C) No.3281 of 2017, the learned counsel for the petitioner in O.P.(C)No.3301 of 2017 and also the learned counsel for the first and second respondents in O.P.(C)No.3281 of 2017/sole respondent in O.P.(C)No.3301 of 2017.
9. The common issue that arises for consideration in both these original petitions is as to whether the supervisory jurisdiction of this Court under Article 227 of the Constitution of India can be invoked to challenge the interim orders of the TDSAT, i.e., Ext.P29 order in B.P.No.433 of 2017 and Ext.P6 order in B.P.No.391 of 2016.
10. The Telecom Disputes Settlement and Appellate Tribunal (TDSAT) has been established under Section 14 of the TRAI Act, 1997 to adjudicate any dispute between a licensor and a licensee; between two or more service providers; or between a service provider and a group of consumers. Section 14A of the said Act deals with application for settlement of disputes and appeals to the Appellate Tribunal. Section 18 of O.P.(C)Nos.3281 & 3301 of 2017 -8- the said Act provides for appeal to the Supreme Court. Sub-section (1) of Section 18 provides that, notwithstanding anything contained in the Code of Civil Procedure, 1908 or in any other law, an appeal shall lie against any order, not being an interlocutory order, of the Appellate Tribunal to the Supreme Court on one or more of the grounds specified in Section 100 of that Code. Going by sub-section (2), no appeal shall lie against any decision or order made by the Appellate Tribunal with the consent of the parties.
11. The learned Senior Counsel for the petitioner in O.P.(C) No.3281 of 2017 and the learned counsel for the petitioner in O.P.(C) No.3301 of 2017 would submit that, since the orders which are impugned in these original petitions are interlocutory orders passed by the TDSAT, no appeal shall lie against those orders before the Apex Court under Section 18 of the TRAI Act and as such, the petitioners can approach this Court seeking interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India.
12. Per contra, the learned counsel for the first and second respondents in O.P.(C)No.3281 of 2017/sole respondent in O.P.(C) No.3301 of 2017 would point out that, during the pendency of B.P.No.391 of 2016, the petitioner in O.P.(C)No.3301 of 2017 had moved the Delhi O.P.(C)Nos.3281 & 3301 of 2017 -9- High Court under Article 227 of the Constitution of India seeking an order to refer the dispute pending before the TDSAT in B.P.No.391 of 2016 to arbitration, and the said petition has already been dismissed. The learned counsel would also point out that, an order similar to Ext.P29 in O.P.(C) No.3281 of 2017 was under challenge before this Court in W.P.(C). No.21563 of 2017, an original petition filed by M/s.Indo Asian News Channel Pvt. Ltd., under Article 226 of the Constitution of India. The learned Single Judge granted a conditional order of stay restraining respondents 1 and 2 herein from disconnecting the broadcast of the channel 'Reporter'. W.A.No.1781 of 2017 filed by respondents 1 and 2 herein was allowed by the Division Bench by its judgment dated 14.9.2017, wherein it was held that the indulgence shown by the learned Single Judge was not in accordance with law. Accordingly, the Division Bench vacated the order of the learned Single Judge and dismissed the writ petition.
13. Article 227 of the Constitution of India deals with power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Clause (2) of Article 227 provides O.P.(C)Nos.3281 & 3301 of 2017 -10- that, without prejudice to the generality of the provisions under clause (1), the High Court may call for returns from such courts; make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. However, going by clause (4), nothing in Article 227 shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.
14. In Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329] the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.
15. In Jai Singh v. Municipal Corporation of Delhi [(2010) 9 O.P.(C)Nos.3281 & 3301 of 2017 -11- SCC 385], while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental O.P.(C)Nos.3281 & 3301 of 2017 -12- principles of law or justice.
16. In K.V.S. Ram v. Bangalore Metropolitan transport Corporation [(2015) 12 SCC 39] the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. On the facts of the said case, the Apex Court held that, when the Labour Court has exercised its discretion keeping in view the facts of the case and the cases of similarly situated workmen, the High Court ought not to have interfered with the exercise of discretion by the Labour Court.
