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TMI Blog2021 (1) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... ently rendered impossible due to the prevailing pandemic situation in the country and the petitioners are disabled from travelling to Delhi to prefer the appeal in view of the restrictions and the rising number of cases in the country. Though it is contended by the learned counsel appearing for the respondents that the writ petitions are not maintainable without the NCLT on the party array, I am of the opinion that in the facts and circumstances of the instant cases, especially in view of Ext.P6 request for adjournment made by the counsel for the petitioners before the NCLT, the passing of an order interdicting all financial transactions by running companies would create serious prejudice to the company. The technical objection raised that the NCLT is not made a party to these proceedings, according to me, should not stand in the way of the consideration of these writ petitions in the peculiar circumstances prevalent at present. In view of the fact that an appeal before the NCLAT is not practically possible, it would be for the petitioners to approach the NCLT seeking appropriate modification of the orders. However, till such time, in view of the present situation prevalent, I am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the 2nd respondent before the Registrar of Companies (ROC), Ernakulam and the Income-tax authorities surreptitiously. Appellants apprehended that the 2nd respondent has either forged or has caused to be forged the signatures of the majority shareholders with the intention to suggest that the financial statements have been approved by the shareholders at the Annual General Meeting, in the respective years. 5. Appellants have further contended that the financial statements filed before the Registrar of Companies, Ernakulam, for the years 2015-16, 2016-17 and 2017-18 respectively, would disclose related party transactions, in contravention of the provisions of the Companies Act, 2013 and the transactions have not obtained the approval of the board of shareholders of the company. The majority shareholders, including the appellants, therefore, have sought intervention of the National Company Law Tribunal under sections 96 and 97(1) of the Companies Act, for a direction to the 2nd respondent viz., the Managing Director of RBG Enterprises Pvt. Ltd., to convene the AGM through company petitions viz., 98/KOB/291, 99/KOB/2019, 100/KOB/2019, 101/KOB/2019, 102/KOB/2019, & 103/KOB/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired under the Act. Hence, the appellants approached the NCLT for the reliefs mentioned in I.A. No. 83/2020 in C.P. No. 114/KOB/2019. After issuing notice to respondents 2 and 3, NCLT heard the matter on 9-7-2020, and restrained the 2nd respondent from convening any meetings and further restrained the respondents 2 and 3 from making any financial transactions vide its order dated 9-7-2020. The I.A. stood posted to 7-8-2020, for further hearing. 10. Challenging the above said order of the NCLT in RBG Enterprises (P.) Ltd. v. Sulochana Gupta [C.P.No.114/KOB/2019, dated 9-7-2020,] W.P.(C) No. 14341/2020 has been filed by writ petitioners/respondents 1 and 2 herein, seeking the following reliefs: (i) Call for the records leading to Exhibit-P7 order dated 9-7-2020 in I.A. No. 83/KOB/2020 in C.P. No. 114/KOB/2019 passed by the National Company Law Tribunal, Kochi. (ii) Issue a writ of certiorari or such other writ and quash Exhibit-P7 order dated 9-7-2020 passed by the NCLT, Kochi. (iii) Direct the Tribunal to pass orders on Exhibit-P6 emails dated 9-7-2020 addressed to the Registrar, NCLT, Kochi, after giving an opportunity to file objections and after hearing the petitioners an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CLT ought to have been impleaded as a necessary party, when there is a challenge to its order. Reference was also made to Rule 148 of the Rules of the Kerala High Court, 1971. But, the learned single Judge declined to consider the dictum in Udit Narain Singh Malpaharia's case (cited supra) on the ground of "technicality". According to the learned counsel, the writ court ought to have dismissed the writ petition, at the threshold itself, for the failure to implead National Company Law Tribunal, as a necessary party. 16. Learned counsel for the appellants further submitted that the reliefs sought for by respondents 1 & 2 in the writ petition is on the fallacious plea that NCLAT, Delhi was not conducting any hearing. But, this claim stands demolished by the documents presented by the learned counsel for the appellants, that at the time of hearing the writ petition on 15-7-2020, NCLAT was indeed hearing the appeals, but the writ court has failed to take note of the same. In this context, he produced the proceedings of NCLAT, to controvert the contention of the respondents/writ petitioners in this appeal. 17. Learned counsel for the appellants further submitted that before the wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e remedy and that a writ petition under Article 226 of the Constitution of India is not maintainable, learned counsel for the appellants relied on the decisions in ICICI Bank Ltd. v. Umakanta Mohapatra [2019] 13 SCC 497 and Union Bank of India. v. K.B. Baby Saroja [WA No. 275 of 2020, dated 14-2-2020]. 22. Learned counsel for the appellants further submitted that before the writ court, the 2nd respondent has placed reliance on a judgment dated 21-12-2017 of a learned single Bench of this Court in W.P.(C) No. 41662/2017 (Exhibit-P8). According to the learned counsel for the appellants, the said judgment is opposed to the doctrine of binding precedents/stare decisis, especially in the light of the judgment dated 23-10-2017 passed by a Hon'ble Division Bench of this Court in Alexander Correya v. Dominic Savio [2017] 4 KLJ 650. 23. It is the submission of the learned counsel for the appellants that the Hon'ble Division Bench in the above decision, has unambiguously concluded that a writ petition would not lie against an interim order of the NCLT, which has also been followed by a Coordinate Bench of this Court in O.P(C) No. 733 of 2020. According to the learned counsel, in te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this Court was also invited to contend that on 15-7-2020, when the matter was heard, materials were produced by the appellants before the writ court to substantiate that on 15-7-2020, the respondents had already filed an appeal before the NCLAT, and that, the same was pending. Cause list on 16-7-2020, on the file of the NCLAT, was also produced before the writ court, to substantiate the contention that on 16-7-2020, a case from the State of Kerala, was also listed before NCLAT and that the contention to the contrary, by the respondents/writ petitioners, was factually incorrect. 