Gujarat High Court
Navkar Hybrid Seeds Pvt Ltd vs State Of Gujarat on 7 May, 2018
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/7362/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7362 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J. SHASTRI
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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NAVKAR HYBRID SEEDS PVT LTD
Versus
STATE OF GUJARAT
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Appearance:
MR AI SURTI(875) for the PETITIONER(s) No. 1
MR. MIHIR A SURTI(6887) for the PETITIONER(s) No. 1
MR UTKARSH SHARMA, AGP for the RESPONDENTS
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 07/05/2018
ORAL JUDGMENT
1. Rule. Mr.Utkarsh Sharma, learned AGP, waives service of notice of Rule on behalf of respondents.
2. The present petition under Articles 226 and 300A of the Constitution of India is filed for the Page 1 of 26 C/SCA/7362/2018 JUDGMENT purpose of seeking following reliefs :
"A. Be pleased to issue writ of certiorari, writ in the nature of certiorari or any other writ, order and direction in the nature of certiorari under Article 226 of the Constitution of India calling for the records and proceedings before the respondent No.2 culminating into impugned order dated 28.12.2017 taken by respondent No.2 and after examining the legality, validity and propriety thereof, be pleased to quash and set aside the same.
B. Pending the disposal of the present petition, grant an interim stay on the effect, operation and implementation of the impugned order dated 28.12.2017 taken by the respondent No.2.
C. Pending the disposal of the present petition, pass an interim order directing respondent No.2 to permit the petitioner company to sell the said variety of hybrid BT cotton seeds, without insisting on compliance with the directions given in the impugned order.
D. Pending the disposal of the present petition, pass an interim order restraining the respondent No.2 and its subordinates from taking any coercive steps against the petitioner company in furtherance of the impugned order dated 28.12.2017 taken by respondent No.2.
E. Pass such further and other orders as may be deemed just and proper in the facts and circumstances of the case."
3. The case of the petitioner is that one company named as Mahyco Biotech (India) Pvt. Ltd. is a 50:50 joint venture between Mahyco and Monsanto Holding Pvt. Ltd. who has sublicenced the Bollgard II® and Bollgard II® technologies to various Indian seeds Page 2 of 26 C/SCA/7362/2018 JUDGMENT company, each of whom have introduced the Bollgard II® technologies into their own germplasm. The petitioner company is one of such sublicensee company who is producing and marketing BT cotton seeds with Bollgard II® technologies under its own brand names since past many years under legal and valid license / permission accorded by the respondent authorities. It is further the case of the petitioner that petitioner company has also been accorded with recognition of inhouse R&D Unit by Government of India, Ministry of Science and Technology, Department of Scientific and Industrial Research, New Delhi.
3.1 The respondent No.1 is the State of Gujarat and respondent No.2 is the Director of Agriculture, State of Gujarat who passed an order impugned in the petition dated 28.12.2017.
3.2 The petitioner company has stated that it is marketing and producing hybrid BT cotton seeds, interalia, having one of this variety as 'NCCH 0006 BGII'. Said variety has been duly recommended for commercial cultivation by the Genetic Engineering Approval Committee. Said recommendation is based upon the field trials conducted by respective State Agricultural University and having recommended the said variety of hybrid BT cotton seeds by GEAC, the petitioner company has been producing and marketing the said variety of seed in the State of Gujarat, after obtaining necessary permission / registration from respondent No.2 authority. It has further been Page 3 of 26 C/SCA/7362/2018 JUDGMENT submitted that respondent No.2 had granted registration letter for the said variety initially on 13.5.2013 and thereafter, renewed on 10.5.2017 for a further period commencing from 6.6.2017 to 5.6.2020. It is further the case of the petitioner that neither the Seeds Act,1966 nor the Seeds Rules,1968 have framed nor the Seeds (Control) Order,1983 contain any provision with regard to the obtaining registration of varieties of seeds, which more so it has been clarified by the Deputy Commissioner (QC), Government of India, Ministry of Agriculture and Farmer Welfare, Department of Agriculture, Cooperation & Farmer Welfare, Seeds DivisionIV, vide communication dated 29.4.2016.
