# M/s Magma Leasing Ltd v. Badri Vishal & Ors

- **Citation:** (2021) 11 ILRA 464
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-16
- **Case number:** Writ-C No. 16753 of 2010
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-magma-leasing-ltd-v-badri-vishal-ors-46580
- **Pages:** 9

## Headnote

A. Constitution of India - Article 226 & 227 -
Writ - Maintainability - Certiorari - Scope -
Order passed during the course of enforcement
of
arbitral
award
under
Arbitration
and
Conciliation Act, 1996 - Nature - Proper
remedy against it - Held, the expression
'inferior court' is not referable to judicial courts
and accordingly judicial orders of civil courts
are not amenable to a writ of certiorari under
Article 226 and a writ of mandamus does not
lie against a private person not discharging any
public duty - Judicial orders of civil court
would not be amenable to writ jurisdiction
under
Article
226
and
that
challenge
thereagainst can be raised under Article 227.
(Para 24 and 25)
B. Civil Law - Civil Procedure Code - Order XXI
- Arbitration and Conciliation Act, 1996 - S. 36
- Enforcement of an award passed u/s 36 of
the Act, 1996 - Nature - Held, the enforcement
of an award having been provided for as per
terms of Section 36 to be in the same manner,
as if, it were a decree of the court, the
provisions of the CPC would be applicable to
execution proceedings - The court enforcing
the award would be a civil court exercising
judicial powers and the orders to be passed in
these proceedings would be judicial orders.
(Para 16)
Writ petition dismissed. (E-1)
Cases relied on :-

## Text

464 INDIAN LAW REPORTS ALLAHABAD SERIES
officials/officers etc. The said explanation
cannot be said to be sufficient in view of the law
laid down by Hon'ble Apex Court in the case
of Living Media India Ltd. (supra). The State
while seeking condonation of delay in this case
has gone even to the extent of taking ground of
certain
"unavoidable"
and
"unspoken"
circumstances. In our considered opinion such
"unavoidable" and "unspoken" circumstances
cannot be taken shelter of to claim condonation
of delay in approaching the Courts. In fact the
course adopted by the State in preferring the
review petition reflects gross negligence and
inaction which in our considered opinion cannot
be said to be bona fide. We are aware that a
liberal view needs to be adopted by the Courts to
advance substantial justice. However, in the
facts and circumstances of this case, what we
find is that the approach of the State all along
has been casual and that of manifest negligence.
As observed by Hon'ble Apex Court in the case
of Living Media India Ltd. (supra), law of
limitation binds every one including the
Government.

20. In the light of the discussions made
above, the review petition fails and is hereby
dismissed on the ground of delay."

 (emphasis supplied)

12. It may further be mentioned that High
Court of Madhya Pradesh in the case of State of
M.P.
v.
Ramprakash
Tyagi,
MANU/MP/0566/2021 while relying upon the
judgment of the Apex Court in Bheru Lal
(supra) refused to condone the delay of 967
days. Same view was taken by High Court of
Jammu & Kashmir in the case of JK Economic
Reconstruction Agency v. Kamal Builders,
MANU/JK/0252/2021.

13. Coming back to the explanation
submitted for such huge latches, a perusal of the
quoted paragraphs of the petition clearly indicate
that apart from whatever has been stated,
annexure no. 3 to the petition is a letter dated
26.9.2017 written by the District Magistrate
Etawah to the State authority. Next letters are
dated 16.7.2020 reminder written by District
Magistrate, Etawah to Assistant Commissioner,
Stamps, Etawah and letter dated 20.7.2020
written by Assistant Commissioner, Stamp to
Commissioner, Stamp, U.P. (annexure no. 4 to
the petition). It is, therefore, clear that for almost
two years and ten months the matter was not at
all pursued, even if, for the sake of arguments,
the other explanation regarding so called
'procedural delay' is accepted, the explanation so
submitted before this Court to explain such huge
lathces, is not acceptable.

14. In view of the discussion made herein
above, I find that the latches have not been
sufficiently
explained.
The
writ
petition
accordingly stands dismissed on the ground of
latches.

