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CASE NO.:

Appeal (civil) 6110 of 2003

PETITIONER:

Surya Dev Rai

RESPONDENT:

Ram Chander Rai & Ors.

DATE OF JUDGMENT: 07/08/2003

BENCH:

R.C. Lahoti & Ashok Bhan.

JUDGMENT:

J U D G M E N T

[@ S.L.P. (c) NO.12492 of 2002]

R.C. Lahoti, J.

Leave granted.

The appellant filed a suit, for issuance of permanent preventive

injunction based on his title and possession over the suit property

which is a piece of agricultural land, in the Court of Civil Judge. He

also sought for relief by way of ad interim injunction under Order

XXXIX Rules 1 and 2 of the C.P.C. The prayer was rejected by the trial

court as also by the appellate court. Feeling aggrieved thereby the

appellant filed a petition (C.M.W.P.No.20038 of 2002) in the High

Court labeling it as one under Article 226 of the Constitution. The High

Court has summarily dismissed the petition forming an opinion that

the petition was not maintainable as the appellant was seeking interim

injunction against private respondents. Reference is made in the

impugned order to a Full Bench decision of Allahabad High Court in

Ganga Saran Vs. Civil Judge, Hapur, Ghaziabad & Ors. (1991)

Allahabad Law Journal 159. Earlier the remedy of final civil revision

under Section 115 of the C.P.C. could have been availed of by the

appellant herein but that remedy is not available to the appellant

because of the amendment made in Section 115 of the C.P.C. by

Amendment Act 46 of 1999 w.e.f. 01.07.2002.

This appeal raises a question of frequent occurrence before the

High Courts as to what is the impact of the amendment in Section 115

of the C.P.C. brought in by Act 46 of 1999 w.e.f. 01.07.2002, on the

power and jurisdiction of the High Court to entertain petitions seeking

a writ of certiorari under Article 226 of the Constitution or invoking the

power of superintendence under Article 227 of the Constitution as

against similar orders, acts or proceedings of the courts subordinate

to the High Courts, against which earlier the remedy of filing civil

revision under Section 115 of the C.P.C. was available to the person

aggrieved. Is an aggrieved person completely deprived of the remedy

of judicial review, if he has lost at the hands of the original court and

the appellate court though a case of gross failure of justice having

been occasioned, can be made out?

Section 115 of the Code of Civil Procedure as amended does

not now permit a revision petition being filed against an order

disposing of an appeal against the order of the trial court whether

confirming, reversing or modifying the order of injunction granted by

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the trial court. The reason is that the order of the High Court passed

either way would not have the effect of finally disposing of the suit or

other proceedings. The exercise of revisional jurisdiction in such a

case is taken away by the proviso inserted under sub-section (1) of

Section 115 of the CPC. The amendment is based on the Malimath

Committee's recommendations. The Committee was of the opinion

that the expression employed in Section 115 CPC, which enables

interference in revision on the ground that the order if allowed to

stand would occasion a failure of justice or cause irreparable injury to

the party against whom it was made, left open wide scope for the

exercise of the revisional power with all types of interlocutory orders

and this was substantially contributing towards delay in the disposal of

cases. The Committee did not favour denuding the High Court of the

power of revision but strongly felt that the power should be suitably

curtailed. The effect of the erstwhile clause (b) of the proviso, being

deleted and a new proviso having been inserted, is that the revisional

jurisdiction, in respect of an interlocutory order passed in a trial or

other proceedings, is substantially curtailed. A revisional jurisdiction

cannot be exercised unless the requirement of the proviso is satisfied.

As a preclude to search for answer to the question posed it

becomes necessary to recollect and restate a few well-established

principles relating to the Constitutional jurisdiction conferred on the

High Court under Articles 226 and 227 of the Constitution in the

backdrop of the amended Section 115 of the C.P.C.

Writ of Certiorari

According to Corpus Juris Secundum (Vol.14, page 121)

certiorari is a writ issued from a superior court to an inferior court or

tribunal commanding the latter to send up the record of a particular

case.

H.W.R. Wade & C.F. Forsyth define certiorari in these words :-

"Certiorari is used to bring up into the

High Court the decision of some inferior

tribunal or authority in order that it may be

investigated. If the decision does not pass

the test, it is quashed â\200\223 that is to say, it is

declared completely invalid, so that no one

need respect it.