28. Per contra, to sustain the impugned judgment dated 22-7-2020 in W.P.(C) No. 14341/2020, Mr. P. Sanjay, learned counsel for the respondents/writ petitioners submitted that, orders of the NCLT in I.A. No. 83/KOB/2020 in CP/114/KOB/2019 dated 9-7-2020, has completely paralyzed the three companies of the writ petitioners. Running business of the companies was stopped and export commitments were at stake. On coming to know of this catastrophe, writ petitioners have rushed to meet the learned counsel and to somehow keep the order in abeyance immediately, because the next two days were holidays. 29. Enquiri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appeals along with a covering letter and email to prove that the appeals were filed, were produced along with I.A. No. 1/2020 in the writ petition. 32. All the cases were heard and after writ petitioners' arguments, the learned counsel for the appellants argued in detail, opposing the grant of any interim order. The only objection raised by the appellants was that the writ petitions are not maintainable without the NCLT being on the party array, and the decision reported in Udit Narain Singh Malpaharia's case (cited supra) was produced, in support of the said argument. It was also argued that the Hon'ble Apex Court held that when there is an efficacious alternate remedy of appeal before NCLAT, writ petition would not be maintainable. It is contended that the 2nd respondent has been removed from the post of Managing Director on 31-10-2019 and that he could not, therefore, continue. It was further contended by the appellants before the writ court that though the decisions in the so-called meeting on 31-10-2019 were produced before the NCLT along with I.A. No. 58/2019, for its approval, there were no orders on the same, and the said fact was conveniently suppressed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, in any manner, due to the impugned judgment. It is contended that the writ petitioners have already filed objections to I.A. No. 83/2020 in C.P. No. 114/KOB/2009, as evident from Annexure-R1(m). 35. Learned counsel for the respondents/writ petitioners further contended that on 7-8-2020, both appellants and the 3rd respondent, through their respective learned counsel, were ready for hearing in I.A. No. 83/2020. Despite waiting from morning, the link for video conferencing was not received by email from the NCLT. When contacted over phone, NCLT registry informed that an email has been received from the appellants' counsel seeking adjournment and, therefore, the matter will not be called in VC. This information seemed strange because earlier on 9-07-2020, when requests for adjournment were made by the learned counsel for the respondents, the appellants were alone heard in the VC. Neither the appellants and the 3rd respondent nor their respective learned counsel/representatives had received the email link. But, it can be seen from Exhibit-P7 that the appellants' counsel alone has been heard on that day. 36. It was later understood that the appellants' counsel alone ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal decision in the matter. 39. Despite a clear division of the family into two groups, each of the groups carried on the management of the companies that were being under their control. While so, in the year 2016, at the instance of friends and relatives, both groups were brought to the table and after prolonged discussions and deliberations, for months together, a Memorandum of Understanding (MoU) dated 15-09-2016 was signed between all, as evident from Annexure R1(a). In the said MoU, the role of the 2nd respondent, in establishing the companies, was duly recognised and he was given 2% extra share. There is also a clause that gives preference to the person and management of the company while partitioning the businesses. 40. Learned counsel for the respondents/writ petitioners further stated that the companies under the control of the 2nd respondent flourished making profits by leaps and bounds, while those under the control of Mahesh Kumar Gupta, initially did well, but later did not do well. He, therefore, became instrumental in not having the MoU implemented. Since any further delay would have resulted in limitation, the 2nd petitioner approached the Hon'ble Munsiff' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e AGM, IA No. 49/2019 in C.P. No. 99/2019 [Annexure-R1(e)] was filed for staying the notice dated 17-10-2019, for convening the AGM. NCLT did not grant the relief sought for and found that no new evidence is produced by the petitioner therein, but made the decisions subject to further orders, as evident from Annexure R1(f) order dated 25-10-2019 in IA No. 49/2019 in C.P. 99/2019. Petitioners have filed Annexure R1(g) objection to the said application and the matter is pending. No further orders are passed in IA No. 49/2019. Thereafter I.A. No. 58/2019 was filed seeking approval of the resolutions alleged to have been passed by the petitioners in a meeting after the AGM was conducted, as evident from Annexure R1(h). Petitioners have filed objections to IA No. 58/2019 and opposed the same. However, the NCLT has not passed any orders giving approval to the so called decisions that are produced in IA. No. 58/2020. 43. Learned counsel for the respondents further contended that AGM for every year has been conducted and records were produced before the Registrar of Companies. The company has completed all statutory compliance and there is no default, as alleged. The averment that the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hence, it was presumed that the matter was adjourned. 46. Learned counsel for the respondents further contended that the writ petition under Article 226 of the Constitution of India, was filed, in view of Exhibit-P8 judgment of this Court. Even if there existed an alternate remedy, it could not have been exercised during Covid period. But, mere availability of another alternate remedy does not mean that the writ petition has to be dismissed. It is true that by mistake, NCLT was not arrayed as a party in the writ petition, but certainly it is not a fatal mistake and NCLT could be impleaded at a later stage. 47. In support of the above contentions, respondents 1 & 2 relied on the decisions in M.S. Kazhi v. Muslim Education Society [2016] 9 SCC 263; Rashid Ahmed v. Municipal Board, Kairana [1950] SCR 566; State of Uttar Pradesh v. Mahammed Nooh 1958 SCR 595; Motilal, S/o Khamdeo Rokade. v. Balkrushna Baliram Lokhande AIR 2020 Bom. 39; and Ramesh Ahluwalia v. State of Punjab [2012] 12 SCC 331. 