IN THE HIGH COURT AT CALCUTTA

(Constitutional Writ Jurisdiction)

APPELLATE SIDE

Present:

The Hon’ble Justice Krishna Rao

WPA No. 10504 of 2025

Pushpa Sharma

Versus

The State of West Bengal & Ors.

With

WPA No. 16316 of 2025

Shyam Sundar Sharma @ Bablu

Versus

The State of West Bengal & Ors.

Mr. Ranajit Chatterjee

Mr. Aniruddha Mitra

…….For the petitioner in WPA 10504 of 2025

and for the respondent no.3 in WPA 16316 of

2025.

Mr. Probal Mukherjee, Sr. Adv.

Mr. Prantik Gharai

Mr. Romendu Agarwal

Mr. Apoorva Choudhury

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Ms. Sonia Das

….. For the petitioner in WPA 16316 of

2025 and for the respondent no. 6 in

WPA 10504 of 2025.

Mr. Wasim Ahmed

Mr. Sk. Md. Masud

.....For the State.

Mr. Gajanand Sharma

….. Respondent no. 5 in-person.

Hearing Concluded On : 06.02.2026

Judgment on : 18.02.2026

Krishna Rao, J.:

1. Smt. Pushpa Sharma filed the present writ petition being WPA No.

10504 of 2025 praying for a direction upon the respondent nos. 5 and 6

i.e. Shri Shyam Sundar Sharma and Gajanand Sharma to hand over

the possession of the immovable property belonging to her situated at

Rangamati, District- Paschim Medinipur, comprising 2 cottahs of land,

consisting of a three (3) storied building in terms of the orders passed

by the Sub-Divisional Officer dated 6

th September, 2024 and 6

th

December, 2024.

2. Shri Shyam Sundar Sharma @ Bablu filed another writ petition being

WPA No. 16316 of 2025 for setting aside and quashing the part of the

order passed by the Sub-Divisional Officer dated 6

th September, 2024

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wherein the Sub-Divisional Officer directed the petitioner to vacate the

property.

3. The mother, Smt. Pushpa Sharma has filed the present writ application

for implementation of the orders passed by the Sub-Divisional Officer

on the allegation that the sons have not vacated the house and have

not handed over the same to her in terms of the orders passed by the

Sub-Divisional Officer.

4. The petitioner Smt. Pushpa Sharma is the mother of Shyam Sundar

Sharma and Gajanand Sharma. Smt. Pushpa Sharma has initially filed

an application under Section 5 of the Maintenance and Welfare of

Parents and Senior Citizens Act, 2007 before the Sub-Divisional Officer,

Medinipur Sadar, against her two sons, namely, Shyam Sundar

Sharma and Gajanand Sharma praying for maintenance of Rs.

30,000/- per month and reimbursement of hospital expenses.

5. By an order dated 6

th September, 2024, the Sub-Divisional Officer,

Medinipur Sadar, directed Gajanand Sharma and Shyam Sundar

Sharma to vacate the building within three (3) months from the date of

the order and during this period, Shri Gajanand Sharma will pay Rs.

10,000/- per month and Shri Shyam Sundar Sharma will pay Rs.

15,000/- per month within 7

th day of every month as maintenance to

their mother.

6. Mr. Ranajit Chatterjee, Learned Advocate representing the mother

submits that the husband of the petitioner died in the month of

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September, 2018, leaving behind the petitioner as his widow, two sons

and a married daughter. It is also the claim of the petitioner that she is

the owner of the three storied building but the sons are in occupation

of the said building. He further submits that neither of the sons of the

petitioner, is providing any maintenance for her survival nor expenses

for her medical treatment.

7. Mr. Chatterjee submits that the petitioner for her survival had to take

shelter at her elder brother’s house at Cuttack. He submits that it is

impossible for the petitioner to reside in her dwelling house because of

the threat to her safety from her sons.

8. Mr. Chatterjee submits that as the sons are not vacating the building,

thus the maintenance amount awarded by the Sub-Divisional Officer be

enhanced to Rs. 50,000/- per month.