3.3 It is further the case of the petitioner that no specific mention with regard to the SAUs trial in the State and registration of varieties being pre requisite for marketing of seeds in the State. The petitioner has come out with a further case that Agriculture Officer, Visavadar has drawn sample of said variety of hybrid BT cotton seeds from one M/s.Rajkamal Agro Agency bearing Lot No.2016341 at random and sent the same to the seed testing laboratory at Gandhinagar for analysis. It is the case of the petitioner further that such testing laboratory submitted its report on 7.1.2017 and the said seeds as per the report found substandard in genetic purity test. As a result of this, in exercise of powers, a showcause notice is issued to the petitioner for alleged contravention of Sections 6(a) Page 4 of 26 C/SCA/7362/2018 JUDGMENT and 7(b) of the Seeds Act,1966, punishable under Section 19(a) of the Seeds Act,1966 which was duly replied at the relevant point of time by submitting a reply on 11.2.2017.
3.4 Pursuant to the said showcause notice, at a later point of time, the respondent No.2 had issued notice on 22.6.2017 based upon aforesaid analysis report of seed testing laboratory at Gandhinagar as to why their registration of said variety of hybrid BT cotton seeds should not be cancelled.
3.5 The petitioner has further asserted that the said showcause notice has been replied specifically stating that not a single complaint received so far from any of the farmers, who utilized the said lot and the variety of hybrid BT cotton seeds and on the contrary, they have appreciated the performance of the said variety of cotton seeds. In the reply, it has been further stated that instead there has been a huge demand of said variety from the traders and farmers. Hence, if the registration is cancelled then, the entire community of farmers will be badly affected for not getting such seeds of their liking and choice. Considering the aforesaid reply, a request is made to respondent No.2 not to cancel the registration of the said variety of hybrid BT cotton seeds.
3.6 It is further the case of the petitioner that simultaneously the criminal complaint has been lodged Page 5 of 26 C/SCA/7362/2018 JUDGMENT bearing Criminal Case No.180 of 2017 before the Principal Civil Judge and JMFC at Visavadar for alleged contravention of aforesaid sections. It is further the case of the petitioner that the said criminal complaint which was filed on 18.7.2017, at that time the shelflife of the said BT cotton seeds had already expired prior to almost six months from the date of complaint i.e. on 19.1.2017 and, therefore, virtually the criminal complaint set in motion after the lapse of shelflife of the material, the petitioner is deprived of its valuable right of reanalysis under Section 16(2) of the Seeds Act,1966. Since that was the position, a pragmatic approach is shown by the petitioner, as has been asserted that since there was a provision for imposition of penalty if there is a first offence under Section 19(a)(i), a maximum Rs.500/ can be by way of fine and as a result of this, the petitioner company has pleaded guilty for the offence and accordingly, by imposition of fine of Rs.500/ to each of the accused, the criminal case is disposed of by an order dated 17.11.2017 and on failure of such deposit of fine amount, it was ordered to undergo one month's imprisonment. Now, despite the aforesaid situation, the respondent No.2, by ignoring these circumstances, has passed an order on 28.12.2017, whereby for a period of one year, with immediate effect, the petitioner company is directed to not to enter into production, sale, distribution and use of said variety of NCCH 0006 BGII of hybrid BT cotton seeds. Since this order passed by respondent No.2 Page 6 of 26 C/SCA/7362/2018 JUDGMENT tantamounts to be a double jeopardy, by raising such contention along with others, said order is made the subject matter of present petition under Article 226 of the Constitution of India, raising an issue that order is not sustainable and is arbitrary, unreasonable and grossly disproportionate.
4. Mr.A.I.Surti, learned advocate appearing for the petitioner, has vehemently contended that such an order is quite contrary to the very spirit of the object of the Act and this amounts to violation of fundamental rights of the petitioner. It has also been contended that on the contrary, the production and selling hybrid BT cotton seeds is a variety well acknowledged by the farmers community and there is not a single complaint about quality of such material. It has also been contended that Criminal Case No.180 of 2017 is already disposed of by imposing punishment by way of an order dated 17.11.2017. Learned advocate has further submitted that imposition of penalty by respondent No.2 tantamounts to be violation of well recognized principle of 'double jeopardy'. Hence, the impugned order is not sustainable in the eye of law.
