Gujarat High Court
Gustadji vs Nevil on 5 May, 2011
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya
Gujarat High Court Case Information System
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LPA/1445/2010 65/ 65 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1445 of 2010
In
SPECIAL
CIVIL APPLICATION No. 9492 of 2008
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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GUSTADJI
DHANJISHA BUHARIWALA & ANOTHER
Versus
NEVIL
BAMANSHA BUHARIWALA & OTHERS
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Appearance :
MRS
KETTY A MEHTA for the Appellants
MR SHITAL R PATEL for
Respondent(s) : 1 - 5
None for Respondent(s) : 6 - 7.
NOTICE
SERVED for Respondent(s) : 6.2.1, 6.2.2, 6.2.3, 6.2.4,6.2.5
- for
Respondent(s) : 7.2.1 -
10.
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CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 05/05/2011
CAV
JUDGMENT
(Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA) The appellants - original petitioners by way of this appeal seek to challenge order dated 5th April 2010 passed by the learned Single Judge whereby learned Single Judge dismissed the petition.
When this matter was taken up for hearing we noticed that the entire matter arises from the suit proceedings pending in the court of the Additional Civil Judge, Vyara. Prima facie, at the very outset, we were of the view that the appeal under Clause 15 of the Letters Patent against the order of the learned Single Judge would not be maintainable as the petition was substantially under Article 227 of the Constitution of India and the nature of powers exercised by the learned Single Judge are also supervisory in nature. However, learned counsel for the appellants vociferously submitted that the petition before the learned Single Judge was under Article 226 and Article 227 of the Constitution. If the petition is under Article 226 of the Constitution, then, the order of the learned Single Judge can be assailed by filing an appeal under Clause 15 of the Letters Patent.
Learned counsel for the appellants would submit that till the time Legislature effected the necessary amendment in Section 115 of the Code of Civil Procedure, 1908 such orders were challenged by filing civil revision application under Section 115 of the Code. However, now, in view of the fact that revision applications under Section 115 of the Code are not maintainable against order of the nature, which was before the learned Single Judge, a writ petition would be maintainable under Article 226 and 227 of the Constitution. Learned counsel also made efforts to persuade us that a writ of certiorari under Article 226 of the Constitution can be issued even in a matter arising from suit proceedings and orders passed by the civil judges of the subordinate courts.
This appeal raises a very vexed and ticklish issue and therefore we have decided to look into the matter very closely and in detail.
It is a matter of common experience that any interlocutory order passed by a civil court in a suit proceeding, if not appealable, were all revisable under Section 115 of the Code of Civil Procedure, 1908. As a consequence of amendment to Section 115 of the CPC by the Civil Procedure Code (Amendment) (46/1999), which has come into force with effect from 1.7.2002, petitions are now being preferred under Article 226 and 227 of the Constitution of India praying for a writ of certiorari to quash the order passed by the subordinate court.
Section 115 CPC before its amendment by CPC (Amendment) Act, 1999 (46/1999) read as under :-
"115.
Revision (1)- The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such Subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit :
Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where-
(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
(2) The High Court shall not, under this Section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.
Explanation. -
In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding."
It may be worth to note here that the original S. 115 was renumbered as sub-sec. (1) thereof by the Code of Civil Procedure (Amendment) Act, 1976 (104 of 1076) with effect from 1-2-1977 and the proviso was added to the renumbered sub-sec. (1). By this very amendment, sub-sec. (2) was inserted after renumbered sub-sec. (1). The statement of objects and reasons which was placed before the Parliament along with the Bill proposing the above amendment read as under :-
"Clause 43 (original Clause 45) :- By clause 45 of the Bill, S. 115 of the Code was proposed to be omitted. The question whether it is at all necessary to retain S. 115 was carefully considered by the Committee. The Law Commission has expressed the view that in view of Art. 227 of the Constitution, S. 115 of the Code is no longer necessary. The Committee however, feel that the remedy provided by Art. 227 of the Constitution is likely to cause more delay and involve more expenditure. The remedy provided in S. 115 is, on the other hand, cheap and easy. The Committee, therefore, feel that S. 115, which serves a useful purpose, need not be altogether omitted particularly on the ground that an alternative remedy is available under Article 227 of the Constitution.
The Committee however, feel that, in addition to the restrictions contained in S. 115, an overall restriction on the scope of application for revision against interlocutory orders should be imposed. Having regard to the recommendations made by the Law Commission in its Fourteenth and Twenty-seventh Reports, the Committee recommend that S. 115 of the Code should be retained subject to the modification that no revision application shall lie against an interlocutory order unless either of the following conditions is satisfied, namely :-
(i) that if the order were made in favour of the applicant, it would finally dispose of the suit or other proceeding; or
(ii) that if the order, if allowed to stand, is likely to occasion a failure of justice or cause an irreparable injury.
The Committee feels that the expression "case decided" should be defined so that the doubt as to whether S. 115 applies to an interlocutory order may be set at rest. Accordingly, the Committee have added a Proviso and an Explanation to S. 115".
Subsequently, the Parliament noticed that litigants interested in delaying disposal of suits approach High Courts under its revisional jurisdiction under S. 115 of the Code against each and every order passed by the trial Court during the adjudicatory process just to stall the expeditious disposals. It was also noticed that by taking bare plea of the intention to file revision petition or the statement that it has been so filed, the trial Courts were forced to stay their hands either under the executive instructions from some of the High Courts or by building pressure on the trial Courts by the appearing counsel. The Parliament accordingly thought it advisable to further curtail the scope of S. 115 and also to statutorily declare that mere intention to file revision petition or just filing of revision petition cannot be taken to be a ground for staying further progress of the suit.
Section 115 CPC, now on incorporating the amendments as made by the 1999 Amendment Act reads as under :-
"115.
Revision (1) The High Court may call for the record of any case, which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such Subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:
Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.
(2) The High Court shall not, under this Section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.
(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.
Explanation.-
In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding."
The purpose for making the above amendments are clearly discernible from the Statement of Objects and Reasons which reads as under :-
"In terms of the Common Minimum )Programme of the United Front Government, it was envisaged that a Bill on judicial reforms and disposal of pending cases within a period of three years may be introduced in the Parliament. With a view to keep the commitment given to the people of India so that a speedy disposal of cases may take place within the fixed time frame and with a view to implement the report of Justice V. S. Malimath, it was thought necessary to obtain the views of the State Governments on the subject also. In the Law Minister's Conference held in New Delhi on 30th June and 1st July, 1997, the working paper on the proposed amendments to the Code of Civil Procedure. 1908 was discussed. On the basis of resolution adopted in the said Conference and with a view to implement the recommendations of Justice Malimath Committee, 129th Report of the Law Commission of India and the recommendations of the Committee on Subordinate Legislations (11th Lok Sabha), it is proposed to introduce a Bill for the amendments of Code of Civil Procedure, 1908 keeping in view, among others, that every effort should be made to expedite the disposal of civil suits and proceedings so that justice may not be delayed."
Note on clause 12 of the bill which pertains to amendment to S. 115 of the Code reads as under :-
"Clause 12.-
Section 115 of the Code provides for revision by the High Court of an order or decision of any Court subordinate to such High Court. The Malimath Committee noticed that often the records of the lower Courts are sent to High Court in the revisional proceedings. It is imperative that records of proceedings pending in the subordinate Court should not be sent unless High Court so desires and revision should not operate as stay of proceedings before the trial Court. The Committee while agreeing in principle that scope of interference against interlocutory orders should be restricted, felt that object can be achieved more effectively without demanding the High Court of the power of revision. Clause 12 seeks to achieve the above object by suitable amendments to S. 115."
In view of the amendment made in Section 115 of the Code, which has become operative from 1.7.2002, the revisional jurisdiction of the High Court has now been materially restricted. The effect of the amendment is that even if the impugned order suffers from jurisdictional error, it cannot be interfered with under Section 227 of the Constitution of India unless the order impugned would have been made in favour of party applying in revision. It might have finally disposed of the suit or the other proceeding.
Accordingly, now, we have been noticing that the writ petitions are preferred under Articles 226 and 227 of the Constitution and after the orders are passed by the learned Single Judge in a petition - either dismissing the petition or allowing the same - appeals are being preferred invoking Clause 15 of the Letters Patent praying for writs of certiorari against the order passed by a civil court in a regular suit proceedings.
There is no element of doubt that if the order is not revisable under Section 115 of the Code of Civil Procedure, 1908, then, the same can be challenged before the High Court by way of a petition under Article 227 of the Constitution invoking supervisory jurisdiction of the High Court. The question which is haunting in the mind of this Court is that when the Parliament thought fit to restrict the powers under Section 115 of the Code with a definite object, then, under such circumstances can an order, which is not revisable under Section 115 of the Code, be challenged by way of filing writ petition under Article 226 of the Constitution invoking the extraordinary jurisdiction of the High Court and that too an interlocutory order passed by a civil court in a regular suit proceedings.
To answer this question, we need to now, at this stage, highlight few facts of the matter.