9. Mr. Chatterjee relied upon the judgment in the case of Samtola Devi

Vs. State of Uttar Pradesh and Ors. reported in 2025 SCC OnLine

SC 669 and submits that there is no necessity for eviction of the

respondents from the house but the respondents may be directed to

pay monthly maintenance of Rs. 50,000/- and in case they fail to pay

the maintenance amount, the respondents may be evicted from the

house.

10. Mr. Probal Mukherjee, Learned Senior Advocate, representing the

petitioner Shyam Sundar Sharma in W.P.A. No. 16316 of 2025 and the

respondent no. 6 in WPA No. 10504 of 2025, submits that the writ

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application filed by mother is not maintainable since there is statutory

remedy is available in the Act itself for enforcement of order of

maintenance under Section 11 of the Act of 2007.

11. Mr. Mukherjee submits that the petitioner, Shyam Sundar Sharma is

ready and willing to look after his mother and the mother is always

welcome to reside with the Shyam Sundar Sharma as she was residing

with him prior to 2023. He submits that the respondent no.6 is

regularly paying the amount in terms of the order passed by the

Tribunal and also continuing to bear all medical expenses of his

mother.

12. Mr. Mukherjee submits that Learned Tribunal has no jurisdiction to

pass an order for evicting and vacating Shyam Sundar Sharma from

the property on an application under Sections 4 and 5 of the Act of

2007. The Act only permits for grant of monthly maintenance and

expenses of proceeding to the maximum of Rs. 10,000/- per month

only. He submits that the direction to vacate the property is contrary to

the provisions of the Act of 2007.

13. Mr. Mukherjee submits that Shyam Sundar Sharma belongs to

Mitakshara School of Hindu Law and as per Mitakshara system once a

child is born, he/she acquires right in the said property upon its birth.

He submits that Shyam Sundar has right in the said property from

birth and he cannot be evicted from the said property under the said

Act.

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14. Mr. Mukherjee relied upon an unreported judgment passed by the

Coordinate Bench of this Court in the case of Joya Roy and Another

Vs. The State of West Bengal & Others in WPA No. 651 of 2024

dated 30

th July, 2024 and submits that the Court has held that the

appropriate remedy would be to file an eviction suit before the regular

Civil Court and invocation of the Act of 2007 is a gross abuse of the

process of the Court.

15. Mr. Mukherjee further relied upon the judgment in the case of Swati

Das Vs. State of West Bengal and Others reported in 2022 SCC

OnLine Cal 4552 wherein the Hon’ble Division Bench of this Court

held that under the Act of 2007, there is no provision to evict any

person from the property except in a case for violation of Section 23 of

the Act.

16. The mother being the senior citizen has filed a complaint before the

Sub-Divisional Officer for grant of maintenance of Rs. 30,000/- per

month and reimbursement of medical expenses. There is no dispute

that during his life time, the father, Late Rameshwar Dayal Sharma

had constructed a three storied building at Medinipur Law College

Street, Post Office- Vidyasagar University, District – Paschim

Medinipur, Pin – 721102, and all the family members resided in the

said house. Due to difference between the son Gajanand Sharma and

the father, the respondent no.5 started residing with his family

members in the first floor of the building and the father, mother and

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the respondent no.6 started residing in the ground floor and second

floor of the three storied building.

17. As per the case of the mother, both the sons after the death of their

father, drove her out of the house and occupied the entire building and

did not provide any proper treatment, though she is suffering from

chronic diabetes and has a problem in her left kidney. The mother had

to take shelter in the house of her elder brother at Cuttack.

18. The Sub-Divisional Officer has passed an order on 6

th September,

2024, directing the respondent nos. 5 and 6 to vacate the building

within three (3) months from the date of the order and during this

period, the respondent no. 5, Gajanand Sharma shall pay Rs. 10,000/-

per month within 7

th day of every month and the respondent no. 6,

Shyam Sundar Sharma shall pay Rs. 15,000/- per month within 7

th

day of every month as maintenance to their mother. On 6

th December,

2024, the Sub-Divisional Officer directed the respondent nos. 5 and 6

to comply with the order dated 6

th September, 2024 within 30 days

from the date of receipt of this order.

