ADMINISTRATIVE LAW PSDA

SUBMISSION

GROUP 3 – WRIT PETITION CASE

ANALYSIS AND APPLICATION

BY – VASUNDHARA SAXENA

SECTION 2 E (23610303817)

WRIT – CERTIORARI

APPLICATION – SEBI
CASE 1 – SURYA DEV RAI VS. RAM CHANDER RAI AND ORS.

PETITIONER:
Surya Dev Rai

RESPONDENT:
Ram Chander Rai & Ors.

DATE OF JUDGMENT: 07/08/2003

BENCH:
R.C. Lahoti & Ashok Bhan.

1) FACTS APPRAISAL –

A) Appellant sought ad interim injunction over a piece of agricultural land and his plea was
rejected in the trial court as well as the appellate court. He filed a writ petition under article
226 of the Constitution of india in the High Court labeling it as one under Article 226 of
the Constitution. The High Court has summarily dismissed the petition forming an
opinion that the petition was not maintainable as the appellant was seeking interim
injunction against private respondents. 

B)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 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.

2) ISSUE RAISED-
Whether the high court will entertain revision of an order quashing an appeal against a
previous order of the inferior court?

RELEVANT CASE LAWS AS QUOTED IN THE JUDGMENT-

 With regards to the ambit and scope of the writ of certiorari, the Supreme court
referred to the case Hari Vishnu Kamath Vs. Ahmad Ishaque 1955-I S 1104 : ((s) AIR 1955
SC 233) in which a few 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."

Yet again to clarify the ambit of the writ of Certiorari, the court reiterated the judgment
delivered in the case of Nagendra Nath Bora & Anr. Vs. Commissioner of Hills Division
and Appeals, Assam & Ors., (1958) SCR 1240, the parameters for the exercise of
jurisdiction, calling upon the issuance of writ of certiorari where so set out by the
Constitution Bench : –

"The Common law writ, now called the order of certiorari, which has also been adopted
by our Constitution, is not meant to take the place of an appeal where the Statute does
not confer a right of appeal. Its purpose is only to determine, on an examination of the
record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded
in accordance with the essential requirements of the law which it was meant to
administer. Mere formal or technical errors, even though of law, will not be sufficient to
attract this extra-ordinary jurisdiction. Where the errors cannot be said to be errors of
law apparent on the face of the record, but they are merely errors in appreciation of
documentary evidence or affidavits, errors in drawing inferences or omission to draw
inference or in other words errors which a court sitting as a court of appeal only, could
have examined and, if necessary, corrected and the appellate authority under a statute
in question has unlimited jurisdiction to examine and appreciate the evidence in the
exercise of its appellate or revisional jurisdiction and it has not been shown that in
exercising its powers the appellate authority disregarded any mandatory provisions of
the law but what can be said at the most was that it had disregarded certain executive
instructions not having the force of law, there is not case for the exercise of the
jurisdiction under Article 226."

This case was referred along with the case of T.C. Basappa Vs. T. Nagappa & Anr., (1955) 1
SCR 250, 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.”

The case of prime importance in this matter is the case of Naresh Shridhar Mirajkar &
Ors. Vs. State of Maharashra and Anr. – (1966) 3 SCR 744, is a nine-Judges Bench
decision of this Court. A learned judge of Bombay High Court sitting on the Original Side
passed an oral order restraining the Press from publishing certain court proceedings.
This order was sought to be impugned by filing a writ petition under Article 226 of the
Constitution before a Division Bench of the High Court which dismissed the writ petition
on the ground that the impugned order was a judicial order of the High Court and hence
not amenable to a writ under Article 226. 

Naresh Shridhar Mirajkar's case was cited before the Constitution Bench in Rupa Ashok
Hurra's case and considered. It has been clearly held : “(i) that it is a well-settled
principle that the technicalities associated with the prerogative writs in English law have
no role to play under our constitutional scheme; (ii) that a writ of certiorari to call for
records and examine the same for passing appropriate orders, is issued by superior
court to an inferior court which certifies its records for examination; and (iii) that a High
Court cannot issue a writ to another High Court, nor can one Bench of a High Court issue
a writ to a different Bench of the High Court; much less can writ jurisdiction of a High
Court be invoked to seek issuance of a writ of certiorari to the Supreme Court. The High
Courts are not constituted as inferior courts in our constitutional scheme.”