The underlying policy is that all

inferior courts and authorities have only

limited jurisdiction or powers and must be

kept within their legal bounds. This is the

concern of the Crown, for the sake of orderly

administration of justice, but it is a private

complaint which sets the Crown in motion."

(Administrative Law, Eighth Edition, page

591).

The learned authors go on to add that problem arose on

exercising control over justices of the peace, both in their judicial and

their administrative functions as also the problem of controlling the

special statutory body which was addressed to by the Court of King's

Bench. "The most useful instruments which the Court found ready to

hand were the prerogative writs. But not unnaturally the control

exercised was strictly legal, and no longer political. Certiorari would

issue to call up the records of justices of the peace and commissioners

for examination in the King's Bench and for quashing if any legal

defect was found. At first there was much quashing for defects of

form on the record, i.e. for error on the face. Later, as the doctrine of

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ultra vires developed, that became the dominant principle of control"

(page 592).

The nature and scope of the writ of certiorari and when can it

issue was beautifully set out in a concise passage, quoted hereafter,

by Lord Chancellor Viscount Simon in Ryots of Garabandho and

other villages Vs. Zamindar of Parlakimedi and Anr. â\200\223 AIR 1943

PC 164. "The ancient writ of certiorari in England is an original writ

which may issue out of a superior Court requiring that the record of

the proceedings in some cause or matter pending before an inferior

Court should be transmitted into the superior Court to be there dealt

with. The writ is so named because, in its original Latin form, it

required that the King should "be certified" of the proceedings to be

investigated, and the object is to secure by the exercise of the

authority of a superior Court, that the jurisdiction of the inferior

tribunal should be properly exercised. This writ does not issue to

correct purely executive acts, but, on the other hand, its application is

not narrowly limited to inferior "Courts" in the strictest sense. Broadly

speaking, it may be said that if the act done by the inferior body is a

judicial act, as distinguished from being a ministerial act, certiorari will

lie. The remedy, in point of principle, is derived from the

superintending authority which the Sovereign's Superior Courts, and in

particular the Court of King's Bench, possess and exercise over inferior

jurisdictions. This principle has been transplanted to other parts of the

King's dominions, and operates, within certain limits, in British India."

Article 226 of the Constitution of India preserves to the High

Court power to issue writ of certiorari amongst others. The principles

on which the writ of certiorari is issued are well-settled. It would

suffice for our purpose to quote from the 7-Judge Bench decision of

this Court in Hari Vishnu Kamath Vs. Ahmad Ishaque and Ors. â\200\223

(1955) 1 SCR 1104. The four propositions laid down therein were

summarized by the Constitution Bench in The Custodian of Evacuee

Property Bangalore Vs. Khan Saheb Abdul Shukoor etc. â\200\223 (1961)

3 SCR 855 as under :-

"â\200¦â\200¦the High Court was not justified in

looking into the order of December 2, 1952,

as an appellate court, though it would be

justified in scrutinizing that order as if it was

brought before it under Article 226 of the

Constitution for issue of a writ of certiorari.

The limit of the jurisdiction of the High Court

in issuing writs of certiorari was considered

by this Court in Hari Vishnu Kamath Vs.

Ahmad Ishaque 1955-I S 1104 : ((s) AIR

1955 SC 233) and the following four

propositions were laid down :-

"(1) Certiorari will be issued for correcting

errors of jurisdiction;

(2) Certiorari will also be issued when the

Court or Tribunal acts illegally in the exercise

of its undoubted jurisdiction, as when it

decides without giving an opportunity to the

parties to be heard, or violates the principles

of natural justice;

(3) The court issuing a writ of certiorari

acts in exercise of a supervisory and not

appellate jurisdiction. One consequence of

this is that the court will not review findings

of fact reached by the inferior court or

tribunal, even if they be erroneous.

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(4) An error in the decision or

determination itself may also be amenable to

a writ of certiorari if it is 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."

In the initial years the Supreme Court was not inclined to depart

from the traditional role of certiorari jurisdiction and consistent with

the historical background felt itself bound by such procedural

technicalities as were well-known to the English judges. In later

years the Supreme Court has relaxed the procedural and technical

rigours, yet the broad and fundamental principles governing the

exercise of jurisdiction have not been given a go-by.

