Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2548 OF 2009

RADHEY SHYAM & ANR. …APPELLANTS

VERSUS

CHHABI NATH & ORS. …RESPONDENTS

WITH

SLP (C) NO.25828 OF 2013

JAGDISH PRASAD …PETITIONER

VERSUS

IQBAL KAUR & ORS. …RESPONDENTS

J U D G M E N T

ADARSH KUMAR GOEL J.

1.This matter has been placed before the Bench of three

Judges in pursuance of an order dated April 15, 2009 passed

by the bench of two Hon’ble Judges to consider the

correctness of the law laid down by this Court in Surya Dev

Rai vs. Ram Chander Rai and others

1

that an order of

civil court was amenable to writ jurisdiction under Article

1

2003 (6) SCC 675

Page of

Page 2 Civil Appeal No.2548 of 2009

226 of the Constitution. The reference order, inter alia,

reads:-

Page 3 Civil Appeal No.2548 of 2009

30.………Therefore, this Court unfortunately is

in disagreement with the view which has been

expressed in Surya Dev Rai insofar as correction

of or any interference with judicial orders of civil

court by a writ of certiorari is concerned.

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.

32. The essential distinctions in the exercise of

power between Articles 226 and 227 are well

known and pointed out in Surya Dev Rai and

with that we have no disagreement. But we are

unable to agree with the legal proposition laid

down in Surya Dev Rai 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 , is

contrary to the ratio in Mirajkar and the ratio in

Mirajkar has not been overruled in Rupa Ashok

Hurra [2002 (4) SCC 388].

33. In view of our difference of opinion with the

views expressed in Surya Dev Rai, 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.”

2.Since this Bench has to decide the referred question, it

is not necessary to mention the facts of the case in detail.

Suffice it to say that assailing an interim order of civil court

in a pending suit, the defendant-respondent filed a writ

Page 4 Civil Appeal No.2548 of 2009

petition before the Allahabad High Court and the High Court

having vacated the said interim order granted in favour of

the plaintiff-appellant, the appellant moved this Court by

way of a special leave petition, inter alia, contending that

the writ petition under Article 226 was not maintainable

against the order of the civil court and, thus, the impugned

order could not be passed by the High Court. On behalf of

the respondent, reliance was placed on the decision of this

Court in Surya Dev Rai laying down that a writ petition

under Article 226 was maintainable against the order of the

civil court and thus it was submitted that the High Court

was justified in passing the impugned order.

3.As already mentioned, the Bench of two Hon’ble

Judges who heard the matter was not persuaded to follow

the law laid down in Surya Dev Rai. It was observed that

the judgment in Surya Dev Rai did not correctly

appreciate the ratio in the earlier Nine Judge judgment of

this Court in Naresh Shridhar Mirajkar and others vs.

State of Maharashtra

2

wherein this Court came to the

conclusion that “Certiorari does not lie to quash the

judgments of inferior courts of civil jurisdiction (para 63)”.

With reference to the observations in Surya Dev Rai for

2

AIR 1967 SC 1 = 1966 (3) SCR 744

Page 5 Civil Appeal No.2548 of 2009

not following the conclusion in Mirajkar, the referring

Bench inter alia observed:

“25. In our view the appreciation of the ratio in

Mirajkar by the learned Judges, in Surya Dev

Rai, with great respect, was possibly a little

erroneous and with that we cannot agree.

26. The two-Judge Bench in Surya Dev Rai did

not, as obviously it could not overrule the ratio in

Mirajkar, a Constitution Bench decision of a nine-

Judge Bench. But the learned Judges justified their

different view in Surya Dev Rai, inter alia on the

ground that the 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 is based, has been changed and in

support of that quoted paras 103 and 109 from

Halsbury’s Laws of England, 4th Edn. (Reissue),

Vol. 1(1). Those paras 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

Page 6 Civil Appeal No.2548 of 2009

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 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 Mirajkar and

which has not been overruled and is holding the

field for decades.

27. It is clear from the law laid down in

Mirajkar in para 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. The passage

in the subsequent edition of Halsbury (4th Edn.)

which has been quoted in Surya Dev Rai does

not show at all that there has been any change in

law on the points in issue pointed out above.

28. The learned Judges in Surya Dev Rai

stated in SCC para 18, p. 687 of the Report that

the decision rendered in Mirajkar was considered

by the Constitution Bench in Rupa Ashok Hurra

v. Ashok Hurra and wherein the learned Judges

took a different view and in support of that, the

following para from Rupa Ashok Hurra has been

quoted: (Surya Dev Rai case, SCC pp. 687-88,

para 18)

“(i) that it is a well-settled principle that

the technicalities associated with the

prerogative writs in English law have no

role to play under our constitutional

scheme; (ii) that a writ of certiorari to call

for records and examine the same for

Page 7 Civil Appeal No.2548 of 2009

passing appropriate orders, is issued by a

superior court to an inferior court which

certifies its records for examination; and

(iii) that a High Court cannot issue a writ

to another High Court, nor can one Bench

of a High Court issue a writ to a different

Bench of the High Court; much less can

the writ jurisdiction of a High Court be

invoked to seek issuance of a writ of

certiorari to the Supreme Court. The High

Courts are not constituted as inferior

courts in our constitutional scheme.”