17. In Sobhana Nair K.N. v. Shaji S.G. Nair (2016 (1) KHC 1) a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest O.P.(C)Nos.3281 & 3301 of 2017 -13- error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law.
18. In view of the law laid down in the decisions referred to supra, the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India cannot sit in appeal over the findings recorded by a lower court or tribunal. The supervisory jurisdiction cannot be exercised to correct all errors of the order or judgment of a lower court or tribunal, acting within the limits of its jurisdiction. The correctional jurisdiction under Article 227 can be exercised only in a case where the order or judgment of a lower court or tribunal has been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Therefore, no interference under Article 227 is called for, unless the High Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted.
19. In Surya Dev Rai v. Ram Chander Rai (2003 (6) SCC 675) O.P.(C)Nos.3281 & 3301 of 2017 -14- the Apex Court held that, Article 227 of the Constitution confers on every High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction excepting any court or tribunal constituted by or under any law relating to the Armed Forces. The jurisdiction under Article 227 can be traced back to Section 15 of High Courts Act, 1861 which gave a power of judicial superintendence to the High Court apart from and independently of the provisions of other laws conferring revisionsal jurisdiction on the High Court. Section 107 of the Government of India Act, 1915 and then Section 224 of the Government of India Act, 1935 were similarly worded and reproduced the predecessor provision. However, sub-section (2) was added in Section 224 which confined the jurisdiction of the High Court to such judgments of the inferior courts which were not otherwise subject to appeal or revision. That restriction has not been carried forward in Article 227 of the Constitution.
20. In Surya Dev Rai's case (supra) the Apex Court held further that, proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, O.P.(C)Nos.3281 & 3301 of 2017 -15- 1915 excepting that the power of superintendence has been extended by this Article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamount to overstepping the limits of jurisdiction.
21. The decision of the Apex Court in Surya Dev Rai's case (supra) on the point that the High Court can exercise its extraordinary jurisdiction under Article 226 to interfere with a judicial order passed by a court of competent jurisdiction now stands overruled by the decision of a Three-Judge Bench in Radhey Shyam v. Chhabi Nath [(2015) 5 SCC 423]. In Radhey Shyam's case the Apex Court held that, judicial orders of Civil Courts are not amenable to a writ of certiorari under Article 226 and that, the scope of Article 227 is different from Article 226. Dealing O.P.(C)Nos.3281 & 3301 of 2017 -16- with the submission made on behalf of the respondent that the view in Surya Dev Rai's case stands approved by larger Benches in Shail v. Manoj Kumar [(2004) 4 SCC 785], Mahendra Saree Emporium (II) v. G.V. Srinivasa Murthy [(2005) 1 SCC 481] and Salem Advocate Bar Association (II) v. Union of India [(2005) 6 SCC 344] and on that ground correctness of the said view cannot be gone into, the Three- Judge Bench observed that, 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 paragraph 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 paragraph 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 Association' in paragraph 40, reference to 'Surya Dev Rai' is for the same purpose.
22. In Radhey Shyam's case (supra) the Three-Judge Bench held that Article 227 can be invoked by the High Court suo motu as a custodian of justice. An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercised O.P.(C)Nos.3281 & 3301 of 2017 -17- very sparingly on equitable principle. This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases, but should be directed for promotion of public confidence in the administration in the larger public interest, whereas Article 226 is meant for protection of individual grievances. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline. The object of superintendence under Article 227, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.
23. The supervisory jurisdiction of the High Court under Article 227 of the Constitution is limited, where interference qua an interlocutory order of a subordinate court or tribunal is concerned. In such matters, the High Court has to consider the question as to whether such an interlocutory order of the subordinate court or tribunal was vitiated due to want of jurisdiction or that the said court or tribunal had exceeded its O.P.(C)Nos.3281 & 3301 of 2017 -18- jurisdiction or that the order passed by it had resulted in failure of justice. This view is supported by the decision of the Apex Court in Kokkanda B. Poondacha v. K.D. Ganapathi [(2011) 12 SCC 600].