4.1 Mr.Surti, learned advocate, has further submitted that the petitioner company is deprived of its valuable right of reanalysis under the provisions of Section 16(2) of the Seeds Act and the complaint has been filed after the shelflife of the product got over way back in January,2017 and, therefore Page 7 of 26 C/SCA/7362/2018 JUDGMENT also, the action is unsustainable in the eye of law. It has also been contended that respondent No.2 being an officer has no power or jurisdiction to pass an order if the provisions of the Act are to be closely read. Hence, for want of authority of law, the order in question is required to be quashed and set aside. Learned advocate has further contended that right now the season would commence and at this juncture to allow the operation of the order would put the petitioner at serious jeopardy which is completely violating its right of exercising fundamental rights guaranteed under Article 19(1)(g) of the Constitution of India. Since this being the position, learned advocate appearing for the petitioner has contended that the order in question being no sustainable in the eye of law, the same be quashed and set aside by granting the relief as prayed for in the petition.
4.2 Mr.Surti, learned advocate, has further contended that there is no power of cancellation of registration under the Act and, therefore, the analysis report which has been based upon to impose such kind of penal action, a different lot is analyzed and not the lot in question of the product. Hence, under this set of circumstance, the overall circumstance reflected that there is no justification in an order passed by respondent No.2. Learned advocate has further contended that on the contrary, the trial reports reflecting on record of the petitioner are quite in contrast to the same and, therefore, in the absence of any cogent material with Page 8 of 26 C/SCA/7362/2018 JUDGMENT regard to the quality, no such action could have been taken. As a result of this, this being an order without any justification of law, the same is required to be corrected by quashing and setting aside the same. To strengthen his submission, learned advocate has further relied upon a decision of the Apex Court reported in (2017) 1 SCC 367 and by referring to Para.4 of the said decision, it has been contended that if the valuable right of an accused in the complaint is at jeopardy, the action is not sustainable and as such, here is also a case in which the authority has generated a case against the petitioner after the expiration of shelflife of the product. As a result of this, the impugned order is not sustainable.
4.3 By way of additional affidavit, learned advocate appearing for the petitioner has made an attempt to state that the request for grant of personal hearing was not considered in its true spirit by the Joint Director of Agriculture and on behalf of the petitioner, Mr.Ashwin B. Shah, Authorized Representative, has been heard and at that time, the authority was of the opinion to uphold the order dated 28.12.2017 and as a result of this, the consequential order is passed on 1.5.2018 and the same is also communicated on 4.5.2018. Resultantly, the same is placed on record by way of additional affidavit which is taken on record.
4.4. In consideration of these submissions, an Page 9 of 26 C/SCA/7362/2018 JUDGMENT ultimate request is made to see that the impugned order being not sustainable in the eye of law, the same may be quashed and set aside, by granting the relief as prayed for in the petition.
5. Having heard the learned advocate appearing for the petitioner and having gone through the material on record produced along with this petition, following circumstances are so eloquent, the same are not possible to be ignored by this Court :
(1) First of all, before dealing with an issue of examining the impugned order, it appears that the background of the Seeds Act, 1966 is to be taken note of. On account of the increased agricultural production in the country, it was considered expedient to regulate the quality of certain seeds such as seeds of food crops, cotton seeds etc. to be sold for the purposes of agriculture including horticulture and to achieve this objective of concentrating on regulating the quality of seeds, the seeds bill was introduced in the Parliament. The main object of the bill is to achieve (i) essentially fixing minimum standards of germination, purity and other quality factors and (ii) the seed testing laboratory to be established by the Central Government and the State Government and these are the main objects amongst several objects and the reasons of the bill of seeds was in order to eliminate undue hardship, provision had been made in the Bill for Page 10 of 26 C/SCA/7362/2018 JUDGMENT exempting the sale of seed by (i) plant breeders,
(ii) certain classes of producers and (iii) any other persons for purposes other than for the purpose of sowing or planting and with these objects in mind the Seeds Bill was passed by both the houses of Parliament and received the Presidential assent on 29.12.1966 and brought to the statute book as the Seeds Act, 1966 and as such the basic object as stated above is to regulate the quality of seeds for sale as well as for matters connected therewith.