The appellants are original defendants Nos.8 and 9 of Special Civil Suit No.57 of 2000 filed by respondent No.1 - original plaintiff. Respondents Nos.2 to 7 in this appeal are the original defendants Nos.1 to 6 and Respondents Nos.8 to 10 are original defendants Nos.10 to 12. The appellants herein and the respondents are family members of late Shri Faramroz Kavasji who was holding various lands which is subject matter of litigation. Late Faramroz Kavasji had four sons and three daughters. After death of late Faramroz Kavasji his properties were inherited by his sons - Dhanjisha, Kavasji, Bamansha and Rustamji. A partition had taken place amongst the sons of late Faramroz Kavasji, which, according to the appellants, has been duly recorded. The land bearing Survey No.90, etc. came to the share of Dhanjisha on whose death, it came to the share of the appellants, namely, Gustadji Dhanjishah Buhariwala and Faramji Dhanjishah Buhariwala. Post the said partition other brothers had sold off their share. However, Dhanjisha, father of the appellants, retained his share of the lands of Survey No.90, etc. Incidentally, some of the lands which came to the share of other brothers have been acquired by the Government of Gujarat in public interest. On 25th July 1988 the Land Acquisition Officer has passed the award acquisition of the said lands and payment of compensation in lieu thereof. In the year 2000 the sons and grandsons of other brothers started claiming right, title and interest over the lands bearing survey No.90 etc which came to the share of Dhanjishah and his sons (the appellants herein) and preferred Special Civil Suit No.57 of 2000 in the court of village Vyara. One Viraf Kavasji Buhariwala, respondent No.2 preferred an application Exhibit 5 seeking injunction against other members of family of late Faramroz Kavasji with the present appellants restraining them from transferring the said lands of Survey No.90, etc. The learned Civil Judge vide order dated 6th September 2001 rejected Exhibit 5 application in Special Civil Suit No.57 of 2000. The original plaintiffs, aggrieved by the said order of the learned Civil Judge rejecting the application Exhibit 5 preferred review application. The Civil Judge (Senior Division), Bardoli rejected the review application and confirmed earlier order dated 6th September 2001.
In the meantime, respondent No.3 filed Special Civil Suit No.136 of 2000 in the court of the learned Civil Judge, Surat at Bardoli impleading all the family members including the appellants as party-defendants where he also preferred an application Exhibit 5 for interim injunction against the appellants herein. The learned Civil Judge (Senior Division), Bardoli rejected the application Exhibit 5 and declined to grant any injunction. No appeal was preferred against the order dated 28th April 2005 rejecting Exhibit 5 application.
Interestingly, respondent No.4 preferred Special Civil Suit No.38 of 2005 claiming right against the appellants. This suit is also pending. Now comes the main issue. Respondent No.1 - original plaintiff filed Regular Civil Suit No.112 of 2001 in the court of the learned Civil Judge (Junior Division), Vyara claiming right, title and interest in the land of Survey No.93, etc. He preferred an application Exhibit 5 in the suit praying for interim injunction. On 9th January 2006 the learned Additional Senior Civil Judge, Vyara rejected the application Exhibit 5. Aggrieved by the said order rejecting the application Exhibit 5, respondent No.1 filed appeal being Civil Misc. Application No.59 of 2006 before the Fast Track Court, Surat at Vyara under Order 43 Rule 1 of the Civil Procedure Code. This appeal came to be allowed by the appellate court vide order dated 14th February 2008 by quashing and setting aside the order passed by the learned Civil Judge in Regular Civil Suit No.102 of 2009 and granted injunction in favour of respondent No.1 restraining the appellants herein from disturbing the use and cultivation of lands in their possession and from selling the land without sanction of respondent No.1 - original plaintiff.
In this background, the order of the appellate Judge came to be challenged before the learned Single Judge and the learned Single Judge confirmed the same.
What can deduced from the facts narrated above is as under:-
(a) There is a property dispute inter-se amongst the family members;
(b) There is a regular civil suit filed in the court of the learned Single Judge (Senior Division), Vyara for a declaration and injunction;
(c) Pending final disposal of the suit now there is an injunction operating against the appellants so far as lands bearing Survey No.90 is concerned.
(d) In the petition before the learned Single Judge all the respondents were private parties and there is no other respondent which can be said to be either government, governmental agencies or a State or instrumentalities of the State within the meaning of Article 12 of the Constitution.
(e) Appropriate writ (certiorari) has been prayed for to quash the judgment and order passed by the appellate Court.
.Having regard to the nature of the order, which was passed by the appellate Court, it is very clear that the said order is not a revisable order under Section 115 of the Civil Procedure Code and the appellants herein could not have invoked jurisdiction under Section 115 of the CPC. Therefore, in this background a writ petition is preferred invoking Article 226 and 227 of the Constitution of India.
We are of the firm view that when remedy for filing a revision under Section 115 of the Civil Procedure Code has been expressly barred, then, in such a case the petition under Article 227 of the Constitution would lie and not a writ petition under Article 226 of the Constitution of India. If a petition under Article 227 of the Constitution would lie and if the same has been dismissed then, no appeal under Clause 15 of the Letters Patent would be maintainable. A petition under Article 227 is not a writ petition. No writ can be issued under Article 227.
This position of law seems to be very clear and has been very well explained by the Supreme Court way back in the year 2003. However, we have noticed while going through catena of decisions on this issue that for some reason there is no reference worth the name to this particular judgment of the Supreme Court in any of the subequent judgments. The decision which we are referring to and relying upon is the judgment of 3 Judges Bench of the Supreme Court in the case of Sadhana Lodh v. National Insurance Co. Ltd. AIR 2003 SC 1561. The issue before the Supreme Court was very limited. The Supreme Court was considering Section 173 of the Motor Vehicles Act, 1988 which provides for an appeal before the High Court on limited grounds available under Section 149(2) of the Act. The petitioner before the Supreme Court contended that as the appeal before the High Court is on a very limited ground available only under Section 149(2) of the Act she was justified in filing a petition under Article 226 and 227 of the Constitution of India. Negativing this contention, the Supreme Court has observed as under in paragraphs 6 and 7:-
"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 Article 226/227 of the Constitution on the premises 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., Chandigarh v. Nicolletta Rohtagi and others, 2002 (7) SCC 456). 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 High Court to entertain a petition under Art. 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 of 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 an 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, C.P.C., 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, C.P.C., 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 High Court under Article 226 of the Constitution.
(emphasis supplied) "7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior Court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior Court or Tribunal purports to have passed the order or to correct errors of law in the decision."
We may also refer to one more decision of the Supreme Court in the matter of Qamruddin v. Rasul Baksh, SLP (C)No.9362 of 1988 and Civil Appeal No.815 of 1989 decided on 6th February 1989.
In the case before the Supreme Court the appellant filed a suit for perpetual injunction for restraining the defendants-respondents from interfering with his possession and from carrying on construction in the house in dispute. The appellant filed an application along with the suit for temporary injunction under Order 39 Rule 1 & 2 of the CPC for restraining the defendant respondents from making any construction in the building in question during the pendency of the suit. The trial Court granted ex parte injunction, but on contest by the defendant-respondents, he vacated the interim order and rejected the interim application. The appellant preferred appeal before the District Judge under Order 43 Rule 1 of the Civil Procedure Code. The learned District Judge by his order dated 3rd February 1988 set aside the order of the trial Court and passed interim injunction restraining the defendants respondents from making any construction in the building in question during the pendency of the suit. The defendant respondents thereupon preferred a writ petition under Article 226 of the Constitution before the High Court for issuance of writ of certiorari quashing the order of the District Judge dated 3rd February 1988. The High Court by its order dated 5th August 1988 allowed the petition and quashed the order of the District Judge and permitted the defendant respondents to make construction at their own cost and risk and issued writ of mandamus restraining the plaintiff-appellant from interfering with the respondents in making construction. The plaintiff-appellant preferred appeal before the Supreme Court. In this factual background, the Supreme Court observed as under:-
"4. After hearing the learned counsel for the parties we are surprised as to how the High Court entertained the writ petition under Article 226 of the Constitution for issuing a writ of certiorari and mandamus. When a suit is filed before a Civil Court having jurisdiction to entertain the same it may issue interim injunction and the party aggrieved may pursue its remedy before the Appellate Court and if it is further aggrieved it may invoke the revisional jurisdiction of the High Court under the Code of Civil Procedure. Ordinarily, an interlocutory order passed in a civil suit is not amenable to extraordinary jurisdiction of the High Court under Article 226 of the Constitution. More so when the aggrieved party has not exhausted the remedy, available to it under the Code of Civil Procedure. The High Court in the instant case failed to realise that the Defendant-Respondents had not approached the High Court under Section 115 of the Code of Civil Procedure. The question whether an interim injunction should be granted or not is discretionary in nature, although the exercise of discretion is regulated by the principles set out in Order 39, Rule 1 and 2 of the Code of Civil Procedure. If the order of injunction is passed by a competent Court having jurisdiction in the matter, it is not permissible for the High Court under Article 226 of the Constitution to quash the same by issuing a writ of certiorari. In the instant case the learned Single Judge of the High Court further failed to realise that a writ of mandamus could not be issued in this case. A writ of mandamus cannot be issued to a private individual unless he is under a statutory duty to perform a public duty. The dispute involved in the instant case was entirely between two private parties, which could not be a subject matter of writ of mandamus under Article 226 of the Constitution. The learned Single Judge ignored this basic principle of writ jurisdiction conferred on the High Court under Article 226 of the Constitution. There was no occasion or justification for issue of a writ of certiorari or mandamus. The High Court committed a serious error of jurisdiction in interfereing with the order of the District Judge."