48. Issues raised for consideration in this appeal are:- 1. On the facts and circumstances of the case, when an order of the NCLT is challenged, writ petition has to be filed under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod of forty-five days from the date aforesaid, but within a further period not exceeding forty-five days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within that period. (4) On the receipt of an appeal under sub-section (1), the Appellate Tribunal shall, after giving the parties to the appeal a reasonable opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against. (5) The Appellate Tribunal shall send a copy of every order made by it to the Tribunal and the parties to appeal." 54. Rule 49(2) of the NCLT Rules, 2016 reads thus: "49. Ex-parte Hearing and disposal.- (1) Where on the date fixed for hearing the petition or application or on any other date to which such hearing may be adjourned, the applicant appears and the respondent does not appear when the petition or the application is called for hearing, the Tribunal may adjourn the hearing or hear and decide the petition or the application ex-parte. (2) Where a petition or an application has been heard ex-parte against a respondent or respondents, such respondent or respondents may apply to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Director and the terms of the appointment; iv. Appointment of Ritu Gupta as Whole Time Director; v. Appointment of P.P.Zibi Jose, Practicing Company Secretary and the terms of the appointment; vi. Appointment of Statutory Auditors of the company; vii. Appointment of Signatories in the operation of bank accounts of the company; and viii. Declaration of dividend. iv. Direct that the resolutions to be adopted at the said AGM shall be by voting by secret ballot and not by show of hands. v. That the Advocate Commissioner shall submit his report to this Tribunal within 48 hours of the AGM. 3. On perusal of the records, we observed that the petitioner, Smt. Sulochana Gupta filed the above main Company Petition under section 96 and 97(1) of the Companies Act for issue of direction to the respondents to hold the Annual General Meeting of the Respondent No. 1 Company. 4. We have gone through the notice of the AGM (Annexure A-12) filed along with the IA and noted the Agenda mentioned therein as under: 1. To consider and adopt the Audited Financial Statements for the Financial year ended March 31, 2019 together with the Report of the Directors and the Auditors thereon. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; Sd/- Veera Brahma Rao Arekapudi Ashok Kumar Borah Member (Judicial) " 56. It is further contended that before the writ court, the respondents/writ petitioners have suppressed I.A. No. 58/2019 in C.P. No. 114/KOB/2019 dated 7-11-2019, filed before the NCLT, Kochi Bench. In the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 123 of the Companies Act, to issue dividend of INR 300 (three hundred) per share, post adoption of accounts, out of the free reserves of the Company and out of profits of the financial year ended on 31-3-2019, which is to be paid for the current financial year 2019-20, to the shareholders whose names appear on the register of members as on the date of Book Closing in proportion to the paid up value of the equity shares, is in order and therefore deserving to be confirmed. VII. Issue a direction to the Company that the Resolution passed by the majority shareholders at the AGM held at 4:00 pm on 31-10-2019 at the registered office of the Company,to open a new Current Account with Indusind Bank in the name and style, RBG Enterprises Private Limited, Dividend Account, is in order and therefore deserving to be confirmed. VIII. Issue a direction to the Company to re-convene the AGM of the Company on a date to be specified by this Hontle Tribunal, under the supervision of an Advocate Commissioner appointed by this Hon'ble Tribunal to consider the following: a. The financial statements for the years 2015-16, 2016-17, 2017-18 and 2018-2019, and, matters connected therewith; b. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egistered office of the Company. In our opinion, you do not have the legal authority to convene a meeting of the Board of Directors of the Company for the above reasons. Meeting of Board of Directors to be held at 11 am on 4-12-2019. 3. The agenda for the proposed Board Meeting includes review of the status of the cases before the Hon'ble NCLT, in our opinion, it would not be appropriate for the Board to discuss the matter which is under the scrutiny of the Hon'ble NCLT. 4. You have stated in the said Notice that the agenda for the proposed Board Meeting includes confirmation of the Minutes of the Meeting of the Board of Directors held on 10-10-2019. You are aware that the Hon'ble NCLT has directed In Its Order dated 25-10-2019 in connected case C.P/114/JOB/2019 that the decision taken in the Board Meeting dated 10-10-2019 as well as the resolutions to be passed during the AGM held on 31-10-2019 will be subject to the final orders of this Tribunal". I am, therefore, of the view that It will not be appropriate to discuss the decisions taken on 10-10-2019, when the matter Is under the scrutiny of the Hon'ble NCLT. I am of the firm opinion that the said Notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director in the above cases. Due to my engagement before the Hon'ble High Court today w will not be able to attend the above cases on (Thursday) 09/07/2020. Therefore, I humbly request you to adjourn the above case to any other convenient date before the Hon'ble Tribunal itself. Kindly note that these are matters connected to various other cases that came up on 6-7-2020 and are posted on 7-9-2020. Hence the above cases can also be posted on the same date. Thanking you, Yours truly, Best regards, P. Sanjay, Advocate, ................" "09-07-2020 The Deputy Manager, National Company Law Tribunal, Kochi Bench,' BMC Road, Thrikkakara, Ernakulam - 682021. Sub:- Request for adjournment of the following case listed as item No. 10-12 in the Cause List published for (Thursday) 09/07/2020. Ref:- (1) IA/83/KOB/2020 IN CP/114/KOB/19-Sulochana Gupta v. Rbg Trading Pvt. Ltd & 3 OTHERS - for R3 (2) IA/84/KOB/2020 IN CP/119/KOB/19-Minakshi Gupta v. Rbg Trading Corporation Pvt. Ltd. & 3 OTHERS -for R3 (3) IA/85/KOB/2020 IN CP/125/KOB/19-Minakshi Gupta v. Rbg Retail Pvt. Ltd. & 3 OTHERS-for R3. Sir, Owing to unavoidable reasons, I will not be able to atten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by email before Registrar, NCLAT, is extracted hereunder: "Date :15-07-2020 To: The Registry National Company Law Appellate Tribunal (Southern Bench) 2nd & 3rd Floor of Mahanagar Doorsanchar Sadan (M.T.N.L. Building), 9Lodhi Rd, CGO Complex, Pragati Vihar, New Delhi - 110003 Reg; Filing of Appeal in IA/83/KOB/2020 In