Radhey Shyam & Anr. v. Chhabi Nath & Ors.

[2015] 3 S.C.R. 197 A ## RADHEY SHYAM & ANR. v. ## CHHABI NATH & ORS. (Civil Appeal No. 2548 of 2009 etc.) FEBRUARY 26, 2015 [H.L. DATTU, CJI, A.K. SIKRI AND ADARSH KUMAR GOEL, JJ.] c - _Constitution of India, 1950 -Articles 226 and 227 Writ_ - _of certiorari Amenability of civil court to the writ jurisdiction_ - _Reference of matter by Division Bench of Supreme Court to the present Three Judge Bench to consider the_ D correctness _of the judgment_ passed _in_ *Surya Dev Rai case _which held that order of civil court_ was _amenable to writ_ - _jurisdiction u!Art. 226 Held: Judicial orders of civil court_ - _are not amenable to writ of certiorari u/Art. 226 Control of Subordinate courts in dealing with their judicial orders_ is E _exercised by way of appellate_ or _revisional powers_ or - _powers of superintendence u!Art. 227 Jurisdiction u!Art. 227_ is _distinct from jurisdiction u!Art. 226_ - *Surya Dev Rai case _overruled._ ## Answering tt~e question referred, the Court F HELD: 1. Writ jurisdiction is constitutionally conferred on all High Courts. A writ of _certiorari_ lies against patently erroneous or without jurisdiction orders of Tribunals or authorities or courts other than G judicial courts. There are no precedents in India for High Courts to issue writs to subordinate courts. Control of working of subordinate courts in dealing with their 197 H 198 SUPREME COURT REPORTS [2015] 3 S.C.R. - A judicial orders is exercised by way of appellate or revisional powers or power of superintendence under Article 227. Orders of civil court stand on different - . footing from the orders of authorities or Tribunals or courts other than judicial/civil courts. While appellate - B or revisional jurisdiction is regulated by statutes, power of superintendence under Article 227 is constitutional. The expression "inferior court" is not referable to judicial courts. [para 21] [232-0-G] C _Naresh Shridhar Mirajkar and others vs. State of Maharashtra_ AIR 1967 SC 1:1966 (3) SCR 744; _Rupa Ashok Hurra_ 20.02 (4) SCC 388; _Ujjam Bai vs. State of U.P._ AIR 1962 SC 1621: (1963) 1 SCR 778 - followed. D _T. C. Basappa vs. T. Nagappa_ AIR 1954 SC 440 : ( 1955) 1 SCR 250; _Budhan Choudhary vs. State of Bihar_ AIR 1955 SC 191: (1955) 1SCR1045; _Parbhani Tranport Coop. Society Ltd. vs. Regional Transport Authority_ AIR (1960) SC 801:(1960) 3 SCR 177; _Prem Chand Garg vs._ E _Excise Commnr_ AIR 1963 SC 996: (1963) Supp. 1 SCR 885; _Triveniben vs. State of Gujarat_ 1989 (1) SCR 509 : (1989) 1 sec 678 - relied on. 2. Despite the curtailment of revisional jurisdiction F uls 115 CPC by Act 46 of 1999, jurisdiction of the High Court under Article 227 'of the Constitution remains unaffected, it has been wrongly assumed in certain quarters that the said jurisdiction has been expanded. [para 22] [233-8-C] ## G _Sadhana Lodh vs. National Insurance Co. Ltd._ 2003 (1) SCR 567: 2003 (3) SCC 524; _Waryam Singh and another vs. Amamath and another_ AIR 1954 SC 215:1954 SCR 565; _Ouseph Mathai vs. M. Abdul Khadir_ 2001 (5) Suppl. H SCR 118 : 2002 (1) SCC 319; _Shalini Shyam Sheffy vs._ RADHEY SHYAM v. CHHABI NATH 199 _Rajendra Shankar Pati!_ 2010 (8) SCR 836: 2010 (8) SCC A 329; _Sameer Suresh Gupta vs. Rahul Kumar Agarwal_ 2013 (9) sec 374 - relied on. _Ganga Saran vs. Civil Judge_ AIR 1991 All 114 - referred to. 3. The question referred are answered as follows: "(i) Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution; and (ii) Jurisdiction under Article 227 is distinct from C jurisdiction from jurisdiction under Article 226. The contrary view in _*Surya Dev Rai_ is overruled. [para 25] [235-G-H; 236-A] *Surya _Dev R'ai vs. Ram Chander Rai and others_ 2003 D (2) Suppl. SCR 290: 2003 (6) SCC 675 - overruled. _Shail vs. Manoj Kumar_ 2004 (3) SCR 649: 2004 (4) SCC 785; _Mahendra_ Saree _Emporium (II) vs._ G. _V. Srinivasa M.urthy_ 2004 (3) Suppl. SCR 931 :2005 (1) SCC 481; _Salem_ E _Advocate Bar Assn (II) vs. Union of India_ 2005 (1) ·Suppl. SCR 929: 2005 (6) SCC 344 '"" referred to. ## Case Law Reference 1966 (3) SCR 744 (1955) 1 SCR 250 (1963) 1 SCR 778 (1955) 1 SCR 1045 (1960) 3 SCR 177 (1963) Supp. 1 SCR 885 2002 (4) sec 388 followed Para 13 F relied on Para 10 followed Para 12 relied on Para 13 G relied on Para 13 relied on Para 13 followed para 14 200 SUPREME COURT REPORTS [2015] 3 S.C.R. |A|1989(1)SCR509|relied on|Para 14| |---|---|---|---| ||2003(1)SCR 567|reliedon|Para 16| ||AIR1991All114|referred to Para 17|referred to Para 17| |B|1954 SCR 565|relied on|Para 22| ||2001(5)Suppl.SCR118|relied on|Para 22| ||2010(8)SCR836|relied on|Para 22| |c|2013(9)sec374|reliedon|Para 22| ||2004 (3) SCR649|referred to Para 24|referred to Para 24| ||2004(3)Suppl.SCR931|referred to Para 24|referred to Para 24| |D|2005 (1) Suppl.SCR929|referredto|Para 24| ||2003 (2) Suppl.SCR290|overruled|Para 25| CIVIL APPELLATE JURISDICTION: Civil Appeal No. E 2548 of 2009. From the Judgment and Order dated 12.10.2007 of the High Court of Judicature at Allahabad in Civil Writ Petition No. 50636 of 2007. F with SLP (C) No. 25828 of 2013. M. R Calla, Nandini Sen, Deba Prasad Mukherjee, G Uday Gupta, Shivani M. Lal, Pratiksha Sharma, Ankit Achariya, Mohan Pandey for the Appellants. Sushil Kumar Jain, R. D. Upadhyay, Giridhar G. Upadhyay, Asha Upadhyay, J. P. Tripathi, Abhinav Gupta, H Aishwary Vikram, Chrishti Jain, Khushbu Jain, Manu RADHEY SHYAM v. CHHABI NATH 201 Maheshwari (for Pratibha Jain}, Vinayakrao S. Desai A (Advocate - In - Person). for the Respondents. ## The Judgment of the Court was delivered by **ADARSH KUMAR GOEL J. 1.** This matter has been **B** placed before the Bench of three Judges in pursuance of an order dated April 15, 2009 passed by the bench of two Hon'ble Judges to consider the correctness of the law laid down by this Court in _**Surya Dev Rai**_ vs. _**Ram Chander Rai and others[1 ]**_ that an order of civil court was amenable c to writ jurisdiction under Article 226 of the Constitution. The reference order, _inter alia,_ reads:- _30._ . ........ _Therefore, this Court unfortunately is in disagreement with the view which has been expressed_ 0 _in_ _**Surya Dev Rai** insofar_ as _correction of_ or _any interference with judicial orders of civil court by_ a _writ of certiorari is concerned._ _**31.** Under Article 227 of the Constitution, the High Court does not issue_ a _writ of certiorari. Article 227 of the Constitution vests the High Courts with_ a _power of superintendence which is to be vel}' sparingly exercised to keep tribunals and courts within the bounds of their authority. Under Article 227, orders of both civil and criminal courts can be examined only in very exceptional_ cases _when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct_ a _mistake of fact and of law._ _**32.** The essential distinctions in the exercise of power_ G _between Articles 226 and 227_ are _well known and pointed out in_ _**Surya Dev Rai** and with that we have_ 1 2003 (6) sec 675 **H** 202 [2015] 3 S.C.R. ## SUPREME COURT REPORTS > A _no disagreement. But we are unable to agree with the_ > _legal proposition laid down in Surya Dev Rai that judicial orders passed by_ a _civil court can be examined and then corrected/reversed by the writ court under Article 226 in exercise of its power under_ a _writ of_ > B _certiorari. We are of the view that the aforesaid proposition laid down in Surya Dev Rai, is contrary to the ratio in Mirajkar and the ratio in Mirajkar has not been overruled in Rupa Ashok Hurra [2002 (4) SCC 388]._ c _33. In view of our difference of opinion with the views expressed in Surya Dev Rai, matter may be placed before His Lordship the Hon'ble the Chief Justice of India for constituting_ a _larger Bench, to_ D _consider the correctness or otherwise of the law laid down in Surya Dev Rai on the_ question discussed above."