(emphasis supplied) We may also refer to another important decision of the Supreme Court on the subject rendered in the matter of State v. Navjyot Sandhu @ Afshan Guru (2003) 6 SCC 641. In paragraph 21 of the said Judgment the Supreme Court has held as under:-
"It is a settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate courts and Tribunals, within bounds of their authority and not to correct mere errors. Further, where the Statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since power of superintendence was not made to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised 'as the cloak of an appeal in disguise'" (emphasis supplied) Yet again, in a reported judgment rendered by the Single Judge of this Court in thematter of Goswami Kalyanraiji Govindraiji Vs. Goswami Vallabhraiji Govindraiji reported in 2003(2) GLH 24, the Court in Para-68 has observed as under :
"68. It is also required to be noted that by virtue of the amendment made in the Civil Procedure Code vide Amended Act 1999, proviso is added to Section 115 which in terms provides that "the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except were the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings." By virtue of the aforesaid provision, power vested under Section 115 of the Code is circumscribed, therefore, what cannot be granted under Section 115 can never be granted in a petition filed under Article 227 of the Constitution. When the legislature has already provided to put restriction upon the revisional jurisdiction envisaged under Section 115 of the Code of Civil Procedure, I am afraid that same exercise can be undertaken in exercise of power under Article 227 of the Constitution of India. It is well settled that the thing which cannot be allowed to be done directly, cannot be done indirectly."
We may also refer to an unreported judgment rendered by the learned Single Judge of this Court in Special Civil Application No.775 of 2002 decided on 16th August 2002 in the matter of Sushilaben Vasantbhai Randeri v. Abhaykumay Panachand Sukhadia.
After discussing the scope of Article 227 of the Constitution, in paragraph 9, the learned Judge observed as under:-
"9. A contention was raised on behalf of the petitioner during the course of hearing that in light of the amendments in Section 115 of the Code of Civil Procedure, this Court should exercise jurisdiction under Article 227 in case of gross violation of principles of natural justice. There can be no dispute as regards the said proposition but this is not a case where it can be stated that any gross injustice has resulted by virtue of the impugned order. The learned Advocate also submitted that as the remedy under Section 115 of the Code of Civil Procedure has been restricted now, this Court should exercise jurisdiction under Article 227 of the Constitution of India in that context, namely, expand the scope of its jurisdiction under Article 227. This contention requires to be stated to be rejected. Once the legislature in its wisdom has amended the provision of Section 115 of the Code of Civil Procedure and restricted the scope of interference by this Court, an exercise which negates the amendment cannot be undertaken; what is not permissible directly cannot be done indirectly. The Court has to bear in mind the purpose and intent of the amendment." (emphasis supplied) It is seen that the very object of introducing these amendments was to cut down the delay in disposal of suits and to curtail spate of remedial steps provided under the CPC.
As long as clause (b) of proviso existed on the Statute book, it was possible for the High Court to interfere in its revisional jurisdiction even if the order is of interim or interlocutory nature provided if such order is allowed to stand, it would result in failure of justice or irreparable loss. Conscious deletion of this provision by the Legislature is, therefore, a positive indication of the intent of the Legislature that even if the interlocutory order, if allowed to stand cause failure of justice or irreparable loss it should not be interfered with because it is of interim nature and parties may always be relegated to their rights to the appropriate final adjudication of the lis between the parties which will decided only when the suit from which lis arises is decided. We are, at least, sure of one thing that Legislature never intended by effecting amendment in Section 115 of the Civil Procedure Code to enable the litigants to challenge the orders passed by the Civil Courts in suit proceedings by way of writ petition under Article 226 and thereby given one more chance to file an appeal under Clause 15 of the Letters Patent.
We have already recorded the facts of the matter in the earlier part of our judgment. It is evident that in the present case, learned Single Judge looked into an order passed by the appellate Court in Misc. Civil Appeal under the provisions of Order 43 Rule 1 of the CPC. The trial court granted injunction by allowing Exhibit 5 application. The appellate court, in exercise of powers under Order 43 Rule 1 of CPC set aside the order and the appellate court's order was the subject matter of challenge before the learned Single Judge. Learned Single Judge was called upon to consider the legality and validity of the order passed by the appellate Court, which set aside the order of injunction. The learned Single Judge considered the order passed by the appellate Court, which was impugned and ultimately thought fit to confirm the order by dismissing the petition.
Now, in this background, we have to consider as to whether the Letters Patent Appeal under Clause 15 the Letters Patent would be maintainable or not. In this regard, there are four principal contentions put forward by the learned counsel:-
The main writ petition was under Articles 226 and 227 suggestive of the fact that the appellant has invoked the extraordinary original jurisdiction of the High Court.
By invoking the extraordinary original jurisdiction of the High Court under Article 226, the appellant has also prayed for writ of certiorari to quash and set aside the order passed by the appellate Court.
It is submitted that facts in the present case have justified the appellant in filing an application under Article 226 and 227 of the Constitution and therefore in fairness of justice to the appellant and any order not to deprive him of the valuable right of appeal, this Court ought to treat the application as being made under Article 226 and therefore an appeal under Clause 15 of the Letters Patent would be maintainable.
It is further submitted that when the party has invoked the jurisdiction of the High Court under Article 226 then it is not open to the High Court to exercise jurisdiction under Article 227 of the Constitution when a relief can be granted to the party under the Article invoked. Therefore, there cannot be a test whether the High Court was justified in exercising its powers or the reliefs granted were under Article 227 of the Constitution.
Reliance has been placed on the following decisions of the Supreme Court:-
(i) State of Madhya Pradesh & Ors. v. Visan Kumar Shiv Charan Lal, reported in (2008) SCC 15 233.
(ii) Shahu Shikshan Prasarak Mandal & Anr. v. Lata P. Kore & Ors. Reported in 2009(1) GLH 417;
(iii) Full Bench decision of this Court in the case of Dilavarsinh Khodubha v. State of Gujarat & Ors. Reported in 1995 (1) GLR 110.
Before we deal with the judgments relied upon by the learned counsel for the appellants, it would be appropriate to consider the position so far as law of Letters Patent Appeal is concerned.
In the case of Kanhaiyalal Agarwal v.
Gwalier Sugar Co.
Ltd. (2001) 9 SCC 609, in para 6 of the said decision, the Apex Court has observed as under:-
"6.
So far as the law on the matter is concerned, as to whether an appeal would lie against an order made in writ petition before the High Court challenging an order of the Labour Court, this Court in its decision in Lokmat Newspapers (P) Ltd. v. Shankarprasad, (1999) & SCC 275 stated that if a Single Judge exercises jurisdiction under Article 226, Letters Patent Appeal would be maintainable, but if the jurisdiction is exercised under Article 227 it will not be maintainable. But with an explanation that if the Single Judge of the High Court in considering the petition under which provision he had decided the matter and where the facts justify filing of petition both under Article 226 and Article 227 and a petition so filed is dismissed by the Single Judge on merits, the matter may be considered in its proper perspective in an appeal. This Court held as aforesaid in view of the decisions of this Court in Umarji Keshao Meshram v. Radhikabai, 1986 Supp. SCC 401, Ratnagiri Distt. Central Coop. Bank Ltd. v. Dinkar Kashinath Watve, 1993 Supp.
(1) SCC 9 and Sushilabai Laxminarayan Mudliyar v. Nihalchand Waghajibhai Shaha, 1993 Supp. (1) SCC 11." (Emphasis supplied.) We may also reproduce the following observations made by the Apex Court in Umaji Keshad Meshram v.
Radhikabai, AIR 1986 SC 1272 - 1986 Supp. SCC 401 which has all along been treated as a leading decision on the subject:-
"107.
Petitions are at times filed both under Articles 226 and 227 of the Constitution. The case of Hari Vishnu Kamath v. Syed Ahmad Isamaque, AIR 1955 SC 233 before this Court was of such a type. Rule 18 provides that where such petitions are filed against orders of the tribunals or authorities specified in Rule 18 of Chapter XVII of the Appellate Side Rules or against decrees or orders 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 order sought to be appealed against is under Article 226. Such was the view taken by the Allahabad High Court in Aidat Singh v. Karan Singh, AIR 1957 AIR 414 and by the Punjab High Court in Raj Kishan Jain v. Tulsi Dass, AIR 1959 Fun. 291 and Garnam Dutt v. Peoples Co-operative Transport Society Ltd., New Delhi, AIR 1901 Pun. 29 and we are in agreement with it." (Emphasis supplied.) Clause 15 of the Letters Patent of Bombay High Court as applicable to this Court reads as under:-
"15.