(2) Now, in this background of objects of Seed Bill, under the provisions of the Act, a recognition is being provided to the company concerned and it is State Government has been permitted to act as sub licensee company to the parent company. The petitioner company has also been acted with recognition of inhouse R&D unit by Government of India, Ministry of Science and Technology, New Delhi. A perusal of the said license and terms of it would clearly indicate some terms which are deduced in writing for which the petitioner is under an obligation to comply.
(3) The terms and conditions and of recognition of Inhouse R&D unit, reflecting on page:33, stipulates that while granting recognition, the concerned firm shall be abide by which are the terms and conditions of the recognition and violation thereof will visit the consequence of derecognition and while seeking recognition the company will have also to confirm Page 11 of 26 C/SCA/7362/2018 JUDGMENT such other conditions for recognition stipulated under the guidelines.
(4) The petitioner was given license on 23.02.2016 reflecting on page:29 for a period of three years in which also the same is granted in view of the Seeds Control Order, 1983 and, therefore, conjoint reading of this is to see that the petitioner is also liable to maintain the standard and quality with regard to the seeds and the material in which the petitioner company is dealing with. It is reflecting from the record that petitioner company is carrying on business of producing and selling various kind of seeds and in this regard is also producing marketing Hybrid BT Cotton seeds inter alia having one of these variety "NCCH 0006 BGII". Now, this variety has been duly recommended for commerce cultivation by the Genetic Engineering Approval Committee (herein after referred to as 'GEAC' ) and having recommended the said variety, the petitioner company has been producing and marketing the said variety in seeds in the State of Gujarat after obtaining necessary permission. The Respondent No.2 for this purpose has granted Registration letter for the said variety initially on 13.05.2013 which is later on renewed on 10.05.2017 for a period commencing from 06.06.2017 to 05.06.2020. Vide office memorandum dated 29.04.2016 though in Seeds Control Order, 1983, there is no mention about SAUs trial in the State and registration of variety being prerequisite conditions, as per the say of the petitioner, the Page 12 of 26 C/SCA/7362/2018 JUDGMENT procedure for registration of variety without any force and statute. Still, Agriculture Officer, Visavadar has drawn sample of said variety and it is the case of the petitioner that the same has been sent to testing lab at Gandhinagar for analysis. The analysis report dated 07.01.2017 by the seeds testing lab at Gandhinagar found specifically the said seeds as substandard in Genetic Purity Test and, therefore, based upon such report, a Show Cause Notice was issued on 24.01.2017. The Show Cause Notice was issued on the premise that there appears to be a contravention of Section 6(A) and 7(D) of the Seeds Act which is punishable under Section 19A of the Act. This Show Cause Notice is replied and ultimately, after analysing everything, the impugned action is initiated. So much so that Respondent No.2 had also issued Show Cause Notice on 22.06.2017 as to why based upon such analysis report, the registration for the said variety of seeds i.e. Highbrid BT cotton should not be cancelled and after process having been over, the impugned order dated 28.12.2017 is passed by the Respondent No.2.
(5) Now, in the background of this, the scientific analysis has clearly opined that product is not meeting the standard as specified. The report which has been given by the laboratory of Gandhinagar in Form No.7 reflecting on page:55 is clearly suggesting that seized Genetic Variety is only upto 7% as against 93% standard as prescribed under Section 6(A) of the Seeds Act and, therefore, the seeds in Page 13 of 26 C/SCA/7362/2018 JUDGMENT question produced by the company found to be much below the quality standard.
(6) Now on this basis undisputedly the seeds are of inferior quality and the prosecution which has been launched against such which has culminated into an order of conviction dated 17.11.2017 in which also this factum of inferior quality as per the report appears to have been admitted and the accused persons have admitted this violation of Section 6, 7 and 19 of the Seeds Act and have along with other voluntarily invited conviction which is reflecting on page:68.
(7) A further fact is also to be noticed from the petition compilation that registration letter dated 09.05.2017, reflecting on page:53 has imposed certain conditions and these conditions are as under:
" The registration renewal is subject to following condition.