_ 2. Since this Bench has to decide the referred question, E it is not necessary to mention the facts of the case in detail. Suffice it to say that assailing an interim order of civil court in a pending suit, the defendant-respondent filed a writ petition before the Allahabad High Court and the High Court having vacated· the said interim order granted in favour of F the plaintiff-appellant, the appellantmoved this Court by way of a special leave' petition, _inter alia,_ contending that the writ petition under Article 226 was not maintainable against the order of the civil court and, thus, the impugned order could not be passed by the High Court. On behalf of the G respondent, reliance was placed on the decision of this Court in _SufYa Dev Rai_ laying down that a writ petition under Article 226 was maintainable against the order of the civil court and thus it was submitted that the High Court was H justified in passing the impugned order. 203 RADHEY SHYAM v. CHHABI NATH [ADARSH KUMAR GOEL J.] 3. As already mentioned, the Bench of two Hon'ble A Judges who heard the matter was not persuaded to follow the law laid down in _Surya Dev Rai._ It was observed that the judgment in _Surya Dev Rai_ did not correctly appreciate the ratio in the earlier Nine Judge judgment of this Court in _Naresh Shridhar Mirajkar and others_ vs. _Stale of_ B _Maharashtra[2 ]_ wherein this Court came to the conclusion that _"Certiorari does not lie to quash the judgments of inferior courts of civil jurisdiction (para 63)"._ With reference to the observations in _Surya Dev Rai_ for not following the conclusion in _Mirajkar,_ the referring Bench inter alia C observed: _"25. In our view the appreciation of the ratio in Mirajkar by the learned Judges, in Surya Dev Rai, with great respect, was possibly_ a _little erroneous and with_ D _that we cannot agree._ _26. The two-Judge Bench in Surya Dev Rai did not, as obviously it could not overrule the ratio in Mirajkar,_ a _Constitution Bench decision of_ a _nine-Judge Bench._ E _But the learned Judges justified their different view in Surya Dev Rai, inter alia on the ground that the law_ . _relating to certiorari changed both in England and in India. In support of that opinion, the learned Judges held that the -statement of law in Halsbury, on which_ F _the ratio in Mirajkar is based, has been changed and in support of that quoted paras 103 and 109 from Halsbury's Laws of England, 4th Edn. (Reissue), Vol. 1(1). Those paras are set out below:_ G , _"103. The prerogative remedies of certiorari, prohibition and mandamus: historical development.Historically, prohibition was_ a _writ whereby the royal_ > 2 AIR 1967 SC 1 = 1966 (3) SCR 744 H 204 SUPREME COURT REPORTS (2015] 3 S.C.R. - A _courts of common law prohibited other courts from entertaining matters falling within the exclusive jurisdiction of the common law courts; certiorari was issued to bring the record of an inferior court into the King's Bench for review or to remove indictments for_ - B _trial in that court; mandamus was directed to inferior courts and .tribunals, and to public officers and bodies, to order the performance of_ a _public duty. All three were called prerogative writs; ..._ c * • • _109. The nature of certiorari and prohibition.Certiorari lies to bring decisions of an inferior court, tribunal, public authority or any other body of persons_ D _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_ E _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."_ - F _The aforesaid paragraphs are based on general principles which are older than the time when_ _**Mirajkar** was decided are still good. Those principles nowhere indicate that judgments of an inferior civil court of plenary jurisdiction are amenable to correction by_ a _writ_ - G _of certiorari. In any event, change of law in England cannot dilute the binding nature of the ratio in_ _**Mirajkar** and which has not been overruled and is holding the field for decades._ H _27. It is clear from the law laid down in_ _**Mirajkar** in para_ 205 RADHEY SHYAM v. CHHABI NATH # [ADARSH KUMAR GOEL J.] _63 that_ a _distinption has been made between judicial_ A _orders of inferior courts of civil jurisdiction and orders of inferior tribunals or court which are not civil courts and which cannot pass judicial orders. Therefore, judicial orders passed by civil courts of plenary jurisdiction stand on_ a _different footing in view of the_ B _law pronounced in para 63 in_ _**Mirajkar.** The passage in·the subsequent edition of Halsbury (4th Edn.) which has been quoted in_ _**Surya Dev Rai** does not show at all that there has been any change in law on the points in issue pointed out above._ C _28. The learned Judges in_ _**Surya Dev Rai** stated in SCC para 18, p. 687 of the Report that the decision rendered in_ _**Mirajkar** was considered by the Constitution Bench in_ _**Rupa Ashok Hurra v. Ashok**_ **D** _**Hurra** and wherein the learned Judges took_ a _different view and in support 'vf that, the following para from_ _**Rupa Ashok Hurra** has been quoted:_ _**(Surya Dev Rai**_ . _case, sec pp. 687-88, para 18)_ E _"(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_ F _appropriate orders, is issued by_ a _superior court to an inferior court which certifies its records for examination; and (iii) that_ a _High Court cannot issue_ a _writ to another High Court, nor can one Bench of_ a _High Court ·issue_ a _writ to_ a _diffe,rent Bench of the_ G _High Court; much less can the writ jurisdiction of_ a _High Court be invoked to seek issuance of_ a _writ of certiorari to the Supreme Court. The High Courts are not constituted_ as _inferior courts in our constitutional_ H 206 SUPREME COURT REPORTS [2015] 3 S.C.R. ## A _scheme.''_ **29.** _We are constrained to point out again that in_ _**Rupa Ashok Hurra** the Constitution Bench did not take any view which is contrary to the views expressed in_ B _**Mirajkar.** On the other hand, the ratio in_ _**Mirajkar**_ was _referred to with respect and_ was _relied on in_ _**Rupa Ashok Hurra. Mirajkar**_ was _referred to in_ SCC _para 8, p._ 399 _and again in sec para 11 on p. 402 and again in_ sec _para_ 59, _p. 418 and also in sec para 60, p._ C _419 of_ _**Rupa Ashok Hurra.** Nowhere even any whisper of_ a _divergence from the ratio in_ _**Mirajkar**_ was _expressed. Rather passages from_ _**Mirajkar** have been quoted with approval._ · - _30. In fact the question which_ was _referred to the Constitution Bench in_ _**Rupa Ashok Hurra** is quoted in para 1 of the judgment and it is clear from the perusal of the said paragraph that the question for consideration in_ _**Rupa Ashok Hurra** was totally different. Therefore,_ - E _this Court unfortunately is in disagreeme'}t with the view which has been expressed in_ _**Surya Dev Rai** insofar as correction of or any interference with judicial orders of civil court by_ a _writ of certiorari_ is _concerned."