# 6 S.C.R. 504 SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF GUJARAT & ORS

- **Citation:** [2015] 6 S.C.R. 504
- **Court:** Supreme Court of India
- **Decided:** 2015
- **Case number:** Civil Appeal No. 237 4 of 2015
- **Bench:** Dipak Misra, Adarsh Kumar Goel
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/6-s-c-r-504-sh-jogendrasinhji-vijaysinghji-v-state-of-gujarat-ors-30766
- **Pages:** 47

## Headnote

Letters Patent Appeal: Maintainability of - Held: Whether a
c letters patent appeal would lie against the order passed by
the Single Judge that has travelled to him from the other
tribunals or authorities, would depend upon many a facet -
The order passed by the civil court is only amenable to be
scrutinized by the High Court in exercise of jurisdiction u/
D Article 227 which is different from Article 226 and no.writ
can be issued against the order passed by the civil court
and, therefore, no letters patent appeal would be
maintainable -
Tribunal being or not being party is not
determinative of maintainability of a letters patent appeal -
E Constitution of India, 1950- Arts.226 and 227.
Necessary party: Court or tribunal whose order is sought to
be quashed, if not arrayed as party in writ petition - Held:
Writ petition can be held not maintainable if a tribunal or
F authority that is required to defend the impugned order has
not been arrayed as a party, as it is a necessary party -
Constitution of India, 1950 - Arts. 226 and 227.
Constitution of India, 1950: Arts.226 and 227 - Scope ofG Held: Judicial orders of civil court are not amenable to writ
jurisdiction u/Art. 226 - An order passed by a civil court can
only be assailed u/Art.227 - Once it is exclusively assailable
u/Article 227, no intra-court appeal is maintainable.
H
Disposing of the appeals, the Court
504
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF
505
GUJARAT & ORS.
HELD: 1. An order passed by a civil court can A
only be assailed under Article 227 of the Constitution of
India. Once it is exclusively under Article 227, no intra
court appeal is maintainable. [para 16) [528-G; 529-A]
Radhey Shyam & Anr. v. Chhabi Nath & Ors. 2015
B
(3) SCALE 88 - Followed.
T.C. Basappa v. T. Nagappa and Anr. AIR 1954 SC
440: 1955 SCR 250; Hari Vishnu Karnath v. Ahmad
lshaque and Ors.
AIR 1955 SC 233: 1955
c
SCR1104; Nagender Nath Bora v. The Commissioner
of Hills Division and Appeals, Assam and Ors. AIR
1958 SC 398: 1958 SCR 1240; State of Uttar
Pradesh and Ors. v. Dr. Vijay Anand Maharaj AIR
1963 SC 946: 1963 SCR 1; Hamid Hassan v.
D
Banwarilal Roy AIR 1947 PC 90; Naresh Shridhar
Mirajkar v. State of Maharashtra and Anr. AIR 1967
SC 1 1966 SCR744; Budan Chaudhry v. State of
Bihar AIR 1955 SC 191: 1955 SCR1045; Parbhani
Transport Cooperative Society Ltd. v. Regional
E
Transport Authority, Aurangabad AIR 1960 SC 801:
1960 SCR 177; Prem Chand Garg v. Excise
Commissioner, U.P Allahabad AIR 1963 SC 996:
1963 Suppl. SCR 885; Rupa Ashok Hurra v. Ashok
Hurra and Anr. (2002) 4 SCC 388: 2002 (2) SCR
F
1006; Triveniben v. State of Gujarat (1989) 1 SCC
678: 1989 (1) SCR 509 - relied on.
Revaben Wd/o. Ambalal Motibhai and Ors. v. Vinubhai
Purshottambhai Patel and Ors. 2013 (1) GLH 440;
G
Dilavarsinhsinh Khodubha Jadeja v. State of Gujarat
and Ors. 1995 (1) GLH 58 - referred to.
2. Jurisdiction under Article 227 is distinct from
jurisdiction under Article 226 of the Constitution and, H'
506
SUPREME COURT REPORTS
[2015] 6 S.C.R.
A therefore, a letters patent appeal or an intra-court appeal
in respect of an order passed by the Single Judge dealing
with an order arising out of a proceeding from a Civil
Court would not lie before the Division Bench.
Maintainability of a letters patent appeal would depend
B upon the pleadings in the writ petition, the nature and
character of the order passed by the Single Judge, the
type of directions issued regard being had to the
jurisdictional perspectives in the constitutional context.
Barring the civil court, from which order a writ petition
C can lie only under Article 227 of the Constitution, orders
from tribunals cannot always be regarded for all
purposes to be under Article 227 of the Constitution.
There can be orders passed by the Single Judge which
0 can be construed as an order under both the articles in
a composite manner, for they can co-exist, coincide and
imbricate. It would depend upon the nature, contour
and character of the order and it will be the ob

## Text

_Characters 0–39,733 of 84,209. This is a partial read: ask again with offset=39733 for what follows._

A
B
(2015] 6 S.C.R. 504
SH JOGENDRASINHJI VIJAYSINGHJI
v.
STATE OF GUJARAT & ORS.
(Civil Appeal No. 237 4 of 2015)
JULY6,2015
[DIPAK MISRA AND ADARSH KUMAR GOEL, JJ.]