24. Therefore, the power of superintendence conferred on the High Court under Article 227 is administrative as well as judicial and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. It is exercised to keep the subordinate courts or tribunals within the bounds of their jurisdiction. It can be invoked when a subordinate court or tribunal over which the High Court have superintendence has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available has been exercised in a manner which is not permissible by law and a grave failure of justice has occasioned.
25. Article 226 of the Constitution of India deals with the power of the High Courts to issue certain writs. Under clause (1) of Article 226 of the Constitution, notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, O.P.(C)Nos.3281 & 3301 of 2017 -19- prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. Going by clause (2) of Article 226, the power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. On the other hand, by virtue of clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
26. By virtue of clause (2) of Article 226 of the Constitution of India, the power under clause (1) of Article 226 to issue directions, orders or writs for the enforcement of any of the rights conferred by Part III and for any other purpose to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. O.P.(C)Nos.3281 & 3301 of 2017 -20- However, the language of Article 226 makes it clear that the said Article does not contemplate interference by the High Court with the orders of the subordinate courts and tribunals throughout the territories in relation to which that High Court exercises jurisdiction. The said issue is no more res integra as the position is made clear by a Three-Judge Bench of the Apex Court in Radhey Shyam's case (supra) by holding that judicial orders of Civil Courts are not amenable to a writ of certiorari under Article 226 of the Constitution of India.
27. In Kusum Ingots and Alloys Ltd. v. Union Of India [(2004) 6 SCC 254], in the context of 'part of cause of action' under clause (2) of Article 226 of the Constitution of India, the Apex Court held that, when an order is passed by a court or tribunal or an executive authority whether under the provisions of a statute or otherwise, a part of the cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places. In other words, as order of the appellate authority constitutes a part of the cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate, having regard to the fact that the order of the appellate authority is also required to be set aside O.P.(C)Nos.3281 & 3301 of 2017 -21- and as the order of the original authority merges with that of the appellate authority.
28. In Commissioner of Customs, Cochin v. M/s. Samrat Industries, Indore and another [2014 (1) KLJ 851 : 2015 (316) ELT 602 (Kerala)] a learned Judge of this Court, while dealing with the challenge made in an original petition filed under Articles 226 and 227 of the Constitution of India against the order passed by the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT), South Zonal Bench, Chennai repelled the objection as to maintainability of the original petition before this Court, on the ground that the original order of adjudication was made at Cochin. It was that order which gave raise to the appeal as well as the application for reference before the CEGAT. Therefore, it cannot be said that no part of the cause of action arose within the local limits of the territorial jurisdiction of this Court. In support of the said conclusion, the learned Judge has also relied on the law laid down by the Apex Court in Kusum Ingots case (supra) that, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable in the High Court having jurisdiction over either of the places.
29. As already noticed, in view of the law laid down by a Three- O.P.(C)Nos.3281 & 3301 of 2017 -22- Judge Bench of the Apex Court in Radhey Shyam's case [(2015) 5 SCC 423] the judicial orders of subordinate courts and tribunals are not amenable to a writ of certiorari under Article 226 of the constitution of India. Such orders are amenable to the supervisory jurisdiction under Article 227 of the Constitution. The High Court under that Article have power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
30. In Navin Jain v. State Bank of India (AIR 2002 Calcutta
223) a learned Judge of the Calcutta High Court held that, under Article 227 of the Constitution of India the High Court shall have power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction and can call for returns from such tribunals and may also make order, issue general rules and prescribe forms for regulating the practice and proceedings of such courts and tribunals. If a tribunal is constituted as appellate tribunal for hearing appeals against decisions of more than one original tribunals situated in different states, in such a case, for the purpose of challenging orders of such appellate tribunals by way of an application under Article 227 of the Constitution, an aggrieved party has to approach the High Court of that State within the territorial limit of which the original tribunal exercises O.P.(C)Nos.3281 & 3301 of 2017 -23- jurisdiction in a particular case. Before entertaining an application under Article 227 of the Constitution, the court must ascertain what is the effect of interference prayed for in such an application. If the result of such intervention is that an order of a tribunal over which a High Court has no power of superintendence will be scrutinised, in such a case, such High Court should not entertain the application.