_ **F** 4. Thus, the question to be decided is whether the view taken in _**Surya Dev Rai**_ that a writ lies under.Article 226 of the Constitution against the order of the civil court, which has been doubted in the reference order, is the correct view. G 5. We have heard learned counsel for the parties. We have also heard learned counsel for the petitioner in SLP (C) No.25828 of 2013 as the said SLP was tagged to the present appeal and also the intervenor in person in I.A. No.2 of 2011. ## **H** 6. Learned counsel for the appellant submitted that the 207 ## RADHEY SHYAM v. CHHABI NATH [ADARSH KUMAR GOEL J.] view taken in the referring order deserves to be approved A for the reasons given in the said order and contrary view in _Surya Dev Rai_ may be overruled. It is submitted that the bench of nine Judges in _Mirajkar_ has categorically held that the order of the civil court was not amenable to writ jurisdiction under Article 226 and the said view still holds B the field. The reasons for not following the said view in _Surya Dev Rai_ are not sound in law. This submission is supported by learned counsel for the petitioner appearing in SLP (Civil) No.25828 of 2013 as also by the Intervenor c in person. 7. On the contrary, learned senior counsel for the respondent supported the view taken in _Surya Dev Rai_ which is based on decisions of this Court relied upon therein. According to him, the scope of writ jurisdiction was D wide enough to extend to an order of the civil court. There was no reason to exclude the civil courts from the expression _"any person or authority"_ in Article 226 of the Constitution. Conceptually, a writ of certiorari could be issued by a superior court to an inferior court. He also E pointed out that though the judgment in _Surya Dev Rai_ is by a Bench of two judges, the same has been referred with approval in larger bench judgments in _Shai/_ vs. _Manoj Kumar, Mahendra Saree Emporium (II)_ vs. G. _V._ F _Srinivasa Murthy4_ and Sa/em _Advocate Bar Assn(//)_ vs. _Union of lndia[5 ]_ and on that ground correctness of the said view is not open to be considered by this Bench. 8. We have given anxious consideration to the rival submissions. a 2004 (4) sec 785 4 2005 (1) sec 481 5 2005 (6) sec 344 SUPREME COURT REPORTS 208 [2015] 3 S.C.R. A 9. It will be appropriate to refer to some of the leading judgments of this Court on the scope of writ jurisdiction in the present context, including those referred to in _**Surya Dev Rai**_ and tlie referring order. B 10. In **T.C.** _**Basappa**_ vs. **T.** _**Nagappa[6] ,**_ question before this Court was as to the scope of jurisdiction under Article 226 in dealing with a writ of certiorari against the order of the Election Tribunal. This Court considered the question in the background of principles followed by superior courts C in England which generally formed the basis of decisions of Indian Courts. This Court held that while broad and fundamental norms regulating exercise of writ jurisdiction had to be kept in mind, it was not necessary for Indian Courts to look back to the early history or procedural D technicalities of the writ jurisdiction in England in view of express constitutional provisions. Certiorari was meant to supervise "judicial acts" which included quasi judicial • functions of administrative bodies. The Court issuing such i writ quashed patently erroneous and without jur\sdiction E order but the Court did not review the evidence as an appellate court nor substituted its own finding for tHat of the inferior Tribunal. Since the said judgment is follo~ed in all ·leading judgments, rel!:lvant observations therein may be F extracted : **"5.** _The principles upon which the superior courts in England interfere by issuing writs of certiorari are fairly well known and they have generally fonned the basis of decisions in our Indian courts. It is true that_ G _there is Jack of u1hiformity even in the pronouncements of English Judges, with regard to the grouryds upon which_ a _writ, or, as it_ is _now said,_ **H** 6 AIR 1954 SC 440='(1955) 1 SCR 250 209 RADHEY SHYAM v. CHHABI NATH [ADARSH KUMAR GOEL J.) _an order of certiorari, could issue, but such_ A _differences of opinion are unavoidable in Judge-made Jaw 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_ B _superintendence over the due observance of law by his officials and tribunals. The writ of certiorari is so named because in its original form it required that the King should be "certified of' the proceedings to be investigated and the object was to secure by the_ C _authority of_ a _superior court, that the jurisdiction of the inferior Tribunal should be properly exercised [Vide Ryots of Garabandho v. Zamindar of Parlakimedi 70/A 129. These principles were_ 0 _transplanted to other parts of the King's dominions. Jn 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_ E _by the other High Courts at all. "In that situation" as this court observed in Election Commission, India v. Saka Venkata Subba Rao [(1953) SCR 1144]_ _"the makers of the Constitution having decided to_ F _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,_ G _which the courts in England had developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited fnr the purpose, they conferred, in the States' sphere, new and wide powers on the High Courts of issuing_ H 210 ## · SUPREME COURT REPORTS (2015] 3 S.C.R. > A _directions, orders,_ or _writs primarily for the enforcement of fundamental rights, the power to issue such directions 'for any other purpose' being also included with_ a _view apparently to place all the High Courts in this country in somewhat the same position_ B _as th.e 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_ c _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 case of the High Courts,_ D _for other purposes as well . .Jn 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_ E _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_ F _writs in English law._ F G H 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_ 211 RADHEY SHYAM v. CHHABI NATH [ADARSH KUMAR GOEL J.] _summed up the law on this point in Rex v. Electricity_ A _Commissioners (1924) 1 KB 171]:_ _"Whenever anybody or persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially act in excess of_ B _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_ c _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_ o _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_ E _order or proceeding so to say is put out of the way as one which should not be used to the detriment of any person [Vide Per Lord Cairns in walshall's Overseers vs. London and North Western Railway_ Co. _4 AC 30, 39]._ F _8. The supervision of the superior court exercised through writs of certiorari goes on two points, as has been expressed by Lord Summer in King v. Nat Bell Liquors Limited {(1922) 2 AC 128, 156]. One is the area_ G _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_ H 212 (2015] 3 S.C.R. ## SUPREME COURT REPORTS A B c D E F G H _certiorari could be demanded. In fact there is little difficulty in the enunciation of the principles; the difficulty really_ ari~es _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"d Edn. Vol IX]. When the jurisdiction of the court depends upon the existence of some collateral fact, it is well settled that the court cannot by a wrong decision of the fact give it jurisdiction which it would not otherwise possess [Vide Banbury vs. Fuller,_ 9 _Exch 111; R. v. Income Tax Special Purposes Commissioners, 21 QBD 313]._ _10. A tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the rules of procedure or where no particular procedure is prescribed, it may violate the principles of natural justice. A writ of certiorari may be available in such cases. An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be_ a _manifest error apparent on the face of the proceedings, e.g. when it is based on clear ignorance or disregard of the provisions of law. In other words, it is_ a _patent error which can be corrected by certiorari but not_ a _mere wrong decision, The essential features of the remedy by way of certiorari have been stated with remarkable brevity and clearness by Morris, L.J. in the recent case bf Rex v._ 213 RADHEY SHYAM v. CHHABI NATH # [ADARSH KUMAR GOEL J.] _Northumberland Compensation Appellate Tribunal [_ A _(1952) 1 KB 338]. The Lord Justice says:_ _"It is plain that cerliorari 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_ B _raised in the proceedings. It exists to correct error of Jaw when revealed on the face of an order or decision or irregularity or absence of or excess of jurisdiction when shown."