# RADHEY SHYAM & ANR v. CHHABI NATH & ORS

- **Citation:** [2015] 3 S.C.R. 197
- **Court:** Supreme Court of India
- **Decided:** 2015-02-26
- **Case number:** Civil Appeal No. 2548 of 2009
- **Bench:** H.L. Dattu, A.K. Sikri, Adarsh Kumar Goel
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/radhey-shyam-anr-v-chhabi-nath-ors-30513
- **Pages:** 40

## Headnote

Constitution of India, 1950 -Articles 226 and 227 - Writ
of certiorari - Amenability of civil court to the writ jurisdiction
- Reference of matter by Division Bench of Supreme Court
A
B
c
to the present Three Judge Bench to consider the D
correctness of the judgment passed in *Surya Dev Rai case
which held that order of civil court was amenable to writ
jurisdiction u!Art. 226 - Held: Judicial orders of civil court
are not amenable to writ of certiorari u/Art. 226 - Control
of Subordinate courts in dealing with their judicial orders is E
exercised by way of appellate or revisional powers or
powers of superintendence u!Art. 227 - Jurisdiction u!Art.
227 is distinct from jurisdiction u!Art. 226 - *Surya Dev Rai
case overruled.
Answering tt~e question referred, the Court
F
HELD: 1. Writ jurisdiction is constitutionally
conferred on all High Courts. A writ of certiorari lies
against patently erroneous or without jurisdiction
orders of Tribunals or authorities or courts other than G
judicial courts. There are no precedents in India for High
Courts to issue writs to subordinate courts. Control of
working of subordinate courts in dealing with their
197
H
198
SUPREME COURT REPORTS
[2015] 3 S.C.R.
A judicial orders is exercised by way of appellate or
revisional powers or power of superintendence under
Article 227. Orders of civil court stand on different
. footing from the orders of authorities or Tribunals or
courts other than judicial/civil courts. While appellate
B or revisional jurisdiction is regulated by statutes, power
of superintendence under Article 227 is constitutional.
The expression "inferior court" is not referable to
judicial courts. [para 21] [232-0-G]
C
Naresh Shridhar Mirajkar and others vs. State of
Maharashtra AIR 1967 SC 1:1966 (3) SCR 744; Rupa
Ashok Hurra 20.02 (4) SCC 388; Ujjam Bai vs. State of U.P.
AIR 1962 SC 1621: (1963) 1 SCR 778 - followed.
D
T. C. Basappa vs. T. Nagappa AIR 1954 SC 440 : (
1955) 1 SCR 250; Budhan Choudhary vs. State of Bihar
AIR 1955 SC 191: (1955) 1SCR1045; Parbhani Tranport
Coop. Society Ltd. vs. Regional Transport Authority AIR
(1960) SC 801:(1960) 3 SCR 177; Prem Chand Garg vs.
E Excise Commnr AIR 1963 SC 996: (1963) Supp. 1 SCR
885; Triveniben vs. State of Gujarat 1989 (1) SCR 509 :
(1989) 1 sec 678 - relied on.
2. Despite the curtailment of revisional jurisdiction
F uls 115 CPC by Act 46 of 1999, jurisdiction of the High
Court under Article 227 'of the Constitution remains
unaffected, it has been wrongly assumed in certain
quarters that the said jurisdiction has been expanded.
[para 22] [233-8-C]
G
Sadhana Lodh vs. National Insurance Co. Ltd. 2003 (1)
SCR 567: 2003 (3) SCC 524; Waryam Singh and another
vs. Amamath and another AIR 1954 SC 215:1954 SCR
565; Ouseph Mathai vs. M. Abdul Khadir 2001 (5) Suppl.
H SCR 118 : 2002 (1) SCC 319; Shalini Shyam Sheffy vs.
RADHEY SHYAM v. CHHABI NATH
199
Rajendra Shankar Pati! 2010 (8) SCR 836: 2010 (8) SCC A
329; Sameer Suresh Gupta vs. Rahul Kumar Agarwal 2013
(9) sec 374 - relied on.
Ganga Saran vs. Civil Judge AIR 1991 All 114 -
referred to.
B
3. The question referred are answered as follows:
"(i)
Judicial orders of civil court are not amenable to
writ jurisdiction under Article 226 of the Constitution;
and (ii) Jurisdiction under Article 227 is distinct from C
jurisdiction from jurisdiction under Article 226. The
contrary view in *Surya Dev Rai is overruled. [para 25]
[235-G-H; 236-A]
*Surya Dev R'ai vs. Ram Chander Rai and others 2003 D
(2) Suppl. SCR 290: 2003 (6) SCC 675 - overruled.
Shail vs. Manoj Kumar 2004 (3) SCR 649: 2004 (4)
SCC 785; Mahendra Saree Emporium (II) vs. G. V. Srinivasa
M.urthy 2004 (3) Suppl. SCR 931 :2005 (1) SCC 481; Salem E
Advocate Bar Assn (II) vs. Union of India 2005 (1) ·Suppl.