Appeal from the courts of original jurisdiction to the High Court in its appellate jurisdiction: And we do further ordain that an appeal shall lie to the said High Court of Judicature at Bombay from the judgment not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided, an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, on or after the first day of February, 1929 in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to us. Our heirs or successors in Our or Their Privy Council, as hereinafter provided."
Clause 44 of the Letters Patent reads as under:-
"44.
Power of the Indian Legislature preserved. And we do further ordain and declare that all the provisions of these Our Letters Patent are subject to the legislative Council and also of the Government-General in Council under Section seventy-one of the Government of India Act, 1915, and seventy-two of that Act, and may be in all respect amended and altered thereby."
Accordingly, a Letters Patent Appeal is not maintainable against a judgment not being a sentence or order passed or made in exercise of the powers of superintendence under the provisions of Section 107 of the Government of India Act (1915) corresponding to Article 227 of the Constitution. A Letters Patent Appeal is also not maintainable against an order made in exercise of revisional jurisdiction. Before insertion of Section 100-A in the Code of Civil Procedure, 1908, a Letters Patent Appeal was not maintainable against the judgment of a Single Judge of the High Court in numerically second appeal, without the certificate of the Single Judge who passed the judgment that the case is a fit one for appeal. By Section 100-A inserted by the Code of Civil Procedure (Amendment) Act, 1976, the Letters Patent Appeal against the decision of a Single Judge in numerically "second" appeal was abolished. In view of the amendment of Section 100-A CPC by the Code of Civil Procedure (Amendment) Acts 1999 and 2002 with effect from 1-7-2002, now no Letters Patent Appeal is maintainable even against the judgment of a Single Judge in first appeal meaning thereby the Legislature has now abolished the numerically "second" appeal before a "third" judicial forum. In this connection, a reference may be made to the judgment of the Hon'ble Supreme Court in Municipal Corporation of Brihanmumbai v. State Bank of India, AIR 1999 SC 380 which interpreted Section 100-A of the Code of Civil Procedure, 1908 after its insertion by the Amendment Act, 1976 but before its amendment by the Amendment Acts, 1999 and 2002, and also to the judgment of a Full Bench of this Court in Nasik Hing Supplying Co. v. Annapurna Gruh Udyog Bhandar, 2003 (2) GLR 926.
We shall now consider the case law which has been relied upon by the learned counsel for the appellant referred to above.
In the Full Bench decision of this Court in Dilavarsinh Khodubha v. State of Gujarat & Ors (supra) it has been held that writ of certiorari would lie against orders of subordinate courts and inferior Tribunals. It is further held that the High Court has power of superintendence over its Tribunals within its territory, under Article 227 and, therefore, such Tribunals are inferior Tribunals, amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution so that writs of Certiorari and Prohibition can be issued against them. It is further held that if such Tribunal assumes wrong jurisdiction, it can be stopped by a writ of Prohibition and if it makes an order, which falls within the scope of the writ of Certiorari, the same can be quashed under Article
226. In the said judgment it is furhter held that the Urban Land Tribunal under the provisions of the Urban Land (Ceiling & Regulation) Act, 1976 is the legal authority to determine questions affecting the rights of the parties and has the duty to act judicially. The Full Bench held that against the orders as made by such Tribunal a writ of certiorari or a writ in the nature of certiorari can be issued under Article 226 of the Constitution of India. In other words, the aggrieved party would be justified in invoking the provisions of Article 226 for a writ of certiorari against the order made by the Urban Land Tribunal in exercise of the judicial functions conferred upon it by Section 33 of the Act. It is further held relying on Umaji Keshao Meshram & Ors. v. Smt. Radhikabai & Anr., reported in AIR 1986 SC 1272 that in the facts of that particular case the grounds taken in the writ petition unmistakably showed that it was a petition under Article 226 of the Constitution and from the order of the learned Single Judge, it would appear that the petition was considered both under Articles 226 and 227 of the Constitution. In this view of the matter, the Full Bench has held that the Letters Patent Appeal under Clause 15 would lie against an order made by the Single Judge in such petitions challenging the orders of the Urban Land Tribunal passed under Section 33 of the Act.
On going through the grounds taken in the writ petition in that case and the order of the learned Single Judge which was under challenge in the Letters Patent Appeal before the Full Bench, it was held that the petition was considered both under Articles 226 and 227 and that the Letters Patent Appeal was maintainable against an order made by the Single Judge in such petitions challenging the order of the Urban Land Tribunal passed under Section 33 of the Urban Land (Ceiling & Regulations) Act, 1976.
The aforesaid decision is, however, required to be appreciated in the context of the controversy which was raised before the Full Bench. Earlier in Himatlal K. Parekh v. Competent Authority, 1990(1) GLR 626 and in Jasubhai H. Gandhi v. Competent Authority, 1990(2) GLR 1140, two Division Benches of this Court had held that a Letters Patent Appeal was not maintainable against the judgment of the Single Judge of this Court in a petition challenging the order of the Urban Land Tribunal under Section 33 of the Urban Land (Ceiling & Regulations) Act, 1976 because such a petition against the order of the Tribunal had to be treated as a petition under Article 227 of the Constitution, even if the petition purported to be under Articles 226 and 227 of the Constitution.
The Full Bench overruled the aforesaid view and relying on the decision of the Apex Court in Umaji's case (supra) held that the Court has to apply the test laid down by the Apex Court in Umaji's case. The Full Bench, therefore, did not lay down that the petition challenging the order of every Tribunal had to be necessarily treated as a petition under Article 226 in every case.
In the case of Sate of Madhya Pradesh & Ors. v. Visan Kumar Shiv Charan Lal, (supra) the Supreme Court has observed and held after considering the earlier judgments of the Supreme Court including Umaji's case (supra) that there is not a manner of doubt that the order and proceedings in a judicial court subordinate to the High Court are amenable to the writ jurisdiction under Article 226 of the Constitution. The Supreme Court in the said case upon a review of decided cases held that the distinction between the two jurisdictions stands almost obliterated in practice. It further held that probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement. In the facts of the that case, the Supreme Court held that Letters Patent Appeal was maintainable.
None of these judgments deal with the issue raised and answered by the Supreme Court in the case of Radhey Shyam v. Chhabi Nath, (2009) 5 SCC 616 with which we shall deal with at a later stage.
Now, it is evident from the record that before the learned Single Judge the challenge was to a judicial decision rendered by the Court in a suit proceedings at a interlocutory stage. A judicial decision is one which is rendered by a court or an authority which has no interest in the subject matter of the decision and which is rendered after hearing both the parties. When such a decision is impugned before the High Court, what the High Court does is to revise it. While doing so, the High Court may confirm it, modify or quash it. This is exactly what has been done by the learned Single Judge. Learned Single Judge, in exercise of his supervisory jurisdiction under Article 227 of the Constitution, did not deem fit to interfere with the order passed by the appellate court and accordingly confirmed the same. If the decision rendered by a civil court is a judicial decision by which the lis or contest between the parties is decided, the High Court, in exercise of its power under Article 226 does nothing more than to revise that decision. It may quash it or it may confirm it. But, essentially, the jurisdiction which the High Court exercises is that of revising of judicial decision impugned before it. Therefore, irrespective of whether such a judicial decision is impugned under Article 227 or 226 of the Constitution, appeal against the decision of the learned Single Judge from such a decision would not be maintainable under Clause 15 of the Letters Patent.
To our mind, the test which is required to be applied while determining whether an order made by the learned Single Judge is appealable to a Division Bench under Clause 15 of the Letters Patent is not whether the party has invoked Article 226 or 227 or whether the one Article confers such jurisdiction while the other Article does not do so. But the real test is whether what the learned Single Judge has done is to revise the judicial order. If the order which was challenged before him was a judicial order and if he examined that order and recorded his decision he did nothing else except to revise it. Further, the test whether a particular order is a judicial order or not lies in determining whether the Court below has decided the lis between the contesting parties and adjudicated upon their rights.
We are of the view that there cannot be any distinction with regard to a proceeding under Article 226/227 and Section 115 of the CPC when it relates to a proceeding arising out of an order of the Civil Court. Whatever might be the nature of the petition, it remains a revisional jurisdiction. Once again, we go to the crux of the matter on this issue. The crux of the matter would be where the proceedings originally started. Undisputedly, in the present case, the original proceedings did not start in the High Court. It started with the approach to the Civil Court under Order 39 Rule 1 and 2 of the CPC. Thereafter, the matter reaching to the district court in an appeal under Order 43 Rule 1 and thereafter the matter has reached to the High Court. Thus, what comes out is that the appellant - original petitioners herein invoked the supervisory jurisdiction of the High Court i.e. under Article 227 and not the original jurisdiction as provided under Article 226 of the Constitution. It is pertinent to note where an order of authority and executive authority with or without the provisions of appeal or revision but without any judicial scrutiny or scrutiny by a judicial body at any stage is challenged, the same would be normally for exercise of jurisdiction under Article 226 of the Constitution. But, where law provides the provision of appeal and the same is decided by the judicial authority or where there is a scope for judicial scrutiny by a subordinate court at the top, the petition challenging such order would be covered under Article 227 of the Constitution.
