Calcutta High Court (Appellete Side)
Scottlane Poverty Eradication Centre & ... vs State Of West Bengal & Ors on 17 May, 2013
Author: Dipankar Datta
Bench: Dipankar Datta
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17.05.2013
W.P. 14592 (W) of 2012
Scottlane Poverty Eradication Centre & anr.
Vs.
State of West Bengal & ors.
Mr. Pratik Dhar
Mr. Ritwik Pattanayak
Ms. Sulagna Mukherjee
Mr. Tathagata Dutta
......... for the petitioners.
Ms. Sanghamitra Nandy
Ms. Paromita Pal
......... for the respondents 1 and 2.
Mr. L. K. Gupta Mr. Arjun Roy Mukherjee ....... for the respondent no. 3.
Mr. Tapan Kumar Mukherjee Mr. Bikash Kumar Mukherjee ........ for the respondent no. 4.
1. The first petitioner is a society registered under the West Bengal Societies Registration Act, 1961. The second petitioner is its Secretary. The members of the first petitioner are engaged in various programmes for the upliftment of the underprivileged, disadvantaged and marginalized section of the society. The first petitioner is an enlisted specialized Indian adoption agency, duly licensed by the Central Adoption Resources 2 Authority, the fifth respondent, for undertaking intra-country and inter-country adoption.
2. The petitioners have sought for Mandamus/ direction on the learned District Judge, North 24 Parganas at Barasat to dispose of application(s) for adoption as expeditiously as possible but not beyond two months from the date of its filing as also to hold proceedings in camera.
Certiorari/order has further been prayed for to set aside orders dated May 31, 2012 and June 19, 2012, whereby the learned District Judge has allegedly rejected applications for adoption on grounds which are foreign to the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereafter the Act), as amended by the Amendment Act, 2006. Also, regular monitoring of adoption matters by this Hon'ble Court in terms of the directions passed by the Hon'ble Supreme Court in its decisions in Lakhmi Kant Pandey v. Union of India, (1984) 2 SCC 244, and Laxmi Kant Pandey v. Union of India, 1985 (Supp) SCC 701 has been prayed for.
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3. If the statements made in the writ petition are to be believed, it brings to the fore the total mess created by the District Court at Barasat. Orders passed by the learned District Judge rejecting the applications made under Section 41(3) of the Act have been looked into. To my mind, prima facie, considerations not germane have influenced the mind of the learned District Judge who, in his anxiety to protect the interests of the child sought to be adopted, has in effect passed orders that would operate to his detriment and prejudice. It seems that the learned District Judge has failed to appreciate the noble object and purpose that the Act seeks to serve.
4. Before examining the vital issues the writ petition raises, it ought to exercise my consideration as to whether the writ petition is at all maintainable for giving directions to the learned District Judge to dispose of the pending applications at an early date or for quashing the orders impugned.
5. Reliance has been placed by Mr. Dhar, learned advocate for the petitioners, on the Supreme Court's decision in Surya Dev Rai v. Ram 4 Chander Rai, AIR 2003 SC 3044, for the proposition that Certiorari under Article 226 of the Constitution may issue to quash an order of the inferior courts and, therefore, this writ petition may be entertained.
6. Mr. Dhar also relied on several other reported decisions of the Supreme Court to persuade me to entertain the writ petition.
7. Finally, he submitted that at present the situation of the hapless children are extremely pathetic. It is only by intervention of this Court that these children can be saved. By referring to these children, he not only referred the plight of the 56 children mentioned in the writ petition and the supplementary affidavit but also all the little children who do not have parents and who can actually have parents with little intervention of this Court and for which neither any exchequer would be burdened nor anyone could feel aggrieved.
8. Although Mr. Dhar has valiantly endeavoured to impress that the orders passed by the learned District Judge could be judicially reviewed under 5 Article 226 of the Constitution, I am afraid, I cannot agree with him.