_ c _11. In dealing with the powers of the High Court under Arlicle 226 of the Constitution, this Court has expressed itself in almost similar terms [ Vide Veerappa Pillai v. Raman_ & _Raman Ltd. (1952) SCR 583] and said:_ _"Such writs as are referred to in Article 226 are_ D _obviously intended to enable the High Courl 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_ E _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_ F _it is not so vyide or large as to enable the High Courl to convert itself into_ a _courl of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made."_ G G _These passages indicate with sufficient fullness the general principles that govern the exercise of jurisdiction in the matter of granting writs of certiorari_ H SUPREME COURT REPORTS 214 [2015] 3 S.C.R. ## A _under Article 226 of the Constitution"._ 11. It is necessary to clarify that expression "judicial acts" is not meant to refer to judicial orders of civil courts as the matter before this Court arose out of the order of s Election Tribunal and no direct decision of this Court, except _Surya Devi Rai,_ has been brought to our notice where writ of certiorari may have been issued against an order of a judicial court. In fact, when the question as to scope of jurisdiction arose in subsequent decisions, it was clarified C that orders of judicial courts stood on different footing from the quasi judicial orders of authorities or Tribunals. 12. In. _Ujjam Bai_ vs. _State of U.P.[7] ,_ matter was referred to a Bench of seven Judges on the scope of writ o of certiorari against an order of assessment under the provisions of Sales Tax law passed in violation of a fundamental right. Majority of six judges took the view that except an order under a void law or an _'ultra vires'_ or _·'without jurisdiction'_ order, _there_ could be no violation of E · fundamental right by a quasi judicial order or a statutory authority and such order could not be challenged under Article 32. A writ of certiorari could however, lie against a patently erroneous order under Article 226. It was observed that judicial orders of Courts stood on different footing. F Ayyangar, J. observed : _"Before concluding it is necessary to advert to one matter which was just touched on in the course of the arguments_ as _one which might be reserved for_ G _consideration when ii actually arose, and this related to the question whether the decision or order of_ a _regular ordinary Court of law_ as _distinguished from_ a _tribunal or quasi-judicial authority constituted or created_ H 7 AIR 1962 SC 1621 = (1963) 1 SCR 778 215 RADHEY SHYAM v. CHHABI NATH # [ADARSH KUMAR GOEL J.] _under particular statutes could be complained of_ as A _violating_ a _fundamental right. It is_ a _salutary principle that this Court should not pronounce on points which are not involved in the questions raised before it and that is the reason why I_ am _not dealing with it in any fullness and_ am _certainly not expressing any decided_ B _opinion on it. Without doing either however, I consider it proper to make these obseNations. There is not any substantial identity between_ a _Court of law adjudicating on the rights of parties in the tis before it and designed_ as _the High Courts and this Court are to investigate_ C _inter alia whether any fundamental rights are infringed and vested with power to protect them, and quasijudicial authorities which are created under particular statutes and with_ a _view to implement and administer_ 0 _their provisions. I shall be content to leave the topic at this."_ 13. In _Mirajkar,_ a nine Judge Bench judgment, a judicial order of High Court was challenged as being violative of fundamental right. This Court by majority held that a judicial E order of a competent court could not violate a fundamental right. Even if there was incidental violation, it could not be held to be violative of fundamental right. Gajendragaddkar, CJ, observed : F _"37._ . ......... _The argument that the impugned order affects the fundamental rights of the petitioners under Article 19(1), is based on_ a _complete misconception about the true nature and character of judicial process and of judicial decisions. When_ a _Judge deals with_ G _matters brought before him for his adjudication, he first decides questions of fact on which the parties are at issue, and then applies the relevant law to the said facts. Whether the findings of fact recorded by the_ H [2015] 3 S.C.R. 216 ## SUPREME COURT REPORTS - A _Judge are right or wrong, and whether the conclusion of law drawn by him suffers from any infirmity, can be considered and decided if the party aggrieved by the decision of the Judge takes the matter up before the appellate court. But it is singularly inappropriate to_ - B _assume that_ a _judicial decision pronounced by_ a _Judge of competent jurisdiction in or in relation to_ a _matter brought before him for adjudication can affect the fundamental rights of the citizens under Article 19(1). What the judicial decision purports to do is to decide_ - c _the controversy between the parties brought before the court and nothing more. If this basic and essential aspect of the judicial process is borne in mind, it would be plain that the judicial verdict pronounced by court in or in relation to_ a _matter brought before it for its_ - D _decision cannot be said to affect the fundamental rights of citizens µnder Article 19(1)._ - _38 ._ .......... _Just as an order passed by the court on the merits of the dispute before it can be challenged_ - E _only in appeal and cannot be said to contravene the fundamental rights of the litigants before the Court, so could the impugned order be challenged in appeal under Article 136 of the Constitution, but it cannot be said to affect the fundamental rights of the petitioners._ - F _The character of the judicial order remains the same whether it is passed in_ a _matter directly in issue between the parties, or is passed incidentally to make the adjudication of the dispute between the parties fair and effective. On this view of the matter, it seems to_ - G _us that the whole attack against the impugned order based on the assumption that it infringes the petitioners' fundamental rights under Article 19(1), must fail._ H _41. It is true that the opinion thus expressed by Kania,_ 217 # RADHEY SHYAM v. CHHABI NATH [ADARSH KUMAR GOEL J.] _C.J., in the case of A.K Gopalan [1950 SCR 88) had_ A _not received the concurrence of the other learned Judges who heard the said case. Subsequently, however; in Ram Singh v. State of Delhi [1951 SCR 451), the said.observations were cited with approval by the Full Court. The same principle has been accepted_ B _by this Court in Express Newspapers (Private) Ltd., v. Union of India [1959 SCR 12), and by the majority judgment in Atiabari Tea_ Co., _Ltd. v. State of_ Assam _[1961 (1) SCR 809."