SCR 929: 2005 (6) SCC 344 '"" referred to.
Case Law Reference
1966 (3) SCR 744
followed
Para 13
F
(1955) 1 SCR 250
relied on
Para 10
(1963) 1 SCR 778
followed
Para 12
(1955) 1 SCR 1045
relied on
Para 13
G
(1960) 3 SCR 177
relied on
Para 13

## Text

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[2015] 3 S.C.R. 197
RADHEY SHYAM & ANR.
v.
CHHABI NATH & ORS.
(Civil Appeal No. 2548 of 2009 etc.)
FEBRUARY 26, 2015
[H.L. DATTU, CJI, A.K. SIKRI AND
ADARSH KUMAR GOEL, JJ.]
Constitution of India, 1950 -Articles 226 and 227 - Writ
of certiorari - Amenability of civil court to the writ jurisdiction
- Reference of matter by Division Bench of Supreme Court
A
B
c
to the present Three Judge Bench to consider the D
correctness of the judgment passed in *Surya Dev Rai case
which held that order of civil court was amenable to writ
jurisdiction u!Art. 226 - Held: Judicial orders of civil court
are not amenable to writ of certiorari u/Art. 226 - Control
of Subordinate courts in dealing with their judicial orders is E
exercised by way of appellate or revisional powers or
powers of superintendence u!Art. 227 - Jurisdiction u!Art.
227 is distinct from jurisdiction u!Art. 226 - *Surya Dev Rai
case overruled.
Answering tt~e question referred, the Court
F
HELD: 1. Writ jurisdiction is constitutionally
conferred on all High Courts. A writ of certiorari lies
against patently erroneous or without jurisdiction
orders of Tribunals or authorities or courts other than G
judicial courts. There are no precedents in India for High
Courts to issue writs to subordinate courts. Control of
working of subordinate courts in dealing with their
197
H
198
SUPREME COURT REPORTS
[2015] 3 S.C.R.
A judicial orders is exercised by way of appellate or
revisional powers or power of superintendence under
Article 227. Orders of civil court stand on different
. footing from the orders of authorities or Tribunals or
courts other than judicial/civil courts. While appellate
B or revisional jurisdiction is regulated by statutes, power
of superintendence under Article 227 is constitutional.
The expression "inferior court" is not referable to
judicial courts. [para 21] [232-0-G]
C
Naresh Shridhar Mirajkar and others vs. State of
Maharashtra AIR 1967 SC 1:1966 (3) SCR 744; Rupa
Ashok Hurra 20.02 (4) SCC 388; Ujjam Bai vs. State of U.P.
AIR 1962 SC 1621: (1963) 1 SCR 778 - followed.
D
T. C. Basappa vs. T. Nagappa AIR 1954 SC 440 : (
1955) 1 SCR 250; Budhan Choudhary vs. State of Bihar
AIR 1955 SC 191: (1955) 1SCR1045; Parbhani Tranport
Coop. Society Ltd. vs. Regional Transport Authority AIR
(1960) SC 801:(1960) 3 SCR 177; Prem Chand Garg vs.
E Excise Commnr AIR 1963 SC 996: (1963) Supp. 1 SCR
885; Triveniben vs. State of Gujarat 1989 (1) SCR 509 :
(1989) 1 sec 678 - relied on.
2. Despite the curtailment of revisional jurisdiction
F uls 115 CPC by Act 46 of 1999, jurisdiction of the High
Court under Article 227 'of the Constitution remains
unaffected, it has been wrongly assumed in certain
quarters that the said jurisdiction has been expanded.
[para 22] [233-8-C]
G
Sadhana Lodh vs. National Insurance Co. Ltd. 2003 (1)
SCR 567: 2003 (3) SCC 524; Waryam Singh and another
vs. Amamath and another AIR 1954 SC 215:1954 SCR
565; Ouseph Mathai vs. M. Abdul Khadir 2001 (5) Suppl.
H SCR 118 : 2002 (1) SCC 319; Shalini Shyam Sheffy vs.
RADHEY SHYAM v. CHHABI NATH
199
Rajendra Shankar Pati! 2010 (8) SCR 836: 2010 (8) SCC A
329; Sameer Suresh Gupta vs. Rahul Kumar Agarwal 2013
(9) sec 374 - relied on.
Ganga Saran vs. Civil Judge AIR 1991 All 114 -
referred to.
B
3. The question referred are answered as follows:
"(i)
Judicial orders of civil court are not amenable to
writ jurisdiction under Article 226 of the Constitution;
and (ii) Jurisdiction under Article 227 is distinct from C
jurisdiction from jurisdiction under Article 226. The
contrary view in *Surya Dev Rai is overruled. [para 25]
[235-G-H; 236-A]
*Surya Dev R'ai vs. Ram Chander Rai and others 2003 D
(2) Suppl. SCR 290: 2003 (6) SCC 675 - overruled.