9. Rule 33(5) of the West Bengal Juvenile Justice (Care and Protection of Children) Rules 2009 envisages that for the purpose of Section 41 of the Act, 'court' implies a civil court, which has jurisdiction in matters of adoption and guardianship and may include the court of the District Judge, family courts and city civil court. Having regard to such definition as well as to the law laid down in paragraph 14 of the decision in Jamal Uddin Ahmad v. Abu Saleh Najumuddin, (2003) 4 SCC 257, cited by Mr. Gupta, learned senior advocate for the High Court, the third respondent, there could be little doubt that in rejecting the applications filed under Section 41(3) of the Act or in exercising power under sub- section (6) thereof, the District Court has the power to consider matters relating to adoption, which are civil proceedings, and in that regard the learned District Judge, being the head of the court of civil judicature in the district, acts judicially and not in administrative capacity. That 6 there may not be a lis in the real sense of the term, as contended by Mr. Dhar, is not decisive. The nature of jurisdiction that the learned District Judge exercised while dealing with an adoption matter is what is important. The orders impugned dated May 31, 2012 and June 19, 2012 have been passed by the learned District Judge in discharge of judicial functions and are, therefore, judicial orders as distinguished from administrative orders.
10. It would now be profitable to consider some of the authorities on the point of certiorari jurisdiction, which have stood the test of time.
11. G. Veerappa Pillai v. Raman and Raman Ltd., AIR 1952 SC 192, laid down the scope of writ jurisdiction in the following words:
"20. Such writs as are referred to in Art. 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal 7 and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or the order to be made."
12. In T.C. Basappa v. T. Nagappa, AIR 1954 SC 440, it has been observed as follows:
"7. One of the fundamental principles in regard to the issuing of a writ of 'certiorari', is that the writ can be availed of only to remove or adjudicate on the validity of judicial acts. The expression 'judicial acts' includes the exercise of quasi-judicial functions by administrative bodies or other authorities or persons, obliged to exercise such functions and is used in contrast with what are purely ministerial acts. Atkin L. J. thus summed up the law on this point in - Rex v. Electricity Commissioners', 1924 - KB 171 at p. 205 (C).
'Whenever any body or persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs.' The second essential feature of a writ of 'certiorari' is that the control which is exercised through it over judicial or quasi- judicial tribunals or bodies is not in an appellate by supervisory capacity. In granting a writ of 'certiorari' the superior court does not exercise the powers of an appellate tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The offending order of proceeding so to say is put out of the way as one which should not be used to the detriment of any person, vide per Lord Cairns 8 in - 'Walsall's Overseers v. L. and N. W. Rly. Co.' (1879) 4 AC 30 at p. 39 (D)."
13. In Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233, the Supreme Court after noticing its earlier decisions summed up the position in regard to Certiorari jurisdiction as follows:
"21. Then the question is whether there are proper grounds for the issue of 'certiorari' in the present case. There was considerable argument before us as to the character and scope of the writ of 'certiorari' and the conditions under which it could be issued. The question has been considered by this Court in 'Parry and Co. v. Commercial Employees' Association, Madras', AIR 1952 SC 179 (L): -'Veerappa Pillai v. Raman and Raman Ltd.'. AIR 1952 SC 192 (M); - 'Ebrahim Aboobaker v. Custodian General of Evacuee Property New Delhi', AIR 1952 SC 319 (N), and quite recently in AIR 1954 SC 440(C). On these authorities, the following propositions may be taken as established: (1) 'Certiorari' will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) 'Certiorari' will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of 'certiorari' acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings or fact reached by the inferior Court or Tribunal, even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the 9 Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy if a superior Court were to re-hear the case on the evidence, and substitute its own findings in 'certiorari'. These propositions are well settled and not in dispute."
14. Again in Syed Yakoob v K.S. Radhakrishnan, AIR 1964 SC 477, the Court had the occasion to observe as follows:
"7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by 10 the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, 1955-1 SCR 1104: ((S) AIR 1955 SC 233): Nagendra Nath v. Commr. of Hills Division, 1958 SCR 1240:
(AIR 1958 SC 398) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168."