Letters Patent Appeal: Maintainability of - Held: Whether a
c letters patent appeal would lie against the order passed by
the Single Judge that has travelled to him from the other
tribunals or authorities, would depend upon many a facet -
The order passed by the civil court is only amenable to be
scrutinized by the High Court in exercise of jurisdiction u/
D Article 227 which is different from Article 226 and no.writ
can be issued against the order passed by the civil court
and, therefore, no letters patent appeal would be
maintainable -
Tribunal being or not being party is not
determinative of maintainability of a letters patent appeal -
E Constitution of India, 1950- Arts.226 and 227.
Necessary party: Court or tribunal whose order is sought to
be quashed, if not arrayed as party in writ petition - Held:
Writ petition can be held not maintainable if a tribunal or
F authority that is required to defend the impugned order has
not been arrayed as a party, as it is a necessary party -
Constitution of India, 1950 - Arts. 226 and 227.
Constitution of India, 1950: Arts.226 and 227 - Scope ofG Held: Judicial orders of civil court are not amenable to writ
jurisdiction u/Art. 226 - An order passed by a civil court can
only be assailed u/Art.227 - Once it is exclusively assailable
u/Article 227, no intra-court appeal is maintainable.
H
Disposing of the appeals, the Court
504
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF
505
GUJARAT & ORS.
HELD: 1. An order passed by a civil court can A
only be assailed under Article 227 of the Constitution of
India. Once it is exclusively under Article 227, no intra
court appeal is maintainable. [para 16) [528-G; 529-A]
Radhey Shyam & Anr. v. Chhabi Nath & Ors. 2015
B
(3) SCALE 88 - Followed.
T.C. Basappa v. T. Nagappa and Anr. AIR 1954 SC
440: 1955 SCR 250; Hari Vishnu Karnath v. Ahmad
lshaque and Ors.
AIR 1955 SC 233: 1955
c
SCR1104; Nagender Nath Bora v. The Commissioner
of Hills Division and Appeals, Assam and Ors. AIR
1958 SC 398: 1958 SCR 1240; State of Uttar
Pradesh and Ors. v. Dr. Vijay Anand Maharaj AIR
1963 SC 946: 1963 SCR 1; Hamid Hassan v.
D
Banwarilal Roy AIR 1947 PC 90; Naresh Shridhar
Mirajkar v. State of Maharashtra and Anr. AIR 1967
SC 1 1966 SCR744; Budan Chaudhry v. State of
Bihar AIR 1955 SC 191: 1955 SCR1045; Parbhani
Transport Cooperative Society Ltd. v. Regional
E
Transport Authority, Aurangabad AIR 1960 SC 801:
1960 SCR 177; Prem Chand Garg v. Excise
Commissioner, U.P Allahabad AIR 1963 SC 996:
1963 Suppl. SCR 885; Rupa Ashok Hurra v. Ashok
Hurra and Anr. (2002) 4 SCC 388: 2002 (2) SCR
F
1006; Triveniben v. State of Gujarat (1989) 1 SCC
678: 1989 (1) SCR 509 - relied on.
Revaben Wd/o. Ambalal Motibhai and Ors. v. Vinubhai
Purshottambhai Patel and Ors. 2013 (1) GLH 440;
G
Dilavarsinhsinh Khodubha Jadeja v. State of Gujarat
and Ors. 1995 (1) GLH 58 - referred to.
2. Jurisdiction under Article 227 is distinct from
jurisdiction under Article 226 of the Constitution and, H'
506
SUPREME COURT REPORTS
[2015] 6 S.C.R.
A therefore, a letters patent appeal or an intra-court appeal
in respect of an order passed by the Single Judge dealing
with an order arising out of a proceeding from a Civil
Court would not lie before the Division Bench.
Maintainability of a letters patent appeal would depend
B upon the pleadings in the writ petition, the nature and
character of the order passed by the Single Judge, the
type of directions issued regard being had to the
jurisdictional perspectives in the constitutional context.
Barring the civil court, from which order a writ petition
C can lie only under Article 227 of the Constitution, orders
from tribunals cannot always be regarded for all
purposes to be under Article 227 of the Constitution.
There can be orders passed by the Single Judge which
0 can be construed as an order under both the articles in
a composite manner, for they can co-exist, coincide and
imbricate. It would depend upon the nature, contour
and character of the order and it will be the obligation of
the Division Bench hearing the letters patent appeal to
E discern and decide whether the order has been passed
by the Single Judge in exercise of jurisdiction under
Article 226 or 227 of the Constitution or both. The
Division Bench would also be required to scrutinize
whether the facts of the case justify the assertions made
F in the petition to invoke the jurisdiction under both the
articles and the relief prayed on that foundation. [Paras
17, 25] [529-C, D; 537-C-H]
3. The next facet pertains to the impleadment of
G the Court or tribunal as a party. Even if application is
described as one not only under Article 226 of the
Constitution, but also under Article 227, the Court or
tribunal whose order is sought to be quashed, if not
arrayed as a party, the application would not be
H maintainable as one of the relief of certiorari, in the
SH'JOGENDRASINHJIVIJAYSINGHJI v. STATE OF
507
GUJARAT & ORS.
absence of the concerned tribunal or Court as a party, A
cannot be granted. If the Court or tribunal has not been
impleaded as party-respondent in the main writ petition,
then by merely impleading such Court or tribunal for
the first time in letters patent appeal would not change
the nature and character of the proceeding before the B
Single Judge and, therefore, intra-court appeal would
not be maintainable. Where plain question on issuing
directions arises, it is conceivable that there should be
in existence a person or authority to whom such
directions could be issued. [Paras 26, 30] [538-B-E; 545C
E-F]
Surya Dev Rai v. Ram Chander Rai and Ors. (2003) 6
SCC 675: 2003 (2) Suppl. SCR 290; Sadhana Lodh v.