29. We are constrained to point out again that

in Rupa Ashok Hurra the Constitution Bench did

not take any view which is contrary to the views

expressed in Mirajkar. On the other hand, the

ratio in Mirajkar was referred to with respect and

was relied on in Rupa Ashok Hurra . Mirajkar

was referred to in SCC para 8, p. 399 and again in

SCC para 11 on p. 402 and again in SCC para 59,

p. 418 and also in SCC para 60, p. 419 of Rupa

Ashok Hurra. Nowhere even any whisper of a

divergence from the ratio in Mirajkar was

expressed. Rather passages from Mirajkar have

been quoted with approval.

30. In fact the question which was referred to the

Constitution Bench in Rupa Ashok Hurra is

quoted in para 1 of the judgment and it is clear

from the perusal of the said paragraph that the

question for consideration in Rupa Ashok Hurra

was totally different. Therefore, this Court

unfortunately is in disagreement with the view

which has been expressed in Surya Dev Rai

insofar as correction of or

any interference with judicial orders of civil court

by a writ of certiorari is concerned.”

4.Thus, the question to be decided is whether the view

taken in Surya Dev Rai that a writ lies under Article 226 of

the Constitution against the order of the civil court, which

has been doubted in the reference order, is the correct view.

Page 8 Civil Appeal No.2548 of 2009

5.We have heard learned counsel for the parties.

We have also heard learned counsel for the petitioner in

SLP (C) No.25828 of 2013 as the said SLP was tagged to

the present appeal and also the intervenor in person in

I.A. No.2 of 2011.

6.Learned counsel for the appellant submitted that

the view taken in the referring order deserves to be

approved for the reasons given in the said order and

contrary view in Surya Dev Rai may be overruled. It is

submitted that the bench of nine Judges in Mirajkar has

categorically held that the order of the civil court was not

amenable to writ jurisdiction under Article 226 and the said

view still holds the field. The reasons for not following the

said view in Surya Dev Rai are not sound in law. This

submission is supported by learned counsel for the

petitioner appearing in SLP (Civil) No.25828 of 2013 as also

by the Intervenor in person.

7.On the contrary, learned senior counsel for the

respondent supported the view taken in Surya Dev Rai

which is based on decisions of this Court relied upon

therein. According to him, the scope of writ jurisdiction was

wide enough to extend to an order of the civil court. There

Page 9 Civil Appeal No.2548 of 2009

was no reason to exclude the civil courts from the

expression “any person or authority” in Article 226 of the

Constitution. Conceptually, a writ of certiorari could be

issued by a superior court to an inferior court. He also

pointed out that though the judgment in Surya Dev Rai is

by a Bench of two judges, the same has been referred with

approval in larger bench judgments in Shail vs. Manoj

Kumar

3

, Mahendra Saree Emporium (II) vs. G.V.

Srinivasa Murthy

4

and Salem Advocate Bar Assn(II) vs.

Union of India

5

and on that ground correctness of the said

view is not open to be considered by this Bench.

8.We have given anxious consideration to the rival

submissions.

9.It will be appropriate to refer to some of the leading

judgments of this Court on the scope of writ jurisdiction in

the present context, including those referred to in Surya

Dev Rai and the referring order.

10.In T.C. Basappa vs. T. Nagappa

6

, question before

this Court was as to the scope of jurisdiction under Article

226 in dealing with a writ of certiorari against the order of

the Election Tribunal. This Court considered the question in

3 2004 (4) SCC 785

4 2005 (1) SCC 481

5 2005 (6) SCC 344

6 AIR 1954 SC 440= (1955) 1 SCR 250

Page 10 Civil Appeal No.2548 of 2009

the background of principles followed by superior courts in

England which generally formed the basis of decisions of

Indian Courts. This Court held that while broad and

fundamental norms regulating exercise of writ jurisdiction

had to be kept in mind, it was not necessary for Indian

Courts to look back to the early history or procedural

technicalities of the writ jurisdiction in England in view of

express constitutional provisions. Certiorari was meant to

supervise “judicial acts” which included quasi judicial

functions of administrative bodies. The Court issuing such

writ quashed patently erroneous and without jurisdiction

order but the Court did not review the evidence as an

appellate court nor substituted its own finding for that of

the inferior Tribunal. Since the said judgment is followed in

all leading judgments, relevant observations therein may be

extracted :

“5. The principles upon which the superior

courts in England interfere by issuing writs of

certiorari are fairly well known and they have

generally formed the basis of decisions in our

Indian courts. It is true that there is lack of

uniformity even in the pronouncements of

English Judges, with regard to the grounds upon

which a writ, or, as it is now said, an order of

certiorari, could issue, but such differences of

opinion are unavoidable in Judge-made law

which has developed through a long course of

years. As is well known, the issue of the

prerogative writs, within which certiorari is

included, had their origin in England in the

King's prerogative power of superintendence

Page 11 Civil Appeal No.2548 of 2009

over the due observance of law by his officials

and tribunals. The writ of certiorari is so named

because in its original form it required that the

King should be “certified of” the proceedings to

be investigated and the object was to secure by

the authority of a superior court, that the

jurisdiction of the inferior Tribunal should be

properly exercised [Vide Ryots of Garabandho v.