15. Registrar General of this Court as well
as learned Standing Counsel are directed to send
a copy of the order to the Chief Secretary,
Government of Uttar Pradesh for necessary
action against the persons responsible for such
delay and for issuing a word of caution to the
authority concerned to remain cautious in future.
----------
(2021)12ILR A464
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.11.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ-C No. 16753 of 2010

M/s Magma Leasing Ltd. ...Petitioner
Versus
Badri Vishal & Ors. ...Respondents

Counsel for the Petitioner:
Sri C.K. Parekh, Sri Kumar Ankit Srivastava
11 All. M/s Magma Leasing Ltd. Vs. Badri Vishal & Ors.
465
Counsel for the Respondents:
S.C., Sri Prakash Dwivedi

A. Constitution of India - Article 226 & 227 -
Writ - Maintainability - Certiorari - Scope -
Order passed during the course of enforcement
of
arbitral
award
under
Arbitration
and
Conciliation Act, 1996 - Nature - Proper
remedy against it - Held, the expression
'inferior court' is not referable to judicial courts
and accordingly judicial orders of civil courts
are not amenable to a writ of certiorari under
Article 226 and a writ of mandamus does not
lie against a private person not discharging any
public duty - Judicial orders of civil court
would not be amenable to writ jurisdiction
under
Article
226
and
that
challenge
thereagainst can be raised under Article 227.
(Para 24 and 25)
B. Civil Law - Civil Procedure Code - Order XXI
- Arbitration and Conciliation Act, 1996 - S. 36
- Enforcement of an award passed u/s 36 of
the Act, 1996 - Nature - Held, the enforcement
of an award having been provided for as per
terms of Section 36 to be in the same manner,
as if, it were a decree of the court, the
provisions of the CPC would be applicable to
execution proceedings - The court enforcing
the award would be a civil court exercising
judicial powers and the orders to be passed in
these proceedings would be judicial orders.
(Para 16)
Writ petition dismissed. (E-1)
Cases relied on :-
1. Leela Hotels Ltd. Vs Housing and Urban
Development Corporation Limited; (2012) 1 SCC 302
2. Paramjeet Singh Patheja Vs ICDS Ltd.; (2006) 13 SCC 322
3. Radhey Shyam Vs Chhabi Nath; (2015) 5 SCC 423
4. Radhey Shyam & anr. Vs Chhabi Nath & ors.;
(2009) 5 SCC 616
5. Sohan Lal Vs U.O.I.; AIR 1957 SC 529
6. Mohd. Hanif Vs St. of Assam; (1969) 2 SCC 782
7. Hindustan Steel Ltd. Vs Kalyani Banerjee; (1973) 1
SCC 273
8. Naresh Shridhar Mirajkar Vs St. of Mah.; AIR 1967
SC 1
9. Surya Dev Rai Vs Ram Chander Rai; (2003) 6 SCC
675
10. Kemp Vs Balne; (1844) 1 Dow & L 885
11. Rex Vs Chancellor of St. Edmundsbury & Ipswich
Diocese, Ex Parte White; (1948) 1 KB 195
(Delivered by Hon'ble Dr. Yogendra Kumar
Srivastava, J.)

1. Heard Sri C.K. Parekh, learned Senior
Counsel assisted by Sri Kumar Ankit Srivastava,
learned counsel for the petitioner, and Sri Amit
Manohar, learned Additional Chief Standing
Counsel.

2. The present petition filed under Article
226 of the Constitution of India principally seeks
a writ of certiorari for quashing of the order
dated 01.02.2010 passed by the Special Judge,
SC/ST Act, Mirzapur in Misc. Case No. 103 of
2008 arising out of Execution Case No. 02 of
2006 (M/s Magma Leasing Limited Vs. Badri
Vishal and others.

3. Pleadings of the case indicate that an
award dated 30.12.2005 was passed in favour of
the petitioner and for enforcement of the said
award, an application under Section 36 of the
Arbitration and Conciliation Act, 1996 was
moved. The aforesaid application came to be
dismissed by the Special Judge, SC/ST Act,
Mirzapur on 23.02.2008 due to non-appearance
on behalf of the applicant. An application for
restoration was moved which was also rejected
on 01.02.2010 on the ground of being barred by
limitation. It is at this stage that the present writ
petition was filed.