While this case did not allow the appeal to be taken up and laid principles regarding the
same, a contrary view has been taken in this case by allowing an appeal. The judgment
also reirterated the history of the supervisory jurisdiction of the High Court-
“The history of supervisory jurisdiction exercised by the High Court, and how the
jurisdiction has culminated into its present shape under Article 227 of the Constitution,
was traced in Waryam Singh & Anr. Vs. Amarnath & Anr. (1954) SCR 565. The jurisdiction
can be traced back to Section 15 of High Courts Act 1861 which gave a power of judicial
superintendence to the High Court apart from and independently of the provisions of
other laws conferring revisionsal jurisdiction on the High Court. Section 107 of the
Government of India Act 1915 and then Section 224 of the Government of India Act
1935, were similarly worded and reproduced the predecessor provision. However, sub-
section (2) was added in Section 224 which confined the jurisdiction of the High Court to
such judgments of the inferior courts which were not otherwise subject to appeal or
revision. That restriction has not been carried forward in Article 227 of the Constitution.
In that sense Article 227 of the Constitution has width and vigour unprecedented.”
The difference and importance of Article 226 and 227 has also been reiterated in this
case-
“The difference between Articles 226 and 227 of the Constitution was well brought out
in Umaji Keshao Meshram and Ors. Vs. Smt. Radhikabai and Anr., (1986) Supp. SCC 401.
Proceedings underArticle 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. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High
Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense
it is akin to appellate revisional or corrective jurisdiction. Secondly, in a writ of certiorari,
the record of the proceedings having been certified and sent up by the inferior court or
tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may
simply annul or quash the proceedings and then do no more. In exercise of supervisory
jurisdiction the High Court may not only quash or set aside the impugned proceedings,
judgment or order but it may also make such directions as the facts and circumstances
of the case may warrant, may be by way of guiding the inferior court or tribunal as to
the manner in which it would now proceed further or afresh as commended to or guided
by the High Court. In appropriate cases the High Court, while exercising supervisory
jurisdiction, may substitute such a decision of its own in place of the impugned decision,
as the inferior court or tribunal should have made. Lastly, the jurisdiction under Article
226 of the Constitution is capable of being exercised on a prayer made by or on behalf of
the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu
as well.”

JUDGMENT-

Such like matters frequently arise before the High Courts. We sum up our conclusions in
a nutshell, even at the risk of repetition and state the same as hereunder:-

(1) Amendment by Act No.46 of 1999 with effect from 01.07.2002 in Section 115 of Code
of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High
Court under Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the courts subordinate to the High Court, against
which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999
are nevertheless open to challenge in, and continue to be subject to, certiorari and
supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors
of jurisdiction, i.e., when a subordinate court is found to have acted (i) without
jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its
jurisdiction – by overstepping or crossing the limits of jurisdiction, or (iii) acting in
flagrant disregard of law or the rules of procedure or acting in violation of principles of
natural justice where there is no procedure specified, and thereby occasioning failure of
justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping
the subordinate courts within the bounds of their jurisdiction. When the subordinate
Court has assumed a jurisdiction which it does not have or has failed to exercise a
jurisdiction which it does have or the jurisdiction though available is being exercised by
the Court in a manner not permitted by law and failure of justice or grave injustice has
occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to

correct mere errors of fact or of law unless the following requirements are satisfied : (i)
the error is manifest and apparent on the face of the proceedings such as when it is
based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave
injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident, i.e., which can be perceived or
demonstrated without involving into any lengthy or complicated argument or a long-
drawn process of reasoning. Where two inferences are reasonably possible and the
subordinate court has chosen to take one view the error cannot be called gross or
patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be
exercised sparingly and only in appropriate cases where the judicial conscience of the
High Court dictates it to act lest a gross failure of justice or grave injustice should
occasion. Care, caution and circumspection need to be exercised, when any of the
abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or
proceedings in a subordinate court and the error though calling for correction is yet
capable of being corrected at the conclusion of the proceedings in an appeal or revision
preferred there against and entertaining a petition invoking certiorari or supervisory
jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the
suit or proceedings. The High Court may feel inclined to intervene where the error is
such, as, if not corrected at that very moment, may become incapable of correction at a
later stage and refusal to intervene would result in travesty of justice or where such
refusal itself would result in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself
into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or
correct errors in drawing inferences or correct errors of mere formal or technical
character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and
those calling for exercise of supervisory jurisdiction are almost similar and the width of
jurisdiction exercised by the High Courts in India unlike English courts has almost
obliterated the distinction between the two jurisdictions. While exercising jurisdiction to
issue a writ of certiorari the High Court may annul or set aside the act, order or
proceedings of the subordinate courts but cannot substitute its own decision in place
thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable
directions so as to guide the subordinate court as to the manner in which it would act or
proceed thereafter or afresh, the High Court may in appropriate cases itself make an
order in supersession or substitution of the order of the subordinate court as the court
should have made in the facts and circumstances of the case.