31. In Ajay Singh v. State of Chhattisgarh [(2017) 3 SCC 330] the Apex Court held that, Article 227 of the Constitution confers power of superintendence on the High Court over the courts and tribunals within the territory of the State and that the High Court has the jurisdiction and the authority to exercise suo motu power. In the said decision the Apex Court has also referred to its earlier decision in Achutananda Bidaya v. Prafullya Kumar Gayen [(1997) 5 SCC 76] wherein it was held that, the power and duty of the High Court under Article 227 of the Constitution is essentially to ensure the courts and tribunals, inferior to the High Court, have done what they are required to do. Paragraphs 23 and 24 of the said decision read thus;
"23. Article 227 of the Constitution reads as follows:-
227. Power of superintendence over all courts by the High Court:-
xxx xxx xxx The aforesaid Article confers power of superintendence on the High O.P.(C)Nos.3281 & 3301 of 2017 -24- Court over the courts and tribunals within the territory of the State.
The High Court has the jurisdiction and the authority to exercise suo motu power.
24. In Achutananda Bidaya v. Prafullya Kumar Gayen [(1997) 5 SCC 76] a two-Judge Bench while dealing with the power of superintendence of the High Court under Article 227 has opined that the power of superintendence of the High Court under Article 227 of the Constitution is not confined to administrative superintendence only but such power includes within its sweep the power of judicial review. The power and duty of the High Court under Article 227 is essentially to ensure that the Courts and Tribunals, inferior to High Court, have done what they were required to do. Law is well settled by various decisions of this Court that the High Court can interfere under Article 227 of the Constitution in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving at a finding which is perverse or based on no material, or resulting in manifest injustice."
(underline supplied)
32. The learned counsel for the respondent in O.P.(C)No.3301 of 2017 would point out that the petitioner in the said original petition had earlier approached the Delhi High Court in C.M.(M)No.364 of 2016, invoking the supervisory jurisdiction of that Court under Article 227 of the Constitution of India, seeking an order to set aside orders dated 22.8.2016, 15.9.2016, 27.10.2016, 3.11.2016, 6.12.2016, 21.12.2016, O.P.(C)Nos.3281 & 3301 of 2017 -25- 3.1.2017, 2.2.2017 and 22.2.2017 of the TDSAT in B.P.No.391 of 2016. In the said petition, request was also made to refer the dispute, which is the subject matter in B.P.No.391 of 2016, to arbitration. After considering the rival contentions, the Delhi High Court by order dated 17.5.2017 dismissed the said petition holding that, since there was no application before the TDSAT under Section 8 of the Arbitration and Conciliation Act, 1996 the question of hearing being deferred by the said tribunal did not arise.
33. The decision of the Apex Court in Mosaraf Hossain Khan v. Bhagheeratha Engineering Ltd. [(2006) 3 SCC 658] relied on by the learned counsel for the petitioner in O.P.(C)No.3301 of 2017, arises out of the judgment of this Court dated 25.1.2005 in W.P.(C)No.2666 of 2005, a writ petition under Article 226 of the Constitution of India seeking an appropriate writ to quash a complaint pending before the Chief Judicial Magistrate Court, Birbhum at Suri as C.C.No.39 of 2004, alleging commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The writ petition was filed before this Court, contending that, the amount due under the cheques that were the subject matter of the complaint in C.C.No.39 of 2004 were payable at Ernakulam and as such, cause of action within the meaning of clause (2) of Article O.P.(C)Nos.3281 & 3301 of 2017 -26- 226 of the Constitution has arisen in part within the jurisdiction of this Court. After referring to Section 142(b) of the Negotiable Instruments Act the Apex Court held that this Court has no jurisdiction to entertain the writ petition as no part of the cause of action has arisen within its jurisdiction.