4. A point at issue, raised at the threshold,
is as to whether an order passed by the executing
court during the course of enforcement of an
arbitral award would be amenable to a writ of
466 INDIAN LAW REPORTS ALLAHABAD SERIES
certiorari under Article 226 of the Constitution
of India.

5. In order to appreciate the controversy,
the relevant provisions under the Arbitration and
Conciliation Act, 19961, would be required to be
adverted to.

6. The Act, 1996 (Act 26 of 1996) was
enacted to consolidate and amend the law
relating to domestic arbitration, international
commercial arbitration and enforcement of
foreign arbitral awards as also to define the law
relating to conciliation. The Act which is based
on the UNCITRAL Model Law on International
Commercial Arbitration, as adopted in 1985 by
the United Nations Commission on International
Trade Law (UNCITRAL) applies to both
international as well as to domestic arbitration.

7. The procedure for enforcement of
arbitral awards under the Act, 1996 is provided
for under Chapter VIII of the said Act. The
relevant provisions for the purpose, as contained
under Section 36 of the Act, 1996 are as follows:

"36. Enforcement.--(1) Where the time for
making an application to set aside the arbitral
award under section 34 has expired, then,
subject to the provisions of sub-section (2), such
award shall be enforced in accordance with the
provisions of the Code of Civil Procedure, 1908
(5 of 1908), in the same manner as if it were a
decree of the court.

(2) Where an application to set aside the
arbitral award has been filed in the court under
section 34, the filing of such an application shall
not by itself render that award unenforceable,
unless the court grants an order of stay of the
operation of the said arbitral award in
accordance with the provisions of sub-section
(3), on a separate application made for that
purpose.

(3) Upon filing of an application under subsection (2) for stay of the operation of the
arbitral award, the court may, subject to such
conditions as it may deem fit, grant stay of the
operation of such award for reasons to be
recorded in writing:

Provided that the court shall, while
considering the application for grant of stay in
the case of an arbitral award for payment of
money, have due regard to the provisions for
grant of stay of a money decree under the
provisions of the Code of Civil Procedure, 1908
(5 of 1908)."

8. In terms of sub-section (1) of Section 36
where the time for making an application to set
aside the arbitral award under Section 34 has
expired, then, subject to the provisions of subsection (2), such award shall be enforced in
accordance with the provisions of the Code of
Civil Procedure, 1908, in the same manner as if
it were a decree of the court.

9. It may be worthwhile to notice that
under the preceding Act of 1940 (Arbitration
Act, 1940), an award had to be filed in the court
for making it rule of the court. Objections from
the parties were invited, and only when no
objection was filed or was sustainable could the
court pass a judgement in terms of the award and
it was then converted into a decree for
enforcement.

10. Under the Act 1996, the aforesaid
procedure has been substituted by a simpler
procedure of giving affect to the award as a
decree. In terms of Section 36 of the Act, 1996,
when the time for making an application to set
aside the arbitral award under Section 34 has
expired, then, subject to the provisions of subsection (2), the award shall be enforced in
accordance with the provisions of the Code of
Civil Procedure, 19082, in the same manner as if
it were a decree of the court.

11. It would, therefore, be seen that the
enforcement of an arbitral award under the 1996
11 All. M/s Magma Leasing Ltd. Vs. Badri Vishal & Ors.
467
Act, is to be made as per the terms of Section 36
and, unlike the 1940 Act, there is no requirement
of filing an application to make the award a rule
of the court. Under the scheme of the 1996 Act,
it would not be possible to resist the
enforcement of an award by contending that the
award has not been converted into a decree for
the reason that the award has now to be enforced
as per the procedure under the CPC in the same
manner as if it were a court decree.

12. The question as to whether the award of
the arbitrator under the 1996 Act tantamounts to a
decree or not was considered in Leela Hotels
Limited vs. Housing and Urban Development
Corporation Limited3, and it was held that the
language used in Section 36 makes it clear that such
an award has to be enforced under the CPC, in the
same manner as if it were a decree of the court. It
was observed that the language of the section leaves
no room for doubt as to the manner in which the
award of the arbitrator was to be accepted.