19. Section 9 of the Maintenance and Welfare of Parents and Senior

Citizens Act, 2007, reads as follows:

“9. Order for maintenance

1. If children or relatives, as the case may be,

neglect or refuse to maintain a senior citizen being

unable to maintain himself, the Tribunal may, on

being satisfied of such neglect or refusal, order

such children or relatives to make a monthly

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allowance at such monthly rate for the

maintenance of such senior citizen, as the Tribunal

may deem fit and to pay the same to such senior

citizen as the Tribunal may, from time to time,

direct.

2. The maximum maintenance allowance

which may be ordered by such Tribunal shall be

such as may be prescribed by the State

Government which shall not exceed ten thousand

rupees per month.”

As per sub-section 2 of Section 9 of the Act of 2007, the

maintenance allowance shall not be exceed Rs. 10,000/- per month.

The Sub-Divisional Officer has passed an order for payment of

maintenance allowance of Rs. 15,000/- by the respondent no. 6 i.e.

Shyam Sundar Sharma for three (3) months or till the vacating the

premises.

20. Though as per sub-section 2 of Section 9, the maintenance allowance

shall not exceed Rs. 10,000/- per month but the Sub-Divisional Officer

has passed an order for payment of maintenance amount of Rs.

15,000/-. The respondent no. 6 is not aggrieved with the order in

respect of the said amount but the respondent no. 6 is only aggrieved

with the direction passed by the Sub-Divisional Officer for vacating the

premises.

21. The Statement of Objects and Reasons reveals that the Act of 2007 was

promulgated to give more attention to the care and protection of the

older persons. It clearly spells out that though parents can claim

maintenance under the Code of Criminal Procedure, 1973, but the

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same is time-consuming and expensive. Hence, in order to provide a

simple, inexpensive, and speedy provision to claim maintenance for

parents and senior citizens, the Act has been enacted.

22. In the backdrop of the Statement of Objects and Reasons and the

principles, if the scheme of the Act of 2007, is to be deciphered, this

Court strongly feels that the provisions including the provisions under

Sections 4 and 5 of the Act of 2007 are meant to ensure that the senior

citizens or parents be provided with sufficient means to live with

dignity. The progenies or persons are liable to maintain their parents,

can be directed by the Tribunal constituted under the Act of 2007 to

pay a sum not exceeding Rs. 10,000/- per month to the parents.

23. Upon perusal of the Act of 2007 shows that Chapter II of the Act of

2007 deals with maintenance of parents and senior citizens. Section 4

of the Act of 2007 is the substantive provision like a charging Section of

a statute. It confers right upon a senior citizen including parent to

claim maintenance while simultaneously casting a duty of obligation

upon the children to maintain their parents. Whereas Section 5 of the

Act is the machinery provision which prescribes the manner and

authority who shall pass an order of maintenance. A reading of

Sections 4 and 5 of the Act of 2007, it is clear that Tribunal constituted

under the Act can only pass an order of maintenance in favour of senior

citizens or parents. Neither there is any direct or indirect reference of

eviction nor do these provisions contemplate any such order to be

passed by the Tribunal.

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24. Section 4 of the Act of 2007, stipulates that a senior citizen including

parent who is unable to maintain himself from his own earning or out

of the property owned by him, shall be entitled to make an application

under Section 5 of the said Act. The Act of 2007 provides for an

adjudication of such an application by the Tribunal by holding

summarily enquiry for determining the amount of the maintenance.

Sections 4 and 5 cannot be used by the senior citizen to recover

property from any person, whether it is a child or relative of such a

senior citizen. So, therefore, the Tribunal cannot pass an order of

eviction on an application filed by the senior citizen under Sections 4

and 5 of the Act of 2007. In view of the above, the impugned order

passed by the Learned Tribunal dated 6

th September, 2024 and 6

th

December, 2024, is modified by setting aside the portion of the order

wherein the Tribunal has directed the respondent no. 6 to vacate the

building within three (3) months from the date of the order.