34. In Mosaraf Hossain Khan's case (supra), at paragraph 20, the Apex Court held that, cause of action within the meaning of clause (2) of Article 226 of the Constitution shall have the same meaning as is ordinarily understood. The expression 'cause of action' has a definite connotation. It means a bundle of facts which would be required to be proved. After referring to its earlier decisions in 'Surya Dev Rai', 'Kusum Ingots', etc. the Apex Court held at paragraph 28 that, High Courts should not ordinarily interfere with an order taking cognisance passed by a competent court of law except in a proper case. Furthermore, only such High Court within whose jurisdiction the order of the subordinate court has been passed, would have the jurisdiction to entertain an application under Article 227 of the Constitution, unless it is established that the earlier cause of action arose within the jurisdiction thereof.
35. In Dashrath Rupsingh Rathod v. State of Maharashtra [(2014) 9 SCC 129] a Three-Judge Bench of the Apex Court held that, as Mosaraf Hossain refers copiously to the cause of action having arisen in O.P.(C)Nos.3281 & 3301 of 2017 -27- West Bengal without adverting at all to K.Bhaskaran v. Sankaran Vaidhyan Balan [(1999) 7 SCC 510], leave aside the Three-Judge Bench decision in Shri Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd. [(2001) 3 SCC 609], the decision may be seen as per incuriam.
36. In view of the law laid down by the Apex Court in its later decisions in Radhey Shyam's case [(2015) 5 SCC 423] and Ajay Singh's case [(2017) 3 SCC 330], the judicial orders of subordinate courts and tribunals are amenable to only the supervisory jurisdiction under Article 227 of the Constitution, which confers power of superintendence on the High Court over the courts and tribunals within the territory of the State. Therefore, only such High Court within whose jurisdiction the order of the subordinate court has been passed, would have the jurisdiction to entertain an application under Article 227 of the Constitution. Therefore, the decision of the Apex Court in Mosaraf Hossain Khan's case (supra) would in no way support the case of the petitioners that, this Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India can interfere with the orders passed by the TDSAT in exercise of its original jurisdiction, ignoring the situs of the said tribunal.
37. In the decision of a Five-Judge Bench of the Delhi High Court in O.P.(C)Nos.3281 & 3301 of 2017 -28- Sterling Agro Industries v. Union of India and others [AIR 2011 Delhi 174], a decision relied on by the learned Senior Counsel for the petitioner in O.P.(C)No.3281 of 2017, it was held that the principle of forum conveniens in its ambit and sweep encapsulates the concept that a cause of action arising within the jurisdiction of the court would not itself constitute to be the determining factor compelling the court to entertain the matter. While exercising jurisdiction under Articles 226 and Article 227 of the Constitution of India, the court cannot be totally oblivious of the concept of forum conveniens. An order of the appellate authority constitutes a part of the cause of action to make the writ petition maintainable in the High Court within whose jurisdiction the appellate authority is situated. Yet, the same may not be the singular factor to compel the High Court to decide the matter on merits. The High Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.
38. In Kusum Ingots case [(2004) 6 SCC 254], in the context of the doctrine of forum conveniens, the Apex Court held that, when a part of the cause of action arises within one or the other High Court, it will be for the petitioner to choose his forum. Even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same O.P.(C)Nos.3281 & 3301 of 2017 -29- by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.
39. The decision of a Five-Judge Bench of the Delhi High Court in Sterling Agro Industries case (supra) arises out of writ petitions filed under Article 226 of the Constitution of India, namely, W.P.(C)No.6570 of 2010 and connected cases. In W.P.(C)No.6570 of 2010, the writ petitioner, an industry situated at the Industrial Area, Ghirongi, Bhind District, Malanpur in Madhya Pradesh, in invocation of the jurisdiction under Article 226 of the Constitution of India, has called in question Annexure-1 order dated 9.7.2010 passed by the Revisionary Authority, Government of India, Ministry of Finance, Department of Revenue, whereby the revision application preferred by the petitioner has been dismissed concurring with the view expressed by the Commissioner (Appeals-I), Customs and Central Excise, Indore, whereby the Appellate Authority has given the stamp of approval to the order passed by the Assistant Commissioner of Customs ICD, Malanpur, Bhind District, Madhya Pradesh, the original authority, who had expressed the view that no drawback facility is admissible to the petitioner as it had, by way of O.P.(C)Nos.3281 & 3301 of 2017 -30- procuring duty free inputs under Rule 19(2) of the Central Excise Rules, 2002, contravened clause (ii) of the second proviso to Rule 3(1) of the Central Excise Drawback Rules, 1995 and also condition No.7(F) of the Notification No.68/2007-Cus.(NT) and condition No.8(F) of the Notification No.103/2008-Cus.(NT).