Shail vs. Manoj Kumar 2004 (3) SCR 649: 2004 (4)
SCC 785; Mahendra Saree Emporium (II) vs. G. V. Srinivasa
M.urthy 2004 (3) Suppl. SCR 931 :2005 (1) SCC 481; Salem E
Advocate Bar Assn (II) vs. Union of India 2005 (1) ·Suppl.
SCR 929: 2005 (6) SCC 344 '"" referred to.
Case Law Reference
1966 (3) SCR 744
followed
Para 13
F
(1955) 1 SCR 250
relied on
Para 10
(1963) 1 SCR 778
followed
Para 12
(1955) 1 SCR 1045
relied on
Para 13
G
(1960) 3 SCR 177
relied on
Para 13
(1963) Supp. 1 SCR 885
relied on
Para 13
2002 (4) sec 388
followed
para 14
H
200
A
B
c
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SUPREME COURT REPORTS
[2015] 3 S.C.R.
1989 (1) SCR 509
2003 (1) SCR 567
AIR 1991 All 114
1954 SCR 565
relied on
Para 14
relied on
Para 16
referred to Para 17
relied on
Para 22
2001 (5) Suppl. SCR 118
relied on
Para 22
2010 (8) SCR 836
relied on
Para 22
2013 (9) sec 374
relied on
Para 22
2004 (3) SCR 649
referred to Para 24
2004 (3) Suppl. SCR 931
referred to Para 24
2005 (1) Suppl. SCR 929
referred to Para 24
2003 (2) Suppl. SCR 290
overruled
Para 25
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
E 2548 of 2009.
F
From the Judgment and Order dated 12.10.2007 of the
High Court of Judicature at Allahabad in Civil Writ Petition
No. 50636 of 2007.
with
SLP (C) No. 25828 of 2013.
M. R Calla, Nandini Sen, Deba Prasad Mukherjee,
G Uday Gupta, Shivani M. Lal, Pratiksha Sharma, Ankit
Achariya, Mohan Pandey for the Appellants.
Sushil Kumar Jain, R. D. Upadhyay, Giridhar G.
Upadhyay, Asha Upadhyay, J. P. Tripathi, Abhinav Gupta,
H Aishwary Vikram, Chrishti Jain, Khushbu Jain, Manu
RADHEY SHYAM v. CHHABI NATH
201
Maheshwari (for Pratibha Jain}, Vinayakrao S. Desai A
(Advocate - In - Person). for the Respondents.
The Judgment of the Court was delivered by
ADARSH KUMAR GOEL J. 1. This matter has been
B
placed before the Bench of three Judges in pursuance of
an order dated April 15, 2009 passed by the bench of two
Hon'ble Judges to consider the correctness of the law laid
down by this Court in Surya Dev Rai vs. Ram Chander
Rai and others1 that an order of civil court was amenable c
to writ jurisdiction under Article 226 of the Constitution. The
reference order, inter alia, reads:-
30.
. ........ Therefore, this Court unfortunately is in
disagreement with the view which has been expressed 0
in Surya Dev Rai insofar as correction of or any
interference with judicial orders of civil court by a writ
of certiorari is concerned.
31.
Under Article 227 of the Constitution, the High
Court does not issue a writ of certiorari. Article 227 of E
the Constitution vests the High Courts with a power of
superintendence which is to be vel}' sparingly exercised
to keep tribunals and courts within the bounds of their
authority. Under Article 227, orders of both civil and F
criminal courts can be examined only in very
exceptional cases when manifest miscarriage of justice
has been occasioned. Such power, however, is not to
be exercised to correct a mistake of fact and of law.
32. The essential distinctions in the exercise of power G
between Articles 226 and 227 are well known and
pointed out in Surya Dev Rai and with that we have
1 2003 (6) sec 675
H
202
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c
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SUPREME COURT REPORTS
[2015] 3 S.C.R.
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].
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."
2. Since this Bench has to decide the referred question,
E it is not necessary to mention the facts of the case in detail.
Suffice it to say that assailing an interim order of civil court
in a pending suit, the defendant-respondent filed a writ
petition before the Allahabad High Court and the High Court
having vacated· the said interim order granted in favour of
F the plaintiff-appellant, the appellantmoved this Court by way
of a special leave' petition, inter alia, contending that the writ
petition under Article 226 was not maintainable against the
order of the civil court and, thus, the impugned order could
not be passed by the High Court. On behalf of the
G respondent, reliance was placed on the decision of this
Court in SufYa Dev Rai laying down that a writ petition
under Article 226 was maintainable against the order of the
civil court and thus it was submitted that the High Court was
H justified in passing the impugned order.
RADHEY SHYAM v. CHHABI NATH
[ADARSH KUMAR GOEL J.]