National Insurance Co. Ltd. (2003) 3 SCC 524: 2003 (1) D
SCR 567; Umaji Keshao Meshram and Ors. v. Radhikabai
and Anr. 1986 (Supp) SCC 401: 1986 SCR 731; Sushilabai
Laxminarayan Mudliyar and Ors. v. Nihalchand Waghajibhai
Shaha and Ors. 1993 Supp. (1) SCC 11; Mangalbhai and
Ors. v. Radhyshyam (1992) 3 SCC 448: 1992 (3) SCR 537;
E
Lokmat Newspapers Pvt. Ltd. v. Shankarprasad (1999) 6
SCC 275: 1999 (3) SCR 907; Kishorilal v. Sa/es Officer,
District Land Development Bank and Ors. (2006) 7 SCC 496:
2006 (5) Suppl. SCR 274; Ashok K. Jha and others v. Garden F
Silk Mills Ltd. andAnr. (2009) 10 sec 584: 2009 (13) SCR
886; Ratnagiri Dist. Central Coop. Bank Ltd. v. Dinkar
Kashinath Watve (1993) Supp (1) SCC 9; Ramesh Chandra
Sank/a v. Vikram Cement (2008) 14 SCC 58: 2008 (10)
SCR 243; Messrs. Ghaio Mal & Sons v. State of Delhi and G
Ors. AIR 1959 SC 65: 1959 SCR 1424; Udit Narain Singh
Malpaharia v. Addi. Member, Board of Revenue AIR 1963
SC 786: 1963 Suppl. SCR 676 - relied on.
4. Civil courts, which decide matters, are courts H
508
SUPREME COURT REPORTS
[2015] 6 S.C.R.
A in the strictest sense of the term. Neither the court nor
the Presiding Officer defends the order before the
superior court it does not contest. If the High Court, in
exercise of its writ jurisdiction or revisional jurisdiction,
as the case may be, calls for the records, the same can
B always be called for by the High court without the Court
or the Presiding Officer being impleaded as a party.
Similarly, with the passage of time there have been many
a tribunal which only adjudicate and they have nothing
to do with the lis. For example; the tribunals constituted
C under the Administrative Tribunals Act, 1985, the
Custom, Excise & Service Tax Appellate Tribunal, the
Income Tax Appellate Tribunals, the Sales Tax Tribunal
and such others. Every adjudicating authority may be
0
nomenclatured as a tribunal but the said authority(ies)
are different and pure and simple adjudicating
authorities and that is why they are called the authorities.
An Income Tax Commissioner, whatever rank he may
be holding, when he adjudicates, he has to be made a
E party, for he can defend his order. He is entitled to
contest. There are many authorities under many a
statute. Therefore, the proposition that can safely be
culled out is that the authorities or the tribunals, who in
law are entitled to defend the orders passed by them,
F are necessary parties and if they are not arrayed as
parties, the writ petition can be treated to be not
maintainable or the court may grant liberty to implead
them as parties in exercise of its discretion. There are
tribunals which are not at.all required to defend their
G own order, and in that case such tribunals need not be
arrayed as parties. [Para 34] [548-D-H; 549-A-C]
King v. Electricity Commissioners 19241 KB; Ahmeda/li
v. M.D. Lalkaka AIR 1954 Bom 33, 34; Kanglu Bau/a
H
v. Chief Executi11e Officer AIR 1955 Nag. 49 - referred
to.
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF
509
GUJARAT & ORS.
Case Law Reference
A
2013 (1) GLH 440
referred to
Para 2
1995 (1) GLH 58
referred to
Para 2
1955 SCR 250
relied on.
Para 6
1955 SCR 1104
relied on.
Para 7
B
1958 SCR 1240
relied on.
Para 8
1963 SCR 1
relied on.
Para 9
. AIR 1947 PC 90
relied on .
Para 10
1966 SCR 744
relied on.
Para 11
c
1955 SCR 1045
relied on.
Para 12
1960 SCR 177
relied on.
Para 12
1963 Suppl. SCR 885
relied on.
Para 12
2002 (2) SCR 1006
relied on.
Para 13
D
.1989 (1) $CR 509
relied on.
Para 13
2015 (3) SCALE 88
Followed.
Para 14
2003 (2) Suppl. SCR 290relied on
Para 14
2003 (1) SCR 567
relied on
Para 14
1986 SCR 731
relied on
Para 18
E
1993 Supp. (1) sec 11
relied on
Para 19
1992 (3) SCR 537
relied on
Para 20
1999 (3) SCR 907
relied on
Para 21
2006 (5) Suppl. SCR 274relied on
Para 22
F
2009 (13) SCR 886
relied on
Para 23
(1993) Supp (1) sec 9
relied on
Para 23
2008 (10) SCR 243
relied on
Para 23
1959 SCR 1424
relied on
Para 26
G
1963 Suppl. SCR 676
relied on
Para 26
19241 KB
referred to.
Para 29
AIR 1954 Born 33, 34
referred to.
Para 30
AIR 1955 Nag. 49
referred to.
Para 30
H
510
SUPREME COURT REPORTS
[2015] 6 S.C.R.