15. While the aforesaid authorities state the law that certiorari jurisdiction could be invoked for adjudicating the validity of judicial acts and for correcting errors of jurisdiction committed by inferior courts or tribunals, but the same do not go so far to lay down a principle of law that the inferior courts referred to therein would include 11 the courts of civil judicature or the criminal courts, being part of the hierarchy of courts in India that the Constitution has established.
16. A party aggrieved by infringement or invasion of his rights is entitled to seek justice i.e. an order or direction for maintaining and upholding of his rights and for a ruling against the wrongdoer. In the present set up of justice delivery system in the country, depending on which party (be it the State or a statutory body or a private individual or even a company, etc.) infringes or invades the right of an individual, the party aggrieved may approach the constitutional courts, the civil courts, the tribunals, the bodies created by statutes viz. grievance redressal committees or ombudsmen, etc. for justice. Investiture of authority is largely in the exercise of the judicial power of the State, investiture of adjudicatory functions may also be made by statutory provisions though not in exercise of such judicial power.
17. The tribunals and other bodies that have been brought into existence either by enactments of 12 the Parliament/the Legislatures or by the rules framed thereunder have the authority to decide rights of parties by acting judicially, even by taking evidence on oath. Exercise of the judicial power of the State, though are shared by such tribunals, it has to be borne in mind that they owe their existence to some administrative policy and are ordinarily called upon to decide, apart from rights of parties, points of law arising out of the special statute creating such tribunals.
18. However, for remedy of civil wrongs, it is the courts of civil judicature that an aggrieved has to approach unless such approach is barred by statute. One finds specific mention of subordinate courts in Articles 233, 234, 235, 236 and 237 of the Constitution as well as in the 7th Schedule lists.
19. By no stretch of imagination can I conceive of these tribunals being given the exalted status of "Courts of Justice". The words "courts" and "tribunals" used in the various judgments cited by Mr. Dhar have to be read and understood as bodies that are appointed to decide controversies 13 that might arise under that special law, which in itself provides for resolution of disputes by such bodies. Some of these tribunals constituted under the special laws may have the trappings of a court but nevertheless are not exercising judicial power in the strict sense and, therefore, are not Courts. No wonder, it has rightly been observed that while all Courts are tribunals, all tribunals are not Courts. I am of the firm opinion that it could not have been the intention of the learned judges of the Supreme Court to confer power, by judicial pronouncements, on writ Courts to exercise the power of judicial review in respect of adjudications made by the courts of civil judicature.
20. My reading of the several judgments cited by Mr. Dhar except Surya Dev Rai (supra) does not impel me to hold that judicial orders passed by a civil court are amenable to challenge under Article 226 of the Constitution. The decisions of the Supreme Court relied on by Mr. Dhar holding that orders of inferior courts or tribunals could be subjected to Certiorari jurisdiction have to be 14 understood in the light of the orders that were under challenge in the respective proceedings, which the Supreme Court ultimately had the occasion to examine, as well as consideration of the law relating to exercise of Certiorari jurisdiction in the country of its origin.
21. In this connection, one may profitably refer to the decision in Regina (John M'Evoy) v. Dublin Corporation, (1878) 2 LR Irish 371 where Chief Justice May observed "(I)t is established that the writ of certiorari does not lie to remove an order merely ministerial, such as a warrant, but it lies to remove and adjudicate upon the validity of acts judicial. In this connection, the term 'judicial' does not necessarily mean acts of a judge or legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances, and imposing liability or affecting the rights of others." Relying on such decision, the Supreme Court had laid down the law that a writ of Certiorari lies if the order complained of is 15 either a judicial or a quasi-judicial order but it is not competent if the order is an administrative or an executive order. Reference may be made to the decision in Province of Bombay v. Khushaldas S. Advani, 1950 SCR 621. However, much water has flown under the bridge since then. It is settled law in this country that a High Court in exercise of Article 226 powers may issue a writ of Certiorari to quash an administrative or executive order, if it involves civil consequences and even a quasi-judicial order.