We shall refer to a very important judgment rendered by the Division Bench of this High Court in the case of Ishwarbhai N. Patel Vs. K.H. Trivedi & others, reported in 2003(3) GLH -146, wherein the Division Bench has observed as under which fortifies what we have observed in Para-38.
"In Umaji Keshao Meshram (supra), the Apex Court also held that a proceeding under Article 227 was not an original proceeding and, therefore, intra-court appeal would not lie against the judgment of a Single Judge of the Bombay High Court given in a petition under Article 227, by reason of such appeal being expressly barred by Clause 15 of the Letters Patent of that High Court. Hence, the question whether the proceeding in which the High Court exercised its jurisdiction is an original proceeding or whether the Single Judge exercising the jurisdiction of the High Court was hearing the matter as a "second" Forum would also be a relevant consideration."
In the same judgment Division Bench in Para-11 has observed as under:
"11.
When a Single Judge has not stated whether he has exercised jurisdiction under Article 226 or 227, while deciding a petition challenging the decision of a Court or Tribunal which is subordinate to the High Court and which is presided over by a sitting or a retired judicial officer, we see no reason why the Letters Patent Bench should not raise a strong presumption that the Single Judge has exercised the jurisdiction under Article 227 of the Constitution. In such a case, the litigant has already had his case tried before at least two judicial fora - first before the subordinate Court/Tribunal and then before a Single Judge of the High Court. In our view, this perspective may not fail the test of justice, fairness and propriety, if we look at the language of the provisions of Clauses 15 and 44 of the Letters Patent from this angle alongwith the legislative interventions restricting the number of civil appeals."
We may also lay down one more test in determining whether the High Court has exercised the supervisory jurisdiction or otherwise. Where a petition is filed both under Article 226 and 227 of the Constitution it will have to be considered whether the point raised in the petition arose for adjudication for the first time before the High Court. If the challenge in the petition is with respect to the point already adjudicated upon by the subordinate court, then, it will have to be held that the supervisory jurisdiction of the High Court was invoked and not the original. In the instant case, the appellants-petitioners filed petition under Article 226 and 227 of the Constitution challenging the order of the district court passed in appeal as erroneous and contrary to law, then the petitioner can be said to be invoking the supervisory jurisdiction of the High Court and not the original jurisdiction. Therefore, the appeal against the decision therein would not be maintainable as they are not directed against the impugned order passed by the learned Single Judge in exercise of the original jurisdiction of the High Court.
In our considered opinion, therefore, the petition filed by the appellant petitioners in pith and substance was a petition under Article 227 of the Constitution and the nature of the powers exercised by the learned Single Judge as evident from the order itself would suggest that they were supervisory in jurisdiction and therefore no appeal against such order of the learned Single Judge would be maintainable.
It is open to the Court while dealing with the petition filed under Article 226 and/or 227 of the Constitution or a letters patent appeal under Clause 15 of the Letters Patent arising from the judgment in such a petition to determine whether the facts justified the party in filing the petition under Article 226 and/or 227 of the Constitution.
The cause title, averments and the prayers in the petition can be taken into account while deciding whether the petition is one under Article 226 and 227 of the Constitution. The true test is whether the facts justified invocation of Article 226/227 of the Constitution and this has to be determined on the facts of each case having regard to:
Nature and the jurisdiction invoked;
The averments contained in the petition The reliefs sought, and Most importantly, the true nature of the principal order passed by the learned Single Judge. The true nature of the order passed by the learned Single Judge has to be determined on the basis of true character of the relief granted.
Considering all these aspects, we are of the opinion more particularly taking into consideration the fact that this is a matter arising out of an order passed in a suit proceedings between two private parties and also having regard to the nature of the dispute and the nature of the order passed by the learned Single Judge there is no element of doubt that the petition in substance was under Article 227 of the Constitution and the learned Judge also exercised his supervisory powers under Article 227 of the Constitution while dismissing the petition. Therefore, the appeal under Clause 15 of the Letters Patent would not be maintainable. By merely labelling the petition under Article 226 and by praying for a writ of certiorari it cannot be said that the facts justified the appellants petitioners to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution.
WRIT OF CERTIORARI:
We shall now consider another facet of the issue in question and that is with regard to writ of certiorari. Supreme Court in Surya Dev Rai v.Ram Chander Rai, (2003) 6 SCC 675 laid down a proposition of law that judicial orders passed by the civil courts can be examined and corrected/reversed by a writ of certiorari. This judgment may perhaps fortify the contention of learned counsel that a writ petition under Article 226 of the Constitution would be maintainable against a judicial order passed by the Civil Court and the orders can be corrected by a writ of certiorari. There is no doubt that Supreme Court has said so in many terms. So, we are not going into the details of the said judgment, but, recently, the Supreme Court has doubted the correctness of the ratio of Surya Dev Rai's case (supra) in the case of Radhey Shyam v. Chhabi Nath (2009) 5 SCC 616 and in view of the difference of opinion the matter has now been referred to the Hon'ble Chief Justice of India for constituting a larger Bench to consider the correctness or otherwise of the law laid down in the case of Surya Dev Rai's case (supra).
Certain observations of the Supreme Court in the matter of Radhey Shyam (supra) would be relevant and important.. They are as under:-
"8. One of the grounds raised in this appeal before this Court is whether the High Court, in exercise of its extraordinary writ jurisdiction can interfere with a judicial order passed by the Civil Court of competent jurisdiction?"
"9. From the aforesaid narration of events, it is clear that the proceedings in this case arose out of purely civil disputes relating to property and the parties have filed suits before the Civil Court, and the suits are pending. The parties to the proceedings are all private individuals. Neither the State nor a 'State' nor an authority under Article 12 is a party to this proceeding. This is clear from the cause title of this appeal. Now the question is, whether private individuals are amenable to the jurisdiction of writ court in connection with the private disputes relating to property, possession and title between private individuals.
"10. As early as in 1957, a Constitution Bench of this Court in the case of Shri Sohan Lal Vs. Union of India and Another - AIR 1957 SC 529
- held that a writ of mandamus or an order in the nature of mandamus is not to be made against a private individual. A writ of and/or in the nature of Mandamus normally is issued asking a person to do a particular thing which is in the nature of his public duty.
"11. In Sohan Lal (supra) rival claims of property were in issue and the learned Judges held in paragraph 5 that the writ court should refrain themselves from entering the said field. Since in view of the court such an exercise calls for "entering into a field of investigation which is more appropriate for a Civil Court in a properly constituted suit to do rather than for a Court exercising the prerogative of issuing writs"
(see para 5, page 531).
The learned Judges held that if only it can be proved that the appellant-Sohan Lal acted in collusion with Union of India in evicting the respondent-Jagan Nath, then an order of mandamus can be issued (see para 7), but it will not issue otherwise.
"12.
Only in the case of a writ of Habeas Corpus, it can be issued against private individual, if it is proved that the private individual is illegally holding another person in detention (see Mohd. Ikram Hussain Vs. The State of Uttar Pradesh and others - AIR 1964 SC 1625) "13.
Following the aforesaid principle, this Court fails to understand how can the writ court intervene in a dispute over property rights between private individuals.
"14.
Apart from the decision in the case of Sohan Lal (supra), subsequently in the case of Mohd. Hanif Vs. The State of Assam - 1969 (2) SCC 782 - a three-Judge Bench of this Court explaining the general principle relating to High Court's jurisdiction under Article 226 held that the jurisdiction of the High Court is extraordinary in nature and is vested in the High Court not for the purpose of declaring the private rights of the parties but it is conferred for the purpose of ensuring that the law of the land is implicitly obeyed and that the various tribunals and public authorities are kept within the limits of the jurisdiction (see para 5).
"15. The learned Judges reiterated the principle further by saying:-
"5.
.. In a proceeding under Article 226 the High Court is not concerned merely with the determination of the private rights of the parties; the only object of such a proceeding under Article 226 is to ensure that the law of the land is implicitly obeyed and that various authorities and tribunals act within the limits of their respective jurisdiction."
"16. The learned Judges in Hanif (supra) referred to the decision of this Court in Basappa Vs. Nagappa - 1955 (1) SCR 250 - and held that "it is obvious that the remedy provided under Article 226 is a remedy against the violation of the rights of a citizen by the State or statutory authority. In other words, it is a remedy in public law." This principle holds good till today.
"22.
It is only in the case of Surya Dev Rai Vs. Ram Chander Rai and others - 2003 (6) SCC 675 - a two Judge Bench of this Court held, possibly for the first time that the "orders and proceedings of a judicial court subordinate to the High Court are amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution (para 19, page 688 of the report)."
The attention of the Court was not drawn to the earlier Constitution Bench judgment in Sohan Lal (supra) or the three-Judge Bench judgment in Hanif (supra). Both these judgments are still holding the field. Before coming to the aforesaid conclusion, the learned judges in Surya Dev Rai (supra) noticed the contrary view expressed in a Nine-Judge Constitution Bench judgment of this Court in the case of Naresh Shridhar Mirajkar and others Vs. State of Maharashtra.