In the exercise of certiorari jurisdiction the High Court proceeds

on an assumption that a Court which has jurisdiction over a subject-

matter has the jurisdiction to decide wrongly as well as rightly. The

High Court would not, therefore, for the purpose of certiorari assign to

itself the role of an Appellate Court and step into re-appreciating or

evaluating the evidence and substitute its own findings in place of

those arrived at by the inferior court.

In Nagendra Nath Bora & Anr. Vs. Commissioner of Hills

Division and Appeals, Assam & Ors., (1958) SCR 1240, the

parameters for the exercise of jurisdiction, calling upon the issuance of

writ of certiorari where so set out by the Constitution Bench : â\200\223

"The Common law writ, now called the order of

certiorari, which has also been adopted by our

Constitution, is not meant to take the place of an

appeal where the Statute does not confer a right of

appeal. Its purpose is only to determine, on an

examination of the record, whether the inferior

tribunal has exceeded its jurisdiction or has not

proceeded in accordance with the essential

requirements of the law which it was meant to

administer. Mere formal or technical errors, even

though of law, will not be sufficient to attract this

extra-ordinary jurisdiction. Where the errors

cannot be said to be errors of law apparent on the

face of the record, but they are merely errors in

appreciation of documentary evidence or affidavits,

errors in drawing inferences or omission to draw

inference or in other words errors which a court

sitting as a court of appeal only, could have

examined and, if necessary, corrected and the

appellate authority under a statute in question has

unlimited jurisdiction to examine and appreciate

the evidence in the exercise of its appellate or

revisional jurisdiction and it has not been shown

that in exercising its powers the appellate authority

disregarded any mandatory provisions of the law

but what can be said at the most was that it had

disregarded certain executive instructions not

having the force of law, there is not case for the

exercise of the jurisdiction under Article 226."

The Constitution Bench in T.C. Basappa Vs. T. Nagappa &

Anr., (1955) 1 SCR 250, held that certiorari may be and is generally

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granted when a court has acted (i) without jurisdiction, or (ii) in

excess of its jurisdiction. The want of jurisdiction may arise from the

nature of the subject-matter of the proceedings or from the absence of

some preliminary proceedings or the court itself may not have been

legally constituted or suffering from certain disability by reason of

extraneous circumstances. Certiorari may also issue if the court or

tribunal though competent has acted in flagrant disregard of the rules

or procedure or in violation of the principles of natural justice where no

particular procedure is prescribed. An error in the decision or

determination itself may also be amenable to a writ of certiorari

subject to the following factors being available if the error is manifest

and apparent on the face of the proceedings such as when it is based

on clear ignorance or disregard of the provisions of law but a mere

wrong decision is not amenable to a writ of certiorari.

Any authority or body of persons constituted by law or having

legal authority to adjudicate upon questions affecting the rights of a

subject and enjoined with a duty to act judicially or quasi-judicially is

amenable to the certiorari jurisdiction of the High Court. The

proceedings of judicial courts subordinate to High Court can be

subjected to certiorari.

While dealing with the question whether the orders and the

proceedings of subordinate Court are amenable to certiorari writ

jurisdiction of the High Court, we would be failing in our duty if we do

not make a reference to a larger Bench and a Constitution Bench

decisions of this Court and clear a confusion lest it should arise at

some point of time. Naresh Shridhar Mirajkar & Ors. Vs. State of

Maharashra and Anr. â\200\223 (1966) 3 SCR 744, is a nine-Judges Bench

decision of this Court. A learned judge of Bombay High Court sitting

on the Original Side passed an oral order restraining the Press from

publishing certain court proceedings. This order was sought to be

impugned by filing a writ petition under Article 226 of the Constitution

before a Division Bench of the High Court which dismissed the writ

petition on the ground that the impugned order was a judicial order of

the High Court and hence not amenable to a writ under Article 226.

The petitioner then moved this Court under Article 32 of the

Constitution for enforcement of his fundamental rights under Article

19(1)(a) and (g) of the Constitution. During the course of majority

judgment Chief Justice Gajendragadkar quoted the following passage

from Halsbury Laws Of England (Vol.11 pages 129, 130) from the foot-

note :

"(â\200¦.in the case of judgments of inferior

courts of civil jurisdiction) 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".

His Lordship then said :

"The ultimate proposition is set out in terms:

"Certiorari does not lie to quash the

judgments of inferior Courts of civil

jurisdiction".* These observations would

indicate that in England the judicial orders

passed by civil Courts of plenary jurisdiction

in or in relation to matters brought before

them are not held to be amenable to the

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jurisdiction to issue writs of certiorari."