_ c Explaining observations in earlier judgments in _Budhan Choudhary_ vs. _State of Bihar'1_ and _Parbhani Tranport Coop. Society Ltd._ vs. _Regional Transport Authority9_ that a judicial order could be violative of Article 14, it was observed: D _"45. Naturally, the principal contention which was urged on their behalf before this Court was that Section 30 CrPC, infringed the fundamental right guaranteed by Article 14, and_ ~as, _therefore, invalid. This contention_ E was _repelled by this Court. Then, alternatively, the appellants argued that though the section itself may not be discriminatory, it may lend itself to abuse bringing about a discrimination between persons accused of offences of the same kind, for the police may send up_ F _a person accused of an offence under.Section 366 to a Section 30 Magistrate and the police may send another person accused of an offence under the same section to a Magistrate who can commit the accused to the Court of Session. This alternative contention was_ G _examined and it was_ a/so _rejected. That incidentally_ 8 AIR 1955 SC 191,. =. (1955) 1 SCR 1045 9 AIR (1960) SC 801 = (1960) 3 SCR 177 H 218 [2015] 3 S.C.R. ## SUPREME COURT REPORTS - A _raised the question_ as _to whether the judicial decision could itself be said to offend Article 14. S.R. Das, J., as he then was, who spoke for the Court considered this contention, referred with approval to the observations made by Frankfurter, J., and Stone, C.J.,_ - B _of the Supreme Court of the United States in Snowden v. Hughes [ (1944) 321 US1] and observed that the judicial decision must of necessity depend on the facts and circumstances of each particular case and what may superficially appear to be an unequal application_ - c _of the law may not necessarily amount to_ a _denial of equal protection of law unless there is shown to be_ c - _present in it an element of intentional and purposeful discrimination. Having made this observation which at best may be said to assume that_ a _judicial decision may conceivably contravene Article 14, the teamed Judge took the precaution of adding that the discretion of judicial officers is not arbitrary and the law provides for_ - . _revision by superior courts of orders passed by the subordinate Courts. In such circumstances, there is hardly any" ground for apprehending any capricious discriminatior:i by judicial tribunals._ D E F G H _46. It is thus clear that though the observations made by Frankfurter, J. and Stone, C.J. in Snowden v. Hughes had been cited with approval, the question as to whether_ a _judicial order can attract the jurisdiction of this Court under Article 32(1) and (2) was not argued and did not fall to be considered at all. That question became only incidentally relevant in deciding whether the validity of the conviction which was impugned by the appellants in the case of Budhan Chaudhry could be successfully assailed on the ground that the judicial decision under Section 30 CrPC,_ w~s _capriciously rendered against the appellants. The scope of the_ 219 RADHEY SHYAM v. CHHABI NATH [ADARSH KUMAR GOEL J.] _jurisdiction of this Court in exercising its writ jurisdiction_ A _in relation to orders passed by the High Court was not_ · _and could not have been examined, because the matter had come to this Court in appeal under Article 132(1); and whether or not judicial decision can be said to affect any fundamental right merely because it_ B _incidentally arid indirectly may encroach upon such right, did not therefore call for consideration or decision in that case. In.fact, the closing observations made in the judgment themselves indicate that this Court was of the view that if any judicial order was sought to be_ C _attacked on the ground that it was inconsistent with Article 14, the proper remedy to challenge such an order would be an appeal or revision as may be provided by law. We are, therefore, not prepared to_ 0 _accept MrSetalvad's assumption that the observations on which he bases himself support the proposition that according to this Court, judicial decisions rendered by courts of competent jurisdiction in_ or _in relation to matters brought before them can be assailed on the_ . E _ground that they violate Article 14. It may incidentally be pointed out that the decision of the Supreme Court of the United States in Snowden v. Hughes was itself not concerned With the validity of any judicial decision_ ~d F _47. On the other hand, in Parbhani Transport Cooperative Society Ltd. v. Regional Transport Authority, Aurangabad Sarkar; J. speaking for the Court, has observed that the decision of the Regional_ G _Transport Authority which was challenged before the Court may have been right_ or _wrong, but that they were unable to see how that decision could offend Article 14 or any other fundamental right of the petitioner. The learned Judge further observed that the Regional_ H SUPREME COURT REPORTS 220 (2015] 3 S.C.R. > A _Transport Authority was acting_ as a _quasi-judicial body and if it has made any mistake in its decision there are_ > _appropriate remedies available to the petitioner for ·obtaining relief. It cannot complain of_ a _breach of Article 14. It is true that in this_ case _also the larger issue_ as B _to whether the orders passed by quasi judicial tribunals can be said to affect Article 14, does not appear to have been fully argued. It is clear that the observations made by this Court in this_ case _unambiguously indicate that it would be inappropriate to suggest that the decision_ c > _rendered by_ a _judicial tribunal can be described_ as _offending Article 14 at all. It may be_ a _right or wrong_ > _decision, and if it is_ a _wrong decision it can be corrected by appeal or revision as may be permitted by law, but it cannot be said per_ se _to contravene Article 14. It is_ D _significant that these observations have been made_ > _while dealing with_ a _writ petition filed by the petitioner, the Parbhani Transport Cooperative Society Ltd. under Article 32; and insofar as the point has been considered_ E _and decided the decision is against Mr Setalvad's contention."_ c D Decision of this Court in _**Prem Chand Garg**_ vs. _**Excise Commnr[10] ,**_ setting aside rule of this Court requiring F deposit of security for filing a writ petition, was also explained as not holding that a judicial order resulted in violation of fundamental right : _**"49.** It would thus be seen that the main controversy in the_ case _of Prem Chand Garg centered round the_ G _question_ as _to whether Article 145 conferred powers on this Court to make Rules, though they may be inconsistent with the constitutional provisions_ **H** 10 AIR 1963 SC 996 = (1963) Supp. 1 SCR 885 RADHEY SHYAM v. CHHABI NATH 221 ## · [ADARSH KUMAR GOEL J.) _prescribed by Part Ill_ . _Once it was held that the powers_ A _under Article 142 had to be read subject not only to the fundamental rights, but to other binding statutory provisions, it became clear that the Rule which authorised the making of the impugned order was invalid. It was in that context that the validity of the order_ B _had to be incidentally examined. The petition was made not to challenge the order as such, but to challenge the validity of the Rule under which the order was made. Once the Rule was struck down as being invalid, the order passed under the said Rule had to be vacated._ C _It is difficult to_ .