25. The mother has filed the writ application for implementation of the

orders passed by the Sub-Divisional Officer under the Maintenance and

Welfare of Parents and Senior Citizens Act, 2007, dated 6

th September,

2024 and 6

th December, 2024. Section 11 of the Maintenance and

Welfare of Parents and Senior Citizens Act, 2007, reads as follows:

“11. Enforcement of order of maintenance

1. A copy of the order of maintenance and

including the order regarding expenses of

proceedings, as the case may be, shall be given

without payment of any fee to the senior citizen or

to parent, as the case may be, in whose favour it is

made and such order may be enforced by any

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to parent, as the case may be, in whose favour it is

made and such order may be enforced by any

Tribunal in any place where the person against

whom it is made, such Tribunal on being satisfied

as to the identity of the parties and the non-

payment of the allowance, or as the case may be,

expenses, due.

2. A maintenance order made under this Act

shall have the same force and effect as an order

passed under Chapter IX of the Code of Criminal

Procedure, 1973 (2 of 1974) and shall be executed

in the manner prescribed for the execution of such

order by that Code.”

26. The respondent no. 6 is regularly paying the amount of Rs. 15,000/-

per month to the mother in terms of the order passed by the Tribunal.

The mother has not filed any application before the Tribunal under

Section 11 of the Act of 2007. Section 23 of the Maintenance and

Welfare of Parents and Senior Citizens Act, 2007, reads as follows :

“23. Transfer of property to be void in certain

circumstances

1. Where any senior citizen who, after the

commencement of this Act, has transferred by way

of gift or otherwise, his property, subject to the

condition that the transferee shall provide the basic

amenities and basic physical needs to the

transferor and such transferee refuses or fails to

provide such amenities and physical needs, the

said transfer of the property shall be deemed to

have been made by fraud or coercion or under

undue influence and shall at the option of the

transferor be declared void by the Tribunal.

2. Where any senior citizen has a right to

receive maintenance out of an estate and such

estate or part , thereof is transferred, the right to

receive maintenance may be enforced against the

transferee if the transferee has notice of the right,

or if the transfer is gratuitous; but not against the

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transferee for consideration and without notice of

right.

3. If any senior citizen is incapable of

enforcing the rights under sub-sections (1) and (2),

action may be taken on his behalf by any of the

organisation referred to in Explanation to sub-

section (1) of section 5.”

27. Section 23 of the Act of 2007, can, therefore, be invoked only in three

contingencies:

(i) The transfer by way of gift or otherwise has

been made after the commencement of this

Act.

(ii) The transfer of property by way of gift or

otherwise stipulates a condition that the

transferee will provide basic amenities and

physical needs of the transferor.

(iii) It is established that the transferee has

refused or failed to provide such amenities

and physical needs.

28. In the present case none of the ingredients have been pleaded or are

otherwise present. The applicability of Section 23 is out of question.

Considering the above, this Court did not find any merit in the writ

application filed by mother being WPA No. 10504 of 2025.

29. While deciding the present writ applications, two issues came for

consideration:

(i) Whether the children or relatives can maintain

a writ petition against the order passed by the

Tribunal under the Maintenance and Welfare of

Parents and Senior Citizens Act, 2007?

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(ii) If a writ petition filed by the children or

relatives is maintainable, whether it will be

under Article 226 or 227 of the Constitution of

India?

30. As regard to the maintainability of writ application against the order

passed by the Tribunal under the Act of 2007, the Hon’ble Division

Bench of this Court in the case of Smt. Mamata Sarki and Another

Vs. The State of West Bengal & Ors. passed in MAT No. 61 of 2019

dated 19

th March, 2020, held that:

“15. We are forfeited in taking the above view

by the Maintenance and Welfare of Parents and

Senior Citizens (Amendment) Bill, 2019, which is

pending for consideration before the Parliament. By

the said Bill, certain provisions of the said Act are

proposed to be amended. One of the amendments

proposed is to make the right of appeal under

Section 16 of the Act available to the children and

relatives. This would indicate that the said Act, as

its stands presently, does not confer such right of

appeal on the children or relatives.”

31. In the view of the judgment passed by the Hon’ble Division Bench of

this Court, there is no doubt that writ petition is maintainable if the

children or relatives are aggrieved with the order passed by the

Tribunal under the Act of 2007.