[*Para 239, page 130 from Halsbury, ibid]

A perusal of the judgment shows that the above passage has

been quoted "incidentally" and that too for the purpose of finding

authority for the proposition that a judge sitting on the Original Side of

the High Court cannot be called a court 'inferior or subordinate to High

Court' so as to make his orders amenable to writ jurisdiction of the

High Court. Secondly, the abovesaid passage has been quoted but

nowhere the Court has laid down as law by way its own holding that a

writ of certiorari by High Court cannot be directed to Court subordinate

to it. And lastly, the passage from Halsbury quoted in Naresh

Shridhar Mirajkar's case (supra) is from third edition of Halsbury

Laws of England (Simond's Edition, 1955). The law has undergone a

change in England itself and this changed legal position has been

noted in a Constitution Bench decision of this Court in Rupa Ashok

Hurra Vs. Ashok Hurra and Anr. â\200\223 (2002) 4 SCC 388. Justice SSM

Quadri speaking for the Constitution Bench has quoted the following

passage from Halsbury's Laws of England, 4th Edn.(Reissue) Vol.1 (1) :

"103. 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 in the King's Bench for

review or to remove indictments and to

public officers and bodies, to order the

performance of a public duty. All three were

called prerogative writs."

"109. Certiorari lies to bring decisions of an

inferior court, tribunal, public authority or

any other body of persons before the High

Court for review so that the court may

determine whether they should be quashed,

or to quash such decisions. The order of

prohibition is an order issuing out of the High

Court and directed to an inferior court or

tribunal or public authority which forbids that

court or tribunal or authority to act in excess

of its jurisdiction or contrary to law. Both

certiorari and prohibition are employed for

the control of inferior courts, tribunals and

public authorities."

Naresh Shridhar Mirajkar's case was cited before the

Constitution Bench in Rupa Ashok Hurra's 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 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 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.

Thus, there is no manner of doubt that the orders and

proceedings of a judicial court subordinate to High Court are amenable

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to writ jurisdiction of High Court under Article 226 of the Constitution.

Authority in abundance is available for the proposition that an

error apparent on face of record can be corrected by certiorari. The

broad working rule for determining what is a patent error or an error

apparent on the face of the record was well set out in Satyanarayan

Laxminarayan Hegde and Ors. Vs. Mallikarjun Bhavanappa

Tirumale, (1960) 1 SCR 890. It was held that the alleged error

should be self-evident. An error which needs to be established by

lengthy and complicated arguments or an error in a long-drawn

process of reasoning on points where there may conceivably be two

opinions cannot be called a patent error. In a writ of certiorari the

High Court may quash the proceedings of the tribunal, authority or

court but may not substitute its own findings or directions in lieu of

one given in the proceedings forming the subject-matter of certiorari.

Certiorari jurisdiction though available is not to be exercised as

a matter of course. The High Court would be justified in refusing the

writ of certiorari if no failure of justice has been occasioned. In

exercising the certiorari jurisdiction the procedure ordinarily followed

by the High Court is to command the inferior court or tribunal to

certify its record or proceedings to the High Court for its inspection so

as to enable the High Court to determine whether on the face of the

record the inferior court has committed any of the preceding errors

occasioning failure of justice.

Supervisory jurisdiction under Article 227

Article 227 of the Constitution confers on every High Court the

power of superintendence over all courts and tribunals throughout the

territories in relation to which it exercises jurisdiction excepting any

court or tribunal constituted by or under any law relating to the armed

forces. Without prejudice to the generality of such power the High

Court has been conferred with certain specific powers by sub-Articles

(2) and (3) of Article 227 with which we are not concerned hereat. It

is well-settled that the power of superintendence so conferred on the

High Court is administrative as well as judicial, and is capable of being

invoked at the instance of any person aggrieved or may even be

exercised suo motu. The paramount consideration behind vesting

such wide power of superintendence in the High Court is paving the

path of justice and removing any obstacles therein. The power under

Article 227 is wider than the one conferred on the High Court by Article

226 in the sense that the power of superintendence is not subject to

those technicalities of procedure or traditional fetters which are to be

found in certiorari jurisdiction. Else the parameters invoking the

exercise of power are almost similar.