~ee _how this decision can be pressed into service by Mr Setalvad in support of the argument that_ a _judicial order passed by this Court was held to be subject to the writ jurisdiction of this Court itself._ 0 _What was held by this Court was that Rule made by it under its powers conferred by Article 145 which are legislative in character; was invalid; but that is quite another matter._ _50. It is plain that if_ a _party desires to challenge any of_ E _the Rules framed by this Court in exercise of its powers under Article ·145 on the ground that they are invalid, because they illegally contravene his fundamental rights, it would be open to the party to move this Court_ F _under Article 32. Such_ a _challenge is not against any decision of this Court, but against_ a _Rule made by it in pursuance of its rule-making power. If the Rule is struck down as it was in the case of Prem Chand Garg, this Court can review_ or _recall its order passed under the_ G _said Rule. Cases in which initial orders of security passed by the Court are later reviewed and the amount of security initially directed is reduced, frequently arise in this Court; but they show the exercise of this Court's powers under Article 137 and not under Article 32._ H 222 SUPREME COURT REPORTS (2015] 3 S.C.R. A _Therefore, we are not satisfied that Mr Setalvad is fortified by any judicial decision of this Court in raising the contention that_ a _judicial order passed by the High Court in or in relation to proceedings brought before it for its adjudication, can become the subject-matter of_ B _writ jurisdiction of this Court under Article 32(2). In fact, no precedent has been cited before us which would support Mr Setalvad's claim that_ a _judicial order of the kind with which we are concerned in the present proceedings has ever been attempted to be challenged_ c _or has been_ set _aside under Article 32 of the_ . _Constitution."_ c This Court then dealt with the legal position in . England on the question of scope of writ of certiorari against D a judicial order. Noting that writ of certiorari did not lie against a judicial order, it was observed : - _"62. Whilst we are dealing with this aspect of the matter, we may incidentally refer to the relevant_ - E _observations made by Halsbury on this point. "In the_ case _of judgments of inferior courts of civil jurisdiction,"_ says _Halsbury in the footnote, "it has been suggested that certiorari might be granted to quash them for want_ - . _of jurisdiction [Kemp v. Baine (1844), 1 Dow._ & _L. 885,_ - F _at p. 887], inasmuch_ as _an error did not lie upon that ground. But there appears to b·e 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_ - G _[Halsbury Laws of England Vol.I 1, p.129]". The ultimate proposition is set out in the terms: "Certiorari does not lie to quash the judgments of inferior courts of civil jurisdiction." These observations would indicate that in England the_ G H 223 # RADHEY SHYAM v. CHHABI NATH [ADARSH KUMAR GOEL J.] _judicial orders passed by civil courts of plenary_ A _jurisdiction in or in relation to matters brought before them are not held to be amenable to the jurisdiction to issue writs of certiorari._ _63. In Rex. v. Chancellor of St. Edmundsburry and_ B _Ipswich Diocese Ex parte White [(1945) 1KBD195] the question which arose was whether certiorari would lie_ _·from the Court of King's Bu1ch to an ecclesiastical Court; and the answer rendered by the court was that certiorari would not lie against the decision of an_ C _ecclesiastical court. In dealing with this question, Wrottesley, L.J: has elaborately considered the history of the writ jurisdiction and has dealt with the question about the meaning of the word 'inferior' as applied to courts of law in England in discussing the problem as_ D _to the issue of the writ in regard to decisions of certain courts. "The more this matter was investigated," says Wrottesley, L.J., "the clearer it became that the word "inferior" as applied to courts of law in England had been used with at least two very different meanings._ E _If, as some assert, the question of inferiority is determined by ascertaining whether the court in question can be stopped from exceeding its jurisdiction by_ a _writ of prohibition issuing from the King's Bench,_ F _then not only the ecclesiastical courts, but also palatine courts and admiralty courts are inferior courts. But there is another test, well recognised by lawyers, by which to distinguish_ a _superior from an inferior court, namely, whether in its proceedings, and in particular in its_ G _judgments, it must appear that the court was acting within its jurisdiction. This is the characteristic of an inferior court, whereas in the proceedings of_ a _superior court it will be presumed that it acted within its jurisdiction unless the contrary should appear either on_ H 224 SUPREME COURT REPORTS ## [2015) 3 S.C.R. - A _the face of the proceedings or aliunde." Mr Sen relied upon this decision to show that even the High Court of Bombay can be said to be an inferior court for the purpose of exercising jurisdiction by this Court under Article 32(2) to issue_ a _writ of certiorari in respect of_ - B _the impugned order passed by it. We are unable to see how this decision can support Mr Sen's contentions."_ ## (emphasis added). - c 14. In _**Rupa Ashok Hurra (supra)**_ it was held that final order of this Court cannot be challenged under Article 32 as violative of fundamental right. Judgment of this Court **in** _**Triveniben**_ vs. _**State of Gujarat[11 ]**_ was referred to with approval to the effect that a judicial order could not violate - o a fundamental right. It was observed : - _**"11. In Triveniben v. State of Gujarat** speaking for himself and other three learned Judges of the Constitution Bench,_ ·Oza, _J., reiterating the same principle, observed: (SCC p. 697, para 22)_ - E - _"It is well settled now that a judgment of court can never be challenged under Articles 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to challenge as_ - F _violating Article 14 or Article 21 as has been laid down by .this Court in_ _**Naresh Shridhar Mirajkar v. State of Maharashtra** and also in_ _**A.R. Antulay v. R.S. Nayak** [1988 (2)_ SCC _602], the only jurisdiction which could be sought to be exercised by a prisoner_ - G _for infringement of his rights can be to challenge the subsequent events after the final judicial verdict is pronounced and it is because of this that on the_ **H** 11 (1989) 1 sec 678 225 RADHEY SHYAM v. CHHABI NATH [ADARSH KUMAR GOEL J.] _ground of long or inordinate delay_ a _condemned_ A _prisoner could approach this Court and that is what has consistently been held by this Court. But it will not be open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by_ a _competent court convicting and_ B _sentencing the condemned prisoner and even while considering the circumstances in order to reach_ a _conclusion_ as _to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to_ a _conclusion that execution_ C _of the sentence of death will not be just and proper."