No. CP/114/KOB/2019 (RBG Enterprises Private Limited and another v. Sulochang Gupta) under section 421 of the Companies Act, 2013.read with Rules Dear Sir, With reference to the above we are submitting herewith Company Appeals under section 421 of the Companies Act, 2013 in triplicate in respect of Petitioner- RBG Enterprises Private Limited & Anr., which may kindly be taken on record and request your goodself to advise the date of hearing of the Company Appeal. I will be appearing for the same through Video Conferencing. Also filed is IA for stay (with necessary court fee) that may be posted at the earliest. Copy of the above Appeal has also been forwarded to the Respondents today as per the address given below by Registered post and original of the postal receipts are attached to this Company Appeal. The Original of the Demand Draft is attached alo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-R2 10. Comp. App. (AT) (Ins) No. 485 of 2020 Noble Resources International Pte. Ltd. v. Rajiv Chakraborty & Ors. (Resolution Professional of Uttam Galva Metallics) Supriyo Mahapatra Anjali Anchayil-R1 Mahima Sareen-R2 11. Comp. App. (AT) (Ins) No. 496 of 2020 C. Unnikrsihanan v. Kerala State Cashew Development Corpn. Ltd. A. Karthik 12. Comp. App. (AT) (Ins) No. 527 of 2020 MCC Concrete v. Northway Spaces Ltd. Malak Manish Bhatt 13. Comp. App. (AT) (Ins) No. 543 of 2020 Metro Cash & Carry India Pvt. Ltd. v. NWCC Supply Chain Solutions Pvt. Ltd. With Aditya Bhat 14. Comp. App. (AT) (Ins) No. 545 of 2020 Metro Cash & Carry Pvt. Ltd. v. North West Carrying Company LLP Aditya Bhat Roopali Singh For Hearing 15. Competition App. (AT) No. 113 of 2019 Ashok Suchde v. Competition Commission of India Sumit Jain Niti Richhariya 16. Comp. App. (AT) (Ins) No. 389 of 2018 Anil Kohli, R.P. for DunarFoods Ltd. v. Directorate of Enforcement & Anr. Abhishek Anand R.K. Mishra (R-DOE), Sandeep Bisht -(RNSE) 12:30 PM In the Court of Hon'ble Mr. Justice Bansi Lal Bhat, the Acting Chairperson and Hon'ble Mr. Justice Venugopal M., Member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners have been informed by the official that there cannot be filing of appeals by email or post and that filing has to be done at the Principal Bench of the NCLAT, by an authorised person. 68. Before the writ court, submission also seemed to have been made that the said course of action was a impossibility in the present scenario and that the writ petitioners may be permitted to carry on the essential day-to-day financial transactions of the company till, either an appeal can be filed before the NCLAT or the NCLT considers the matter on merits. 69. After considering the rival submissions and the inability to file an appeal before the NCLAT, by undertaking a travel to New Delhi, in the impugned judgment, the writ court has observed that an appeal before the NCLAT is practically not possible and till such time, in view of the present situation prevalent, writ court is of the opinion that the writ petitioners should be permitted to carry on the day-to-day financial transactions, as are necessary for the conduct of the companies. Thus, in the above circumstances, the writ court disposed of W.P.(C) No. 14341/2020 and other connected cases by the impugned judgment. 70. Perusal of An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15-7-2020 (Exhibit-P13). Respondents 1 & 2 in the supporting affidavit I.A. No. 1 of 2020 in W.P.(C) No. 14341 of 2020 have also stated that they have produced the above documents with an application to receive the same on the files of W.P.(C) No. 14341 of 2020. 74. However, perusal of appeal dated 15-7-2020 sent to the Registry of NCLAT shows that as against clause 10 in the appeal, which mandates that the appellant therein to make a statement or declaration to the effect as to whether, it had not previously filed any writ petition or suit regarding the matter, in respect of which this appeal is preferred, before any court or other authority, respondents/writ petitioners/respondents had made a specific declaration they had not previously filed any writ petition or suit. Clause 10 of the appeal which deals with the declaration and the answer to the declaration is reproduced: "10. Matters not previously filed or pending with any other court The appellant further declares that the appellant had not previously filed any writ petition or suit regarding the matter in respect of which this appeal is preferred before any court of any other authority nor any such writ petition or suit i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions praying to quash the order in I.A.No.83/KOB/2020 in C.P.No.114/KOB/2019 dated 9-7-2020. At the risk of repetition, covering letter dated 15-7-2020 (Exhibit-P9) sent along with the appeal and stay petition reads thus: "Reg; Filing of Appeal in IA/83/KOB/2020 In No. CP/114/KOB/2019 (RBG Enterprises Private Limited and another v. Sulochang Gupta) under section 421 of the Companies Act, 2013.read with Rules Dear Sir, With reference to the above we are submitting herewith Company Appeals under section 421 of the Companies Act, 2013 in triplicate in respect of Petitioner- RBG Enterprises Private Limited & Anr., which may kindly be taken on record and request your goodself to advise the date of hearing of the Company Appeal. I will be appearing for the same through Video Conferencing. Also filed is IA for stay (with necessary court fee) that may be posted at the earliest. Copy of the above Appeal has also been forwarded to the Respondents today as per the address given below by Registered post and original of the postal receipts are attached to this Company Appeal. The Original of the Demand Draft is attached along with this letter. The details of the Demand draft drawn on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above backdrop, let us consider the issues raised in the present appeal. 84. As stated above, in the case on hand, writ petition under Article 226 of the Constitution of India has been filed for a writ of certiorari to quash the order of the NCLT, Cochin dated 9-7-2020 in I.A. No. 83/2020 in C.P. No. 114/KOB/2019. In this context, let us consider Articles 226 and 227 of the Constitution of India, which read thus: "226. Power of High Courts to issue certain writs (1) Notwithstanding anything in article 32, every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in force, and shall require the previous approval of the Governor. (4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces." 85. Firstly, on the issue as to whether a writ petition under Article 226 of the Constitution of India is not maintainable, as against an order passed by the National Company Law Tribunal, let us consider the decisions relied on by the appellants, as hereunder: (i) In T.C. Basappa (supra), the appeal before the Hon'ble Supreme Court was against the judgment of a Hon'ble Division Bench of Mysore High Court, granting an application presented under Article 226 of the Constitution of India and directed to issue a writ of certiorari, quashing the proceedings and the order of the Election Tribunal, Shimoga. Relevant paras are extracted hereunder: "4. The substantial contention raised by Mr. Ayyangar, who appeared in support of the appeal, is that the learned Judges of the High Court misdirected themselves both on facts and law, in granting certiorari in the present case to quash the determination of the Election Tribunal. