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R.C. LAHOTI, J. – 3. This appeal raises a question of frequent occurrence before the High
Courts as to what is the impact of the amendment in Section 115 CPC brought in by Act 46 of
1999 w.e.f. 1-7-2002, 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 CPC 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 has
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 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 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 prelude 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 CPC.
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 and 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
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the test, it is quashed – 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, 8th Ed., p. 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 ultra vires developed, that became
the dominant principle of control.” - 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 v. Zamindar of Parlakimedi [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 the 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 seven-Judge Bench decision of
this Court in Hari Vishnu Kamath v. Ahmad Ishaque [AIR 1955 SC 233]. The four
propositions laid down therein were summarized by the Constitution Bench in Custodian of
Evacuee Property v. Khan Saheb Abdul Shukoor [AIR 1961 SC 1087], as under:
“[T]he High Court was not justified in looking into the order of 2-12-1952, as an
appellate court, though it would be justified in scrutinizing that order as if it was
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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 v. Ahmad Ishaque 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;
(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 reappreciating or evaluating the evidence and
substitute its own findings in place of those arrived at by the inferior court. - In Nagendra Nath Bora v. Commr. of Hills Division and Appeals [AIR 1958 SC 398],
the parameters for the exercise of jurisdiction, calling upon the issuance of writ of certiorari
were so set out by the Constitution Bench:
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 extraordinary 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 the statute in question has unlimited jurisdiction to examine and
appreciate the evidence in the exercise of its appellate or revisional jurisdiction and it
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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 no case
for the exercise of the jurisdiction under Article 226. - The Constitution Bench in T.C. Basappa v. T. Nagappa [AIR 1954 SC 440], held that
certiorari may be and is generally 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 the High Court can be subjected to certiorari. - While dealing with the question whether the orders and the proceedings of a
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
decision of this Court and clear a confusion lest it should arise at some point of time. Naresh
Shridhar Mirajkar v. State of Maharashtra [AIR 1967 SC 1] is a nine-Judge Bench decision
of this Court. A learned Judge of the Bombay High Court sitting on the original side passed
on 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 Articles 19(1)(a) and (g) of the Constitution.
During the course of majority judgment Chief Justice Gajendragadkar quoted the following
passage from Halsbury’s Laws of England (Vol. 11, pages 129, 130) from the footnote:
“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) 13 LJ QB 149, Dow & L 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:
265
“The ultimate proposition is set out in the terms: ‘Certiorari does not lie to quash
the judgments of inferior courts of civil jurisdiction.’ These observations would
indicate that in England the judicial orders passed by civil courts of plenary
jurisdiction in or in relation to matters brought before them are not held to be
amenable to the jurisdiction to issue writs of certiorari.” - 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 the High Court” so as to make his orders amenable to writ jurisdiction of the High Court.
Secondly, the above said passage has been quoted but nowhere the Court has laid down as
law by way of its own holding that a writ of certiorari by the High Court cannot be directed to
a court subordinate to it. And lastly, the passage from Halsbury quoted in Naresh Shridhar
Mirajkar case is from the third edition of Halsbury’s Laws of England (Simond’s Edn., 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 v. Ashok Hurra
(2002) 4 SCC 388. Justice S.S.M. 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 into the King’s Bench for review or to remove indictments for trial in
that court; mandamus was directed to inferior courts and tribunals, and to public
officers and bodies, to order the performance of a public duty. All three were called
prerogative writs; - 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 case was cited before the Constitution Bench in Rupa
Ashok Hurra case and considered. It has been clearly held: (i) that it is a well-settled principle
that the technicalities associated with the prerogative writs in English law have no role to play
under our constitutional scheme; (ii) that a writ of certiorari to call for records and examine
the same for passing appropriate orders, is issued by a superior court to an inferior court
which certifies its records for examination; and (iii) that a High Court cannot issue a writ to
another High Court, nor can one Bench of a High Court issue a writ to a different Bench of
the High Court; much less can the writ jurisdiction of a High Court be invoked to seek
issuance of a writ of certiorari to the Supreme Court. The High Courts are not constituted as
inferior courts in our constitutional scheme.