The history of supervisory jurisdiction exercised by the High

Court, and how the jurisdiction has culminated into its present shape

under Article 227 of the Constitution, was traced in Waryam Singh &

Anr. Vs. Amarnath & Anr. (1954) SCR 565. The jurisdiction can be

traced back to Section 15 of High Courts Act 1861 which gave a power

of judicial superintendence to the High Court apart from and

independently of the provisions of other laws conferring revisionsal

jurisdiction on the High Court. Section 107 of the Government of India

Act 1915 and then Section 224 of the Government of India Act 1935,

were similarly worded and reproduced the predecessor provision.

However, sub-section (2) was added in Section 224 which confined the

jurisdiction of the High Court to such judgments of the inferior courts

which were not otherwise subject to appeal or revision. That

restriction has not been carried forward in Article 227 of the

Constitution. In that sense Article 227 of the Constitution has width

and vigour unprecedented.

Difference between a writ of certiorari under Article 226 and

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supervisory jurisdiction under Article 227.

The difference between Articles 226 and 227 of the Constitution

was well brought out in Umaji Keshao Meshram and Ors. Vs. Smt.

Radhikabai and Anr., (1986) Supp. SCC 401. Proceedings under

Article 226 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.

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 labeling 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, may be 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.

In order to safeguard against a mere appellate or revisional

jurisdiction being exercised in the garb of exercise of supervisory

jurisdiction under Article 227 of the Constitution, the courts have

devised self-imposed rules of discipline on their power. Supervisory

jurisdiction may be refused to be exercised when an alternative

efficacious remedy by way of appeal or revision is available to the

person aggrieved. The High Court may have regard to legislative

policy formulated on experience and expressed by enactments where

the Legislature in exercise of its wisdom has deliberately chosen

certain orders and proceedings to be kept away from exercise of

appellate and revisional jurisdiction in the hope of accelerating the

conclusion of the proceedings and avoiding delay and procrastination

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which is occasioned by subjecting every order at every stage of

proceedings to judicial review by way of appeal or revision. So long as

an error is capable of being corrected by a superior court in exercise of

appellate or revisional jurisdiction though available to be exercised

only at the conclusion of the proceedings, it would be sound exercise

of discretion on the part of the High Court to refuse to exercise power

of superintendence during the pendency of the proceedings. However,

there may be cases where but for invoking the supervisory jurisdiction,

the jurisdictional error committed by the inferior court or tribunal

would be incapable of being remedied once the proceedings have

concluded.

In Chandrasekhar Singh & Ors. Vs. Siva Ram Singh &

Ors., (1979) 3 SCC 118, the scope of jurisdiction under Article 227 of

the Constitution came up for the consideration of this Court in the

context of Sections 435 and 439 of the Criminal Procedure Code which

prohibits a second revision to the High Court against decision in first

revision rendered by the Sessions Judge. On a review of earlier

decisions, the three-Judges Bench summed up the position of law as

under :-

(i) that the powers conferred on the High Court under Article 227 of

the Constitution cannot, in any way, be curtailed by the provisions

of the Code of Criminal procedure;

(ii) the scope of interference by the High Court under Article 227 is

restricted. The power of superintendence conferred by Article 227

is to be exercised sparingly and only in appropriate cases in order

to keep the subordinate Courts within the bounds of their

authority and not for correcting mere errors;

(iii) that the power of judicial interference under Article 227 of the

Constitution is not greater than the power under Article 226 of the

Constitution;

(iv) that the power of superintendence under Article 227 of the

Constitution cannot be invoked to correct an error of fact which

only a superior Court can do in exercise of its statutory power as

the Court of Appeal; the High Court cannot, in exercise of its

jurisdiction under Article 227, convert itself into a Court of

Appeal.

Later, a two-judge Bench of this Court in Baby Vs. Travancore

Devaswom Board & Ors., (1998) 8 SCC 310, clarified that in spite of

the revisional jurisdiction being not available to the High Court, it still

had powers under Article 227 of the Constitution of India to quash the

orders passed by the Tribunals if the findings of fact had been arrived

at by non-consideration of the relevant and material documents, the

consideration of which could have led to an opposite conclusion. This

power of the High Court under the Constitution of India is always in

addition to the revisional jurisdiction conferred on it.

Does the amendment in Section 115 of C.P.C have any impact

on jurisdiction under Articles 226 and 227?