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 proceedings 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 v. London and North Western Railway Co., 4 A.C. 30, 39). 8. The supervision of the superior Court exercised through writs of certiorari goes on two points, as has been expressed by Lord Sumner in King v. Nat Bell Liquors Limited [1922] 2 A.C. 128, 156). 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 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. 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 natur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 it is not so wide or large as to enable the High Court to convert itself into a Court 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." These passages indicate with sufficient fullness the general principles that govern the exercise of jurisdiction in the matter of granting writs of certiorari under article 226 of the Constitution. 12. We will now proceed to examine the judgment of the High Court and see whether the learned Judges were right in holding that sufficient and proper grounds existed for the issue of certiorari in the present case. 23. Thus the finding is there and there is evidence in support of it. Whether it is right or wrong is another matter and it may be that the view taken by the dissenting member of the Tribunal was the more proper; but it cannot be said that the Tribunal exceeded its jurisdiction in dealing with this matter." (ii) In Radhey Shyam (supra), the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the referring order deserves to be approved for the reasons given in the said order and contrary view in Surya Dev Rai may be overruled. Contentions were made 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 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 in person. 8. On the contrary, learned senior Counsel for the Respondent therein 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 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 pointed out that though the judgment in Surya Dev Rai is by a Bench of two judges, the same has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court to entertain a petition Under Article 227 of the Constitution. Even if a remedy by way of an 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 Code of Civil Procedure 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 Code of Civil Procedure, 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 Code of Civil Procedure, no petition Under Article 226 of the Constitution would lie for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 227 to involve power of superintendence. The Bench noted the legal position that after Code of Civil Procedure amendment revisional jurisdiction of the High Court against interlocutory order was curtailed. The Bench then referred to the history of writ of certiorari and its scope and concluded thus: 26. The Bench in Surya Dev Rai also observed in para 25 of its judgment that distinction between Articles 226 and 227 stood almost obliterated. In para 24 of the said judgment distinction in the two articles has been noted. In view thereof, observation that scope of Article 226 and 227 was obliterated was not correct as rightly observed by the referring Bench in Para 32 quoted above. We make it clear that though despite the curtailment of revisional jurisdiction Under Section 115 Code of Civil Procedure by Act 46 of 1999, jurisdiction of the High Court Under Article 227 remains unaffected, it has been wrongly assumed in certain quarters that the said jurisdiction has been expanded. Scope of Article 227 has been explained in several decisions including Waryam Singh and Anr. v. Amarnath and Anr. AIR 1954 SC 215 : 1954 SCR 565, Ouseph Mathai v. M. Abdul Khadir 2002 (1) SCC 319, Shali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e principles have been formulated by this Court for ends of justice and the High Courts as the highest courts of justice within their jurisdiction will adhere to them strictly. 27. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari Under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226. 29. Accordingly, we answer the question referred as follows: (i) Judicial orders of civil court are not amenable to writ jurisdiction Under Article 226 of the Constitution; (ii) Jurisdiction Under Article 227 is distinct from jurisdiction from jurisdiction Under Article 226. Contrary view in Surya Dev Rai is overruled." (iii) In Alexander Correya (supra), the appellant therein filed appeal against an interim order dated 26-9-2017 passed by a learned single Judge in W.P.(C) No. 30895 of 2017, on an application filed by respondents 1 to 9 therein. Facts stated therein are reproduced hereunder: "3. It appears that the 11th respondent therein is a Public Company limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew that the learned single Judge ought not to have entertained the writ petition nor passed the interim order." (iv) In V. J. Paul Joseph v. National Law Company Tribunal [O.P.(C) No.733 of 2020, dated 16-3-2020], an original petition was filed challenging an order of the NCLT. A learned single Judge of this Court declined to entertain the writ petition on the ground of alternate remedy and held thus; "It has been submitted that the Tribunal had already passed an order on Ext.P1 on 11-3-2020. Since an order had been already passed, there is remedy by way of appeal under section 421 of the Companies Act. Since there is provision for appeal, I am not inclined to entertain this Original Petition filed under Article 227 of the Constitution of India." (v) In Super Sales India Ltd. v. Customs, Excise and Service Tax Appellate Tribunal [2017-5-LW564], the point for consideration in the Writ Appeal was, whether the Writ Petition is maintainable under Article 226 of the Constitution of India, without exhausting the alternative remedy, under section 35G of the Central Excise Act, 1944. On the aspect of availability of an alternative remedy and filing of a writ jurisdiction a Hon'bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces of the case, relating to determination of the assessable value of the commodity