203
3. As already mentioned, the Bench of two Hon'ble A
Judges who heard the matter was not persuaded to follow
the law laid down in Surya Dev Rai. It was observed that
the judgment in Surya Dev Rai did not correctly appreciate
the ratio in the earlier Nine Judge judgment of this Court in
Naresh Shridhar Mirajkar and others vs. Stale of B
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)". With reference
to the observations in Surya Dev Rai for not following the
conclusion in Mirajkar, the referring Bench inter alia C
observed:
"25. In our view the appreciation of the ratio in
Mirajkar by the learned Judges, in Surya Dev Rai, with
great respect, was possibly a little erroneous and with D
that we cannot agree.
26. The two-Judge Bench in Surya Dev Rai did not,
as obviously it could not overrule the ratio in Mirajkar,
a Constitution Bench decision of a nine-Judge Bench. E
But the learned Judges justified their different view in
Surya Dev Rai, inter alia on the ground that the law
. relating to certiorari changed both in England and in
India. In support of that opinion, the learned Judges
held that the -statement of law in Halsbury, on which F
the ratio in Mirajkar is based, has been changed and
in support of that quoted paras 103 and 109 from
Halsbury's Laws of England, 4th Edn. (Reissue), Vol.
1(1). Those paras are set out below:
,
G
"103. The prerogative remedies of certiorari,
prohibition and mandamus: historical development.-
Historically, prohibition was a writ whereby the royal
2 AIR 1967 SC 1 = 1966 (3) SCR 744
H
204
A
B
c
D
E
F
G
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SUPREME COURT REPORTS
(2015] 3 S.C.R.
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
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
RADHEY SHYAM v. CHHABI NATH
[ADARSH KUMAR GOEL J.]
205
63 that a distinption has been made between judicial A
orders of inferior courts of civil jurisdiction and orders
of inferior tribunals or court which are not civil courts
and which cannot pass judicial orders. Therefore,
judicial orders passed by civil courts of plenary
jurisdiction stand on a different footing in view of the B
law pronounced in para 63 in Mirajkar. The passage
in·the subsequent edition of Halsbury (4th Edn.) which
has been quoted in Surya Dev Rai does not show at
all that there has been any change in law on the points
in issue pointed out above.
C
28.
The learned Judges in Surya Dev Rai stated in
SCC para 18, p. 687 of the Report that the decision
rendered in Mirajkar was considered by the
Constitution Bench in Rupa Ashok Hurra v. Ashok D
Hurra and wherein the learned Judges took a different
view and in support 'vf that, the following para from
Rupa Ashok Hurra has been quoted: (Surya Dev Rai
. case, sec pp. 687-88, para 18)
E
"(i) that it is a well-settled principle that the
technicalities associated with the prerogative writs in
English law have no role to play under our
constitutional scheme; (ii) that a writ of certiorari to
call for records and examine the same for passing F
appropriate orders, is issued by a superior court to
an inferior court which certifies its records for
examination; and (iii) that a High Court cannot issue
a writ to another High Court, nor can one Bench of
a High Court ·issue a writ to a diffe,rent Bench of the G
High Court; much less can the writ jurisdiction of a
High Court be invoked to seek issuance of a writ of
certiorari to the Supreme Court. The High Courts are
not constituted as inferior courts in our constitutional H
206
SUPREME COURT REPORTS
[2015] 3 S.C.R.
A
scheme.''
29. We are constrained to point out again that in Rupa
Ashok Hurra the Constitution Bench did not take any
view which is contrary to the views expressed in
B
Mirajkar. On the other hand, the ratio in Mirajkar was
referred to with respect and was relied on in Rupa
Ashok Hurra. Mirajkar was referred to in SCC para
8, p. 399 and again in sec para 11 on p. 402 and again
in sec para 59, p. 418 and also in sec para 60, p.
C
419 of Rupa Ashok Hurra. Nowhere even any whisper
of a divergence from the ratio in Mirajkar was
expressed. Rather passages from Mirajkar have been
quoted with approval. ·
o
30. In fact the question which was referred to the
Constitution Bench in Rupa Ashok Hurra is quoted in
para 1 of the judgment and it is clear from the perusal
of the said paragraph that the question for consideration
in Rupa Ashok Hurra was totally different. Therefore,
E
this Court unfortunately is in disagreeme'}t with the view
which has been expressed in Surya Dev Rai insofar
as correction of or any interference with judicial orders
of civil court by a writ of certiorari is concerned."
F
4. Thus, the question to be decided is whether the view
taken in Surya Dev Rai that a writ lies under.Article 226 of
the Constitution against the order of the civil court, which
has been doubted in the reference order, is the correct view.
G
5. We have heard learned counsel for the parties. We
have also heard learned counsel for the petitioner in SLP
(C) No.25828 of 2013 as the said SLP was tagged to the
present appeal and also the intervenor in person in I.A. No.2
of 2011.
H
6. Learned counsel for the appellant submitted that the
RADHEY SHYAM v. CHHABI NATH
[ADARSH KUMAR GOEL J.]