32. In the said judgment, the Hon’ble Division Bench have not expressed

any opinion with regard to whether an application under Article 226 of

the Constitution of India or an application under Article 227 of the

Constitution of India, is maintainable by challenging the order passed

14

by the Tribunal under the Act of 2007 and the said issue is kept open

for this Court to decide the same.

33. Similar matter came up before the Hon’ble Division Bench of the Delhi

High Court in the case of Kirti vs. Renu Anand & Ors. reported in

2024 SCC OnLine Del 2089 and the Hon’ble Division Bench of the

Delhi High Court has held that :

“9. The scope of jurisdiction of the High Court

under Article 226 of the Constitution in dealing

with the ‘writ of certiorari’ against the order of the

Election Tribunal was the question, which arose for

consideration before the Constitutional Bench of the

Supreme Court in T.C. Basappa v. T. Nagappa. In

the said decision, the Supreme Court held at

paragraph 7 that judicial acts are amenable to the

‘writ of certiorari’, which reads as under:

“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 R. v. Electricity

Commissioners, exp London Electricity Joint

Committee Co. (1920) Ltd. [R. v. Electricity

Commissioners, exp London Electricity Joint

Committee Co. (1920) Ltd., [1924] 1 K.B.

171 at p. 205 (CA)] : (KB p. 205)

“… 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

15

controlling jurisdiction of the King's Bench

Division exercised in these writs.””

9.1. The Supreme Court in Radhey

Shyam v. Chhabinath (decided on 26

th February,

2015), while referring to the aforesaid judgment

in T.C. Basappa (Supra) clarified that the

expression ‘judicial acts’ at paragraph 7 in the

aforesaid judgment is not meant to refer to judicial

orders of Civil Courts. The Supreme Court held that

judicial orders of the Civil Courts can be challenged

by a party in a petition filed under Article 227 of

the Constitution alone and not under Article 226 of

the Constitution.

9.2. In view of the aforesaid judgments, with

the exception of the judicial orders of the civil

courts, it is well settled that the orders passed by

tribunals as well as the judicial acts by

administrative bodies or authorities or persons

exercising quasi-judicial functions are all amenable

to challenge under Article 226 of the Constitution.

Therefore, the order dated 12

th December, 2015

passed by the Maintenance Tribunal was certainly

amenable to the jurisdiction of the Court under

Article 226 of the Constitution.

9.3. The orders passed by tribunals are,

however, separately also amenable to challenge

under Article 227 of the Constitution.

9.4. As against the order of a tribunal such as

the Maintenance Tribunal, the aggrieved party,

therefore, has the option to either invoke

Article 226 or Article 227 of the Constitution

depending upon the nature of relief sought in the

petition.”

34. In the case of Anirban Chakraborty vs. State of West Bengal & Ors.

reported in 2019 SCC OnLine Cal 733 , the Coordinate Bench of this

Court held that :

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“9. I have heard the learned advocates

appearing on behalf of the respective parties at

length. With regard to the point of maintainability of

the writ petition, I am of the view that the power of

judicial review of the High Court is a basic feature

of the constitution and cannot be taken away by

creation of statutory Tribunals. Reference is made

to the decision of the Hon'ble Supreme Court

in State of Karnataka v. Vishwabarathi House

Building Coop. Society, reported in (2003) 2 SCC

412. The relevant portions of the above decision is

quoted below:—

39. The District Forum, the State

Commission and the National Commission are

not manned by lay persons. The President

would be a person having judicial background

and other members are required to have the

expertise in the subjects such as economics,

law, commerce, accountancy, industry, public

affairs, administration etc. It may be true that

by reason of sub-section (2-A) of Section 14 of

the Act, in a case of difference of opinion

between two members, the matter has to be

referred to a third member and, in rare cases,

the majority opinion of the members may

prevail over the President. But, such

eventuality alone is insufficient for striking

down the Act as unconstitutional, particularly,

when provisions have been made therein for

appeal there against to a higher forum.

40. By reason of the provisions of the

said Act, the power of judicial review of the

High Court, which is a basic feature of the

Constitution, has not been nor could be taken

away.