40. In Sterling Agro Industries case (supra), after chronological narration of the growth of Article 226 of the Constitution of India, the Five-Judge Bench of the Delhi High Court observed that, the concept of cause of action arising wholly or in part came into existence for the exercise of power under the said Article. While entertaining a writ petition, the doctrine of forum conveniens and the nature of cause of action are required to be scrutinised by the High Court depending upon the factual matrix of each case in view of what has been stated in Ambica Industries v. Commissioner of Central Excise [(2007) 6 SCC 769] and Union of India v. Adani Exports Ltd. [(2002) 1 SCC 567]. Therefore, the conclusion in the earlier decision of the Full Bench in New India Assurance Company Limited [AIR 2010 Delhi 43] that "since the original order merges into the appellate order, the place where the appellate authority is located is also forum conveniens" is not correct. The decision of the Delhi High Court in Sterling Agro Industries case O.P.(C)Nos.3281 & 3301 of 2017 -31- (supra) in no way support the case of the petitioners that, this Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India can interfere with the orders passed by TDSAT in exercise of its original jurisdiction, ignoring the situs of the said tribunal.
41. In M/s. Ramalinga Iyer N. v. Chief Manager and Authorised Officer [2017 (3) KHC 496], a decision relied on by the learned Senior Counsel for the petitioner in O.P.(C)No.3281 of 2017, the Division Bench of this Court was dealing with an appeal arising out of the original petitions filed under Article 227 of the Constitution of India, wherein the recovery proceedings initiated by Syndicate Bank under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement Security Interests Act, 2002 was under challenge. While dismissing that original petitions, the learned Single Judge granted time till 3.3.2017 to the petitioners, who were the appellants before the Division Bench, to pay the dues. Before the Division Bench, it was contended by the learned Senior Counsel for the auction purchaser that, the original petitions were filed under Article 227 of the Constitution of India and as such, no writ appeal would lie in terms of Section 5 of the Kerala High Court Act. In that context, the Division Bench observed in paragraph 7 of the said judgment that, as the learned Single Judge did not exercise the O.P.(C)Nos.3281 & 3301 of 2017 -32- power of superintendence under Article 227 of the Constitution of India, but exercised the extraordinary jurisdiction as contained under Article 226 of the Constitution of India. Thus the proceedings though instituted under Article 227 were disposed as a proceedings under Articles 226 and 227 of the Constitution and that being the position, the appeal is maintainable.
42. The decision of the Division Bench in Ramalinga Iyer's case did not lay down a proposition of law that in an original petition filed under Article 227 of the Constitution of India this Court can exercise supervisory jurisdiction by importing the concept of 'cause of action' under Article 226 (2). It is pertinent to note that, in Ramalinga Iyer's case the original petition under Article 227 of the Constitution was filed challenging the proceedings which were pending before the Debts Recovery Tribunal, Ernakulam, which is under the supervisory jurisdiction of this Court.
43. As held by the Apex Court in Radhey Shyam's case [(2015) 5 SCC 423] the judicial orders of subordinate courts and tribunals are amenable to the supervisory jurisdiction under Article 227 of the Constitution of India and the High Court under that Article have power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. In Ajay Singh's case [(2017) 3 SCC 330] the Apex Court held that Article 227 of the Constitution of O.P.(C)Nos.3281 & 3301 of 2017 -33- India confers power of superintendence on the High Court over the courts and tribunals within the territory of the State. The interlocutory orders of the TDSAT, New Delhi which are impugned in these original petitions are orders issued by that tribunal in exercise of its original jurisdiction. The said orders are not amenable to the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, for want of territorial jurisdiction.
In the result, both the original petitions are dismissed as not maintainable, for want of territorial jurisdiction.
Sd/-
ANIL K. NARENDRAN, JUDGE dsn