A
CIVILAPPELLATE JURISDICTION: Civil Appeal
B
c
No. 2374 of 2015
From the Judgment and Order dated 22.01.2014 in
LPA No. 603 of 2007 of the High Court of Gujarat
WITH
CIVIL APPEAL N0.8 2375-2376, 2378-2385, 2386, 23872388, 2389-2390, 2665, 2669-2716, 2717, 2391-2392, 26622663, 2141-2144, 2664 OF 2015
Dayan Krishnan, Percy Kavina, Kirtiman Singh,
Gautam Narayan. Asmita Singh, Nachiketa Joshi, Sudhakar
Joshi, Chaitanya Joshi, Bhushan M. Oza, 0. P. Bhadani,
Ashok Anand, Rakesh Kumar 3ingn, Sanjay Kapur, D.G.
D Chauhan, Anmol Chandan, Priyanka Das, Daisy Hannah,
Jatin Zaveri, Mohit D. Ram, Manisha T. Karia, Purvish
Jitendra Malkan, Sunil Fernandes, Astha Sharma, Raghav
Chad ha, Mithu Jain, Preetesh Kapur, Hemantika Wahi, Jesal,
Preeti Bhardwaj, Gaurav Goel, Sanjoy Ghose, Kaustubh
E Anshuraj, Abhijeet Sinha, J. Prabhakar, Vikash Singh, Yogen
N. Pandya, Padhyaru, Rameshwar Prasad Goyal for the
appearing parties.
F
The Judgment of the Court was delivered by
DIPAK MISRA, J. - In this batch of appeals, by special
leave, the appellants call in question the legal substantiality
of the judgment and order dated 26.12.2013 passed by the
Special Bench of the High Court of Gujarat in a bunch of
G Letters Patent Appeals preferred under Clause 15 of the
Letters Patent.
2. As the factual matrix would unveil, the Division
Bench that referred the matter to a larger Bench, noticed
H conflict in Revaben Wdlo. Ambalal Motibhai and oth,.rs
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF
511
GUJARAT & ORS. [DIPAK MISRA, J.]
v. Vinubhai Purshottambhai Patel and others' and A
Dilavarsinhsinh Khodubha Jadeja v. State of Gujarat and
others2 and at that juncture framed two questions. TheSpecial Bench adverted to the facts necessitating the
reference in detail and took note of the preliminary objections
of the learned counsel for the State as regards the B
maintainability of the Letters Patent Appeal on many a score
and thereafter thought it appropriate to frame the questions
afresh and accordingly it formulated questions.
3. At the outset, we may state that though eight C
questions have been drawn up by the special Bench yet we
are disposed to think that they can really be put into three
basic compartments, namely:
(i) In what context the phrase 'original jurisdiction' D
appearing in Clause 15 of the Letters Patens should be
construed, that is, by taking into consideration the plain
meaning of the same as the Court's power to hear and decide
the matter before any other court and review the same; or
should it be construed in the context with the power of the E
Court to issue a writ under Article 226 of the Constitution of
India, which is always original.
(ii) Assuming the words "to issue to any person or
authority" as contained in Article 226 of the Constitution are F
interpreted so as to include the tribunal or the Court, then in
such circumstances, would it be the correct propositiun of
law to say that appellate tribunal is not amenable to a writ of
certiorari and the only remedy available to the litigant to
challenge the order passed by an appellate tribunal is under G
Article 227 of the Constitution and, ancillary one, when a
petition assails an order of the tribunal, be it a tribunal of first
instance or an appellate tribunal, should it be necessarily
1 2013 (1) GLH 440
2 1995 (1) GLH 58
H
512
SUPREME COURT REPORTS
[2015] 6 S.C.R.
A
treated as a petition under Article 226 of the Constitution of
India in every case or it would depend upon facts of each
case, more particularly the grounds of challenge and the
nature of order passed.
B
(iii) Whether in a petition for issue of a writ of Certiorari
under Article 227 of the Constitution of India, the tribunal/
Court whose order is impugned in a petition must be a party
to the petition so that the writ sought from the Court can be
issued against the tribunal/Court, but if the petition is for the
C relief under Article 227 only, then the tribunal/Court whose
order is under assail need not be a party-respondent on the
reasoning that by entertaining a petition under Article 227 of
the Constitution, the High Court exercises its power of
superintendence which is analogous to the revisional
D jurisdiction.
4. The special bench as is evincible from the judgment
impugned, has delved into the questions framed by it, if we
permit ourselves to say so, at great length and recorded its
E conclusions in seriatum.
It is necessary to reproduce the
relevant conclusions, which are as follows:-
F
G
H
"(iii) When a writ is issued under Article 226 of the
Constitution, it is issued in exercise of its original
jurisdiction whether against the Tribunal or inferior Court
or administrative authority.
(iv) The power exercised under Article 226 of the
Constitution is in exercise of original jurisdiction and
not supervisory jurisdiction.
xxx
xxx
xxx
(vii) A writ of certiorari lies in appropriate cases against
the order of Tribunal or_ Court subordinate to the High
Court where s~ch a Court, or Tribunal acts not only as
an authority of first instance but even if such a Court or
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF
GUJARAT & ORS. [DIPAK MISRA, J.]