_ _12. We_ con~ider _it inappropriate to burden this judgment with discussion of the decisions in other cases taking the same view. Suffice it to mention that_ D _various Benches of this Court reiterated the same principle in the following cases: A.R. Antulay v. R.S. Nayak, Krishna Swami v. Union of India [1992 (4) SCC 605], Mohd. Aslam v. Union of India [1996 (2) SCC 749], Khoday Distilleries Ltd. v. Registrar_ E _General, Supreme Court of/ndia [1996 (3) SCC 114], Gurbachan Singh v. Union of India [1996 (3) SCC 117], Babu Singh Bains v. Union of India {1996 (6) SCC 565] and P. Ashokan v. Union of India [1998 (3)_ F _sec 56._ · _13. It is, however, true that in Supreme Court Bar Assn. v. Union of India [1998 (4) SCC 409_ a _Constitution Bench and in M.S. Ahlawat v. State of Haryana [2000 (1) sec 278]_ a _·three-Judge Bench, and in other cases_ G _different Benches quashed the earlier judgments/orders of this Court in an application filed under Article 32 of the Constitution. But in those cases no one joined issue with regard to the maintainability of the writ petition_ H 226 SUPREME COURT REPORTS [2015] 3 S.C.R. - _under Articfe 32 of the Constitution. Therefore, those_ - •[A ] _cases cannot be read as authority for the proposition that_ a _writ of certiorari under Article 32 would lie to challenge an earlier final judgment of this Court._ - **B** _**14.** On .fhe analysis of the ratio laid down in the aforementioned cases, we reaffirm our considered view that_ a _final judgment/order passed by this Court cannot be assailed in an application under Article 32 of the Constitution of India by an aggrieved person, whether_ - C _he was_ a _party to the case or not._ _**15.** In fairness to the learned counsel for the parties, we record that all of them at the close of the hearing of these cases conceded that the jurisdiction of this_ o _Court under Article 32 of the Constitution cannot be invoked to challenge the validity of_ a _final judgment/ order passed by this Court after exhausting the remedy_ • _of review under Article 137 of the Constitution read with Order XL Rule 1 of the Supreme Court Rules, 1966."_ **E** 15. While the above judgments dealt with the question whether judicial order could violate a fundamental right, it was clearly laid down that challenge to judicial orders could lie by way of appeal or revision or under Article 227 and F not by way of a writ under Article 226 and 32. > 16. Another Bench of three judges in _**Sadhana Lodh**_ vs. _**National Insurance Co. Ltd.1[2 ]**_ considered the question > whether remedy of writ will be available when remedy of G appeal was on _limited grounds. This Court held : 0 **"6.** _The right of appeal is_ a _statutory right and where the law provides remedy by filing an appeal on limited_ **H** 12 2003 (3) sec 524 227 ## RADHEY SHYAM v. CHHABI NATH [ADARSH KUMAR GOEL J.] _grounds, the grounds of challenge cannot be enlarged_ A _by filing_ a _petition under Articles 2261227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the_ B _appeal being_ a _product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (see National Insurance_ Co. _Ltd. v. Nicolletta Rohtagi (2002 (7)_ SCC _456). This being the legal position, the petition filed under Article_ C _227 of the Constitution by the insurer was wholly misconceived. Where_ a _statutory right to file an appeal has been provided for, it is not open to the High Court to entertain_ a _petition under Article 227 of the_ 0 _Constitution. Even if where_ a _remedy by way of an appeal has no.t been provided for against the order and judgment of_ a _District Judge, the remedy available to the aggrieved person is to file_ a _revision before the High Court under Section 115 of the Code of Civil Procedure._ E _Where remedy for filing a revision before the High Court under Section 115 CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As_ F _a matter of illustration, where a trial court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115 CPC, in_ G _such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. Thus, where the State Legislature has barred a remedy of filing a revision petition before the High Court under Section 115 CPC, no petition_ H ## 228 SUPREME COURT REPORTS (2015) 3 S.C.R. - A _**under Article 226 of the Constitution would lie for**_ • _**the reason that**_ **a** _**mere wrong decision without anything more is not enough to attract jurisdiction of the High Court under Article 226 of the Constitution."**_ ## **B** (emphasis added) 17. This Court in judgment dated 6[1] h December, 1989 , **in** Civil Appeal No.815 of 1989 _**Qamruddin**_ vs. _**Rasul**_ c _**Baksh**_ **&** _**Anr.**_ which has been quoted in Allahabad High Court Judgment in _**Ganga Saran**_ ·vs. _**Civil Judge[13 ]**_ considered the issue of writ of certiorari and mandamus against interim order of civil court and held : - _"If the order of injunction is passed by_ a _competent_ - **D** _court having jurisdiction in the matter, it is not permissible for the High Court under Article 226 of the Constitution to quash the same by issuing_ a _writ of certiorari.· In the instant case the learned Single Judge of the High <;ourt further failed to realise that_ a _writ of_ - **E** _mandamus could not be issued in this case. A writ of mandamus cannot be issued to_ a _private individual unless he is under_ a _statutory duty to perform_ a _public duty. The dispute involved in the instant case was_ - F _entirely between two private parties, which could not be_ a _subject matter of writ of mandamus under Article 226 of the Constitution. The learned Single Judge ignored this basic principle of writ jurisdiction conferred on the High Court under Article 226 of the Constitution._ - G _There was no occasion or justification for issue of_ a _writ of certiorari or mandamus. The High Court committed serious error of jurisdiction in interfering with the order of the District Judge."_ - **H** 13 AIR 1991 All 114 . 229 # RADHEY SHYAM v. CHHABI NATH [ADARSH KUMAR GOEL J.] 18. Thus, it has been clearly laid down by this Court A that an Order of civil court could be challenged under Article 227 and not under Article 226. 19. We may now come to the judgment in _Surya Dev Rai._ Therein, the· appellant was aggrieved by denial of B interim injunction in a pending suit and preferred a writ petition in the High court stating that after CPC amendment by Act 46 of 1999 w.e.f. 1•[1 ] July, 2002, remedy of revision under Section 115 was no longer available. The High Court dismissed the petition following its Full Bench Judgment in C _Ganga Saran_ to the effect that a writ was not maintainable as no mandamus could issue to a private person. The Bench considered the question of the impact of CPC amendment on power and jurisdiction of the High Court to entertain a writ of certiorari under Article 226 or a petition D under Article 227 to involve power of superintendence. The Bench noted the legal position that after CPC amendment revisional jurisdiction of the High Court against interlocutory order was curtailed. The Bench then referred to the history of writ of certiorari and its scope and concluded thus : E _"18. Naresh Shridhar Mirajkar case was cited before the Constitution Bench in Rupa Ashok Hurra case and considered. It has been clearly held: (i) that it is_ a _we/1settled principle that the technicalities associated with_ F _the prerogative writs in English law have no role to play under our constitutional scheme; (ii) that_ a _writ of certiorari to call for records and examine the same for passing appropriate orders, is issued by_ a _superior court to an inferior court which certifies its records for_ G _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 Jess can the writ jurisdiction of_ a _High Court be_ H 230 SUPREME COURT REPORTS [2015] 3 S.C.R. - A _invoked to seek issuance of_ a _writ of certiorari to the Supreme Court. The High Courts are not constituted as inferior courts in our constitutional scheme._ _**19.