22. The decisions of the Supreme Court cited by Mr. Dhar, wherein it has been observed that Certiorari could be issued to inferior courts or tribunals, do not lay down the law that a decision of a court of civil jurisdiction would be amenable to writ jurisdiction, a fortiorari, to Certiorari jurisdiction. "Courts" referred to therein, in my reading, refers to a forum constituted by law to discharge functions akin to a tribunal constituted by a special law to deal with issues arising out of the statute creating such tribunal, for example, court within the 16 meaning of Section 2(f) of the Industrial Disputes Act, 1947 and constituted under Section 6 thereof, or Employees Insurance Court constituted under Section 74 of the Employees State Insurance Act, 1948, or a court martial constituted by the armed forces, the decision of which could not be challenged before the High Court even under Article 227 of the Constitution. It is altogether a different matter that with the enactment of the Armed Forces Tribunal Act, 2007, now the High Courts do not have the power of judicial review in respect of decisions in court martials.
23. The decision in Surya Dev Rai (supra) appears to be the first decision of the Supreme Court interfering with an order passed by a civil court of competent jurisdiction in exercise of Article 226 of the Constitution. Although it was held therein that Certiorari under Article 226 is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have (i) acted without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in 17 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 the principles of natural justice where there is no procedure specified, and thereby occasioning grave failure of justice, and that the orders and proceedings of a judicial court subordinate to the High Court are amenable to writ jurisdiction of the High Court under Article 226 of the Constitution, it cannot be ignored that the Supreme Court itself in its subsequent decision in Radhey Shyam v. Chhabi Nath, (2009) 5 SCC 616, has disagreed with the view expressed in Surya Dev Rai (supra) insofar as correction of or any interference with the judicial order of a civil court by a writ of Certiorari is concerned, observing that such proposition is contrary to the ratio of the nine judge Bench decision in Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, and referred the issue for decision by a larger bench.
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24. The decision in MMTC Ltd. v. CCT, (2009) 1 SCC 8, delivered by a bench comprising of three judges of the Supreme Court cited by Mr. Dhar to contend that the decision in Surya Dev Rai (supra) has been approved and, therefore, the disagreement recorded in Radhey Shyam (supra) is not of much relevance, also does not come to his aid. No doubt, certain paragraphs from Surya Dev Rai (supra), viz. 17, 19 and 25 were relied on but that hardly advances Mr. Dhar's cause. MMTC Ltd. (supra) did not consider Naresh Shridhar Mirajkar (supra) although the latter decision was cursorily considered in Surya Dev Rai (supra). Interestingly, the author of the judgment in MMTC Ltd. (supra) was the judge presiding over the Bench before whom Radhey Shyam (supra) came up for decision.
25. It would be necessary at this stage to consider the decision in Naresh Shridhar Mirajkar (supra) and to appreciate its ratio decidendi. A suit on the Original Side of the Bombay High Court instituted for damages was being tried by Hon'ble Tarkunde, J. The defendant in the suit was the 19 editor of the English weekly 'Blitz'. The learned judge permitted the recall of a witness Mr. Bhaichand Goda (hereafter Goda) for further examination on the application of the defendant. While stepping into the witness box, Goda sought the learned judge's protection against his evidence being reported in the press. Upon arguments being addressed, the learned judge orally directed that the evidence of Goda should not be published. Naresh Shridhar Mirajkar (hereafter Naresh), one of the reporters of 'Blitz', had all along been reporting the proceedings in the said suit in the columns thereof. The learned judge told the counsel for the defendant that Naresh should be told not to publish Goda's evidence in the 'Blitz'. Feeling aggrieved by the oral order, Naresh presented a writ petition under Article 226 of the Constitution of India. An Hon'ble Division Bench of the High Court dismissed the writ petition on the ground that the impugned order was a judicial order and thus not amenable to the writ jurisdiction. Naresh then approached the Supreme Court 20 under Article 32 of the Constitution claiming enforcement of his fundamental rights under Articles 19(1)(a) and (g) of the Constitution. Three other reporters also filed separate writ petitions in the Supreme Court under Article 32 of the Constitution challenging the oral order passed by Hon'ble Tarkunde, J. prohibiting publication of the statement of Goda given in open Court, as violative of Article 19(1)(a) of the Constitution of India. A Bench of nine learned Judges of the Supreme Court considered the question whether the impugned order violated fundamental rights of the reporters under Article 19(1)(a) and if so, whether a writ under Article 32 of the Constitution would issue to the High Court. The majority opinion (eight members of the Bench) was that a judicial order cannot be said to contravene fundamental rights of the petitioners. It would be worthwhile to quote certain passages from the said decision, which are as under:
"38. The argument that the impugned order affects the fundamental rights of the petitioners under Art. 19 (1), is based on a complete misconception about the true nature and character of judicial process and of judicial decisions. When a Judge deals with 21 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. Whether the 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. But it is singularly inappropriate to assume that a judicial decision pronounced by a Judge of competent jurisdiction in or in relation to a matter brought before him for adjudication can affect the fundamental rights of the citizens under Art. 19 (1). What the judicial decision purports to do is to decide the controversy between the parties brought before the Court and nothing more. If this basic and essential aspect of the judicial process is borne in mind it would be plain that the judicial verdict pronounced by Court in or in relation to a matter brought before it for its decision cannot be said to affect the fundamental rights of citizens under Art. 19 (1).