207
view taken in the referring order deserves to be approved A
for the reasons given in the said order and contrary view in
Surya Dev Rai may be overruled. It is submitted that the
bench of nine Judges in Mirajkar has categorically held that
the order of the civil court was not amenable to writ
jurisdiction under Article 226 and the said view still holds B
the field.
The reasons for not following the said view in
Surya Dev Rai are not sound in law. This submission is
supported by learned counsel for the petitioner appearing
in SLP (Civil) No.25828 of 2013 as also by the Intervenor c
in person.
7. On the contrary, learned senior counsel for the
respondent supported the view taken in Surya Dev Rai
which is based on decisions of this Court relied upon
therein. According to him, the scope of writ jurisdiction was D
wide enough to extend to an order of the civil court. There
was no reason to exclude the civil courts from the
expression "any person or authority" in Article 226 of the
Constitution. Conceptually, a writ of certiorari could be
issued by a superior court to an inferior court. He also E
pointed out that though the judgment in Surya Dev Rai is
by a Bench of two judges, the same has been referred with
approval in larger bench judgments in Shai/ vs. Manoj
Kumar, Mahendra Saree Emporium (II) vs. G. V.
F
Srinivasa Murthy4 and Sa/em Advocate Bar Assn(//) vs.
Union of lndia5 and on that ground correctness of the said
view is not open to be considered by this Bench.
8. We have given anxious consideration to the rival
submissions.
G
a 2004 (4) sec 785
4 2005 (1) sec 481
5 2005 (6) sec 344
H
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SUPREME COURT REPORTS
[2015] 3 S.C.R.
A
9. It will be appropriate to refer to some of the leading
judgments of this Court on the scope of writ jurisdiction in
the present context, including those referred to in Surya
Dev Rai and tlie referring order.
B
10. In T.C. Basappa vs. T. Nagappa6, question before
this Court was as to the scope of jurisdiction under Article
226 in dealing with a writ of certiorari against the order of
the Election Tribunal. This Court considered the question
in the background of principles followed by superior courts
C in England which generally formed the basis of decisions
of Indian Courts. This Court held that while broad and
fundamental norms regulating exercise of writ jurisdiction
had to be kept in mind, it was not necessary for Indian
Courts to look back to the early history or procedural
D technicalities of the writ jurisdiction in England in view of
express constitutional provisions. Certiorari was meant to
supervise "judicial acts" which included quasi judicial
functions of administrative bodies. The Court issuing such
•
i
writ quashed patently erroneous and without jur\sdiction
E order but the Court did not review the evidence as an
appellate court nor substituted its own finding for tHat of the
inferior Tribunal. Since the said judgment is follo~ed in all
·leading judgments, rel!:lvant observations therein may be
F extracted :
"5. The principles upon which the superior courts in
England interfere by issuing writs of certiorari are
fairly well known and they have generally fonned the
basis of decisions in our Indian courts. It is true that
G
there is Jack of u1hiformity even in the
pronouncements of English Judges, with regard to
the grouryds upon which a writ, or, as it is now said,
H 6 AIR 1954 SC 440='(1955) 1 SCR 250
RADHEY SHYAM v. CHHABI NATH
[ADARSH KUMAR GOEL J.)
209
an order of certiorari, could issue, but such A
differences of opinion are unavoidable in Judge-made
Jaw which has developed through a long course of
years. As is well known, the issue of the prerogative
writs, within which certiorari is included, had their
origin in England in the King's prerogative power of B
superintendence over the due observance of law by
his officials and tribunals. The writ of certiorari is so
named because in its original form it required that the
King should be "certified of' the proceedings to be
investigated and the object was to secure by the C
authority of a superior court, that the jurisdiction of
the inferior Tribunal should be properly exercised
[Vide Ryots of Garabandho v. Zamindar of
Parlakimedi 70/A 129. These principles were 0
transplanted to other parts of the King's dominions.
Jn India, during the British days, the three chartered
High Courts of Calcutta, Bombay and Madras were
alone competent to issue writs and that too within
specified limits and the power was not exercisable E
by the other High Courts at all. "In that situation" as
this court observed in Election Commission, India v.
Saka Venkata Subba Rao [(1953) SCR 1144]
"the makers of the Constitution having decided to F
provide for certain basic safeguards for the people
in the new set up, which they called fundamental
rights, evidently thought it necessary to provide also
a quick and inexpensive remedy for the enforcement
of such rights and, finding that the prerogative writs,
G
which the courts in England had developed and used
whenever urgent necessity demanded immediate and
decisive interposition, were peculiarly suited fnr the
purpose, they conferred, in the States' sphere, new
and wide powers on the High Courts of issuing H
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(2015] 3 S.C.R.
A
B
c
D
E
F
G
H
directions, orders, or writs primarily for the
enforcement of fundamental rights, the power to issue
such directions 'for any other purpose' being also
included with a view apparently to place all the High
Courts in this country in somewhat the same position
as th.e Court of King's Bench in England."