Tribunal acts as an appellate or revisional authority
provided a case for a writ of certiorari is made out to
the satisfaction of the Court concerned. Thus, if an
appellate or revisional order of the Court or Tribunal,
subordinate to a High Court, suffers from a patent error
of law or jurisdiction, the same could be challenged
before the High Court with the aid of Article 226 of the
Constitution and it could not be said that such an
appellate or revisional order of the Court or Tribunal
could be challenged with the aid of Article 227 alone.
xxx
xxx
xxx
(ix) The term "original jurisdiction" as contained in
Clause 15 of the Letters Patent should be understood
in context with the power of the High Court to issue a
high prerogative writ like a writ of certiorari under Article
226 of the Constitution of India. It is that original power
to issue a writ under Article 226 of the Constitution of
India which makes the proceedings original and the
exercise of such power will always be original
jurisdiction.
(x) If the Special Civil Application is described as one
not only under Article 226 of the Constitution, but also
under Article 227 of the Constitution of India and the
Court or the Tribunal whose order is sought to be
quashed, is not made a party, the application is not
maintainable as one for the relief of certiorari in the
absence of the concerned Tribunal or Court as party,
but the same may be treated as one under Article 227
of the Constitution of India. If the Court or Tribunal is
not impleaded as a party respondent in the main
petition, then by merely impleading such court or
tribunal for the first time in the Letters Patent Appeal
will not change the nature and character of the
proceedings before the learned Single Judge. By
513
A
B
c
D
E
F
G
H
514
SUPREME COURT REPORTS
[2015] 6 S.C.R.
A
merely imp leading such a Court or Tribunal for the first
time in the LPA, the appeal could not be said to be
maintainable, if the proceedings before the learned
Single Judge remained in the nature of supervisory
8
proceedings under Article 227 of the Constitution.
(xi) If the learned Single Judge, in exercise of a
purported power under Article 227 of the Constitution
sets aside the order of Tribunal or Court below and at
the same time, the essential conditions for issue of
C
writ of certiorari are absent, no appeal will be
maintainable against such order in view of the specific
bar created under Clause 15 of the Letters Patent itself
and such an order can be challenged 011ly by way of a
Special Leave Petition before the Supreme Court.
D
To put it very explicitly, take a case where a petition
is only under Article 227 of the Constitution of India,
invoking superintending powers of the High Court and
not under Article 226 of the Constitution of India. After
E
examining the matter, if the court finds substance in
the petition and sets aside the order of an authority,
court or a tribunal, then against such an order, an LPA
would not lie on the argument that since the court has
set aside the order it has decided the matter on merits
F
having found substance in the same.
To put it in other words, once a petition is under
Article 227 of the Constitution of India, and while
entertaining such a petition under Article 227 of the
G
Constitution of India, if the court allows a petition by
setting aside the order impugned, then against such
an order no LPA would lie.
xii) If a learned Single Judge, in exercise of a purported
H
power under Article 227 of the Constitution modifies
SH JOGENDRASINHJI VIJAYSINGHJi v. STATE OF
515
GUJARAT & ORS. [DIPAK MISRA, J.)
the order of Tribunal/Authority or Court below and
A
thereby partly allows a petition to a certain extent, then
in such circumstances, it could not be said that the
Court exercised its certiorari jurisdiction and no appeal
will be maintainable against such order in view of the
•
specific bar created under Clause 15 of the Letters
B
Patent itself.
However, if a learned Single Judge, in purported
exercise of power under Article 226 of the Constitution
of India, issues a writ of certiorari, although the same
c
is not maintainable, an appeal under Clause 15 of the
Letters Patent would nevertheless be maintainable
against such order.
To put it in other words, take a case where a party
D
on his own invokes supervisory jurisdiction under Article
227 of the Constitution of India, and in such a petition,
the Court issues a writ of certiorari, then against such
an order an LPA would be maintainable.
E
To put it explicitly clear, take a case where in a
petition neither there is a prayer for issue of a writ of
certiorari nor the Tribunal/Authority or Court whose
order is impugned is impleaded as a party respondent,
and despite such being the position, if the Court
F
proceeds to issue a writ of certiorari, then against such
an order an LPA would be maintainable.
(xiii) A combined application under both Articles 226
and 227 of the Constitution of India can be entertainable
G
only when the court fees payable for invoking both the
provisions have been paid in aggregate. If court fees
payable for invoking only one of the Articles 226 and
227 have been affixed, the Court before dismissing the
application on that ground may give option to the
H
516
A
·a
c
D
E
SUPREME COURT REPORTS
(2015) 6 S.C.R.
petitioner to choose only one of such provisions, if he
does not pay the balance amount of court fees and the
application should be treated accordingly. It is, however,
for the Court to decide whether the facts of the case
justify invocation of original jurisdiction or it is a fit case
for exercising supervisory jurisdiction.
xxx
xxx
xxx
(xv) When a remedy for filing the Revision under
Section 115 of the Civil Procedure Code has been
expressly barred, then in such a case, a petition under
Article 227 of the Constitution of India would lie and
not a writ petition under Article 226 of the Constitution
of India. When the Parliament has thought fit to restrict
the powers under Section 115 of the Code with a definite
object, then, under such circumstances an order which
is not revisable under Section 115 of the Code of Civil
Procedure cannot be challenged by way of filing a Writ
Petition under Article 226 of the Constitution invoking
extraordinary jurisdiction of the High Court and that too
an interlocutory order passed by the Civil Court in a
Regular Suit proceedings."