The Constitution Bench in L. Chandra Kumar Vs. Union of

India & Ors., (1997) 3 SCC 261, dealt with the nature of power of

judicial review conferred by Article 226 of the Constitution and the

power of superintendence conferred by Article 227. It was held that

the jurisdiction conferred on the Supreme Court under Article 32 of the

Constitution and on the High Courts under Articles 226 and 227 of the

Constitution is part of the basic structure of the Constitution, forming

its integral and essential feature, which cannot be tampered with much

less taken away even by constitutional amendment, not to speak of a

parliamentary legislation. A recent Division Bench decision by Delhi

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High Court (Dalveer Bhandari and H.R. Malhotra, JJ) in Criminal Writ

Petition NO.s.758, 917 and 1295 of 2002 â\200\223 Govind Vs. State (Govt.

of NCT of Delhi) decided on April 7, 2003 (reported as [2003] 6 ILD

468 makes an indepth survey of decided cases including almost all the

leading decisions by this Court and holds â\200\223 "The power of the High

Court under Article 226 cannot be whittled down, nullified, curtailed,

abrogated, diluted or taken either by judicial pronouncement or by the

legislative enactment or even by the amendment of the Constitution.

The power of judicial review is an inherent part of the basic structure

and it cannot be abrogated without affecting the basic structure of the

Constitution." The essence of constitutional and legal principles,

relevant to the issue at hand, has been correctly summed up by the

Division Bench of the High Court and we record our approval of the

same.

It is interesting to recall two landmark decisions delivered by

High Courts and adorning the judicial archives. In Balkrishna Hari

Phansalkar Vs. Emperor, AIR 1933 Bombay 1, the question arose

before a Special Bench: whether the power of superintendence

conferred on the High Court by Section 107 of Government of India

Act 1915 can be controlled by the Governor-General exercising his

power to legislate. The occasion arose because of the resistance

offered by the State Government to the High Court exercising its

power of superintendence over the Courts of Magistrates established

under Emergency Powers Ordinance, 1932. Chief Justice Beaumont

held that even if power of revision is taken away, the power of

superintendence over the courts constituted by the ordinance was still

available. The Governor-General cannot control the powers conferred

on the High Court by an Act of Imperial Parliament. However,

speaking of the care and caution to be observed while exercising the

power of superintendence though possessed by the High Court, the

learned Chief Justice held that the power of superintendence is not the

same thing as the hearing of an appeal. An illegal conviction may be

set aside under power of superintendence but - "we must exercise our

discretion on judicial grounds, and only interfere if considerations of

justice require us to do so."

In Manmatha Nath Biswas Vs. Emperor, (1932-33) 37

C.W.N. 201, a conviction based on no legal reason and unsustainable

in law came up for the scrutiny of the High Court under the power of

superintendence in spite of right of appeal having been allowed to

lapse. Speaking of the nature of power of superintendence, the

Division Bench, speaking through Chief Justice Rankin, held that the

power of superintendence vesting in the High Court under Section 107

of the Government of India Act, 1915, is not a limitless power

available to be exercised for removing hardship of particular decisions.

The power of superintendence is a power of known and well-

recognised character and should be exercised on those judicial

principles which give it its character. The mere misconception on a

point of law or a wrong decision on facts or a failure to mention by the

Courts in its judgment every element of the offence, would not allow

the order of the Magistrate being interfered with in exercise of the

power of superintendence but the High Court can and should see that

no man is convicted without a legal reason. A defect of jurisdiction or

fraud on the part of the prosecutor or error on the "face of the

proceedings" as understood in Indian practice, provides a ground for

the exercise of the power of superintendence. The line between the

two classes of case must be, however, kept clear and straight. In

general words, the High Court's power of superintendence is a power

to keep subordinate Courts within the bounds of their authority, to see

that they do what their duty requires and that they do it in a legal

manner.

The principles deducible, well-settled as they are, have been

well summed up and stated by a two-judges Bench of this Court

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recently in State, through Special Cell, New Delhi Vs. Navjot

Sandhu @ Afshan Guru and Ors., JT 2003 (4) SC 605, para 28.

This Court held :

(i) the jurisdiction under Article 227 cannot be

limited or fettered by any Act of the state

Legislature;

(ii) the supervisory jurisdiction is wide and can be

used to meet the ends of justice, also to

interfere even with interlocutory order;

(iii) the power must be exercised sparingly, only

to move subordinate courts and Tribunals

within the bounds of their authority to see that

they obey the law. The power is not available

to be exercised to correct mere errors

(whether on the facts or laws) and also cannot

be exercised "as the cloak of an appeal in

disguise".