41. We may in this connection also notice

that in Laxmi Engineering Works v. P.S.G.

Industrial Institute, (1995) 3 SCC 583, this

Court held:

“A review of the provisions of the Act

discloses that the quasi-judicial

bodies/authorities/agencies created by the

Act known as District Forums, State

Commissions and the National Commission

are not Courts though invested with some of

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the powers of a Civil Court. They are quasi-

judicial Tribunals brought into existence to

render inexpensive and speedy remedies to

consumers. It is equally clear that these

Forums/Commissions were not supposed to

supplant but supplement the existing judicial

system. The idea was to provide an additional

Forum providing inexpensive and speedy

resolution of disputes arising between

consumers and suppliers of goods and

services. The Forum so created is uninhibited

by the requirement of Court fee or the formal

procedures of a Court. Any consumer can go

and file a complaint. Complaint need not

necessarily be filed by the complainant

himself; any recognized consumers’

association can espouse his cause. Where a

large number of consumers have a similar

complaint, one or more can file a complaint on

behalf of all. Even the Central Government

and State Governments can act on his/their

behalf. The idea was to help the consumers

get justice and fair treatment in the matter of

goods and services purchased and availed by

them in a market dominated by large trading

and manufacturing bodies. Indeed, the entire

Act revolves round the consumer and is

designed to protect his interest. The Act

provides for “business-to-consumer” disputes

and not for “business-to-business” disputes.

This scheme of the Act, in our opinion, is

relevant to and helps in interpreting the words

that fall for consideration in this appeal”

10. The Maintenance Tribunal and the

Appellate Tribunal being quasi-judicial bodies are

inferior to the High Court and as such this Court

will have the power of judicial review under Article

226 of the Constitution of India over the orders

impugned. The High Court and the Supreme Court

are the sole repositories of the power of judicial

review. The Tribunals are also not civil courts and

the orders impugned herein are not judicial orders.

Moreover, no other efficacious, alternative statutory

or legal remedy was available to the petitioner,

inasmuch as, the petitioner was not a party to the

proceeding before the Tribunal. Reference is also

made to the unreported judgment of a Division

Bench of this Court in Universal Consortium of

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Engineers (P) Ltd. v. State of West Bengal, decided

on February 18, 2019 (In re : W.P. No. 23027 of

2017). The relevant portion of the above unreported

decision is quoted below:—

“114. On a cumulative assessment of the

decisions of the Supreme Court, we find it

difficult to persuade ourselves to agree with

the proposition of law that if in a writ petition

under Article 226 of the Constitution the order

of the National Commission is under

challenge, the High Court must dismiss the

petition irrespective of the ground(s) on which

such order is challenged. Indeed,

notwithstanding the availability of an

appellate remedy before the Supreme Court,

such remedy would be illusory for many and if

such a reason were assigned to dismiss a writ

petition, it is justice that could be the casualty.

In a given case where a party attempts to

bypass a statutory redressal mechanism

without any of the exceptional situations being

shown to exist, most certainly the dicta

in Cicilly Kallarackal (supra) would apply but

such decision may not be relied upon by a

respondent at the admission stage of every

case to have his opponent's case dismissed as

if the High Courts have no jurisdiction to

receive writ petitions against any order that

the National Commission is empowered to

pass under the CP Act.”

11. The Tribunals constituted under the said

Act are an alternative dispute redressal mechanism

but, adjudication by the Tribunal does not infringe

the power of this Court to issue writs under the

Constitution by way of judicial review. Arriving at

the conclusion that the writ petition is

maintainable, this Court now proceeds to deal with

the other questions which have arisen in this writ

petition.”

35. In the case of T.C. Basappa vs. T. Nagappa reported in AIR 1954 SC

440, the question before the Hon’ble Court was as to the scope of

jurisdiction under Article 226 is dealing with a writ of certiorari against

19

the order of the Election Tribunal? The Hon’ble Supreme Court

considered the question in the background of the principles followed by

the superior courts in England which generally formed the basis of the

decisions of the Indian courts. The Hon’ble Supreme 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 “judicial acts” which included

quasi-judicial functions of administrative bodies. The Hon’ble Supreme

Court issuing such writ quashed patently erroneous and without

jurisdiction order but the Hon’ble Court did not review the evidence as

an appellate court nor substituted its own finding for that of the inferior

Tribunal. In the said case, the Hon’ble Supreme Court further held

that:

“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 over the due observance

of law by his officials and tribunals. The writ of

‘certiorari’ is so named because in its original form

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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. Zemindar of Parlakimedi. 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 v. Saka Venkata Subba Rao : (AIR p.

