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TMI Blog2012 (10) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... Patent in such cases continues to arise with such persistence provides a sobering reflection of the limits of the law in providing black letter solutions. We must recognise that the broad and wide categories that the founding fathers of the Constitution created while conferring jurisdiction on constitutional courts were crafted with a sense of vision and purpose. Conceptual openness is a powerful weapon against injustice. The width and amplitude of constitutional provisions ought not then to be constricted into narrow fragments. A provision which is intended to reach out to injustice must be construed in the same liberal spirit with which it was engrafted into the Constitution. We begin this judgment, on a reference to the Full Bench, with the prefatory note that as in other cases involving legal interpretation, straitjackets are unwise. This Court in answering the questions on which the reference has been made would indicate the broad principles, leaving it as we must, to the robust sense of justice of the Judges who occupy this Court to consider each case upon its facts while determining questions of maintainability. The quest for certainty in the law is one, but only one of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lting in miscarriage of justice by authorities which are not subordinate to this Court via Article 227. Writ jurisdiction under Article 226 can be exercised for that purpose. However, it need not be so exercised in relation to Tribunals subordinate to it under Article 227. In the instant case the basic order was passed by the Labour Court, the revisional order was passed by the Industrial Court and these two orders were considered by the Learned Single Judge of this Court. It is clear case of exercise of power of superintendence under Article 227 of the Constitution of India. In such situation merely because article 226 is mentioned in the cause title of the petition it cannot be held that such a person is entitled to maintain an appeal." While doubting the correctness of the view of the Court in National Textile Corporation, the Division Bench in its order of referral was prima facie of the view that the Division Bench had not considered the judgment of a Full Bench in Jagdish Balwantrao Abhyankar vs. State of Maharashtra. AIR 1994 Bombay 141. The following points have accordingly been referred to the Full Bench for its decision: 1. Is it a correct proposition of law that this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power to grant the same relief thus depriving the party of a right to elect or choose a remedy? 9. If the petition is filed only under Article 227 and the order passed therein which amounts to judgment is passed in favour of the Petitioner, whether or not it is open for the respondent in the petition to challenge the said order in an appeal under clause 15 of the Letters Patent contending that though the writ petition was one filed under Article 227, it was also one under Article 226 as facts justify or it ought to have been filed under Article 226 only and, hence, the Letters Patent Appeal is maintainable against an order passed thereon? Certiorari: 3. The power of the High Court to issue a writ of Certiorari, among other writs, is preserved and recognized by Article 226 of the Constitution. In Hari Vishnu Kamath vs. Ahmed Ishaque, AIR 1955 SC 233 a Bench of seven Learned Judges of the Supreme Court formulated the principles upon which the issuance of the writ of Certiorari is founded. Following this judgment and the judgment of the Constitution Bench in Custodian of Evacuee Property vs. Khan Saheb Abdul Shukoor, AIR 1961 SC 1087 it is well settled that (i) A writ of Certiorar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Supreme Court that a writ of certiorari may lie and is generally granted when a Court has acted without or in excess of its jurisdiction. The position in law that a writ of certiorari can be issued when the decision in question is that of a Court was crystalised in the early years of constitutional interpretation. In Syed Yakoob vs. K.S. Radhakrishnan, AIR 1964 SC 477. Mr.Justice P.B. Gajendragadkar (as the Learned Chief Justice then was), speaking for the Constitution Bench placed the matter beyond any position of doubt by holding that the writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals: "The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned Judges of the Supreme Court considered whether the jurisdiction under Article 32 of the Constitution to issue writs of certiorari could be utilized to correct judicial orders passed by the High Courts in or in relation to the proceedings pending before them. That question was answered in the negative. Chief Justice P.B. Gajendragadkar, during the course of his judgment rendered for five of the Judges constituting the Bench, adverted to the decision in T.C. Basappa vs. T. Nagappa (supra) and specifically to the observation of Justice Mukherjea that the writ of certiorari may lie and is generally granted when a Court acted without or in excess of jurisdiction. That principle was not overturned in the judgment of the Learned Chief Justice. On the contrary, the judgment proceeded to decide the issue which arose on the basis of the consistent line of decisions which held the field. While on the one hand, the Court adverted to the earlier judgment in Basappa, there was also a reference in paragraph 53 to the position in England, set out in Halsbury that "certiorari does not lie to quash the judgments of inferior Courts of civil jurisdiction. Chief Justice Gajendragadkar held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diction; or (iii) as a result of a failure to exercise jurisdiction. Similarly certiorari can be issued where the Court or tribunal acts illegally or improperly as for instance in breach of the principles of natural justice. 