6. The language used in Articles 32 and 226 of our
Constitution. is very wide and the powers of the
· Supreme Court as well as of all the High Courts in India
extend to issuing of orders, writs or directions including
writs in the nature of habeas corpus, mandamus, quo
warranto, prohibition and certiorari as may be
considered necessary for enforcement of the
fundamental rights and in the case of the High Courts,
for other purposes as well . .Jn view of the express
provisions in our Constitution we need not now look
back to the early history or the procedural technicalities
of these writs".in English law, nor feel oppressed by any
difference or change of opinion expressed in particular
cases by English Judges. We can make an order or
issue a writ in the nature of certiorari in all appropriate
cases and in appropriate manner, so long as we keep
to the broad' and fundamental principles that regulate
the exercise of jurisdiction in the matter of granting such
writs in English law.
7. One of the fundamental principles in regard to the
issuing of a writ of certiorari, is, that the writ can be
availed of only to remove or adjudicate on the validity
of judicial acts. The expression 'Judicial acts" includes
the exercise of quasi-judicial functions by administrative
bodies or other authorities or persons obliged to
exercise such functions and is used in contrast with
what are purely ministerial acts. Atkin, L.J. thus
RADHEY SHYAM v. CHHABI NATH
[ADARSH KUMAR GOEL J.]
211
summed up the law on this point in Rex v. Electricity A
Commissioners (1924) 1 KB 171]:
"Whenever anybody or persons having legal authority
to determine questions affecting the rights of subjects
and having the duty to act judicially act in excess of B
their legal authority, they are subject to the controlling
jurisdiction of the King's Bench Division exercised in
these writs.~·
The second essential feature of a writ of certiorari is c
that the control which is exercised through it over
judicial or quasi-judicial tribunals or bodies is not in an
appellate but supervisory capacity. In granting a writ of
certiorari the superior court does not exercise the
powers of an appellate tribunal. It does not review or o
reweigh the evidence upon which the determination of
the inferior tribunal purports to be based. It demolishes
the order which it considers to be without jurisdiction
or palpably erroneous but does not substitute its own
views for those of the inferior tribunal. The offending E
order or proceeding so to say is put out of the way as
one which should not be used to the detriment of any
person [Vide Per Lord Cairns in walshall's Overseers
vs. London and North Western Railway Co. 4 AC 30,
39].
F
8. The supervision of the superior court exercised
through writs of certiorari goes on two points, as has
been expressed by Lord Summer in King v. Nat Bell
Liquors Limited {(1922) 2 AC 128, 156]. One is the area G
of inferior jurisdiction and the qualifications and
conditions of its exercise; the other is the observance
of law in the course of its exercise. These two heads
normally cover all the grounds on which a writ of
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certiorari could be demanded. In fact there is little
difficulty in the enunciation of the principles; the difficulty
really ari~es in applying the principles to the facts of a
particular case.
9. Certiorari may lie and is generally granted when a
court has acted without or in excess of its jurisdiction.
The want of jurisdiction may arise from 'the nature of
the subject-matter of the proceeding or from the
absence of some preliminary proceeding or the court
itself may 'not be legally constituted or suffer from
certain disability by reason of extraneous circumstances
[Vide Halsbury, 2"d Edn. Vol IX]. When the jurisdiction
of the court depends upon the existence of some
collateral fact, it is well settled that the court cannot by
a wrong decision of the fact give it jurisdiction which it
would not otherwise possess [Vide Banbury vs. Fuller,
9 Exch 111; R. v. Income Tax Special Purposes
Commissioners, 21 QBD 313].
10. A tribunal may be competent to enter upon an
enquiry but in making the enquiry it may act in flagrant
disregard of the rules of procedure or where no
particular procedure is prescribed, it may violate the
principles of natural justice. A writ of certiorari may be
available in such cases. An error in the decision or
determination itself may also be amenable to a writ of
certiorari but it must be a manifest error apparent on
the face of the proceedings, e.g. when it is based on
clear ignorance or disregard of the provisions of law.
In other words, it is a patent error which can be
corrected by certiorari but not a mere wrong decision,
The essential features of the remedy by way of
certiorari have been stated with remarkable brevity and
clearness by Morris, L.J. in the recent case bf Rex v.
RADHEY SHYAM v. CHHABI NATH
[ADARSH KUMAR GOEL J.]
213
Northumberland Compensation Appellate Tribunal [ A
(1952) 1 KB 338]. The Lord Justice says:
"It is plain that cerliorari will not issue as the cloak of
an appeal in disguise. It does not lie in order to bring
up an order or decision for re-hearing of the issue B
raised in the proceedings. It exists to correct error of
Jaw when revealed on the face of an order or decision
or irregularity or absence of or excess of jurisdiction
when shown."
11. In dealing with the powers of the High Court under
Arlicle 226 of the Constitution, this Court has expressed
itself in almost similar terms [ Vide Veerappa Pillai v.