1. Company is bound to follow conditions mentioned in agreement submitted to this directorate.
2. This registration renewal is meant for commercial cultivation of research hybrid / variety in Gujarat State only.
3. This registration renewal shall be terminated subject to any change in seed policy by Government or violation of any condition mentioned in the agreement.Page 14 of 26
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4. The registration authority is empowered to terminate this registration renewal at any time in case of reasonable circumstances."
(8) A bare look of these conditions would clearly suggest that violation of the terms and conditions of the agreement or the policy of the seeds would empower the authority to terminate the registration renewal at any time in case of reasonable circumstances. In a situation like when the guilt is admitted, conviction is invited voluntarily and further the laboratory report situated for this very purpose of carrying out the object of the act has also clearly opined that there is a huge gape between quality percentage which has not been maintained and as such this material is indicative of the fact that there appears to be a gross violation.
(9) Further, it appears from the record that prior to initiation of any action even the Show Cause Notice has also been given inter alia calling upon the petitioner to explain as to why action should not be initiated. Now the Show Cause Notice has been given which is also not in dispute and the action is initiated in close proximity of principles of natural justice. Now, looking to the aforesaid situation which is prevailing on record to allow the petitioner to raise the contention that there is no specific mention about SAU in the Seeds Control Order, 1983 hence nothing should be done to the petitioner. On the contrary, a very fact that the petitioners have Page 15 of 26 C/SCA/7362/2018 JUDGMENT acknowledged the obligation to comply with the terms and conditions of getting renewal, the very fact that in the prosecution itself the petitioner along with others have admitted the guilt and in addition thereto the authorised laboratory at Gandhinagar has also clearly suggested that as against the requirement of more than 90% only 7% is found to be genetically variety and therefore it seems that the product which has been analysed of the petitioner is hopelessly beyond the quality standard. Resultantly, if action is initiated by the authority which is authorised to act upon under the statute, this Court is not inclined to encourage such practice of trading in substandard quality to defeat the very object of the Act and hence when authority has substantially complied with entire procedure before taking action, this is not a fit case in which extra ordinary equitable jurisdiction deserves to be exercised. In a given situation like this Court is also of the considered opinion that the authority has made an attempt to preserve the object of the statute by initiating action in this regard.
6. In the background of aforesaid situation, the main contention which has been raised about double jeopardise principle being violated, the Court is not impressed upon by it since the statute has conferred power upon authority to launch prosecution if the firm is violating the provision and additional power is also with the authority to act if the terms of renewal of registration are violated and, therefore Page 16 of 26 C/SCA/7362/2018 JUDGMENT this to be an independent action which has been initiated can never be said to be violation of principles of natural justice. On the contrary, an attempt is made by the petitioner to keep themselves away from the strict responsibility by just pleading guilt and get away by inviting some extreme minor penalty. This attempt on the part of the petitioner deserves to be discouraged in view of object of Seeds Act for which it has been legislated. The Court is also of the opinion that what kind of action is to be initiated also deserves to be left to statutory authority which are entrusted with the powers to protect the object of the Act unless there is some perversity or apparent illegality which in this case Court is not finding out it proper to hold there action as perverse or illegal. On the contrary the Court has gone through the relevant papers in which it is indicating that undisputedly inferior quality is found which is noticed and certified by the laboratory authorised to undertake such analysis and further the guilt has been admitted though criminal proceedings and civil proceedings are to be viewed differently but in view of strict object of act to maintain and regulate the quality of the seeds, the Court would not like to disturb the action which has been initiated against the petitioner as the statutory authorities are required to be left free to take appropriate action if either the terms of agreement having been violated or an attempt is made to defeat the statutory provisions. The petitioner company was and is under an obligation to obey the Page 17 of 26 C/SCA/7362/2018 JUDGMENT terms and conditions of the renewal of registration. The statutory provisions contained under the Seeds Act and is also bound to continue to operate in strict compliance of the provisions of the Seeds Act. Looking to the vast difference with regard to quality which has been analysed by the laboratory, Court is not inclined to exercise extra ordinary jurisdiction. The contention with regard to shelf life of the product and the other hyper technical contentions with regard to fact that alleged violation is a technical violation the said aspects are not open for the petitioner to agitate in writ jurisdiction as undisputedly the genetic variety test of the product is found to be hopelessly below the quality. Any inference in this background would render the object of Act being frustrated and Court sitting in extra ordinary equity jurisdiction would not like to encourage such kind of irregularities. Accordingly, petition being devoid of merits does not deserve to be entertained.