in question, for the purpose of levy of duty, under the Central Excise Act, 1944, at Paragraphs 4, 15 and 16, held as follows: "4. We reiterate that the High Court, under article 226 of the constitution of india, has vast powers as this Court has under article 32 of the constitution of india, but such powers can only be exercised in those cases where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice. 15. In our opinion, the assessee ought not to have filed a writ petition before the High Court questioning the correctness or otherwise of the orders passed by the Tribunal. The Excise Law is a complete code in order to seek redress in excise matters and hence may not be appropriate for the writ court to entertain a petition under article 226 of the Constitution. Therefore, the learned Single Judge was justified in observing that sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged." 8. Lack of jurisdiction would be grounds for invoking the extraordinary remedy, under Article 226 of the Constitution of India, which is not the one pleaded in this case. In Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement reported in 2010-4-L.W.1: 2010 (253) ELT 3 (SC), the exceptions carved out are, where there is a lack of jurisdiction of the tribunal to take action or there has been a violation of rules of natural justice or where the tribunal has acted under a provision of law, which is declared ultra vires and in such cases, notwithstanding the existence of such a Tribunal, the High Court can exercise its jurisdiction to grant relief. None of the exceptions is applicable to the case on hand. Saying so, the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up under the Acts of Legislature for specific purposes would also be subject to its jurisdiction. It seems to me that in this regard article 227 has vested the High Court with a greater power than that given to it even under the Government of India Act, 1915, or the High Court Act, 1861. It is also relevant in this connection to note that the Constitution of India has given this supervisory power to the High Court not only over all courts but also over all Tribunals throughout the territories in relation to which it exercises its jurisdiction. The word Tribunals' did not find a place either in the Government of India Act of 1935 or in the Government of India Act 1915 or in the High Courts Act, 1861. The purpose of the addition of the word Tribunals' to article 227, to my mind was to emphasis the fact that not only bodies which are courts within the strict definition of that term would be subject to the supervisory jurisdiction of the High Court but all bodies that perform the functions of courts and are akin to them are drawn within the purview of its supervision and cannot claim exemption from it merely by virtue of the fact that they do not come within the strict categ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Bombay High Court reported in State of Bombay v. Heman Santlal, AIR 1952 Bom 16, it was held by Chagla C.J. that the marginal notes of the Constitution may be referred to for the purpose of understanding the drift of the articles. In Suresh Chandra v. Bank of Calcutta Ltd. (54 Cal. WN 832 at page 836) the marginal notes of an Indian Act were compared with the corresponding marginal notes of the English Act to elucidate the meaning of the section. The contrary view expressed in CIT (Excess Profit Tax) v. Parasram Jethanand, AIR 1950 Mad 631 and Sutlej Cotton Mills Ltd. v. CIT [1950] 18 ITR 112 (Cal); AIR 1950 Cal 551 should not therefore, be accepted without qualification. The opinion which I, however, have formed is independently of the marginal notes and is based on the article itself viewed in the light of its historical background. 10. To emphasise and to clarify the plenary nature of power of superintendence vested in the High Court the provision of law relating to it has been split up into four clauses. The first clause enunciates the general power of supervision given to. High Court over all courts and Tribunals throughout the territories in relation to which it exercises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... work of a court. 13. Clause (4) shows that the only courts exempted from the superintendence of the High Court are courts or Tribunals constituted by or under any law relating to the Armed Force's. A mention of the solitary exemption also emphasises the clear field of superintendence which is left within the jurisdiction of the High Court after exempting the prohibited area covered by the Military Courts or Tribunals mentioned therein. 14. A reading of the entire article 227 of the Constitution of India in the light of the antecedent law on the subject leads one to the irresistible conclusion that the purpose of the constitution makers was to make the High Court responsible for the entire administration of justice and to vest in the High Court an unlimited1 reserve of judicial power which could be brought into play at any time that the High Court considered it necessary to draw upon the same. Springing as it does from the Constitution, which is the parent of all Acts and Statutes in India, the fact that the judgment or order of a court or Tribunal has been made final by an Act or the fact that the body performing judicial functions is special tribunal constituted under a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evision is maintainable under any provisions of law. In this view, when it is shown that the trial court has failed to exercise its jurisdiction, properly applying the provisions of law, or when it is so that the trial court has wrongly exercised its jurisdiction, offending the statute, then, invoking the supervisory jurisdiction of this court, can be interfered by this court. The hon'ble Supreme Court, at paragraphs 6 to 39, held as follows (page 683 to 696): "6. According to Corpus Juris Secundum (Volume 14, page 121) certiorari is a writ issued from a superior court to an inferior court or Tribunal commanding the latter to send up the record of a particular case. 7. H.W.R. Wade and C.F. Forsyth define certiorari in these words : 'Certiorari is used to bring up into the High Court the decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed--that is to say, it is declared completely invalid, so that no one need respect it. The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds. This is the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench, possess and exercise over inferior jurisdictions. This principle has been transplanted to other parts of the King's dominions, and operates, within certain limits, in British India." 