Raman & Raman Ltd. (1952) SCR 583] and said:
c
"Such writs as are referred to in Article 226 are D
obviously intended to enable the High Courl to issue
them in grave cases where the subordinate tribunals
or bodies or officers act wholly without jurisdiction,
or in excess of it, or in violation of the principles of E
natural justice, or refuse to exercise a jurisdiction
vested in them, or there is an error apparent on the
face of the record, and such act, omission, error or
excess has resulted in manifest injustice. However
extensive the jurisdiction may be, it seems to us that F
it is not so vyide or large as to enable the High Courl
to convert itself into a courl of appeal and examine
for itself the correctness of the decision impugned
and decide what is the proper view to be taken or
the order to be made."
G
These passages indicate with sufficient fullness the
general principles that govern the exercise of
jurisdiction in the matter of granting writs of certiorari
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A
under Article 226 of the Constitution".
11. It is necessary to clarify that expression "judicial
acts" is not meant to refer to judicial orders of civil courts
as the matter before this Court arose out of the order of
s Election Tribunal and no direct decision of this Court, except
Surya Devi Rai, has been brought to our notice where writ
of certiorari may have been issued against an order of a
judicial court. In fact, when the question as to scope of
jurisdiction arose in subsequent decisions, it was clarified
C that orders of judicial courts stood on different footing from
the quasi judicial orders of authorities or Tribunals.
12.
In. Ujjam Bai vs. State of U.P. 7, matter was
referred to a Bench of seven Judges on the scope of writ
o of certiorari against an order of assessment under the
provisions of Sales Tax law passed in violation of a
fundamental right. Majority of six judges took the view that
except an order under a void law or an 'ultra vires' or
·'without jurisdiction' order, there could be no violation of
E · fundamental right by a quasi judicial order or a statutory
authority and such order could not be challenged under
Article 32. A writ of certiorari could however, lie against a
patently erroneous order under Article 226. It was observed
that judicial orders of Courts stood on different footing.
F Ayyangar, J. observed :
"Before concluding it is necessary to advert to one
matter which was just touched on in the course of the
arguments as one which might be reserved for
G
consideration when ii actually arose, and this related
to the question whether the decision or order of a
regular ordinary Court of law as distinguished from a
tribunal or quasi-judicial authority constituted or created
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7 AIR 1962 SC 1621 = (1963) 1 SCR 778
RADHEY SHYAM v. CHHABI NATH
[ADARSH KUMAR GOEL J.]
215
under particular statutes could be complained of as A
violating a fundamental right. It is a salutary principle
that this Court should not pronounce on points which
are not involved in the questions raised before it and
that is the reason why I am not dealing with it in any
fullness and am certainly not expressing any decided B
opinion on it. Without doing either however, I consider
it proper to make these obseNations. There is not any
substantial identity between a Court of law adjudicating
on the rights of parties in the tis before it and designed
as the High Courts and this Court are to investigate C
inter alia whether any fundamental rights are infringed
and vested with power to protect them, and quasijudicial authorities which are created under particular
statutes and with a view to implement and administer 0
their provisions. I shall be content to leave the topic
at this."
13. In Mirajkar, a nine Judge Bench judgment, a judicial
order of High Court was challenged as being violative of
fundamental right. This Court by majority held that a judicial E
order of a competent court could not violate a fundamental
right. Even if there was incidental violation, it could not be
held to be violative of fundamental right. Gajendragaddkar,
CJ, observed :
F
"37. . ......... The argument that the impugned order
affects the fundamental rights of the petitioners under
Article 19(1), is based on a complete misconception
about the true nature and character of judicial process
and of judicial decisions. When a Judge deals with G
matters brought before him for his adjudication, he first
decides questions of fact on which the parties are at
issue, and then applies the relevant law to the said
facts. Whether the findings of fact recorded by the H
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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 μnder Article 19(1).
38 . .......... 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 same
whether it is passed in a matter directly in issue
between the parties, or is passed incidentally to make
the adjudication of the dispute between the parties fair
and effective. On this view of the matter, it seems to
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.
41.
It is true that the opinion thus expressed by Kania,
RADHEY SHYAM v. CHHABI NATH
[ADARSH KUMAR GOEL J.]
217
C.J., in the case of A.K Gopalan [1950 SCR 88) had A
not received the concurrence of the other learned
Judges who heard the said case. Subsequently,
however; in Ram Singh v. State of Delhi [1951 SCR
451), the said.observations were cited with approval by
the Full Court. The same principle has been accepted B
by this Court in Express Newspapers (Private) Ltd., v.
Union of India [1959 SCR 12), and by the majority
judgment in Atiabari Tea Co., Ltd. v. State of Assam
[1961 (1) SCR 809."