"23. In Mirajkar(supra) a nine-Judge Constitution Bench considered the history of writ of Certiorari and after considering various English and Indian decisions came to the conclusion "Certiorari does not lie to quash the judgments of inferior Courts of civil jurisdiction." (See paragraph 63 page 18 of the Report). The learned judges in saying so followed the law relating to Certiorari as prevalent in England and held that in England the judicial orders passed by civil Courts of plenary jurisdiction in relation to matters brought before them are not amenable to the jurisdiction of Certiorari.
"26.
The two-Judge Bench in Surya Dev Rai (supra), did not, as obviously it could not, overrule the ratio in Mirjakar (supra), a Constitution Bench decision of a nine-Judge Bench. But the learned Judges justified their different view in Surya Dev Rai (supra), inter alia on the ground that law relating to Certiorari changed both in England and in India. In support of that opinion, the learned Judges held that the statement of law in Halsbury, on which the ratio in Mirajkar (supra) is based, has been changed and in support of that quoted the paragraphs 103 and 109 from Halsbury's Laws of England, 4th Edn. (Reissue), Vol. 1 (1). Those paragraphs are set out below:-
"103.
The prerogative remedies of certiorari, prohibition and mandamus: historical development. --- Historically, prohibition was a writ whereby the royal courts of common law prohibited other courts from entertaining matters falling within the exclusive jurisdiction of the common law courts; certiorari was issued to bring the record of an inferior court into the King's Bench for review or to remove indictments for trial in that court; mandamus was directed to inferior courts and tribunals, and to public officers and bodies, to order the performance of a public duty. All three were called prerogative writs;
* * *
109. The nature of certiorari and prohibition.
---- Certiorari lies to bring decisions of an inferior court, tribunal, public authority or any other body of persons before the High Court for review so that the Court may determine whether they should be quashed, or to quash such decisions. The order of prohibition is an order issuing out of the High Court and directed to an inferior court or tribunal or public authority which forbids that court or tribunal or authority to act in excess of its jurisdiction or contrary to law. Both certiorari and prohibition are employed for the control of inferior courts, tribunals and public authorities."
The aforesaid paragraphs are based on general principles which are older than the time when Mirajkar (supra) was decided are still good. Those principles nowhere indicate that judgments of an inferior civil court of plenary jurisdiction are amenable to correction by a writ of certiorari. In any event, change of law in England cannot dilute the binding nature of the ratio in Mirjakar (supra) and which has not been overruled and is holding the field for decades.
"27. It is clear from the law laid down in Mirajkar (supra) in paragraph 63 that a distinction has been made between judicial orders of inferior courts of civil jurisdiction and orders of inferior tribunals or court which are not civil courts and which cannot pass judicial orders.
Therefore, judicial orders passed by civil courts of plenary jurisdiction stand on a different footing in view of the law pronounced in para 63 in Mirajkar (supra). The passage in the subsequent edition of Halsbury (4th Edition) which has been quoted in Surya Dev Rai (supra) does not at all show that there has been any change in law on the points in issue pointed out above.
"31.
Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. Article 227 of the Constitution vests the High Courts with a power of superintendence which is to be very sparingly exercised to keep tribunals and Courts within the bounds of their authority. Under Article 227, orders of both Civil and Criminal Courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law. The essential distinctions in the exercise of power between Article 226 and 227 are well known and pointed out in Surya Dev Rai (supra) and with that we have no disagreement.
"32.
But we are unable to agree with the legal proposition laid down in Surya Dev Rai (supra) that judicial orders passed by a Civil Court can be examined and then corrected/reversed by the writ Court under Article 226 in exercise of its power under a writ of certiorari. We are of the view that the aforesaid proposition laid down in Surya Dev Rai (supra), is contrary to the ratio in Mirajkar (supra) and the ratio in Mirajkar(supra) has not been overruled in Rupa Ashok Hurra(supra).
"33.
In view of our difference of opinion with the views expressed in Surya Dev Rai (supra), matter may be placed before His Lordship the Hon'ble the Chief Justice of India for constituting a Larger Bench, to consider the correctness or otherwise of the law laid down in Surya Dev Rai on the question discussed above."
The Supreme Court in Radhey Shyam's case (supra) has made it abundantly clear that judicial orders passed by the Civil Court cannot be examined and then corrected/reversed by the writ court under Article 226 of the Constitution in exercise of its power under a writ of certiorari. This judgment of the Supreme Court is recent in point of time. If there is at all any conflict between the two judgments of the Supreme Court of equal strength, then, as per the Full Bench decision of this Court in the case of Gujarat Housing Board v. Nagjibhai Laxmanbhai & Ors., reported in 1985 2 GLR 1190 para 12, the last judgment in point of time must be followed by the High Court and we also intend to follow the settled position of law more particularly in the facts and circumstances of the case.
We take notice of the fact that in Radhey Shyam's case (supra) the Supreme Court has placed much emphasis on the Constitution Bench judgment of the Supreme Court in the case of Naresh Shridahr Mirajkar v. State of Maharashtra, AIR 1967 SC 1. Based on this judgment of the Constitution Bench, the Supreme Court has taken a view that judicial orders passed by civil court cannot be examined and then corrected/reversed by the writ court under Article 226 in exercise of its power under a writ of certiorari. Since we are examining this issue in detail, we would also like to look into the judgment of the Supreme Court rendered in the case of Naresh S Mirajkar (supra).
The question that came up for consideration in Mirajkar's case before the Supreme Court was whether a judicial order passed by Single Judge of Bombay High Court prohibiting the publication of evidence of a witness in newspapers violated fundamental right under Article 19(1)(a) of the citizens who were strangers to the proceedings. The Supreme Court consisting of 9 Judges by a majority held that no writ under Article 32 of the Constitution can be issued.
The leading judgment in the majority was written by Gajendragadkar, CJ. There are several strands of reasoning in the judgment, all in support of the point that no writ can be issued under Article 32 to quash the decision of a High Court on the ground that it violates the fundamental right of a person under Article 19 (1) (a). The learned Judge said that the question for consideration in the case was whether a judicial order passed by the High Court prohibiting the publication in newspapers of evidence given by a witness pending the hearing of the suit is amenable to be corrected by a writ of certiorari under Art. 32, and limited his discussion and decision to the points which have a material bearing on the broad problems.
Having enunciated the point for consideration, the learned Chief Justice considered the question whether a judicial decision passed by a Court of competent jurisdiction can be attacked on the ground that it violates the fundamental right of a citizen under Article 19 (1)
(a) and said that when a Judge deals with matters brought before him for his adjudication he first decides questions of fact on which the parties are at issue, and then applies the relevant law to the said facts, and whether findings of fact recorded by the judge are right or wrong, and whether the conclusion of law drawn by him suffers from any infirmity, can be considered and decided if the party aggrieved by the decision of the Judge takes the matter up before the appellate Court, and that 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 right of citizens under Article 19 (1) (a).
Learned Judge then observed that what the judicial decision purports to do is to decide the controversy between the parties brought before the Court and nothing more and that 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 right of citizens under Article 19 (1) (a), Having enunciated that proposition, he considered the impact of the decision of the single Judge of the Bombay High Court on the fundamental rights of the petitioners and said that the impact was only indirect, and referred to the decision in A. K. Gopalan v. State of Madras, 1950 SCR 88 (AIR 1950 SC 27), to support it. In answer to the contention of Mr. Setalvad for the petitioners based on Budhan Choudhry v. State of Bihar, 1955-1 SCR 1045 : (AIR 1955 SC
191), that judicial order based on exercise of judicial discretion may contravene Article 14 and thereby become invalid, he said that nothing in that decision can be taken to have decided that a judicial decision pronounced by the Court can in normal circumstances be attacked on the ground that it violates the fundamental right.
This is what the learned Judge said :
"We are, therefore, not prepared to accept Mr. Setalvad's assumption that the observations on which he bases himself support the proposition that according to this Court, judicial decisions rendered by Courts of competent jurisdiction in or in relation to matters brought before them can be assailed on the ground that they violate Article 14".
Then the learned Judge referred to the ruling of Sarkar, J., (as he then was) in Parbhani Transport Cooperative Society Ltd. v. R. T. A. Aurangabad, 1960-3 SCR 177 : (AIR 1960 SC 801), where it was laid down that a decision of the Regional Transport Authority may be right or wrong, but the Court was unable to see how that decision could offend Article 14 or any other fundamental right of the petitioner there and agreed with the reasoning in the case.
Mr. Setalvad also relied upon the ruling in Prem Chand Garg v. Excise Commissioner, U. P. Allahabad, (1963) Supp 1 SCR 885 : (AIR 1963 SC
996), where the petitioner, Prem Chand Garg, was required to furnish security for the costs of the respondent under Rule 12 of Order 35 of the Supreme Court rules. In his petition filed under Article 32 of the Constitution, he contended that the rule was invalid as it placed an obstruction on the fundamental right guaranteed under Art. 32 to move the Supreme Court for the enforcement of fundamental right. That plea was upheld by the majority decision, with the result that the order requiring him to furnish security was vacated. The learned Judge clarified the effect of the decision by saying that although it is open to a party to challenge a rule made under Article 145, for the reason that it illegally contravenes his fundamental right and move the Supreme Court under Article 32, the challenge in such a case is not against the decision of the Court but against the rule and if the rule is struck down, the Court can review or recall the order passed under the said rule.