In Shiv Shakti Coop. Housing Society, Nagpur Vs. M/s.

Swaraj Developers & Ors., (2003) 4 Scale 241, another two-Judges

bench of this Court dealt with Section 115 of the C.P.C. The Court at

the end of its judgment noted the submission of the learned counsel

for a party that even if the revisional applications are held to be not

maintainable, there should not be a bar on a challenge being made

under Article 227 of the Constitution for which an opportunity was

prayed to be allowed. The Court observed â\200\223 "If any remedy is

available to a party, no liberty is necessary to be granted for availing

the same."

We are of the opinion that the curtailment of revisional

jurisdiction of the High Court does not take away â\200\223 and could not have

taken away - the constitutional jurisdiction of the High Court to issue a

writ of certiorari to a civil court nor the power of superintendence

conferred on the High Court under Article 227 of the Constitution is

taken away or whittled down. The power exists, untrammelled by the

amendment in Section 115 of the CPC, and is available to be exercised

subject to rules of self discipline and practice which are well settled.

We have carefully perused the Full Bench decision of the

Allahabad High Court in Ganga Saran's case relied on by the

learned counsel for respondent and referred to in the impugned order

of the High Court. We do not think that the decision of the Full Bench

has been correctly read. Rather, vide para 11, the Full Bench has

itself held that where the order of the Civil Court suffers from patent

error of law and further causes manifest injustice to the party

aggrieved then the same can be subjected to writ of certiorari. The

Full Bench added that every interlocutory order passed in a civil suit is

not subject to review under Article 226 of the Constitution but if it is

found from the order impugned that fundamental principle of law has

been violated and further such an order causes substantial injustice to

the party aggrieved the jurisdiction of the High Court to issue a writ of

certiorari is not precluded. However, the following sentence occurs in

the judgment of the Full Bench:-

"where an aggrieved party approaches

the High Court under Art. 226 of the

Constitution against an order passed in civil

suit refusing to issue injunction to a private

individual who is not under statutory duty to

perform public duty or vacating an order of

injunction, the main relief is for issue of a

writ of mandamus to a private individual and

such a writ petition under Art.226 of the

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Constitution would not be maintainable."

It seems that the High Court in its decision impugned herein

formed an impression from the above-quoted passage that a prayer

for issuance of injunction having been refused by trial court as well as

the appellate court, both being subordinate to High Court and the

dispute being between two private parties, issuance of injunction by

High Court amounts to issuance of a mandamus against a private

party which is not permissible in law.

The above quoted sentence from Ganga Saran's case cannot

be read torn out of the context. All that the Full Bench has said is that

while exercising certiorari jurisdiction over a decision of the court

below refusing to issue an order of injunction, the High Court would

not, while issuing a writ of certiorari, also issue a mandamus against a

private party. Article 227 of the Constitution has not been referred to

by the Full Bench. Earlier in this judgment we have already pointed

out the distinction between Article 226 and Article 227 of the

Constitution and we need not reiterate the same. In this context, we

may quote the Constitution Bench decision in T.C. Basappa Vs. T.

Nagappa and Anr., (1955) 1 SCR 250 and Province of Bombay Vs.

Khushaldas S. Advani (dead) by Lrs., 1950 SCR 621, as also a

three-Judge Bench decision in Dwarka Nath Vs. Income-tax

Officer, Special Circle, D Ward, Kanpur and Anr., (1965) 3 SCR

536, which have held in no uncertain terms, as the law has always

been, that a writ of certiorari is issued against the acts or proceedings

of a judicial or quasi-judicial body conferred with power to determine

questions affecting the rights of subjects and obliged to act judicially.

We are therefore of the opinion that the writ of certiorari is directed

against the act, order of proceedings of the subordinate Court, it can

issue even if the lis is between two private parties.