10. Article 226 of the Constitution of India preserves to the High Court power to issue writ of certiorari amongst others. The principles on which the writ of certiorari is issued are well-settled. It would suffice for our purpose to quote from the seven Judge Bench decision of this court, the Hon'ble Supreme Court in Hari Vishnu Kamath v. Ahmad Ishaque [1955] 1 SCR 1104; AIR 1955 SC 233. The four propositions laid down therein were summarized by the Constitution Bench in Custodian of Evacuee Property v. Khan Saheb Abdul Shukoor [1961] 3 SCR 855; AIR 1961 SC 1087 as under (AIR page 1094, paragraph 15): "The High Court was not justified in looking into the order of December 2, 1952 as an appellate court, though it would be justified in scrutinizing that order as if it was brought before it under article 226 of the Constitution for issue of a writ of certiorari. The limit of the jurisdiction of the High Court in issuing writs of certiorari was considered by this court in Hari Vishnu Kam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the statute does not confer a right of appeal. Its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer. Mere formal or technical errors, even though of law, will not be sufficient to attract this extraordinary jurisdiction. Where the errors cannot be said to, be errors of law apparent on the face of the record, but they are merely errors in appreciation of documentary evidence or affidavits, errors in drawing inferences or omission to draw inference or in other words errors which a court sitting as a court of appeal only, could have examined and, if necessary, corrected and the Appellate Authority under a statute in question has unlimited jurisdiction to examine and appreciate the evidence in the exercise of its appellate or revisional jurisdiction and it has not been shown that in exercising its powers the Appellate Authority disregarded any mandatory provisions of the law but what can be said at the most was that it had disregarded certain executive instructions not having the force of law, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er was a judicial order of the High Court and hence not amenable to a writ under article 226. The petitioner then moved this court under article 32 of the Constitution for enforcement of his fundamental rights under article 19(1)(a) and (g) of the Constitution. During the course of majority judgment Chief Justice Gajendragadkar quoted the following passage from Halsbury laws of England (Volume 11, pages 129, 130) from the footnote: "In the case of judgments of inferior courts of civil jurisdiction) it has been suggested that certiorari might be granted to quash them for want of jurisdiction (Kemp v. Balne [1844] 1 Dow. & L. 885; (13 LJQB 149)), Dow & L at page 887, inasmuch as an error did not he upon that ground. But there appears to be no reported case in which the judgment of an inferior court of civil jurisdiction has been quashed on certiorari, either for want of jurisdiction or on any other ground." His Lordship then said (AIR page 18, paragraph 63): 'The ultimate proposition is set out in terms : "Certiorari does not lie to quash the judgments of inferior courts of civil jurisdiction". These observations would indicate that in England the judicial orders passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar v. State of Maharashtra [1966] 3 SCR 744; AIR 1967 SC 1 was cited before the Constitution Bench in Rupa Ashok Hurra v. Ashok Hurra [2002] 4 SCC 388 and considered. It has been clearly held : (i) that it is a well-settled principle that the technicalities associated with the prerogative writs in English law have no role to play under our constitutional scheme; (ii) that a writ of certiorari to call for records and examine the same for passing appropriate orders, is issued by superior court to an inferior court which certifies its records for examination; and (iii) that a High Court cannot issue a writ to another High Court, nor can one Bench of a High Court issue a writ to a different Bench of the High Court; much less can writ jurisdiction of a High Court be invoked to seek issuance of a writ of certiorari to the Supreme Court. The High Courts are not constituted as inferior courts in our constitutional scheme. 19. Thus, 'there is no manner of doubt that the orders and proceedings of a judicial court subordinate to High Court are amenable to writ jurisdiction of the High Court under article 226 of the Constitution. 20. Authority in abundance is available for the proposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the High Court by article 226 in the sense that the power of superintendence is not subject to those, technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction. Else the parameters invoking the exercise of power are almost similar. 23. The history of supervisory jurisdiction exercised by the High Court, and how the jurisdiction has culminated into its present shape under article 227 of the Constitution, was traced in Waryam Singh v. Amarnath [1954] SCR 565; AIR 1954 SC 215. The, jurisdiction can be traced back to section 15 of the High Courts Act, 1861 which gave a power of judicial superintendence to the High Court apart from and independently of the provisions of other laws conferring revisional jurisdiction on the High Court. Section 107 of the Government of India Act 1915 and then section 224 of the Government of India Act 1935, were similarly worded and reproduced the predecessor provision. However, sub-section (2) was added in section 224 which confined the jurisdiction of the High Court to such judgments of the inferior courts which were not otherwise subject to appeal or revision. That restriction has not been carried forward in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diction and in this sense it is akin to appellate revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction the High Court may not only quash ON set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, may be by way of guiding the inferior court or tribunal as to the manner in which it would now, proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made. Lastly, the Jurisdiction under article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well. 26. In ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts within the bounds of their authority and not for correcting mere errors; (iii) that the power of judicial interference under article 227 of the Constitution is not greater than the power under article 226 of the Constitution'; (iv) that the power of superintendence under article 227 of the Constitution cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as the court of appeal; the High Court cannot, in exercise of its jurisdiction under article 227, convert itself into a court of appeal. 