5. At this juncture, we are obligated to state that the
conclusions have been recorded by the High Court to cover
F all kinds of possibilities, but we are of the considered opinion
that it may not always be possible to do so and hence,
advertence in detail to the said conclusions is neither
necessitous nor warranted.
G
6. Having said that, presently we shall proceed to deal
with the first question we have stated hereinbefore. In this
regard, reference to the authority in T.C. Basappa v. T.
Nagappa and Another" would be fruitful. The controversy
before the Constitution Bench, apart from other aspects, also
H
3 AIR 1954 SC 440
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF
517
GUJARAT & ORS. [DIPAK MISRA, J.]
pertained to scope of jurisdiction under Article 226 of the A
Constitution. Dealing with the said facet, the larger Bench
opined that:-
"7. One of the fundamental principles in regard to the
issuing of a writ of 'certiorari', is, that the writ can be
B
availed of only to remove or adjudicate on the validity
of judicial acts. The expression "judicial acts" includes
the exercise of quasi-judicial functions by administrative
bodies or other authorities or persons obliged to
exercise such functions and is useci in contrast with
C
what are purely ministerial acts. Atkin, L.J. thus summed
up the law on this point in Rex v. Electricity
Commissioners•:
"Whenever anybody or persons having legal
D
authority to deter· 11ine questions affecting the
rights of subjects and having the duty to act
judicially act in excess of their legal authority, they
are subject to the controlling jurisdiction of the
King's Bench Division exercised in these writs."
E
The second essential feature of a writ of 'certiorari' is
that the control which is exercised through it over judicial
or quasi-judicial tribunals or bodies is not in an appellate
but superv"isory capacity. In granting a writ of certiorari
the superior court does not exercise the powers of an
appellate tribunal. It does not review or reweigh. the
evidence upon which the determination of the inferior
tribunal purports to be based. It demolishes the order
which it considers to be without jurisdiction or palpably
erroneous but does not substitute its own views for
those of the inferior tribunal. The offending order or
proceeding so to say is put out of the way as one which
should not be used to the detriment of any person,
4 1924-1 KB 171 at p.205 (C)
F
G
H
518
SUPREME COURT REPORTS
[2015] 6 S.C.R.
A
vide per Lord Cairns in - 'Walsall's Overseers v. L. &
N. W.Rly. Co5.
8. The supervision of the superior court exercised
through writs of 'certiorari' goes on two points, as has
B
been expressed by Lord Sumner in King v. Nat Bell
Liquors Limited6. One is the area of inferior jurisdiction
and the qualifications and conditions of its exercise;
the other is the observance of law in the course of its
exercise. These two heads normally cover all the
C
grounds on which a writ of 'certiorari' could be
demanded. In fact there is little difficulty in the
enunciation of the principles; the difficulty really arises
in applying the principles to the facts of a particular
case.
D
9. 'Certiorari' may lie and is generally granted when a
court has acted without or in excess of its jurisdiction.
The want of jurisdiction may arise from the nature of
the subject-matter of the proceeding or from the
E
absence of some preliminary proceeding or the court
itself may not be legally constituted or suffer from certain
disability by reason of extraneous circumstances, vide
'Halsbury, znd edition, Vol. IX, page 880. When the
jurisdiction of the court depends upon the existence of
F
some collateral fact, it is well settled that the court
cannot by a wrong decision of the fact give it jurisdiction
Which it would not otherwise possess, vide Bunbury v.
Fuller7 & R. v. Income Tax Special Purposes
Commissioners'8
G
xxx
xxx
xxx
5 (1879) 4 AC 30 at p. 39 (D)
6 (1922) 2 AC 128 at p. 156 (E)
H
7 (1854) 9 EX 111 (F)
'(1889) 21 QBD 313 (G)
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF
519
GUJARAT & ORS. [DIPAK MISRA, J.]
11. In dealing with the powers of the High Court under Article A
226 of the Constitution, this Court has expressed itself in
almost similar terms, vide 'Veerappa Pillai v. Raman and
Raman Ltd. 9 and said:
"Such writs as are referred to in Article 226 are obviously
B
intended to enable the High Court to issue them in grave
cases where the subordinate tribunals or bodies or
officers act wholly without jurisdiction, or in excess of
it, or in violation of the principles of natural justice, or
refuse to exercise a jurisdiction vested in them, or there
C
is an error apparent on the face of the record, and such
act, omission, error or excess has resulted in manifest
injustice. However extensive the jurisdiction may be, it
seems to us that it is not so wide or large as to enable
the High Court to convert itself into a court of appeal
D
and examine for itself the correctness of the decision
impugned ·and decide what is the proper view to be
taken or the order to be made."
These passages indicate with sufficient fullness the general E
principles that govern the exercise of jurisdiction in the matter
of granting writs of 'certiorari' under Article 226 of the
Constitution."
7. In Harl Vishnu Karnath v. Ahmad /shaque and F
Ors. 10, a seven- Judge Bench, while dealing with the scope
of proceeding under Article 226 of the Constitution, observed
that there can be no dispute that the orders of the Election
Tribunals are subject to the supervisory jurisdiction of the
High Courts under Article 226 and a writ of certiorari under G
that Article will be competent against decisions of the Election
Tribunals also. The Court referred to the decision in T.C.
Basappa (supra) and other authorities and ruled thus:-
' AIR 1952 SC 192 at pp. 195·196 (I)
io AIR 1955 SC 233
H
520
A
B
c
D
E
F
SUPREME COURT REPORTS
[2015) 6 S.C.R.