Zamindar of Parlakimedi 70IA 129. These

principles were transplanted to other parts of

the King's dominions. In India, during the British

days, the three chartered High Courts of

Calcutta, Bombay and Madras were alone

competent to issue writs and that too within

specified limits and the power was not

exercisable by the other High Courts at all. “In

that situation” as this court observed in Election

Commission, India v. Saka Venkata Subba Rao

[(1953) SCR 1144]

“the makers of the Constitution having

decided to provide for certain basic

safeguards for the people in the new set

up, which they called fundamental rights,

evidently thought it necessary to provide

also a quick and inexpensive remedy for

the enforcement of such rights and,

finding that the prerogative writs, which

the courts in England had developed and

used whenever urgent necessity

demanded immediate and decisive

interposition, were peculiarly suited for

the purpose, they conferred, in the

States' sphere, new and wide powers on

the High Courts of issuing directions,

orders, or writs primarily for the

enforcement of fundamental rights, the

power to issue such directions ‘for any

other purpose' being also included with a

view apparently to place all the High

Courts in this country in somewhat the

same position as the Court of King's

Bench in England.”

6. The language used in Articles 32 and 226 of

our Constitution is very wide and the powers of

the Supreme Court as well as of all the High

Courts in India extend to issuing of orders, writs

or directions including writs in the nature of

Page 12 Civil Appeal No.2548 of 2009

habeas corpus, mandamus, quo warranto,

prohibition and certiorari as may be considered

necessary for enforcement of the fundamental

rights and in the case of the High Courts, for

other purposes as well. In view of the express

provisions in our Constitution we need not now

look back to the early history or the procedural

technicalities of these writs in English law, nor

feel oppressed by any difference or change of

opinion expressed in particular cases by English

Judges. We can make an order or issue a writ in

the nature of certiorari in all appropriate cases

and in appropriate manner, so long as we keep

to the broad and fundamental principles that

regulate the exercise of jurisdiction in the

matter of granting such writs in English law.

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) 1 KB 171]:

“Whenever anybody 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 but 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

Page 13 Civil Appeal No.2548 of 2009

erroneous but does not substitute its own views

for those of the inferior tribunal. The offending

order or 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 in

walshall’s Overseers vs. London and North

Western Railway Co. 4 AC 30, 39].

8. The supervision of the superior court

exercised through writs of certiorari goes on two

points, as has been expressed by Lord Summer

in King v. Nat Bell Liquors Limited [(1922) 2 AC

128, 156]. One is the area of inferior jurisdiction

and the qualifications and conditions of its

exercise; the other is the observance of law in

the course of its exercise. These two heads

normally cover all the grounds on which a writ of

certiorari could be demanded. In fact there is

little difficulty in the enunciation of the

principles; the difficulty really arises in applying

the principles to the facts of a particular case.

9. Certiorari may lie and is generally granted

when a court has acted without or in excess of

its jurisdiction. The want of jurisdiction may arise

from the nature of the subject-matter of the

proceeding or from the absence of some

preliminary proceeding or the court itself may

not be legally constituted or suffer from certain

disability by reason of extraneous circumstances

[Vide Halsbury, 2 Edn. Vol IX]. When the

jurisdiction of the court depends upon the

existence of some collateral fact, it is well

settled that the court cannot by a wrong

decision of the fact give it jurisdiction which it

would not otherwise possess [Vide Banbury vs.

Fuller, 9 Exch 111; R. v. Income Tax Special

Purposes Commissioners, 21 QBD 313].

10. A tribunal may be competent to enter upon

an enquiry but in making the enquiry it may act

in flagrant disregard of the rules of procedure or

where no particular procedure is prescribed, it

may violate the principles of natural justice. A

writ of certiorari may be available in such cases.

An error in the decision or determination itself

may also be amenable to a writ of certiorari but

it must be a manifest error apparent on the face

of the proceedings, e.g. when it is based on

Page 14 Civil Appeal No.2548 of 2009

clear ignorance or disregard of the provisions of

law. In other words, it is a patent error which can

be corrected by certiorari but not a mere wrong

decision. The essential features of the remedy

by way of certiorari have been stated with

remarkable brevity and clearness by Morris, L.J.

in the recent case of Rex v. Northumberland

Compensation Appellate Tribunal [ (1952) 1 KB

338]. The Lord Justice says:

“It is plain that certiorari will not issue as

the cloak of an appeal in disguise. It does

not lie in order to bring up an order or

decision for re-hearing of the issue raised

in the proceedings. It exists to correct

error of law when revealed on the face of

an order or decision or irregularity or

absence of or excess of jurisdiction when

shown.”

11. In dealing with the powers of the High Court

under Article 226 of the Constitution, this Court

has expressed itself in almost similar terms

[ Vide Veerappa Pillai v. Raman & Raman Ltd.

(1952) SCR 583] and said:

“Such writs as are referred to in Article

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 and

examine for itself the correctness of the

decision impugned and decide what is

the proper view to be taken or the order

to be made.”

These passages indicate with sufficient fullness

the general principles that govern the exercise

Page 15 Civil Appeal No.2548 of 2009

of jurisdiction in the matter of granting writs of

certiorari under Article 226 of the Constitution”.

11.It is necessary to clarify that expression “judicial acts”

is not meant to refer to judicial orders of civil courts as the

matter before this Court arose out of the order of Election

Tribunal and no direct decision of this Court, except Surya

Devi Rai, has been brought to our notice where writ of

certiorari may have been issued against an order of a

judicial court. In fact, when the question as to scope of

jurisdiction arose in subsequent decisions, it was clarified

that orders of judicial courts stood on different footing from

the quasi judicial orders of authorities or Tribunals.

12.In Ujjam Bai vs. State of U.P.

nd

, matter was referred

to a Bench of seven Judges on the scope of writ of certiorari

against an order of assessment under the provisions of

Sales Tax law passed in violation of a fundamental right.