13. Section 36 of the 1996 Act makes the
arbitral award capable of being enforced in a like
manner as a decree without any further judicial
intervention. The words "as if" occurring in subsection (1) has been held to create legal fiction for
the purpose of enforcement of the award treating the
same to be a decree of the court. The aforesaid view
was taken in Paramjeet Singh Patheja Vs. ICDS
Ltd.4.

14. The provision for enforcement of an
award, as per terms of Section 36, having been
provided for in the same manner as if it were a
decree of the court, it would follow that the court
enforcing the award would exercise powers under
the CPC which are available to a court executing a
decree. This power would not be limited or
trammelled by any other provision of the Act, 1996.

15. It would be relevant to notice that the
CPC
contains
elaborate
and
exhaustive
provisions for dealing with the execution of a
decree in all its aspects. The numerous rules
under Order 21 of the CPC take care of different
situations providing effective remedies not only
to judgement-debtors and decree-holders but
also to claimant-objectors, as the case may be.
As per the settled legal position, all questions
relating to execution of a decree are to be
determined only by the executing court. Section
47 of the CPC mandates that it is the executing
court alone which is to determine all questions
relating to execution, discharge or satisfaction of
the decree - exclusive jurisdiction having been
conferred on the executing court in respect of all
such matters.

16. Execution is the enforcement of a
decree by a judicial process which enables the
decree-holder to realise the fruits of the decree
in his favour. The enforcement of an award
having been provided for as per terms of Section
36 to be in the same manner, as if, it were a
decree of the court, the provisions of the CPC
would be applicable to execution proceedings.
The court enforcing the award would be a civil
court exercising judicial powers and the orders
to be passed in these proceedings would be
judicial orders.

17. The question as to whether judicial
orders of a civil court would be amenable to writ
jurisdiction under Article 226 came up for
consideration in the case of Radhey Shyam vs.
Chhabi Nath5, upon a reference made by a twoJudge Bench of the Supreme Court in terms of
an order dated April 15, 2009 in Radhey Shyam
and Another vs. Chhabi Nath and Others6.

18. The two-Judge Bench in the case of
Radhey Shyam (supra) took notice of an earlier
Constitution Bench decision in the case of Sohan
Lal vs. Union of India7, wherein it was held that
a writ of mandamus or an order in the nature of
mandamus is not to be made against a private
individual and also a subsequent three-Judge
Bench decision in Mohd. Hanif vs. State of
468 INDIAN LAW REPORTS ALLAHABAD SERIES
Assam8, expressing the general principle that
the jurisdiction of the High Court under Article
226 is extraordinary in nature and is not to be
exercised for the purpose of declaring private
rights of the parties. Reference was also made to
the decision in Hindustan Steel Ltd. vs. Kalyani
Banerjee9, wherein it was held that proceedings
by way of writ were not appropriate in a case
where the decision of the court would amount to
a decree declaring a party's title and ordering
restoration of possession.

19. The law laid down in the nine-Judge
Constitution Bench in the case of Naresh
Shridhar
Mirajkar
vs.
State
of
Maharashtra10, was also referred, wherein
after considering the history of writ of certiorari
and various English and Indian decisions, a
conclusion was drawn that "certiorari does not
lie to quash the judgements of inferior courts of
civil jurisdiction". The decision in the case of
Naresh Shridhar Mirajkar was also seen to have
drawn a distinction between judicial orders of
inferior courts of civil jurisdiction and orders of
inferior tribunals or courts which are not civil
courts and which cannot pass judicial orders.

20. Expressing inability to agree with the
legal proposition laid down by a two-Judge
Bench in the earlier decision in the case of
Surya Dev Rai vs. Ram Chander Rai11, to the
effect that judicial orders passed by civil courts
can be examined and then corrected/reversed by
the writ court under Article 226 in exercise of its
power under a writ of certiorari, the two-Judge
Bench in the case of Radhey Shyam (supra)
made a reference by observing as follows:

"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. 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 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 of certiorari. In
any event, change of law in England cannot
dilute the binding nature of the ratio in Mirajkar
11 All. M/s Magma Leasing Ltd. Vs. Badri Vishal & Ors.
469
and which has not been overruled and is holding
the field for decades.