6. Having said this, it is well settled that while exercising the jurisdiction under Article 226 to issue a writ of certiorari, the High Court must observe certain limitations or restraints which have been evolved over the years to channelise the proper exercise of the power. The High Court, for instance, would refrain from entering into a field of investigation which is more appropriate for a Civil Court in a properly constituted suit to do than for a Court exercising prerogative writs. Sohanlal vs. Union of India, AIR 1957 SC 529. In Mohd. Hanif Vs. State of Assam, (1969) 2 SCC 782 the Supreme Court held that in a proceeding under Article 226, the Court is not concerned merely with the determination of private rights of the parties and the object is to ensure that the law of the land is implicitly obeyed and that various authorities and Tribunals act within the limits of their respective jurisdiction. Consequently, it has been held that proceedings by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lating to the armed forces. The distinction between Articles 226 and 227 of the Constitution is that while proceedings under Article 226 of the Constitution are in the exercise of the original jurisdiction of the High Court, proceedings under Article 227 of the Constitution are not original, but are supervisory. The supervisory power under Article 227 of the Constitution is exercised with restraint to ensure that inferior Courts or tribunals act within the bounds of their authority. The jurisdiction is exercised to remedy grave cases of injustice or a failure of justice such as when (i) The Court or Tribunal has assumed jurisdiction which it did not possess; (ii) The Court or Tribunal has declined or failed to exercise jurisdiction which is conferred upon it which has occasioned a failure of justice; (iii) The Court or Tribunal has exercised its jurisdiction so as to over step the limits of its jurisdiction; and (iv) There is a patent perversity or breach of the principles of natural justice. 9. The body of precedent on the subject has been revisited in the judgment of the Supreme Court in Surya Dev Rai vs. Ram Chander Rai, (2003) 6 SCC 675 by a Bench of two Learned Judges of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s an original proceeding, the jurisdiction under Article 227 is neither original nor appellate, but is "for both administrative and judicial superintendence". Whereas under Article 226, the High Court normally annuls or quashes an order or proceeding, in exercise of its jurisdiction under Article 227 the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. Whereas the jurisdiction under Article 226 is normally exercised where the party is affected, the power under Article 227 can be exercised by the High Court suo motu as a custodian of justice. While the power under Article 226 "is exercised in favour of persons or citizens for vindication of their fundamental rights or other statutory rights", the jurisdiction under Article 227 is exercised by the High Court "for vindication of its position as the highest judicial authority in the State." The Supreme Court emphasized that from an order of the Single Judge passed under Article 226, a Letters Patent Appeal or an intracourt appeal is maintainable. But no such appeal is maintainable from an order passed by a Single Judge of a High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or justice because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L.Chandra Kumar v. Union of India ((1997) 3 SCC 261) and therefore abridgment by a constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power is discretionary and has t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here the facts justify a party in filing an application either under Article 226 or 227 of the Constitution, and the party chooses to file his application under both these Articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal the Court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order the Court gives ancillary directions which may pertain to Article 227, this would not, and ought not to be held, to deprive a party of the right of appeal under clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226." In Umaji Keshao Meshram vs. Smt.Radhikabai, AIR 1986 SC 1272 the Supreme Court held that where a petition is filed under Article 226 of the Constitution and is heard by a Single Judge according to the Rules of the High Court, an intracourt appeal will lie from that judgment if such a right of appeal is provided in the charter of the High Court as, for instance, under Clause 15 of the Letters Patent of the Bombay High Court. Equally, Article 227 is not an original proceeding and an intracourt appeal d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under Clause 15 of the Letters Patent. The judgment of the Full Bench was reversed by the Supreme Court in Sushilabai Laxminarayan Mudliyar vs. Nihalchand Waghajibhai Shaha. AIR 1992 SC 185 The Supreme Court held that the Division Bench of this Court to which the matter was sent back, had erred in holding that the Single Judge had passed an order under Article 227 of the Constitution when the grounds taken in the petition unmistakably established that it was a petition under Article 226 of the Constitution and that the order passed by the Learned Single Judge was also under Article 226. The Supreme Court held that the Full Bench had wrongly construed the judgment in Umaji's case. The true test as reiterated by the Supreme Court is that where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution and the party chooses to file an application under both the Articles, the Court ought to treat the application as one under Article 226 of the Constitution and the mere fact that the Court has given ancillary directions which pertain to Article 227 should not deprive the party a right of appeal under Clause 15 of the Letters Patent where a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was sought to be contended before the Supreme Court that the petition filed by the Respondent before the High Court was in substance under Article 227 and that hence, the judgment of the Single Judge