"We are also of opinion that the Election Tribunals are
subject to the superintendence of the High Courts under
Article 227 of the Constitution, and that
superintendence is both judicial and administrative.
That was held by this Court in Waryam Singh v.
Amamath11, where it was observed that in this respect
Article 227 went further than Section 224 of the
Government of India Act, 1935, under which the
superintendence was purely administrative, and that it
restored the position under Section 107 of the
Government of India Act, 1915. It may also be noted
that while in a 'certiorari' under Article 226 the High
Court can only annul the decision of the Tribunal, it
can, under Article 227, do that, and also issue further
directions in the matter. We must accordingly hold that
the application of the appellant for a writ of 'certiorari'
and for other reliefs was maintainable under Articles
226 and 227 of the Constitution."
In the said case, the court directed as follows:-
"Under the circumstances, the proper order to pass is
to quash the decision of the Tribunal and remove it out
of the way by 'certiorari' under Article 225,and to set
aside the election of the first respondent in exercise of
the powers conferred by Article 227."
8. In Nagender Nath Bora v. The Commissioner of
Hills Division and Appeals, Assam and others12, while
dealing with the scope of Articles 226 and 227 of the
G Constitution, the Constitution Bench referred to the authority
in Waryam Singh (supra) and held that:-
"It is, thus, clear that the powers of judicial interference
under Article 227 of the Constitution with orders of
H
11 AIR 1954 SC 215
12 AIR 1958 SC 398
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF
GUJARAT & ORS. [DIPAK MISRA, J.)
judicial or quasi-judicial nature, are not greater than
the powers under Article 226 of the Constitution. Under
·Article 226, the power of interference may extend to
quashing an impugned order on the ground of a mistake
apparent on the face of the record. But under Article,
227 of the Constitution, the power of interference is
limited to seeing that the tribunal functions within the
limits of its authority. Hence, interference by the High
Court, in these cases, either under Article 226 or 227
of the Constitution, was not justified."
9. In this context, we may usefully refer to another
Constitution Bench decision in State of Uttar Pradesh and
others v. Dr. Vijay Anand Maharaj13, wherein it has bee_n
ruled:-
"9. Article 226 confers a power on a High Court to issue
the writs, orders, or directions mentioned therein for
the enforcement of any of the rights conferred by Part
Ill orfor any other purpose. This is neither an appellate
521
A
B
c
D
nor a revisional jurisdiction of the High Court. Though
E
the power is not confined to the prerogative writs issued
by the English Courts, it is modelled on the said writs
mainly to enable the High Courts to keep the
subordinate tribunals within bounds."
F
10. After so stating, the larger Bench referred to the
decision in Hamid Hassan v. Banwarilal Roy14 wherein the
Privy Council had observed that the original civil jurisdiction
which the Supreme Court of Calcutta had possessed over
certain classes of persons outside the territorial limits of that G
jurisdiction was a matter of original jurisdiction. Thereafter,
the Court referred to certain High Court decisions and
opined:-
13 AIR 1963 SC 946
14 AIR 1947 PC 90
H
522
SUPREME COURT REPORTS
[2015] 6 S.C.R.
A "
It is, therefore, clear from the nature of the power
conferred under Article 226 of the Constitution and the
decisions on the subject that the High Court in exercise of
its power under Article 226 of the Constitution exercises
original jurisdiction, though the said jurisdiction shall not be
B confused with the ordinary civil jurisdiction of the High Court.
This jurisdiction, though original in character as contrasted
with its appellate and revisional jurisdictions, is exercisable
throughout the territories in relation to which it exercises
jurisdiction and may, for convenience, be described as
C extraordinary original jurisdiction. If that be so, it cannot be
contended that a petition under Article 226 of the Constitution
is a continuation of the proceedings under the Act."
D
11.
In this context, reference to the nine-Judge Bench
decision in Naresh Shridhar Mirajkar v. State of
Maharashtra and another15 is absolutely imperative. In the
said case, the Court was dealing with the lis whether a judicial
E order passed by the High Court could violate any fundamental
right. The majority, speaking through Gajendragadkar, C.J.,
commenting on the order of the High Court expressed:-
"38 ...... It is singularly inappropriate to assume that a
F
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
G
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
H
15 AIR 1967 SC 1
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF
523
GUJARAT & ORS.
0
[DIPAK MISRA, J.)
said to affect the fundamental rights of citizens under
A
Article 19(1)."
After so stating, the learned Chief Justice observed
thus:-
"39 ...... Just as an order passed by the court on the
merits of the dispute before it can be challenged only
in appeal and cannot be said to contravene the
fundamental rights of the litigants before the Court, so
could the impugned order be challenged in appeal
under Article 136 of the Constitution, but it cannot be
said to affect the fundamental rights of the petitioners.
The character of the judicial order remains the s.ame
whether it is passed in a matter directly in issue between
the parties, or is passed incidentally to make the
adjudication of the dispute between the parties fair and
effective. On this view of the matter, it seems to us that
the whole attack against the impugned order based on
the assumption that it infringes the petitioners'
fundamental rights under Article 19(1 ), must fail."