212, para 6)

‘6. … 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, etc.

‘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 ‘habeas

corpus, mandamus, quo warranto, prohibition and

certiorari’ as may be considered necessary for

enforcement of the fundamental rights and in the

21

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 R. v. Electricity

Commissioners : (KB p. 205)

‘… Whenever anybody of 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

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 Walsall

22

Overseers v. London and North Western Railway

Co., AC at p. 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 R. v. Nat Bell Liquors Ltd., AC at p. 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, p. 880. 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 Bunbury v. Fuller; R. v. Income Tax Special

Purposes Commissioners.

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 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.

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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 R. v. Northumberland Compensation Appeal

Tribunal, ex p Shaw. The Lord Justice says : (KB p.

357)

‘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

where 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 G. Veerappa Pillai v. Raman & Raman Ltd.

and said: (AIR pp. 195-96, para 20)

‘20. 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

decisions 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 of jurisdiction in the matter of granting

writs of ‘certiorari’ under Article 226 of the

Constitution.”

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36. In the case of Umaji Keshao Meshram vs. Radhika Bai & Anr.

reported in 1986 Supp SCC 401 , the Hon’ble Supreme Court held that

proceedings under Article 226 are in exercise of the original jurisdiction

of the High Court while proceedings under Article 227 of the

Constitution of India 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 of

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. The Hon’ble Supreme Court

further held that:

“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

25

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 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.”

37. In the case of Radhey Shyam & Anr. vs. Chhabi Nath & Ors.

reported in (2015) 5 SCC 423, the Hon’ble Supreme Court held that :

“27. 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.

26

28. 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

(2) and Salem Advocate Bar Assn. (2) 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 (2), 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 Advocate Bar Assn. (2) in para

40, reference to Surya Dev Rai is for the same

purpose. We are, thus, unable to accept the

submission of the learned counsel for the

respondent.

29. Accordingly, we answer the question

referred as follows:

29.1. Judicial orders of the civil court are not

amenable to writ jurisdiction under Article 226 of

the Constitution.

29.2. Jurisdiction under Article 227 is distinct

from jurisdiction under Article 226.

29.3. Contrary view in Surya Dev Rai is

overruled.”

38. In the present case, the petitioner in WPA No. 16316 of 2025, has

challenged the order passed by the Sub-Divisional Officer, Medinipur

Sadar, passed under Sections 4 and 5 of the Maintenance and Welfare

of Parents and Senior Citizens Act, 2007. The Tribunal and the

Appellate Tribunal constituted under the Maintenance and Welfare of

Parents and Senior Citizens Act, 2007 being the quasi-judicial bodies

27

are inferior to the High Court and as such the High Court will have the

power of judicial review under Article 226 of the Constitution of India

against the order passed by the Tribunal or the Appellate Tribunal. The

Tribunal and the Appellate Tribunals are not civil courts and the orders

cannot be treated as judicial orders.

39. In view of the above, this Court held that the order passed by the

Tribunal is amenable to writ jurisdiction under Article 226 of the

Constitution of the India.

40. In view of the above, WPA No. 10504 of 2025 is dismissed. However,

the dismissal of the writ petition will not prevent the petitioner to take

appropriate steps before the Tribunal if the respondents failed to

comply with the order passed by the Tribunal for payment of the

maintenance amount as directed by the Tribunal.

41. WPA No. 16316 of 2025 is thus disposed of.

Parties shall be entitled to act on the basis of a server copy of the

Judgment placed on the official website of the Court.

Urgent Xerox certified photocopies of this judgment, if applied for,

be given to the parties upon compliance of the requisite formalities.

(Krishna Rao, J.)