266 - Thus, there is no manner of doubt that the orders and proceedings of a judicial court
subordinate to the High Court are amenable to writ jurisdiction of the High Court under
Article 226 of the Constitution. - Authority in abundance is available for the proposition that an error apparent on the
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 v. Mallikarjun Bhavanappa Tirumale [AIR 1960 SC 137]. 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 the 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 clauses (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 v. Amarnath [AIR 1954 SC 215]. The jurisdiction can be traced
back to Section 15 of the 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 revisional 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
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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 supervisory jurisdiction
under Article 227 - 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 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 labelling their
petitions as one common under Articles 226 and 227 of the Constitution, though such practice
has been deprecated in some judicial pronouncement. Without entering into niceties and
technicality of the subject, we venture to state the broad general difference between the two
jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High
Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is
akin to appellate, revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the
record of the proceedings having been certified and sent up by the inferior court or tribunal to
the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or
quash the proceedings and then do no more. In exercise of supervisory jurisdiction, the High
Court may not only quash or set aside the impugned proceedings, judgment or order but it
may also make such directions as the facts and circumstances of the case may warrant,
maybe, by way of guiding the inferior court or tribunal as to the manner in which it would
now proceed further or afresh as commended to or guided by the High Court. In appropriate
cases the High Court, while exercising supervisory jurisdiction, may substitute such a
decision of its own in place of the impugned decision, as the inferior court or tribunal should
have made. Lastly, the jurisdiction under Article 226 of the Constitution is capable of being
268
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
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 the 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 v. Siya Ram Singh [(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-Judge 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 v. Travancore Devaswom Board
[(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
269
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 CPC have any impact on jurisdiction under Articles
226 and 227? - The Constitution Bench in L. Chandra Kumar v. Union of India [(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 a 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 the Delhi High Court (Dalveer Bhandari and
H.R. Malhotra, JJ.) in Govind v. State (Govt. of NCT of Delhi) [(2003) 6 ILD 468 (Del)]
makes an in-depth survey of decided cases including almost all the leading decisions by this
Court and holds:
“74. The powers 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 the High Courts and
adorning the judicial archives. In Balkrishna Hari Phansalkar v. Emperor [AIR 1933 Bom. 1]
the question arose before a Special Bench: whether the power of superintendence conferred
on the High Court by Section 107 of the 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 the Emergency Powers
Ordinance, 1932. Chief Justice Beaumont held that even if the 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 the power of
superintendence but – “we must exercise our discretion on judicial grounds, and only interfere
if considerations of justice require us to do so” (AIR p. 7). - In Manmatha Nath Biswas v. Emperor [AIR 1933 Cal 132], 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 the right of appeal having been allowed to lapse.
270
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 court 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-Judge Bench of this Court recently in State v. Navjot Sandhu [(2003) 6 SCC
641]. 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 an interlocutory order;
(iii) the power must be exercised sparingly, only to keep 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 v. Swaraj Developers [(2003) 6 SCC 659],
another two-Judge Bench of this Court dealt with Section 115 CPC. 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: “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 – and could not have taken away – the constitutional jurisdiction of the
High Court to issue a writ of certiorari to a civil court nor is the power of superintendence
conferred on the High Court under Article 227 of the Constitution taken away or whittled
down. The power exists, untrammelled by the amendment in Section 115 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 case relied on by the learned counsel for the respondent and referred to in the
impugned order of the High Court. We do not think that the decision of the Full Bench has
271
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 a 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 Article 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 Article 226 of the Constitution would not be
maintainable.” - It seems that the High Court in its decision impugned herein formed an impression
from above-quoted passage that a prayer for issuance of injunction having been refused by the
trial court as well as the appellate court, both being subordinate to the High Court and the
dispute being between two private parties, issuance of injunction by the 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 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 v. T. Nagappa and Province of Bombay v. Khushaldas S. Advani
[AIR 1950 SC 222] as also a three-Judge Bench decision in Dwarka Nath v. ITO [AIR 1966
SC 81], 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 or 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 46 of 1999 with effect from 1-7-2002 in Section 115 of the
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 CPC Amendment Act 46 of 1999 are
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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 – 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 a
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 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 (ii) 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 longdrawn 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 (above said) 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 thereagainst (there against) and entertaining a petition invoking
certiorari or supervisory jurisdiction of the 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
convert itself into a court of appeal and indulge in reappreciation or evaluation of
evidence or correct errors in drawing inferences or correct errors of mere formal or
technical character.
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(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 strait-jacket formula or rigid rules. Not less than often,
the High Court would be faced with a 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.