6.1 Additionally, the Court is also of the opinion that in view of the settled principles of law that power to grant includes power to cancel or suspend. On the contrary, instead of cancelling the registration itself, the petitioner has been put under temporary suspension of one year which cannot be said to be unreasonable, arbitrary or unjustified in any manner. On the contrary, instead of cancellation of the registration itself, the petitioner has been put under control by suspending Page 18 of 26 C/SCA/7362/2018 JUDGMENT its activity for a period of one year. The same cannot be said to be arbitrary in any manner. There appears to be a clear violation of terms of the renewal registration also undisputedly inferior quality reflecting in analysis report and admission of guilt in the proceedings are the circumstances sufficient enough to oust the petitioner from equitable jurisdiction of this Court. Hence, accordingly the Court is not inclined to interfere with the discretion exercised by authority in close conformity with principles of natural justice and has acted within the bounds of their authority. This case is not the case in which any interference is called for in extra ordinary jurisdiction. Accordingly, petition being devoid of merits deserves to be dismissed. In this regard, reliance is placed by the petitioner on a decision delivered by Hon'ble Apex Court in the case of Mahyco Vegetable Seeds Ltd (Now known as Maharashtra Hybrid Seeds Co Pvt Ltd.) and others vs. State of Maharashtra and ors. reported in (2017) 1 SCC 367 in which there was a reference with regard to shelf life of the product and in the context of prosecution being launched, the Hon'ble Apex Court found that valuable right of the reanalysis is deprived which goes to the root of maintenance of prosecution. Whereas, here in the present case, on the contrary a specific admission of guilty is reflecting and the conviction is voluntarily invited. The factual background of this case are altogether different from what has been reflected in the decision in the case of Mahyco Page 19 of 26 C/SCA/7362/2018 JUDGMENT Vegetable Seeds Ltd (Now known as Maharashtra Hybrid Seeds Co Pvt Ltd.) (supra). Hence, the said judgment is of no avail to the petitioner.
6.2 The Court further found that in the background of this peculiar set of circumstance whether to exercise extra ordinary jurisdiction is also well guided by Hon'ble Court following decisions and the relevant observations contained in the said decisions are reproduced herein after which has been considered by this Court.
(1) In the case of Sameer Suresh Gupta through PA Holder V/s. Rahul Kumar Agarwal, reported in (2013) 9 SCC 374 "6. In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai vs. Ram Chander Rai and others (2003) 6 SCC 675. After considering various facets of the issue,the two Judge Bench culled out the following principles:
"(1) Amendment by Act No.46 of 1999 with effect from 01072002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.Page 20 of 26
C/SCA/7362/2018 JUDGMENT (2) Interlocutory orders, passed by the
courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a
subordinate court is found to have acted
(i) without jurisdiction by assuming jurisdiction where there exists none, or
(ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate
courts within the bounds of their jurisdiction.
When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and Page 21 of 26 C/SCA/7362/2018 JUDGMENT
(ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is selfevident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a longdrawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in
appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
Page 22 of 26C/SCA/7362/2018 JUDGMENT (9) In practice, the parameters for
exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."
7. The same question was considered by another Bench in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010) 8 SCC 329, and it was held:
"(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the 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, at the drop of a hat, in exercise of its power of superintendence Page 23 of 26 C/SCA/7362/2018 JUDGMENT 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 the 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 their 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 and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh, 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 the 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
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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) The 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 L. Chandra Kumar v. Union of India and therefore abridgment 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 Page 25 of 26 C/SCA/7362/2018 JUDGMENT 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 the 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 counterproductive and will divest this extraordinary power of its strength and vitality."
7. In view of the aforesaid premise and peculiar background of these facts, the Court is of the considered opinion that the petition being meritless, deserves to be dismissed. The Court has also kept in mind the aforesaid pronouncement of law on the issue of exercise of extraordinary jurisdiction. As a result of this, the present petition stands dismissed with no order as to costs. Rule is discharged.
(A.J. SHASTRI, J) V.J. SATWARA Page 26 of 26