27. It is clear from the law laid down in
Mirajkar in para 63 that a distinction has been
made between judicial 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 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.

30. ... this Court unfortunately is in
disagreement 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.

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 very 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 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 v. Ashok Hurra12.

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 consider the
correctness or otherwise of the law laid down in
Surya Dev Rai on the question discussed above."

21. Upon the reference having been made
the question which was considered by the threeJudge Bench in the case of Radhey Shyam vs.
Chhabi Nath5, was stated as follows :-

"5. 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?"

22. The decision of the three-Judge Bench
in the case of Radhey Shyam (supra) took
notice of the nine-Judge Constitution Bench
judgement in the case of Naresh Shridhar
Mirajkar, wherein a judicial order of the High
Court was challenged as being violative of
fundamental rights and the court by majority
held that a judicial order of a competent court
could not violate a fundamental right, and even
if, there was incidental violation it could not be
held to be violative of the fundamental right.
The
following
observations
were
made
(Mirajkar case10, AIR p. 11, para 38):

"38. 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 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
470 INDIAN LAW REPORTS ALLAHABAD SERIES
the said facts. Whether the findings of fact
recorded by the 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 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
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 decision cannot
be said to affect the fundamental rights of
citizens under Article 19(1)."

23. Referring to Halsbury's Laws of
England, 3rd Edition, Vol. 11 and also the
observations made in Kemp vs. Balne13 and by
Wrottesley, L.J. in Rex vs. Chancellor of St.
Edmundsbury and Ipswich Diocese, Ex Parte
White14, it was observed as follows (Mirajkar
case10, AIR p.18-19, paras 63-64):

"63. Whilst we are dealing with this aspect of
the matter, we may incidentally refer to the
relevant 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. Balne, 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"15.

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.

64.
In
Rex
v.
Chancellor
of
St.
Edmundsbury and Ipswich Diocese, Ex parte
White, the question which arose was whether
certiorari would lie from the Court of King's
Bench to an ecclesiastical court; and the answer
rendered by the court was that certiorari would
not lie against the decision of an 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 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. 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, 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 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 the
face of the proceedings or aliunde".
11 All. M/s Magma Leasing Ltd. Vs. Badri Vishal & Ors.
471

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 the impugned order passed by it. We
are unable to see how this decision can support
Mr Sen's contentions."

24. The three-Judge Bench in the case of
Radhey Shyam (supra), extensively referring
to the legal position on the scope of writ of
certiorari concluded that orders of civil court
stand on different footing from the orders of
authorities or tribunals or courts other than
judicial/civil courts. It held that the expression
"inferior court" is not referable to judicial courts
and accordingly judicial orders of civil courts
are not amenable to a writ of certiorari under
Article 226 and a writ of mandamus does not lie
against a private person not discharging any
public duty. It was also held that the scope of
Article 227 is different from Article 226. It was
observed as follows:

"25. ... Courts are set up under the
Constitution or the laws. All the courts in the
jurisdiction of a High Court are subordinate to it
and subject to its control and supervision under
Article 227. Writ jurisdiction is constitutionally
conferred on all the High Courts. Broad
principles of writ jurisdiction followed in
England are applicable to India and a writ of
certiorari lies against patently erroneous or
without jurisdiction orders of tribunals or
authorities or courts other than judicial courts.
There are no precedents in India for the High
Courts to issue writs to the subordinate courts.
Control of working of the subordinate courts in
dealing with their judicial orders is exercised by
way of appellate or revisional powers or power
of superintendence under Article 227. Orders of
the 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 the
statutes, power of superintendence under Article
227 is constitutional. The expression "inferior
court" is not referable to the judicial courts, ...