Majority of six judges took the view that except an order

under a void law or an ‘ultra vires’ or ‘without jurisdiction’

order, there could be no violation of fundamental right by a

quasi judicial order or a statutory authority and such order

could not be challenged under Article 32. A writ of certiorari

could however, lie against a patently erroneous order under

nd AIR 1962 SC 1621 = (1963) 1 SCR 778

Page 16 Civil Appeal No.2548 of 2009

Article 226. It was observed that judicial orders of Courts

stood on different footing. Ayyangar, J. observed :

“Before concluding it is necessary to advert to

one matter which was just touched on in the

course of the arguments as one which might be

reserved for consideration when it actually

arose, and this related to the question whether

the decision or order of a regular ordinary Court

of law as distinguished from a tribunal or quasi-

judicial authority constituted or created under

particular statutes could be complained of as

violating a fundamental right. It is a salutary

principle that this Court should not pronounce

on points which are not involved in the

questions raised before it and that is the reason

why I am not dealing with it in any fullness and

am certainly not expressing any decided opinion

on it. Without doing either however, I consider it

proper to make these observations. There is not

any substantial identity between a Court of law

adjudicating on the rights of parties in the lis

before it and designed as the High Courts and

this Court are to investigate inter alia whether

any fundamental rights are infringed and vested

with power to protect them, and quasi-judicial

authorities which are created under particular

statutes and with a view to implement and

administer their provisions. I shall be content to

leave the topic at this.”

13.In Mirajkar, a nine Judge Bench judgment, a judicial

order of High Court was challenged as being violative of

fundamental right. This Court by majority held that a

judicial order of a competent court could not violate a

fundamental right. Even if there was incidental violation, it

could not be held to be violative of fundamental right.

Gajendragaddkar, CJ, observed :

Page 17 Civil Appeal No.2548 of 2009

“37. ……….The argument that the

impugned order affects the fundamental rights

of the petitioners under Article 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

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 Article 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 Article 19(1).

38. ………. Just as an order passed by the court

on the merits of the dispute before it can be

challenged only in appeal and cannot be said to

contravene the fundamental rights of the

litigants before the Court, so could the

impugned order be challenged in appeal under

Article 136 of the Constitution, but it cannot be

said to affect the fundamental rights of the

petitioners. 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 Article

19(1), must fail.

Page 18 Civil Appeal No.2548 of 2009

41. It is true that the opinion thus expressed

by Kania, C.J., in the case of A.K Gopalan [1950

SCR 88] had not received the concurrence of the

other learned Judges who heard the said case.

Subsequently, however, in Ram Singh v. State of

Delhi [1951 SCR 451] , the said observations

were cited with approval by the Full Court. The

same principle has been accepted by this Court

in Express Newspapers (Private) Ltd., v. Union of

India [1959 SCR 12] , and by the majority

judgment in Atiabari Tea Co., Ltd. v. State of

Assam [1961 (1) SCR 809.”

Explaining observations in earlier judgments in

Budhan Choudhary vs. State of Bihar

7

and Parbhani

Tranport Coop. Society Ltd. vs. Regional Transport

Authority

8

that a judicial order could be violative of Article

14, it was observed :

“45. Naturally, the principal contention which

was urged on their behalf before this Court was

that Section 30 CrPC, infringed the fundamental

right guaranteed by Article 14, and was,

therefore, invalid. This contention was repelled

by this Court. Then, alternatively, the appellants

argued that though the section itself may not be

discriminatory, it may lend itself to abuse

bringing about a discrimination between persons

accused of offences of the same kind, for the

police may send up a person accused of an

offence under Section 366 to a Section 30

Magistrate and the police may send another

person accused of an offence under the same

section to a Magistrate who can commit the

accused to the Court of Session. This alternative

contention was examined and it was also

rejected. That incidentally raised the question as

to whether the judicial decision could itself be

said to offend Article 14. S.R. Das, J., as he then

was, who spoke for the Court considered this

contention, referred with approval to the

7 AIR 1955 SC 191 = (1955) 1 SCR 1045

8 AIR (1960) SC 801 = (1960) 3 SCR 177

Page 19 Civil Appeal No.2548 of 2009

observations made by Frankfurter, J., and Stone,

C.J., of the Supreme Court of the United States in

Snowden v. Hughes [ (1944) 321 US1] and

observed that the judicial decision must of

necessity depend on the facts and

circumstances of each particular case and what

may superficially appear to be an unequal

application of the law may not necessarily

amount to a denial of equal protection of law

unless there is shown to be present in it an

element of intentional and purposeful

discrimination. Having made this observation

which at best may be said to assume that a

judicial decision may conceivably contravene

Article 14, the learned Judge took the precaution

of adding that the discretion of judicial officers is

not arbitrary and the law provides for revision by

superior courts of orders passed by the

subordinate Courts. In such circumstances, there

is hardly any ground for apprehending any

capricious discrimination by judicial tribunals.