** Thus, there is no manner of doubt that the orders_ B _and proceedings of_ a _judicial court subordinate to the High Court .are amenable to writ jurisdiction of the High Court under Article 226 of the Constitution._ ## _xx xx_ - c _**24.** The difference between Articles 226 and 227 of the Constitution was well brought out in Umaji Keshao Meshram v. Radhikabai [1986 Supp. SCC 401]. Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings_ - D _under Article 227 of the Constitution are not original but only supervisory. Article 227 substantiaily reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of_ - E _superintendence has been extended by this article to tribunals_ a~ _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_ - F _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_ - G _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._ G H 231 # RADHEY SHYAM v. CHHABI NATH [ADARSH KUMAR GOEL J.] 25. _Upon_ a _review of decided cases and_ a _survey of_ A _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_ B _almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers labelling their'petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in_ some _judicial pronouncement._ C _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_ 0 _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_ E _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_ F _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_ G _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_ H [2015] 3 S.C.R. 232 ## SUPREME COURT REPORTS · A _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._ B 20. It is the above holding, correctness of which was doubted in the referring order already mentioned above. 21. It is true that this Court has laid down that technicalities associated with the prerogative writs in c England have -no role to play under our constitutional scheme. There is no parallel system of King's Court in India and of all other courts having limited jurisdiction subject to supervision of King's Court. Courts are set up under the Constitution or the laws. All courts in the jurisdiction of a D High Court are subordinate to it and subject to its control ·and supervision under Article 227. Writ jurisdiction is constitutionally conferred on all High Courts. Broad principles of writ jurisdiction followed in England are applicable to India and a writ of certiorari lies against E patently erroneous or without jurisdiction orders of Tribunals or authorities or courts other than judicial courts. There are no precedents in India for High Courts to issue writs to subordinate courts. Control of working of subordinate courts in dealing with _their judicial orders is exercised by way of F appellate or revisional powers or power of superintendence under Article 227,. Orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts. While appellate or revisional jurisdiction is regulated by statutes, power of G ·superintendence under Article 227 is constitutional. The expression "inferior court" is not referable to judicial courts, as rightly observed i.n the referring order in paras 26 and 27 quoted above. H 22. The Bench in _Surya Dev Rai_ also observed in para RADHEY SHYAM v. CHHABI NATH 233 [ADARSH KUMAR GOEL J.] 25 of its judgment that distinction between Articles 226 and A 227stood almost obliterated. In para 24 of the said judgment distinction in the two articles has been noted. In view thereof, observation that scope of Article 226 and 227 was obliterated was not correct as rightly observed by the referring Bench in Para 32 quoted above. We make it clear B that though despite the curtailment of revisional jurisdiction under Section 115 CPC by Act 46 of 1999, jurisdiction of the High Court under Article 227 remains unaffected, it has been wrongly assumed in certain quarters that the said jurisdiCtion has been expanded. Scope of Article 227 has C been explained in several decisions including _Waryam Singh and another_ vs. _Amarnath and another[14] , Ouseph Mathai_ vs. M. _Abdul Khadir[15] , Shalini Shyam Shetty_ vs. _Rajendra Shankar Pati/[16 ] and Sameer Suresh Gupta_ vs. 0 _Rahu/ Kumar Agarwa/[17] •_ In _Shalini Shyam Shetty,_ this Court observed : _"64. However, this Court unfortunately discerns that of late there is_ a _growing trend amongst several High Courts to entertain writ petition in cases of pure property_ E _disputes. Disputes relating to partition suits, matters relating to execution of_ a _decree, in cases of dispute between landlord and tenant and also in_ a _case of money decree and in various other cases where_ F _disputed questions of property are involved, writ courts are entertaining such disputes. In some cases the High Courts, in_ a _routine manner; entertain petitions under Article 227 over such disputes and such petitions are_ G 14 AIR 1954 SC 215=1954 SCR 565 15 2002 (1) sec 319 1a 201 o (8) sec 329 11 2013 (9) sec 374 H SUPREME COURT REPORTS [2015] 3 S.C.R. 234 - A _treated as wnt petitions._ _65. We would like to make it clear that in view of the law referred to above in cases of property rights and_ . _in disputes between private individuals writ court should_ B _not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority._ _66. We may also observe that in some High Courts_ C _there is a tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev and in view of the recent amendment to Section 115 of the Civil_ o _Procedure Code by' the Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in_ E _expanding the High Court's power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law._ - F _67. As a result of frequent interference by the Hon'ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the "disposal of cases by the civil and criminal courts ge.ts further impeded and thus causing serious_ - G _problems in the administration of justice. This Court hopes and trusts that in exercising its power either under Article 226 or 227, the Hon'ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court_ - H _for ends of justice and the High Courts as the highest_ 235 # RADHEY SHYAM v. CHHABI NATH [ADARSH KUMAR GOEL J.] _courts of justice within their jurisdiction will adhere to them strictly."_ (emphasis added) 23. Thus, we are of the view that judicial orders of civil B 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. c 24. We may also deal with the submission made on behalf of the respondent that the view in _**Surya Dev Rai**_ stands approved by larger Benches in _**Shait, Mahendra Saree Emporium· and Salem Advocate Bar Assn**_ and on 0 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 E of maintainability of a petition under Article 226. In _**Mahendra Saree Emporium,**_ reference to _**Surya Dev Rai**_ is made in para 9 of the judgment only for the proposition that no subordinate legislation can whittle down the jurisdiction conferred by the Constitution. Similarly, in **F** _**Salem Bar Assn.**_ in para 40, reference to _**Surya Dev Rai**_ is for the same purpose. We are, thus, unable to accept the submission of learned counsel for the respondent. 25. Accordingly, we answer the question referred as G follows : _"(i) Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution;_ _(ii) Jurisdiction under Article 227 is distinct from_ **H** [2015] 3 S.C.R. 236 ## SUPREME COURT REPORTS A _jurisdiction from jurisdiction under Article 226. Contrary view in_ _**Surya Dev Rai** is overruled."_ 26. The matters may now be listed before the B appropriate Bench for further orders. Kalpana K. Tripathy Matters referred to appropriate Bench. . '