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

29. Accordingly, we answer the question
referred as follows:

29.1. Judicial orders of the civil court are
not amenable to writ jurisdiction under Article
226 of the Constitution.

29.2. Jurisdiction under Article 227 is
distinct from jurisdiction under Article 226.

29.3. Contrary view in Surya Dev Rai, is
overruled."

25. Having regard to the foregoing
discussion the legal position which thus emerges
is that judicial orders of civil court would not be
amenable to writ jurisdiction under Article 226
and that challenge thereagainst can be raised
under Article 227.

26. Applying the aforestated legal
principles to the facts of the present case, an
order passed by the executing court in
proceedings for enforcement of an arbitral award
under Section 36 of the Act 1996, being a
judicial order passed by a civil court of plenary
jurisdiction, the same would not be amenable to
a writ of certiorari under Article 226 of the
Constitution of India.

26. Learned Senior Counsel appearing for
the petitioner has not disputed the aforesaid legal
position.

27. The petition thus fails the test of being
amenable to the writ jurisdiction under Article
472 INDIAN LAW REPORTS ALLAHABAD SERIES
226 of the Constitution of India. It stands
dismissed accordingly.
----------
(2021)12ILR A472
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.11.2021

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ-C No. 18519 of 2021

Pushpa Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashok Kumar Pandey

Counsel for the Respondents:
C.S.C., Sri Bhupendra Kumar Tripathi

A. Fair price shop - Allotment - Widowed
daughter-in-law - Entitlement - GO dated
05.08.2019
excluded
daughter-in-law,
widowed or not, from the definition of 'family'
- Validity challenged - Word 'family' defined -
Held, daughter-in-law, widowed or not, is
having better right than daughter, who is
included
in
the
definition
of
'family'
in
Paragraph IV(10) of the Government Order
dated 05.08.2019 - High Court modified the GO
dated 05.08.2019 to the extent to include
daughter-in-law, widowed or not, within the
definition of 'family' and issued writ of
mandamus for issuance of fresh GO at the
earlieSt. (Para 10, 11, 12 and 13)
Writ petition allowed. (E-1)
Cases relied on :-
1. U.P. Power Corporation Ltd. Vs Smt. Urmila Devi;
2011(3) ADJ 432 (FB).
2. Smt. Sudha Jain Vs St. of U.P. & ors.; 2011(5) ADJ
730
3. Smt. Geeta Srivastava Vs St. of U.P. & ors.;
2012(9) ADJ 1
(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard learned counsel for the petitioner,
Sri D.K. Tiwari, learned Additional Chief
Standing Counsel for the State-respondents.

2. By way of present petition, petitioner is
challenging the order dated 17.06.2021 passed
by respondent no. 3 contained as Annexure no. 1
to the writ petition, rejecting the application of
the petitioner for allotment of fair price shop and
also Government Order dated 05.08.2019 issued
by the Special Secretary, Government of U.P.,
Lucknow contained as Annexure no. 8 to the
writ petition.

3. Learned counsel for the petitioner
submitted that petitioner is widowed daughterin-law of late Mahadei Devi, who was earlier
allotted fair price shop. He further submitted that
husband of the petitioner namely Bablu died in a
road accident leaving behind the petitioner as
well as two daughters aged about 11 years and 6
years. Petitioner and her daughters are fully
dependent upon late Mahadei Devi, earlier fair
price shop holder, who died on 11.04.2021.
Succession certificate was also issued by Gram
Pradhan on 30.06.2021 mentioning therein that
petitioner is legal heir of late Mahadei Devi wife
of late Killu Yadav. She is Intermediate passed
and is eligible for allotment of fair price shop.
He next submitted that after death of mother-inlaw, there is no other male or female member for
compassionate allotment
under
succession.
Therefore, being legal heir (daughter-in-law,
widowed), petitioner submitted an application
dated 06.05.2021 for allotment of fair price shop
in place of late Mahadei Devi. The said
application of the petitioner was rejected by
respondent no. 3 vide order dated 17.06.2021
only on the ground that widowed daughter-inlaw does not come within the purview of 'family'
as defined in Paragraph IV(10) of the
Government Order dated 05.08.2019. He next
submitted that Paragraph IV(10) of the said