46. It is thus clear that though the observations

made by Frankfurter, J. and Stone, C.J. in

Snowden v. Hughes had been cited with

approval, the question as to whether a judicial

order can attract the jurisdiction of this Court

under Article 32(1) and (2) was not argued and

did not fall to be considered at all. That question

became only incidentally relevant in deciding

whether the validity of the conviction which was

impugned by the appellants in the case of

Budhan Choudhry could be successfully assailed

on the ground that the judicial decision under

Section 30 CrPC, was capriciously rendered

against the appellants. The scope of the

jurisdiction of this Court in exercising its writ

jurisdiction in relation to orders passed by the

High Court was not and could not have been

examined, because the matter had come to this

Court in appeal under Article 132(1); and

whether or not judicial decision can be said to

affect any fundamental right merely because it

incidentally and indirectly may encroach upon

such right, did not therefore call for

consideration or decision in that case. In fact,

the closing observations made in the judgment

themselves indicate that this Court was of the

view that if any judicial order was sought to be

attacked on the ground that it was inconsistent

Page 20 Civil Appeal No.2548 of 2009

with Article 14, the proper remedy to challenge

such an order would be an appeal or revision as

may be provided by law. 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. It may

incidentally be pointed out that the decision of

the Supreme Court of the United States in

Snowden v. Hughes was itself not concerned

with the validity of any judicial decision at all.

47. On the other hand, in Parbhani Transport

Cooperative Society Ltd. v. Regional Transport

Authority, Aurangabad Sarkar, J. speaking for the

Court, has observed that the decision of the

Regional Transport Authority which was

challenged before the Court may have been

right or wrong, but that they were unable to see

how that decision could offend Article 14 or any

other fundamental right of the petitioner. The

learned Judge further observed that the

Regional Transport Authority was acting as a

quasi-judicial body and if it has made any

mistake in its decision there are appropriate

remedies available to the petitioner for

obtaining relief. It cannot complain of a breach

of Article 14. It is true that in this case also the

larger issue as to whether the orders passed by

quasi judicial tribunals can be said to affect

Article 14, does not appear to have been fully

argued. It is clear that the observations made by

this Court in this case unambiguously indicate

that it would be inappropriate to suggest that

the decision rendered by a judicial tribunal can

be described as offending Article 14 at all. It

may be a right or wrong decision, and if it is a

wrong decision it can be corrected by appeal or

revision as may be permitted by law, but it

cannot be said per se to contravene Article 14. It

is significant that these observations have been

made while dealing with a writ petition filed by

the petitioner, the Parbhani Transport

Cooperative Society Ltd. under Article 32; and

insofar as the point has been considered and

decided the decision is against Mr Setalvad's

contention.”

Page 21 Civil Appeal No.2548 of 2009

Decision of this Court in Prem Chand Garg vs.

Excise Commnr

9

, setting aside rule of this Court requiring

deposit of security for filing a writ petition, was also

explained as not holding that a judicial order resulted in

violation of fundamental right :

“49. It would thus be seen that the main

controversy in the case of Prem Chand Garg

centered round the question as to whether Article

145 conferred powers on this Court to make

Rules, though they may be inconsistent with the

constitutional provisions prescribed by Part III .

Once it was held that the powers under Article

142 had to be read subject not only to the

fundamental rights, but to other binding statutory

provisions, it became clear that the Rule which

authorised the making of the impugned order was

invalid. It was in that context that the validity of

the order had to be incidentally examined. The

petition was made not to challenge the order as

such, but to challenge the validity of the Rule

under which the order was made. Once the Rule

was struck down as being invalid, the order

passed under the said Rule had to be vacated. It

is difficult to see how this decision can be pressed

into service by Mr Setalvad in support of the

argument that a judicial order passed by this

Court was held to be subject to the writ

jurisdiction of this Court itself. What was held by

this Court was that Rule made by it under its

powers conferred by Article 145 which are

legislative in character, was invalid; but that is

quite another matter.

50. It is plain that if a party desires to challenge

any of the Rules framed by this Court in exercise

of its powers under Article 145 on the ground that

they are invalid, because they illegally contravene

his fundamental rights, it would be open to the

party to move this Court under Article 32. Such a

challenge is not against any decision of this Court,

but against a Rule made by it in pursuance of its

rule-making power. If the Rule is struck down as it

9 AIR 1963 SC 996 = (1963) Supp. 1 SCR 885

Page 22 Civil Appeal No.2548 of 2009

was in the case of Prem Chand Garg, this Court

can review or recall its order passed under the

said Rule. Cases in which initial orders of security

passed by the Court are later reviewed and the

amount of security initially directed is reduced,

frequently arise in this Court; but they show the

exercise of this Court's powers under Article 137

and not under Article 32. 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.”

This Court then dealt with the legal position in England

on the question of scope of writ of certiorari against a

judicial order. Noting that writ of certiorari did not lie

against a judicial order, it was observed :

“62. 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), 1 Dow. & 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 Laws of England Vol.I 1, p.129]”.

The ultimate proposition is set out in the

terms: “Certiorari does not lie to quash the

judgments of inferior courts of civil

Page 23 Civil Appeal No.2548 of 2009

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.

63. In Rex. v. Chancellor of St. Edmundsburry

and Ipswich Diocese Ex parte White [(1945) 1

KBD 195] the question which arose was whether

certiorari would lie from the Court of King's

Bench to an ecclesiastical Court; and the answer

rendered by the court was that certiorari would

not lie against the decision of an ecclesiastical

court. In dealing with this question, Wrottesley,

L.J. has elaborately considered the history of the

writ jurisdiction and has dealt with the question

about the meaning of the word ‘inferior' as

applied to courts of law in England in discussing

the problem as to the issue of the writ in regard

to decisions of certain courts. “The more this

matter was investigated,” says Wrottesley, L.J.,

“the clearer it became that the word “inferior”

as applied to courts of law in England had been

used with at least two very different meanings.