B
c
D
E
12. It is apt to note here that the nine-Judge Bench
referred to Budan Chaudhry v. State of Bihar16, Parbhani
Transport Cooperative Society Ltd. v. Regional Transport
Authority, Aurangabad17 and Prem Chand Garg v. Excise F
Commissioner, U.P. Allahabad1 8 and explained the same
and eventually held:-
"If the decision of a superior court on a question of its
jurisdiction is erroneous, it can, of course, be corrected
by appeal or revision as may be permissible under the
law; but until the adjudication by a superior court on
such a point is set aside by adopting the appropriate
16 AIR 1955 SC 191
17 AIR 1960 SC 801
18 AIR 1963 SC 996
G
H
524
SUPREME COURT REPORTS
[2015] 6 S.C.R.
A
course, it would not be open to be corrected by the
exercise of the writ jurisdiction of this Court."
13.
In the first decade of this century in Rupa
Ashok Hurra v. Ashok Hurra and Another19 , the
B Constitution Bench referred to the Triveniben v. State of
c
D
E
F
G
Gujaraf-0, reiterated the same principle and observed:-
"lt is well settled now that a judgment of court can never
be challenged under Articles 14 or 21 and therefore
the judgment of the court awarding the sentence of
death is not open to challenge as violating Article 14 or
Article 21 as has been laid down by this Court in Naresh
Shridhar Mirajkar v. State of Maharashtra (supra) and
also in A.R. Antulayv. R.S. Nayak21 , the only jurisdiction
which could be sought to be exercised by a prisoner
for infringement of his rights can be to challenge the
subsequent events after the final judicial verdict is
pronounced and it is because of this that on the ground
of long or inordinate delay a condemned prisoner could
approach this Court and that is what has consistently
been held by this Court. But it will not be open to this
Court in exercise of jurisdiction under Article 32 to go
behind or to examine the final verdict reached by a
competent court convicting and sentencing the
condemned prisoner and even while considering the
circumstances in order to reach a conclusion as to
whether the inordinate delay coupled with subsequent
circumstances could be held to be sufficient for coming
to a conclusion that execution of the sentence of death
will not be just and proper."
14. Recently, in Radhey Shyam & Anr. v. Chhabi
19 (2002) 4 sec 388
20 (1989) 1 sec 678
H
21 (1988) 2 sec 602
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF
525
GUJARAT & ORS. [DIPAK MISRA, J.]
Nath & Ors.22, a three-Judge Bench while dealing with the A
correctness of the law laid down by a two-Judge Bench, as
there was a reference by a Division Bench expressing its
doubt about the ratio laid down in Surya Dev Rai v. Ram
Chander Rai and others23 that judicial orders passed by
the Civil Court can be examined and then corrected/reversed B
by the writ court under Article 226 in exercise of its power
under writ of certiorari, speaking through one of us (Adarsh
Kumar Goel, J.), referred to number of judgments including
some of the decisions we have cited hereinabove and
reproduced the opinion expressed in Sadhana Lodh v.
C
National Insurance Co. Ltd.24, which is to the following
effect:-
"6. The right of appeal is a statutory right and where
the law provides remedy by filing an appeal on limited
grounds, the grounds of challenge cannot be enlarged
by filing a petition under Articles 226/227 of the
Constitution on the premise that the insurer has limited
grounds available for challenging the award given by
the Tribunal. Section 149(2) of the Act limits the insurer
to file an appeal on those enumerated grounds and
the appeal being a product of the statute it is not open
to an insurer to take any plea other than those provided
under Section 149(2) of the Act (see National
Insurance Co. Ltd. v. Nicolletta Rohtagi25). This being
the legal position, the petition filed under Article 227
of the Constitution by the insurer was wholly
misconceived. Where a statutory right to file an appeal
has been provided for, it is not open to the High Court
to entertain a petition under Article 227 of the
Constitution. Even if where a remedy by way of an
22 2015 (3) SCALE 88
23 c2003) s sec 675
2• c2003) 3 sec 524
25 c2002) 1 sec 456
D
E
F
G
H
526
A
B
c
D
E
SUPREME COURT REPORTS
[2015] 6 S.C.R.
appeal has not been provided for against the order and
judgment of a District Judge, the remedy available
to the aggrieved person is to file a revision before the
High Court under Section 115 of the Code of Civil
Procedure. Where remedy for filing a revision before
the High Court under Section 115 CPC has been
expressly barred by a State enactment, only in such
case a petition under Article 227 of the Constitution
would lie and not under Article 226 of the Constitution.
As a matter of illustration, where a trial court in a civil
suit refused to grant temporary injunction and an
appeal against refusal to grant injunction has been
rejected, and a State enactment has barred the
remedy of filing revision under Section 115 CPC, in
such a situation a writ petition under Article 227
would lie and not under Article 226 of the
Constitution. Thus, where the State Legislature has
barred a remedy of filing a revision petition before the
High Court under Section 115 CPC, no petition under
Article 226 of the Constitution would lie for the reason
that a mere wrong decision without anything more is
not enough to attract jurisdiction of the High Court
under Article 226 of the Constitution."
F
15. After so stating, the three-Judge Bench referred
to Surya Dev Rai (supra), the analysis made by the twoJudge Bench and ultimately came to hold thus:-
G
H
" .... There are no precedents in India for High Courts to
issue writs to subordinate courts. Control of working
of subordinate courts in dealing with their judicial
orders is exercised by way of appellate or revisional
powers or power of superintendence under Article
227. Orders of civil court stand on different footing
from the orders of authorities or Tribunals or courts
other than judicial/civil courts. While appellate or
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF
527
GUJARAT & ORS.