could not have been appealed against under Clause 15 of the Letters Patent. The Supreme Court adverted to the averments contained in the petition filed by the workman while invoking Articles 226 and 227 of the Constitution and observed that it was clear that the workman had tried to make out a case for the interference of the High Court seeking an appropriate writ of Certiorari under Article 226 of the Constitution. Noting that the appeal before the Division Bench under Clause 15 of the Letters Patent was maintainable, the Supreme Court held as follows : "Basic averments for invoking such jurisdiction were already pleaded in the Writ Petition for High Court's consideration. It is true, as submitted by learned counsel for the appellant, that the order of the learned single judge nowhere stated that the Court was considering the Writ Petition under Article 226 of the Constitution of India. It is equally true that the Learned Single Judge dismissed the Writ Petition by observing that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contention of the employer, the State of Madhya Pradesh, that nomenclature was of no consequence and it was the nature of the relief sought and the controversy involved which determined the article that was applicable. After adverting inter alia to the decisions in Umaji, Sushilabai, Lokmat and Surya Dev Rai (supra), the Supreme Court held that the High Court was not justified in holding that the Letters Patent Appeal was not maintainable. In Ashok K.Jha vs. Garden Silk Mills Limited., (2009) 10 SCC 584 the Supreme Court held thus: "If the judgment under appeal falls squarely within four corners of Article 227, it goes without saying that intracourt appeal from such judgment would not be maintainable. On the other hand, if the petitioner has invoked the jurisdiction of the High Court for issuance of certain writ under Article 226, although Article 227 is also mentioned, and principally the judgment appealed against falls under Article 226, the appeal would be maintainable. What is important to be ascertained is the true nature of order passed by the Single Judge and not what provision he mentions while exercising such powers. We agree with the view of this Court in Ramesh Chan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rection which pertains to Article 227, this would not deprive a party of a right of appeal under Clause 15 of the Letters Patent; (ii) Equally, it is now a settled principle that a mere nomenclature which is used by a party is not dispositive of the nature of the jurisdiction that is invoked and of the nature of the power that is exercised by the Single Judge; (iii) In deciding as to whether the facts justify the invocation of the jurisdiction either under Article 226 or Article 227 of the Constitution, due regard has to be had to ( a) the nature of the controversy; (b) the nature of the jurisdiction invoked; and (c) the true nature of the principal order passed by the Single Judge; (iv) Where the contention that is raised, the grounds taken and the reliefs sought in the petition justify the invocation of both Articles 226 and 227 of the Constitution, an appeal under Clause 15 of the Letters Patent against a judgment of the Single Judge would be maintainable; (v) The mere fact that while dismissing such a petition, the Learned Single Judge has observed that no ground for interference under Article 227 has been made out, would not deprive the aggrieved party of a right of app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout jurisdiction or in excess of it or fails to exercise jurisdiction, that error of jurisdiction can be corrected. Moreover when the Court or tribunal has acted illegally or improperly such as in breach of the principles of natural justice the writ of certiorari is available under Article 226. Re: 3 : Where the facts justify the invocation of either Article 226 or Article 227 of the Constitution to correct a jurisdictional error or an error resulting in a miscarriage of justice committed by authorities subordinate to this Court, there is no reason or justification to deprive a party of the right to invoke the constitutional remedy under Article 226 of the Constitution. Re: 4 : It is open to the Court while dealing with a petition filed under Articles 226 and/or 227 of the Constitution or a Letters Patent Appeal under Clause 15 of the Letters Patent arising from the judgment in such a petition to determine whether the facts justify the party in filing the petition under Article 226 and/or 227 of the Constitution. Re: 5 : The cause title, the averments and prayers in the petition can be taken into account while deciding whether the petition is one under Article 226 and/or 227 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... barred to the Respondent before the Single Judge merely on the ground that the petition was under Article 227. In State of Madhya Pradesh vs. Visan Kumar Shiv Charanlal (supra), the appeal before the Division Bench was filed by the Respondent to the proceedings before the Single Judge in a petition which had been instituted under Article 227. Accepting the submission that a nomenclature is of no consequence and it is the nature of the reliefs sought and the controversy involved which determine which Article is applicable, the Supreme Court held that the appeal before the Division Bench was maintainable. A similar position arose in the decision of the Supreme Court in M.M.T.C. vs. Commissioner of Commercial Tax (supra). The Division Bench of the High Court had held that since the petition before the Single Judge was under Article 227 of the Constitution, an appeal at the behest of the Respondent to the petition was not maintainable. The Supreme Court held that the High Court was not justified in holding that the Letters Patent Appeal was not maintainable since the High Court did not consider the nature of the controversy and the prayers involved in the Writ Petition. 21. Conseque ..... X X X X Extracts X X X X X X X X Extracts X X X X
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