If, as some assert, the question of inferiority is

determined by ascertaining whether the court in

question can be stopped from exceeding its

jurisdiction by a writ of prohibition issuing from

the King's Bench, then not only the ecclesiastical

courts, but also palatine courts and admiralty

courts are inferior courts. But there is another

test, well recognised by lawyers, by which to

distinguish a superior from an inferior court,

namely, whether in its proceedings, and in

particular in its judgments, it must appear that

the court was acting within its jurisdiction. This

is the characteristic of an inferior court, whereas

in the proceedings of a superior court it will be

presumed that it acted within its jurisdiction

unless the contrary should appear either on the

face of the proceedings or aliunde.” Mr Sen

relied upon this decision to show that even the

High Court of Bombay can be said to be an

inferior court for the purpose of exercising

jurisdiction by this Court under Article 32(2) to

issue a writ of certiorari in respect of the

impugned order passed by it. We are unable to

Page 24 Civil Appeal No.2548 of 2009

see how this decision can support Mr Sen's

contentions.”

(emphasis

added).

14.In Rupa Ashok Hurra (supra) it was held that final

order of this Court cannot be challenged under Article 32 as

violative of fundamental right. Judgment of this Court in

Triveniben vs. State of Gujarat

10

was referred to with

approval to the effect that a judicial order could not violate

a fundamental right. It was observed :

“11. In Triveniben v. State of Gujarat speaking

for himself and other three learned Judges of the

Constitution Bench, Oza, J., reiterating the same

principle, observed: (SCC p. 697, para 22)

“It is well settled now that a judgment

of court can never be challenged

under Articles 14 or 21 and therefore

the judgment of the court awarding

the sentence of death is not open to

challenge as violating Article 14 or

Article 21 as has been laid down by

this Court in Naresh Shridhar

Mirajkar v. State of Maharashtra

and also in A.R. Antulay v. R.S.

Nayak [1988 (2) SCC 602], the only

jurisdiction which could be sought to

be exercised by a prisoner for

infringement of his rights can be to

challenge the subsequent events after

the final judicial verdict is pronounced

and it is because of this that on the

ground of long or inordinate delay a

condemned prisoner could approach

this Court and that is what has

consistently been held by this Court.

But it will not be open to this Court in

exercise of jurisdiction under Article

32 to go behind or to examine the

10 (1989) 1 SCC 678

Page 25 Civil Appeal No.2548 of 2009

final verdict reached by a competent

court convicting and sentencing the

condemned prisoner and even while

considering the circumstances in

order to reach a conclusion as to

whether the inordinate delay coupled

with subsequent circumstances could

be held to be sufficient for coming to

a conclusion that execution of the

sentence of death will not be just and

proper.”

12. We consider it inappropriate to burden this

judgment with discussion of the decisions in other

cases taking the same view. Suffice it to mention

that various Benches of this Court reiterated the

same principle in the following cases: A.R.

Antulay v. R.S. Nayak, Krishna Swami v.

Union of India [1992 (4) SCC 605] , Mohd.

Aslam v. Union of India [1996 (2) SCC 749],

Khoday Distilleries Ltd. v. Registrar General,

Supreme Court of India [1996 (3) SCC 114],

Gurbachan Singh v. Union of India [1996 (3)

SCC 117], Babu Singh Bains v. Union of India

[1996 (6) SCC 565] and P. Ashokan v. Union of

India [1998 (3) SCC 56.

13. It is, however, true that in Supreme Court Bar

Assn. v. Union of India [1998 (4) SCC 409 a

Constitution Bench and in M.S. Ahlawat v. State

of Haryana [2000 (1) SCC 278] a three-Judge

Bench, and in other cases different Benches

quashed the earlier judgments/orders of this

Court in an application filed under Article 32 of

the Constitution. But in those cases no one joined

issue with regard to the maintainability of the writ

petition under Article 32 of the Constitution.

Therefore, those cases cannot be read as

authority for the proposition that a writ of

certiorari under Article 32 would lie to challenge

an earlier final judgment of this Court.

14. On the analysis of the ratio laid down in the

aforementioned cases, we reaffirm our considered

view that a final judgment/order passed by this

Court cannot be assailed in an application under

Article 32 of the Constitution of India by an

aggrieved person, whether he was a party to the

case or not.

Page 26 Civil Appeal No.2548 of 2009

15. In fairness to the learned counsel for the

parties, we record that all of them at the close of

the hearing of these cases conceded that the

jurisdiction of this Court under Article 32 of the

Constitution cannot be invoked to challenge the

validity of a final judgment/order passed by this

Court after exhausting the remedy of review

under Article 137 of the Constitution read with

Order XL Rule 1 of the Supreme Court Rules,

1966.”

15.While the above judgments dealt with the question

whether judicial order could violate a fundamental right, it

was clearly laid down that challenge to judicial orders could

lie by way of appeal or revision or under Article 227 and not

by way of a writ under Article 226 and 32.

16.Another Bench of three judges in Sadhana Lodh vs.

National Insurance Co. Ltd.

11

considered the question

whether remedy of writ will be available when remedy of

appeal was on limited grounds. This Court held :

“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 Articles 226/227 of the Constitution on the

premise 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.

v. Nicolletta Rohtagi (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

11 2003 (3) SCC 524

Page 27 Civil Appeal No.2548 of 2009

file an appeal has been provided for, it is not open

to the High Court to entertain a petition under

Article 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

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 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 CPC, 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 CPC, 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 the High

Court under Article 226 of the Constitution.”