Explaining observations in earlier judgments in Budhan
Choudhary vs. State of Bihar'1 and Parbhani Tranport
Coop. Society Ltd. vs. Regional Transport Authority9 that
a judicial order could be violative of Article 14, it was
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observed:
D
"45. Naturally, the principal contention which was urged
on their behalf before this Court was that Section 30
CrPC, infringed the fundamental right guaranteed by
Article 14, and ~as, therefore, invalid. This contention E
was repelled by this Court. Then, alternatively, the
appellants argued that though the section itself may not
be discriminatory, it may lend itself to abuse bringing
about a discrimination between persons accused of
offences of the same kind, for the police may send up F
a person accused of an offence under.Section 366 to
a Section 30 Magistrate and the police may send
another person accused of an offence under the same
section to a Magistrate who can commit the accused
to the Court of Session. This alternative contention was G
examined and it was a/so rejected. That incidentally
8 AIR 1955 SC 191,. =. (1955) 1 SCR 1045
9 AIR (1960) SC 801 = (1960) 3 SCR 177
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raised the question as to whether the judicial decision
could itself be said to offend Article 14. S.R. Das, J.,
as he then was, who spoke for the Court considered
this contention, referred with approval to the
observations made by Frankfurter, J., and Stone, C.J.,
of the Supreme Court of the United States in Snowden
v. Hughes [ (1944) 321 US1] and observed that the
judicial decision must of necessity depend on the facts
and circumstances of each particular case and what
may superficially appear to be an unequal application
of the law may not necessarily amount to a denial of
equal protection of law unless there is shown to be
· present in it an element of intentional and purposeful
discrimination. Having made this observation which at
best may be said to assume that a judicial decision may
conceivably contravene Article 14, the teamed Judge
took the precaution of adding that the discretion of
judicial officers is not arbitrary and the law provides for
. revision by superior courts of orders passed by the
subordinate Courts. In such circumstances, there is
hardly any" ground for apprehending any capricious
discriminatior:i by judicial tribunals.
46. It is thus clear that though the observations made
by Frankfurter, J. and Stone, C.J. in Snowden v.
Hughes had been cited with approval, the question as
to whether a judicial order can attract the jurisdiction
of this Court under Article 32(1) and (2) was not argued
and did not fall to be considered at all. That question
became only incidentally relevant in deciding whether
the validity of the conviction which was impugned by
the appellants in the case of Budhan Chaudhry could
be successfully assailed on the ground that the judicial
decision under Section 30 CrPC, w~s capriciously
rendered against the appellants. The scope of the
RADHEY SHYAM v. CHHABI NATH
[ADARSH KUMAR GOEL J.]
219
jurisdiction of this Court in exercising its writ jurisdiction A
in relation to orders passed by the High Court was not ·
and could not have been examined, because the matter
had come to this Court in appeal under Article 132(1);
and whether or not judicial decision can be said to
affect any fundamental right merely because it B
incidentally arid indirectly may encroach upon such
right, did not therefore call for consideration or decision
in that case. In.fact, the closing observations made in
the judgment themselves indicate that this Court was
of the view that if any judicial order was sought to be C
attacked on the ground that it was inconsistent with
Article 14, the proper remedy to challenge such an
order would be an appeal or revision as may be
provided by law. We are, therefore, not prepared to 0
accept MrSetalvad's assumption that the observations
on which he bases himself support the proposition that
according to this Court, judicial decisions rendered by
courts of competent jurisdiction in or in relation to
matters brought before them can be assailed on the . E
ground that they violate Article 14. It may incidentally
be pointed out that the decision of the Supreme Court
of the United States in Snowden v. Hughes was itself
not concerned With the validity of any judicial decision
~d
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47. On the other hand, in Parbhani Transport
Cooperative Society Ltd. v. Regional Transport
Authority, Aurangabad Sarkar; J. speaking for the Court,
has observed that the decision of the Regional G
Transport Authority which was challenged before the
Court may have been right or wrong, but that they were
unable to see how that decision could offend Article 14
or any other fundamental right of the petitioner. The
learned Judge further observed that the Regional H
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Transport Authority was acting as a quasi-judicial body
and if it has made any mistake in its decision there are
appropriate remedies available to the petitioner for
·obtaining relief. It cannot complain of a breach of Article
14. It is true that in this case also the larger issue as
to whether the orders passed by quasi judicial tribunals
can be said to affect Article 14, does not appear to have
been fully argued. It is clear that the observations made
by this Court in this case unambiguously indicate that
it would be inappropriate to suggest that the decision
rendered by a judicial tribunal can be described as
offending Article 14 at all. It may be a right or wrong
decision, and if it is a wrong decision it can be corrected
by appeal or revision as may be permitted by law, but
it cannot be said per se to contravene Article 14. It is
significant that these observations have been made
while dealing with a writ petition filed by the petitioner,
the Parbhani Transport Cooperative Society Ltd. under
Article 32; and insofar as the point has been considered
and decided the decision is against Mr Setalvad's
contention."
Decision of this Court in Prem Chand Garg vs.
Excise Commnr10, setting aside rule of this Court requiring
F deposit of security for filing a writ petition, was also
explained as not holding that a judicial order resulted in
violation of fundamental right :
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"49.