The learned Judge then said :
"Therefore, we are not satisfied that Mr. Setalvad is fortified by any judicial decision of this Court in raising the contention that a judicial order passed by the High Court in or in relation to proceedings brought before it for its adjudication, can become the subject-matter of writ jurisdiction of this Court under Article 32 (2). In fact, no precedent has been cited before us which would support Mr. Setalvad's claim that a judicial order of the kind with which we are concerned in the present proceedings has ever been attempted to be challenged or has been set aside under Article 32 of the Constitution".
The learned Judge then considered the scope of the decision in Smt. Ujjam Bai v. State of Uttar Pradesh. 1963-1 SCR 778 : (AIR 1962 SC 1621), and said that ". . .
where a quasi-judicial authority makes an order in the undoubted exercise of its jurisdiction in pursuance of a provision of law which is intra vires, an error of law or fact committed by that authority cannot be impeached otherwise than on appeal, unless the erroneous determination relates to a matter on which the jurisdiction of that body depends, and the relevant law does not confer on that body jurisdiction to determine that matter". Incidentally he adverted to the question whether a writ of certiorari can be issued to inferior Courts of civil jurisdiction and after quoting from Halsbury's Laws of England. Vol. II, page 130, said that the ultimate proposition laid down in that volume is that :
"Certiorari does not lie to quash the judgments of inferior Courts of civil jurisdiction".
Sarkar J., practically agreed with the reasoning of the learned Chief Justice. Hidaytullah J., dissented from the majority judgment. He took the view that judicial orders may violate fundamental rights and there is no reason why in such cases a writ in the nature of certiorari should not be issued. He relied on Articles 20, 21 and 22(1) of the Constitution to show that at any rate the fundamental rights under those articles can be violated by Courts. He cited the instance of a Judge, without any reason, ordering the members of a particular political party to go out of his Court and said that in such a case they can enforce their fundamental rights, by writs of certiorari. Shah J., agreed with the learned Chief Justice and said that there is no distinction between an order passed by the High Court and an order passed by a subordinate Court in this matter. The learned Judge observed :
"I am unable however to agree that in the matter of exercise of powers of this Court to issue writs against orders of Courts which are alleged to infringe a fundamental right under Article 19 any distinction between the High Court and subordinate Courts may be made. In my view orders made by subordinate Courts, such as the District Court or Courts of subordinate Judges which are trial Courts of plenary jurisdiction are as much exempt from challenge in enforcement of an alleged fundamental right under Article 19 by a petition under Article 32 of the Constitution as the orders of the High Courts are".
As regards the question whether by a judicial order the fundamental rights under Arts. 20, 21 and 22 (1) could be violated and relief under Article 32 or under Article 226 of the Constitution obtained, the learned Judge did not express any categorical opinion. Bachawat J., more or less agreed with the decisions of the learned Chief Justice.
The sum and substance of the entire ratio as laid down by the Constitution Bench of the Supreme Court in Naresh Shridhar Marijkar (supra) fortifies our view that judicial orders passed by the Civil Court cannot be examined and then corrected/reversed by the writ court under Article 226, in exercise of its power under a writ of certiorari. Of course, this is now, fortified further by the recent pronouncement of the Supreme Court in the case of Radhey Shyam (supra).
We also have, to our advantage, a recent judgment of the Supreme Court in the matter of Shalini Shyam Shetty v. Rajendra Shankar Patil (2010) 8 SCC 329. In the case before the Supreme Court the dispute was between the landlord and a tenant. The Supreme Court was disturbed to note that in a pure private dispute of landlord and private parties a writ petition was entertained by the High Court. It was urged before the Supreme Court that petitions under Article 227 of the Constitution are filed against an order of civil court and even with respect to disputes between the landlord and tenants. In this background, the Supreme Court has laid down the following proposition of law which we shall apply in the case on hand at a later stage:-
"57. Articles 226 and 227 stand on substantially different footing. As noted above, prior to the Constitution, the Chartered High Courts as also the Judicial Committee of the Privy Council could issue prerogative writs in exercise of their original jurisdiction. [See 1986 (suppl.) SCC 401 at page 469)].
"58. However, after the Constitution every High Court has been conferred with the power to issue writs under Article 226 and these are original proceeding. [State of U.P. and others vs. Dr. 3Vijay Anand Maharaj - AIR 1963 SC 946, page 951].
"59. The jurisdiction under Article 227 on the other hand is not original nor is it appellate. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields.
"60. Another distinction between these two jurisdictions is that under Article 226, High Court normally annuls or quashes an order or proceeding but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. {See Surya Dev Rai (supra), para 25 page 690 and also the decision of the Constitution Bench of this Court in Hari Vishnu Kamath vs. Ahmad Ishaque and others - [AIR 1955 SC 233, para 20 page 243]}.
"61. Jurisdiction under Article 226 normally is exercised where a party is affected but power under Article 227 can be exercised by the High Court suo motu as a custodian of justice. In fact, the power under Article 226 is exercised in favour of persons or citizens for vindication of their fundamental rights or other statutory rights. Jurisdiction under Article 227 is exercised by the High Court for vindication of its position as the highest judicial authority in the State. In certain cases where there is infringement of fundamental right, the relief under Article 226 of the Constitution can be claimed ex-debito justicia or as a matter of right. But in cases where the High Court exercises its jurisdiction under Article 227, such exercise is entirely discretionary and no person can claim it as a matter of right. From an order of a Single Judge passed under Article 226, a Letters Patent Appeal or an intra Court Appeal is maintainable. But no such appeal is maintainable from an order passed by a Single Judge of a High Court in exercise of power under Article 227. In almost all High Courts, rules have been framed for regulating the exercise of jurisdiction under Article 226. No such rule appears to have been framed for exercise of High Court's power under Article 227 possibly to keep such exercise entirely in the domain of the discretion of High Court.
"62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:
'(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority'.
(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) 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 this Article 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 High Court.
(n) 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 of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality.
"63. In the facts of the present case we find that the petition has been entertained as a writ petition in a dispute between landlord and tenant amongst private parties.
"64. It is well settled that a writ petition is a remedy in public law which may be filed by any person but the main respondent should be either Government, Governmental agencies or a State or instrumentalities of a State within the meaning of Article 12. Private individuals cannot be equated with State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. Under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform.
"65. Reference in this connection may be made to the Constitution Bench decision of this Court in the case of Sohan Lal vs. Union of India and another, reported in AIR 1957 SC 529.
"66. The facts in Sohan Lal (supra) are that Jagan Nath, a refugee from Pakistan, filed a writ petition in the High Court of Punjab against Union of India and Sohan Lal alleging unauthorized eviction from his residence and praying for a direction for restoration of possession. The High Court directed Sohan Lal to restore possession to Jagan Nath. Challenging that order, Sohan Lal approached this Court. The Constitution Bench of this Court accepted the appeal and overturned the verdict of the High Court.
"67. In paragraph 7, page 532 of the judgment, the unanimous Constitution Bench speaking though Justice Imam, laid down a few salutary principles which are worth remembering and are set out:
"7. The eviction of Jagan Nath was in contravention of the express provisions of Section 3 of the Public Premises (Eviction) Act. His eviction, therefore, was illegal. He was entitled to be evicted in due course of law and a writ of mandamus could issue to or an order in the nature of mandamus could be made against the Union of India to restore possession of the property to Jagan Nath from which he had been evicted if the property was still in the possession of the Union of India. The property in dispute, however, is in possession of the appellant. There is no evidence and no finding of the High Court that the appellant was in collusion with the Union of India or that he had knowledge that the eviction of Jagan Nath was illegal. Normally, a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an order is made against a person directing him to do some particular thing, specified in the order, which appertains to his office and is in the nature of a public duty (Halsbury's Laws of England Vol. 11, Lord Simonds Edition, p. 84). If it had been proved that the Union of India and the appellant had colluded, and the transaction between them was merely colourable, entered into with a view to deprive Jagan Nath of his rights, jurisdiction to issue a writ to or make an order in the nature of mandamus against the appellant might be said to exist in a Court..."
"68. These principles laid down by the Constitution Bench in Sohan Lal (supra) have not been doubted so far.
"69. Subsequently in some other cases question arose whether writ will lie against a private person. In Engineering Mazdoor Sabha & another vs. Hind Cycles Ltd., reported in AIR 1963 SC 874, it was held that an arbitrator appointed under Section 10A of Industrial Disputes Act is not a private arbitrator even though he cannot be equated with a tribunal to be amenable under Article 136 of the Constitution of India. The Court held that in discharging his duties as an arbitrator, the arbitrator is clothed with some trappings of a Court and a writ of certiorari would be maintainable against him. So even though an arbitrator, acting under Section 10A of the Industrial Disputes Act, is a private individual, he discharges public function. So the ratio in the Constitution Bench decision in Engineering Mazdoor Sabha (supra) is consistent with the decision in Sohan Lal (supra).