(emphasis

added)

17.This Court in judgment dated 6 December, 1989 in

Civil Appeal No.815 of 1989 Qamruddin vs. Rasul Baksh

& Anr. which has been quoted in Allahabad High Court

Judgment in Ganga Saran vs. Civil Judge

th

considered the

issue of writ of certiorari and mandamus against interim

order of civil court and held :

th AIR 1991 All 114

Page 28 Civil Appeal No.2548 of 2009

“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 serious

error of jurisdiction in interfering with the order

of the District Judge.”

18.Thus, it has been clearly laid down by this Court that

an Order of civil court could be challenged under Article 227

and not under

Article 226.

19.We may now come to the judgment in Surya Dev

Rai. Therein, the appellant was aggrieved by denial of

interim injunction in a pending suit and preferred a writ

petition in the High court stating that after CPC amendment

by Act 46 of 1999 w.e.f. 1 July, 2002, remedy of revision

under Section 115 was no longer available. The High Court

dismissed the petition following its Full Bench Judgment in

Ganga Saran to the effect that a writ was not maintainable

Page 29 Civil Appeal No.2548 of 2009

as no mandamus could issue to a private person. The

Bench considered the question of the impact of CPC

amendment on power and jurisdiction of the High Court to

entertain a writ of certiorari under Article 226 or a petition

under Article 227 to involve power of superintendence. The

Bench noted the legal position that after CPC amendment

revisional jurisdiction of the High Court against interlocutory

order was curtailed. The Bench then referred to the history

of writ of certiorari and its scope and concluded thus :

“18. Naresh Shridhar Mirajkar case was cited

before the Constitution Bench in Rupa Ashok

Hurra case and considered. It has been clearly

held: (i) that it is a well-settled principle that the

technicalities associated with the prerogative

writs in English law have no role to play under

our constitutional scheme; (ii) that a writ of

certiorari to call for records and examine the

same for passing appropriate orders, is issued

by a superior court to an inferior court which

certifies its records for examination; and (iii)

that a High Court cannot issue a writ to another

High Court, nor can one Bench of a High Court

issue a writ to a different Bench of the High

Court; much less can the writ jurisdiction of a

High Court be invoked to seek issuance of a writ

of certiorari to the Supreme Court. The High

Courts are not constituted as inferior courts in

our constitutional scheme.

19. Thus, there is no manner of doubt 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.

xxxx

24. The difference between Articles 226 and

227 of the Constitution was well brought out in

Umaji Keshao Meshram v. Radhikabai [1986

Supp. SCC 401]. Proceedings under Article 226

Page 30 Civil Appeal No.2548 of 2009

are in exercise of the original jurisdiction of the

High Court while proceedings under Article 227

of the Constitution are not original but only

supervisory. Article 227 substantially reproduces

the provisions of Section 107 of the Government

of India Act, 1915 excepting that the power of

superintendence has been extended by this

article to tribunals as well. Though the power is

akin to that of an ordinary court of appeal, yet

the power under Article 227 is intended to be

used sparingly and only in appropriate cases for

the purpose of keeping the subordinate courts

and tribunals within the bounds of their

authority and not for correcting mere errors. The

power may be exercised in cases occasioning

grave injustice or failure of justice such as when

(i) the court or tribunal has assumed a

jurisdiction which it does not have, (ii) has failed

to exercise a jurisdiction which it does have,

such failure occasioning a failure of justice, and

(iii) the jurisdiction though available is being

exercised in a manner which tantamounts to

overstepping the limits of jurisdiction.

25. Upon a review of decided cases and a

survey of the occasions, wherein the High Courts

have exercised jurisdiction to command a writ of

certiorari or to exercise supervisory jurisdiction

under Article 227 in the given facts and

circumstances in a variety of cases, it seems

that the distinction between the two jurisdictions

stands almost obliterated in practice. 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.

Without entering into niceties and technicality of

the subject, we venture to state the broad

general difference between the two jurisdictions.

Firstly, the writ of certiorari is an exercise of its

original jurisdiction by the High Court; exercise

of supervisory jurisdiction is not an original

jurisdiction and in this sense it is akin to

appellate, revisional or corrective jurisdiction.

Secondly, in a writ of certiorari, the record of the

proceedings having been certified and sent up

by the inferior court or tribunal to the High

Court, the High Court if inclined to exercise its

jurisdiction, may simply annul or quash the

Page 31 Civil Appeal No.2548 of 2009

proceedings and then do no more. In exercise of

supervisory jurisdiction, the High Court may not

only quash or set aside the impugned

proceedings, judgment or order but it may also

make such directions as the facts and

circumstances of the case may warrant, maybe,

by way of guiding the inferior court or tribunal

as to the manner in which it would now proceed

further or afresh as commended to or guided by

the High Court. In appropriate cases the High

Court, while exercising supervisory jurisdiction,

may substitute such a decision of its own in

place of the impugned decision, as the inferior

court or tribunal should have made. Lastly, the

jurisdiction under Article 226 of the Constitution

is capable of being exercised on a prayer made

by or on behalf of the party aggrieved; the

supervisory jurisdiction is capable of being

exercised suo motu as well.

20.It is the above holding, correctness of which was

doubted in the referring order already mentioned above.