39. *** The character of the judicial order remains the same whether it is passed in a matter directly in issue between the parties or is passed incidentally to make the adjudication of the dispute between the parties fair and effective. On this view of the matter, it seems to us that the whole attack against the impugned order based on the assumption that it infringes the petitioners' fundamental rights under Art. l9 (1), must fail.
43. If the test of direct effect and object which is sometimes described as the pith and substance test, is thus applied in considering the validity of legislation, it would not be inappropriate to apply the same test to judicial decisions like the one with which we are concerned in the present proceedings. As we have already indicated, the impugned order was directly concerned with giving such 22 protection to the witness as was thought to be necessary in order to obtain true evidence in the case with a view to do justice between the parties. If, incidentally, as a result of this order, the petitioners were not able to report what they heard in Court, that cannot be said to make the impugned order invalid under Article 19 (1) (a). It is a judicial order passed by the Court in exercise of its inherent jurisdiction and its sole purpose is to help the administration of justice. Any incidental consequence which may flow from the order will not introduce any constitutional infirmity in it.
51. *** 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 Art 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 Art. 32 of the Constitution.
60. *** If the decision of a superior Court on a question of its jurisdiction is erroneous, it can, of course, be corrected by appeal or revision as may he permissible under the law; but until the adjudication by a superior Court on such a point is set aside by adopting the appropriate course, it would not be open to be corrected by the exercise of the writ jurisdiction of this Court.
62. But apart from this aspect of the matter, we think it would be inappropriate to allow the petitioners to raise the question about the jurisdiction of the High Court to pass the impugned order in proceedings under Art. 32 which seek for the issue of a writ of certiorari to correct the said order. If questions about the jurisdiction of superior Courts of plenary jurisdiction to pass orders like the impugned 23 order are allowed to be canvassed in writ proceedings under Art. 32, logically, it would be difficult to make a valid distinction between the orders passed by the High Courts inter partes, and those which are not inter partes in the sense that they bind strangers to the proceedings. Therefore, in our opinion, having regard to the fact that the impugned order has been passed by a superior Court of Record in the exercise of its inherent powers, the question about the existence of the said jurisdiction as well as the validity or propriety of the order cannot be raised in writ proceedings taken out by the petitioners for the issue of a writ of certiorari under Art. 32.
63. Whilst we are dealing with this aspect of the matter, we may incidentally refer to the relevant observations made by Halsbury on this point. 'In the case of judgments of inferior Courts of civil jurisdiction', says Halsbury in the footnote, 'it has been suggested that certiorari might be granted to quash them for want of jurisdiction [Kemp v. Balne (1844), I Dow. and L. 885, at p. 887], inasmuch as an error did not lie upon that ground. But there appears to be no reported case in which the judgment of an inferior Court of civil jurisdiction has been quashed on certiorari, either for want of jurisdiction or on any other ground'.* * Halsbury's Laws of England, Vol. 11, pp. 129, 130.