"70. It is only a writ of Habeas Corpus which can be directed not only against the State but also against private person. Justice Hidaytullah (as his Lordship then was) on behalf of a Bench of this Court stated the principle as "the writ of Habeas Corpus issues not only for release from detention by the State but also for release from private detention." (see AIR 1964 SC 1625 at 1630).
"71. In Rohtas Industries Ltd., & another vs. Rohtas Industries Staff Union & others [(1976) 2 SCC 82] this Court held that in view of the amendment of the Industrial Disputes Act, 1947, by amendment Act 36 of 1964 and in view of provisions like Section 27 of the Act, an arbitrator under Section 10A of the Industrial Disputes Act is virtually a part of State's sovereign dispensation of justice and his award is amenable to review under Articles 226 & 227 of the Constitution. In Rohtas (supra), the ratio of Engineering Mazdoor Sabha (supra) was followed.
"72. Therefore, a private person becomes amenable to writ jurisdiction only if he is connected with a statutory authority or only if he/she discharges any official duty.
"74. It has repeatedly been held by this Court that a proceeding under Article 226 of the Constitution is not the appropriate forum for adjudication of property disputes or disputes relating to title. In Mohammed Hanif vs. The State of Assam [1969 (2) SCC 782] a three Judge Bench of this Court, explaining the general principles governing writ jurisdiction under Article 226, held that this jurisdiction is extraordinary in nature and is not meant for declaring the private rights of the parties. [See para 5, page 786 of the report].
"79. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown, that a private individual is acting in collusion with a statutory authority.
"80. We may also observe that in some High Courts there is tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev (supra) and in view of the recent amendment to Section 115 of the Civil Procedure Code by Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 of CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding High Court's power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.
"81. As a result of frequent interference by Hon'ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice.
"82. This Court hopes and trusts that in exercising its power either under Article 226 or 227, Hon'ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest Courts of justice within their jurisdiction will adhere to them strictly.
"83. For the reasons aforesaid, it is held that the High Court committed an error in entertaining the writ petition in a dispute between landlord and tenant and where the only respondent is a private landlord. The course adopted by the High Court cannot be approved. Of course, High Court's order of noninterference in view of concurrent findings of facts is unexceptionable. Consequently, the appeal is dismissed. However, there shall be no order as to costs."
It is equally important for us to refer to one more decision of the Supreme Court in the case of Mohammed Hanif Vs. State of Assam, reported in 1969(2) SCC -782 in which the Supreme Court in Para-5 observed as under :
"5.
It is true that the jurisdiction of the High court under Art. 226 is an extraordinary jurisdiction vested in the High court not for the purpose of declaring the private rights of the parties but for the purpose of ensuring that the law of the land is implicitly obeyed and that the various tribunals and public authorities are kept within the limits of their jurisdiction. In other words, the jurisdiction of the High court under Art. 226 is a supervisory jurisdiction, a jurisdiction meant to supervise the work of the tribunals and public authorities and to see that they act within the limits of their respective jurisdiction. In a proceeding under Art. 226 the High court is not concerned merely with the determination of the private rights of the parties ; the only object to such a proceeding under Art. 226 is to ensure that the law of the land is implicitly obeyed and that various authorities and tribunals act within the limits of their respective jurisdiction. Art. 226 states that the High court shall have power to issue to any person or authority, including in appropriate cases any government, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition quo warrant and certiorari. All these writs are known in English law as prerogative writs, the reason being that they are specially associated with the King's name. These writs were always granted for the protection of public interest and primarily by the court of the King's bench. As a matter of history the court of the King's bench was held to be coram in so and was required to perform quasi-governmental functions. The theory of the English law is that the King himself superintends the due course of justice through his own court preventing cases of usurpation of jurisdiction and insisting on vindication of public, rights and protecting the liberty of the subjects by speedy and summary interposition. That is the theory of the English law and as pointed out by this court in Basappa V/s. Nagappa our Constitution-makers have borrowed the conception of prerogative writs from the English law and the essential principles relating to such prerogative writs are applicable in Indian law. It is obvious that the remedy provided under Art. 226 is a remedy against the violation of the rights of a citizen by the State or statutory authority. In other words, it is a remedy in public law."
What can be deduced as explained by the Supreme Court in Shalini's case (supra) that a writ petition is a remedy in public law which maybe filed by a person, but the main respondent should be the government, governmental agency or a State or instrumentality of the State within the meaning of Article 12 of the Constitution. Private individuals cannot be equated with the State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with the State can be respondents in the writ petition. It is a settled principle of law that in a petition for relief under Article 226 of the Constitution, the Court/Tribunal whose order is impugned in the petition must be made a party to the petition so that the writ sought from the court can go against the Court/Tribunal, but if the petition is for relief under Article 227 of the Constitution, it is well settled that the Court / Tribunal whose order impugned in a petition need not be a party in the writ petition, the reason being by entertaining the petition under Article 227 of the Constitution the High Court exercises its power of superintendence, which is analogous to the revisional jurisdiction.
Examining the matter from this angle, we are not convinced that a writ of certiorari can be issued in the present matter wherein all the respondents are private parties and the dispute purely relates inter-se with regard to properties and rights over properties. Most importantly, there is no allegation worth the name about any collusion with the author of the order which was impugned before the learned Single Judge. It is also not the case of the appellants that the appellate Judge while deciding the misc. appeal had no jurisdiction to entertain the appeal.
The sum and substance of our discussion and findings recorded in the Judgment can be now summarized as under :
(1) When the Parliament has thought fit to restrict powers under Sec.115 of the Code with a definite object, then, under such circumstances an order which is not revisable under Sec. 115 of the Code cannot be challenged by way of filing writ petition under Article-226 of the Constitution invoking the extra-ordinary jurisdiction of the High courts and that too an interlocutory order passed by Civil Courts in a regular suit proceeding.
(2) When remedy for filing the Revision under Sec. 115 of the Civil Procedure Code has been expressly barred then in such case the petition under Article 227 of the Constitution would lie and not a writ petition under Article 226 of the Constitution of India. If a petition under Article-227 of the Constitution would lie and if the same has been dismissed, then, no appeal under Clause-15 of the Letters Patent would be maintainable.
A petition under Article-227 is not a writ petition. No Writ can be issued under Article-227.
(3) Where the statute bans exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article-227 of the Constitution of India since power of superintendence was not made to circumvent statutory law. Jurisdiction under Article-227 cannot be exercised as a cloak of appeal in disguise.
(4) There cannot be any distinction with regard to a proceeding under Article-226/227 and Sec. 115 of the C.P.C. when it relates to a proceeding arising out of an order of the Civil courts passed in suit proceeding.
(5) Where law provides the provision of Appeal and the same is decided by the judicial authority or where there is a scope for judicial scrutiny by the subordinate at the top, the petition challenging such order would be covered under Article-227 of the Constitution.
(6) Where a petition is filed, both under Articles-226 and 227 of the Constitution, it will have to be considered whether the point raised in the petition arose for adjudication for the first time before the High court. If the challenge in the petition is with respect to the point already adjudicated upon by the subordinate court, then, it will have to be held that the supervisory jurisdiction of the High court was invoked and not the original.
(7) The cause title, averments and the prayers in the petition can be taken into account while deciding whether the petition is one under Article-226 and 227 of the Constitution. This has to be determined on the facts of each case having regard to -
i) nature and the jurisdiction invoked;
ii) the averments contained in the petition;
iii) the reliefs sought;
and
iv) most importantly, the true nature of the principal order passed by the learned Single Judge. The true nature of the order passed by the learned Single Judge has to be determined on the basis of true character of the relief granted. By merely labeling the petition under Article-226 and by praying for Writ of Certiorari it cannot be said that the facts justify the party to invoke the extraordinary jurisdiction of the High court under Article-226 of the Constitution of India.
(8) As held by the Supreme Court in the case of Radhe Shyam V/s. Chhabi Nath reported in (2009) 5 SCC -616, orders and proceeding of the Judicial Courts subordinate to the High Court are not amenable to the writ jurisdiction of the High Court under Article-226 of the Constitution, more particularly, when the orders are passed in Suit proceeding in a contest between two private parties.
(9) Writ Petition is a remedy in public law which may be filed by any person but the main respondent should be either Government, Governmental agency or a State or instrumentalities of the State within the meaning of Article-12. Private individuals cannot be equated with State or instrumentality of the State. All the respondents in a writ petition cannot be private parties. High Court can issue Writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform.
(10) In a petition for relief under Article-226 of the Constitution, the Court/Tribunal whose order is impugned in the petition must be made a party to the petition so that the writ sought from the Court can go against the Court/Tribunals, but if the petition is for relief under Article-227 of the Constitution, it is well settled that the Courts/Tribunals whose order impugned in a petition, need not be a party in the writ petition. By entertaining the petition under Article-227 of the Constitution, the High Court exercise its power of superintendence, which is analogous to the revisional jurisdiction.
Having considered the entire issue threadbare and also having considered the position of law, we hold that the appeal is not maintainable under Clause 15 of the Letters Patent and on the ground of maintainability the appeal fails and deserves to be dismissed. The appeal is accordingly dismissed with no order as to costs.
(S.J. Mukhopadhaya, CJ.) (J.B.Pardiwala, J.) *mohd Top