21.It is true that this Court has laid down that

technicalities associated with the prerogative writs in

England have no role to play under our constitutional

scheme. There is no parallel system of King’s Court in India

and of all other courts having limited jurisdiction subject to

supervision of King’s Court. Courts are set up under the

Constitution or the laws. All courts in the jurisdiction of a

High Court are subordinate to it and subject to its control

and supervision under Article 227. Writ jurisdiction is

constitutionally conferred on all High Courts. Broad

principles of writ jurisdiction followed in England are

applicable to India and a writ of certiorari lies against

Page 32 Civil Appeal No.2548 of 2009

patently erroneous or without jurisdiction orders of Tribunals

or authorities or courts other than judicial courts. There are

no precedents in India for High Courts to issue writs to

subordinate courts. Control of working of subordinate

courts in dealing with their judicial orders is exercised by

way of appellate or revisional powers or power of

superintendence under Article 227. Orders of civil court

stand on different footing from the orders of authorities or

Tribunals or courts other than judicial/civil courts. While

appellate or revisional jurisdiction is regulated by statutes,

power of superintendence under Article 227 is

constitutional. The expression “inferior court” is not

referable to judicial courts, as rightly observed in the

referring order in paras 26 and 27

quoted above.

22.The Bench in Surya Dev Rai also observed in para 25

of its judgment that distinction between Articles 226 and

227stood almost obliterated. In para 24 of the said

judgment distinction in the two articles has been noted. In

view thereof, observation that scope of Article 226 and 227

was obliterated was not correct as rightly observed by the

referring Bench in Para 32 quoted above. We make it clear

that though despite the curtailment of revisional jurisdiction

Page 33 Civil Appeal No.2548 of 2009

under Section 115 CPC by Act 46 of 1999, jurisdiction of the

High Court under Article 227 remains unaffected, it has

been wrongly assumed in certain quarters that the said

jurisdiction has been expanded. Scope of Article 227 has

been explained in several decisions including Waryam

Singh and another vs. Amarnath and another

st

,

Ouseph Mathai vs. M. Abdul Khadir

12

, Shalini Shyam

Shetty vs. Rajendra Shankar Patil

13

and Sameer

Suresh Gupta vs. Rahul Kumar Agarwal

14

. In Shalini

Shyam Shetty, this Court observed :

“64. However, this Court unfortunately discerns

that of late there is a growing trend amongst

several High Courts to entertain writ petition in

cases of pure property disputes. Disputes

relating to partition suits, matters relating to

execution of a decree, in cases of dispute

between landlord and tenant and also in a case

of money decree and in various other cases

where disputed questions of property are

involved, writ courts are entertaining such

disputes. In some cases the High Courts, in a

routine manner, entertain petitions under Article

227 over such disputes and such petitions are

treated as writ petitions.

65. 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.

66. We may also observe that in some High

Courts there is a tendency of entertaining

st AIR 1954 SC 215=1954 SCR 565

12 2002 (1) SCC 319

13 2010 (8) SCC 329

14 2013 (9) SCC 374

Page 34 Civil Appeal No.2548 of 2009

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 and in view of the recent

amendment to Section 115 of the Civil

Procedure Code by the Civil Procedure Code

(Amendment) Act, 1999. It is urged that as a

result of the amendment, scope of Section 115

CPC has been curtailed. In our view, even if

the scope of Section 115 CPC is curtailed

that has not resulted in expanding the

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.

67. As a result of frequent interference by the

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. This Court hopes

and trusts that in exercising its power either

under Article 226 or 227, the 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.”

(emphasis added)

23.Thus, we are of the view that judicial orders of civil

courts are not amenable to a writ of certiorari under Article

226. We are also in agreement with the view of the

referring Bench that a writ of mandamus does not lie

against a private person not discharging any public duty.

Scope of Article 227 is different from Article 226.

Page 35 Civil Appeal No.2548 of 2009

24.We may also deal with the submission made on behalf

of the respondent that the view in Surya Dev Rai stands

approved by larger Benches in Shail, Mahendra Saree

Emporium and Salem Advocate Bar Assn and on that

ground correctness of the said view cannot be gone into by

this Bench. In Shail, though reference has been made to

Surya Dev Rai, the same is only for the purpose of scope

of power under Article 227 as is clear from para 3 of the

said judgment. There is no discussion on the issue of

maintainability of a petition under Article 226. In

Mahendra Saree Emporium, reference to Surya Dev Rai

is made in para 9 of the judgment only for the proposition

that no subordinate legislation can whittle down the

jurisdiction conferred by the Constitution. Similarly, in

Salem Bar Assn. in para 40, reference to Surya Dev Rai

is for the same purpose. We are, thus, unable to accept the

submission of learned counsel for the respondent.

25.Accordingly, we answer the question referred as

follows :

“(i)Judicial orders of civil court are not

amenable to writ jurisdiction under Article

226 of the Constitution;

(ii) Jurisdiction under Article 227 is

distinct from jurisdiction from jurisdiction

under Article 226.

Page 36 Civil Appeal No.2548 of 2009

Contrary view in Surya Dev Rai is overruled.”

26.The matters may now be listed before the appropriate

Bench for further orders.

.…..…………………………….CJI.

[H.L. DATTU]

..……..…………………………….J.

[A.K. SIKRI]

.…...………………………………..J.

[ ADARSH KUMAR

GOEL ]

NEW DELHI

FEBRUARY 26, 2015