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.
CASE 2 - RADHEY SHYAM & ANR. VERSUS CHHABI NATH & ORS.

Appellant- Radhe Shyam and Anr.

Respondent – Chhabi Nath and Ors.

Bench – H.L DATTU, J.

A.K. SIKRI, J.

ADARSH GOEL, J.

FACTS AND ISSUES-

Facts have not expressly been reiterated in the judgment, and have essentially been stated
as intertwined with the issues. Suffice it to say that assailing an interim order of civil court in
a pending suit, the defendant-respondent filed a writ Civil Appeal petition before the
Allahabad High Court and the High Court having vacated the said interim order granted in
favour of the plaintiff-appellant, the appellant moved this Court by way of a special leave
petition, inter alia, contending that the writ petition under Article 226 was not maintainable
against the order of the civil court and, thus, the impugned order could not be passed by the
High Court. On behalf of the respondent, reliance was placed on the decision of this Court in
Surya Dev Rai laying down that a writ petition under Article 226 was maintainable against
the order of the civil court and thus it was submitted that the High Court was justified in
passing the impugned order.

As already mentioned, the Bench of two Hon’ble Judges who heard the matter was not
persuaded to follow the law laid down in Surya Dev Rai. It was observed that the judgment
in Surya Dev Rai did not correctly appreciate the ratio in the earlier Nine Judge judgment of
this Court in Naresh Shridhar Mirajkar and others vs. State of Maharashtra2 wherein this
Court came to the conclusion that “Certiorari does not lie to quash the judgments of inferior
courts of civil jurisdiction (para 63)”.

The essential distinctions in the exercise of power between Articles 226 and 227 are well
known and pointed out in Surya Dev Rai and with that we have no disagreement. But we are
unable to agree with the legal proposition laid down in Surya Dev Rai that judicial orders
passed by a civil court can be examined and then corrected/reversed by the writ court
under Article 226 in exercise of its power under a writ of certiorari. We are of the view that
the aforesaid proposition laid down in Surya Dev Rai, is contrary to the ratio in Mirajkar and
the ratio in Mirajkar has not been overruled in Rupa Ashok Hurra [2002 (4) SCC 388].

Appeal filed in the supreme court, the 2 judge bench also did not agree with the view laid
down in Suryaq devi case as the judgment primarily erases the lines between appellate and
writ of certiorari by stating that the higher court can reverse/ correct the order of the lower
court with the use of the writ of Certiorari.

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 nineJudge Bench. But the learned Judges
justified their different view in Surya Dev Rai, inter alia on the ground that the law relating
to certiorari changed both in England and in India. In support of that opinion, the learned
Judges held that the statement of law in Halsbury, on which the ratio in Mirajkar is based,
has been changed and in support of that quoted paras 103 and 109 from Halsbury’s Laws of
England, 4th Edn. (Reissue), Vol. 1(1). Those paras are set out below:

“103. The prerogative remedies of certiorari, prohibition and mandamus: historical

development.—Historically, prohibition was a writ whereby the royal courts of common law
prohibited other courts from entertaining matters falling within the exclusive jurisdiction of
the common law courts; certiorari was issued to bring the record of an inferior court into
the King’s Bench for review or to remove indictments for trial in that court; mandamus was
directed to inferior courts and tribunals, and to public officers and bodies, to order the
performance of a public duty. All three were called prerogative writs;… * * *

“109. The nature of certiorari and prohibition.—Certiorari lies to bring decisions of an

inferior court, tribunal, public authority or any other body of persons before the High Court
for review so that the court may determine whether they should be quashed, or to quash
such decisions. The order of prohibition is an order issuing out of the High Court and
directed to an inferior court or tribunal or public authority which forbids that court or
tribunal or authority to act in excess of its jurisdiction or contrary to law. Both certiorari and
prohibition are employed for the control of inferior courts, tribunals and public authorities.”

The view taken in Rupa Hurra vs. Ashok Hurra was in no way in contravention with the
law laid down by the 9 judge bench in the case of Mirajkar. Nowhere even any whisper of
a divergence from the ratio in Mirajkar was expressed. Rather passages from Mirajkar have
been quoted with approval.

“Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of
certiorari under Article 226. We are also in agreement with the view of the referring Bench
that a writ of mandamus does not lie against a private person not discharging any public
duty. Scope of Article 227 is different from Article 226.”

Accordingly, we answer the question referred as follows :

“(i) Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the
Constitution;

(ii) Jurisdiction under Article 227 is distinct from jurisdiction from jurisdiction under Article
226.

Contrary view in Surya Dev Rai is overruled.”