Such like matters frequently arise before the High Courts. We

sum up our conclusions in a nutshell, even at the risk of repetition and

state the same as hereunder:-

(1) Amendment by Act No.46 of 1999 with effect from 01.07.2002

in Section 115 of Code of Civil Procedure cannot and does not

affect in any manner the jurisdiction of the High Court under

Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the courts subordinate to the

High Court, against which remedy of revision has been excluded

by the CPC Amendment Act No. 46 of 1999 are nevertheless

open to challenge in, and continue to be subject to, certiorari

and supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for

correcting gross errors of jurisdiction, i.e., when a subordinate

court is found to have acted (i) without jurisdiction - by

assuming jurisdiction where there exists none, or (ii) in excess

of its jurisdiction â\200\223 by overstepping or crossing the limits of

jurisdiction, or (iii) acting in flagrant disregard of law or the

rules of procedure or acting in violation of principles of natural

justice where there is no procedure specified, and thereby

occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is

exercised for keeping the subordinate courts within the bounds

of their jurisdiction. When the subordinate Court has assumed a

jurisdiction which it does not have or has failed to exercise a

jurisdiction which it does have or the jurisdiction though

available is being exercised by the Court in a manner not

permitted by law and failure of justice or grave injustice has

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occasioned thereby, the High Court may step in to exercise its

supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory

jurisdiction, none is available to correct mere errors of fact or of

law unless the following requirements are satisfied : (i) the error

is manifest and apparent on the face of the proceedings such as

when it is based on clear ignorance or utter disregard of the

provisions of law, and (iii) a grave injustice or gross failure of

justice has occasioned thereby.

(6) A patent error is an error which is self-evident, i.e., which can

be perceived or demonstrated without involving into any lengthy

or complicated argument or a long-drawn process of reasoning.

Where two inferences are reasonably possible and the

subordinate court has chosen to take one view the error cannot

be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory

jurisdiction are to be exercised sparingly and only in appropriate

cases where the judicial conscience of the High Court dictates it

to act lest a gross failure of justice or grave injustice should

occasion. Care, caution and circumspection need to be

exercised, when any of the abovesaid two jurisdictions is

sought to be invoked during the pendency of any suit or

proceedings in a subordinate court and the error though

calling for correction is yet capable of being corrected at

the conclusion of the proceedings in an appeal or revision

preferred there against and entertaining a petition

invoking certiorari or supervisory jurisdiction of High Court

would obstruct the smooth flow and/or early disposal of

the suit or proceedings. The High Court may feel inclined

to intervene where the error is such, as, if not corrected at

that very moment, may become incapable of correction

at a later stage and refusal to intervene would result in

travesty of justice or where such refusal itself would result

in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory

jurisdiction will not covert itself into a Court of Appeal and

indulge in re-appreciation or evaluation of evidence or

correct errors in drawing inferences or correct errors of

mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to

issue a writ of certiorari and those calling for exercise of

supervisory jurisdiction are almost similar and the width of

jurisdiction exercised by the High Courts in India unlike

English courts has almost obliterated the distinction

between the two jurisdictions. While exercising jurisdiction

to issue a writ of certiorari the High Court may annul or set

aside the act, order or proceedings of the subordinate

courts but cannot substitute its own decision in place

thereof. In exercise of supervisory jurisdiction the High

Court may not only give suitable directions so as to guide

the subordinate court as to the manner in which it would

act or proceed thereafter or afresh, the High Court may in

appropriate cases itself make an order in supersession or

substitution of the order of the subordinate court as the

court should have made in the facts and circumstances of

the case.

Though we have tried to lay down broad principles and working

rules, the fact remains that the parameters for exercise of jurisdiction

under Articles 226 or 227 of the Constitution cannot be tied down in a

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straitjacket formula or rigid rules. Not less than often the High Court

would be faced with dilemma. If it intervenes in pending proceedings

there is bound to be delay in termination of proceedings. If it does not

intervene, the error of the moment may earn immunity from

correction. The facts and circumstances of a given case may make it

more appropriate for the High Court to exercise self-restraint and not

to intervene because the error of jurisdiction though committed is yet

capable of being taken care of and corrected at a later stage and the

wrong done, if any, would be set right and rights and equities adjusted

in appeal or revision preferred at the conclusion of the proceedings.

But there may be cases where 'a stitch in time would save nine'. At the

end, we may sum up by saying that the power is there but the

exercise is discretionary which will be governed solely by the dictates

of judicial conscience enriched by judicial experience and practical

wisdom of the Judge.

The appeal is allowed. The order of the High Court refusing to

entertain the petition filed by the appellant, holding it not

maintainable, is set aside. The petition shall stand restored on the file

of the High Court, to be dealt with by an appropriate Bench

consistently with the rules of the High Court, depending on whether

the petitioner before the High Court is seeking a writ of certiorari or

invoking the supervisory jurisdiction of the High Court.

Costs made easy.