The ultimate proposition is set out in the terms: 'Certiorari does not lie to quash the judgments of inferior Courts of civil jurisdiction'. These observations would indicate that in England the judicial orders passed by civil Courts of plenary jurisdiction in or in relation to matters brought before them are not held to be amenable to the jurisdiction to issue writs of certiorari."24
26. There is no reason as to why the observations made by the Supreme Court in paragraph 38 extracted supra would not hold good for judges of civil courts who in the discharge of their judicial duties pass judicial orders, which in the present dispensation, are open to challenge either in appeal or revision (may not always be under Section 115 of the Code of Civil Procedure but definitely under Article 227 of the Constitution). Discharge of judicial duties and passing orders that are judicial by civil courts, as distinguished from orders passed by tribunals acting judicially, cannot be the subject matter of proceedings under Article 226 of the Constitution on the same analogy that a when a judge of a civil court is in seisin of a matter that arises for his decision, he first decides questions of fact on which the parties are at issue, and then applies the relevant law to the said facts. A judge may decide rightly; he may also decide wrongly. Whether the decision is right or wrong can be considered and decided by the appellate or revisional Court, if the party aggrieved by the 25 decision of the judge carries it higher up. A judicial order passed by a civil court subordinate to the High Court, which is competent to try the lis, on facts presented before it might be right for a party or wrong for the other party but irrespective of whether it is right or wrong, the same cannot be branded as contravening either the fundamental rights guaranteed to the citizens or other rights that are legally protected and judicially enforceable. An order passed by a civil court that does not satisfy a party to the proceedings or one who is not a party thereto has to be questioned either in appeal or revision that the law prescribes, if such aggrieved party wishes it to be wiped out of existence, but not in writ proceedings.
27. The decision in Surya Dev Rai (supra), in my humble opinion, proceeds on an erroneous reading of the judgment in Naresh Sridhar Mirajkar (supra). Reference appears to have been made only to paragraph 63 extracted supra to distinguish it, without dealing with the ratio decidendi. In view of the authoritative 26 pronouncement in Naresh Sridhar Mirajkar (supra) and the observations in Radhey Sham (supra), I feel hesitant to be bound by Surya Dev Rai (supra).
28. After all, writ powers under Article 226 are available to be exercised by a High Court for the enforcement of any of the rights conferred by Part III of the Constitution or any other purpose i.e. the fundamental rights or other constitutional/statutory rights. An order of a civil court, passed in respect of a dispute between two parties or even on an application for adoption, as in the present case, though affects the rights of a party, enforcement thereof cannot be asked for by taking recourse to Article 226. Such an order must be carried in appeal or revision, if a party feels aggrieved thereby. Submission of Mr. Dhar that the Act does not provide a forum of appeal against an order of rejection passed by the civil court under Section 41 of the Act and a party aggrieved would be left without any remedy, is misconceived. Such court is under the administrative and judicial superintendence of 27 this High Court under Article 227 of the Constitution and a party aggrieved by an order passed under Section 41 may well invoke the Article 227 jurisdiction of the High Court for relief.
29. I wish to conclude the discussion by observing that time may demand consideration of the issue as to whether the framers of the Constitution actually intended to provide constitutional remedies in respect of alleged invalid judicial acts of tribunals under two separate articles, thereby leaving an avenue open to the litigant to choose his judge.
30. Insofar as the propriety and/or legality of the orders passed by the learned District Judge are concerned, liberty of the petitioners to question the same before the appropriate forum is reserved.
31. However, it has been noticed that the petitioners seek relief in respect of certain other aspects which are matters of substantial public interest and importance. There are directions of the Supreme Court for expediting decisions on 28 applications for adoption which, having regard to the disclosures made in paragraph 11, reflect that light at the end of the tunnel is quite at a distance.
32. Since the petitioners have prayed for regular monitoring of adoption matters, I am of the furthered considered view that in respect of the important questions touching public interest the petitioners may institute public interest litigation before the appropriate bench, if so advised.
33. The writ petition stands disposed of, with liberty as aforesaid. There shall be no order for costs. Urgent photostat certified copy of this order, if applied for, shall be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.) 29