28. Later, a two-judge Bench of this court in Baby v. Travancore Devaswom Board [1998] 8 SCC 310, clarified that in spite of the revisional jurisdiction being not available to the High Court, it still had powers under article 227 of the Constitution of India to quash the orders passed by the Tribunals if the findings of fact had been arrived at by non-consideration of the relevant and material documents, the consideration of which could have led to an opposite conclusion. This power of the High Court under the Constitution of India is always in addition to the revisional jurisdiction conferred on it. Does the amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uperintendence over the courts constituted by the ordinance was still available. The Governor-General cannot control the powers conferred on the High Court by an Act of Imperial Parliament. However, speaking of the care and caution to be observed while exercising the power of superintendence though possessed by the High Court, the learned Chief Justice held that the power of superintendence is not the same thing as the hearing of an appeal. An illegal conviction may be set aside under power of superintendence but we must exercise our discretion on judicial grounds, and only interfere if considerations of justice require us to do so'. 31. In Manmatha Nath Biswas v. Emperor [1932-33] 37 CWN 201; AIR 1933 Cal 132, a conviction based on no legal reason and unsustainable in law came up for the scrutiny of the High Court under the power of superintendence in spite of right of appeal having been allowed to lapse. Speaking of the nature of power of superintendence, the Division Bench, speaking through Chief Justice Rankin, held that the power of superintendence vesting in the High Court under section 107 of the Government of India Act, 1915, is not a limitless power available to be e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for which an opportunity was prayed to be allowed. The court observed (SCC page 674, paragraph 36): 'If any remedy is available to a party... no liberty is necessary to be granted for availing the same'. 34. We are of the opinion that the curtailment of revisional jurisdiction of the High Court does not take away--and could not have taken away--the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil court nor the power of superintendence conferred on the High Court under article 227 of the Constitution is taken away or whittled down. The power exists, untrammelled by the amendment in section 115 of the CPC, and is available to be exercised subject to rules of self discipline and practice which are well-settled. 35. We have carefully perused the Full Bench decision of the Allahabad High Court in Ganga Saran v. Civil Judge, Hapur, AIR 1991 All 114 [FB] relied on by learned counsel for the respondent and referred to in the impugned order of the High Court. We do not think that the decision of the Full Bench has been correctly read. Rather, vide paragraph 11, the Full Bench has itself held that where the order of the civil court suffers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h v. ITO [1965] 57 ITR 349 (SC); [1965] 3 SCR 536, which have held in no uncertain terms, as the law has always been, that a writ of certiorari is issued against the acts or proceedings of a judicial or quasi-judicial body conferred with power to determine questions affecting the rights of subjects and obliged to act judicially. We are therefore of the opinion that the writ of certiorari is directed against the act, order of proceedings of the subordinate court, it can issue even if the lis is between two private parties. 38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder: "(1) Amendment by Act No. 46 of 1999 with effect from July 1, 2002 in section115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under articles 226 and 227 of the Constitution. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a court of appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. (9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in [2007] 6 MLJ 1152 (Mad), at paragraph 28, this Court held thus: "28. Therefore, the consistent judicial pronouncement by the Supreme Court as well as this court makes it very clear that in case where the lower court passes an order which cannot be accepted by any prudent sense, it is always open to the High Court under article 227 of the Constitution of India to correct the same by exercising the right of superintendence." (vi) In B.K. Muniraju v. State of Karnataka reported in [2008] 4 SCC 451, the Hon'ble Supreme Court, at paragraphs 22 to 25, held as follows: (page 456): "22. It is settled law that a writ of certiorari can only be issued in exercise of extraordinary jurisdiction which is different from appellate jurisdiction. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals or authorities in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice. In regard to a finding of fact recorded by an inferior tribunal or authority, a writ of certiorari can be issued o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can interfere with an order passed by a court, which has patently usurped the jurisdiction exercisable by any other court and there is no impediment to interfere with the same, if the courts, subordinate to the High Court are allowed to transgress their powers by touching the subjects, which are not ear marked for them, the justice will not be rendered to the needy persons. Under supervisory jurisdiction, the High Court has got every power to correct the orders and decisions of the courts below, which are passed without jurisdiction, particularly when they are not specifically conferred with power to try a particular subject." (viii) In World Wide Brands Inc. v. Smt. Dayavanthi Jhamnadas Hinduja [2009] 1 LW 658 (Mad), a Hon'ble Division Bench of the Madras High Court, at paragraphs 11 to 22, considered a catena of judgments and held as follows: "11. In Waryam Singh v. Amarnath [1954] SCR 565; AIR 1954 SC 215, the apex court has held that the power of superintendence conferred by article 227 of the Constitution is to be exercised more sparingly and only in appropriate case in order to keep the subordinate courts within the bounds of their authority and not for correcting me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndings are perverse and not based on any material evidence or it resulted in manifest injustice. Except to the limited extent indicated above, the High Court has no jurisdiction. In our opinion therefore, in the facts and circumstances of this case on the question that the High Court has sought to interfere, it is manifest that the High Court has gone into questions which depended upon appreciation of evidence and indeed the very fact that the learned trial judge came to one conclusion and the Appellate Bench came to another conclusion is indication of the position that two views were possible in this case. In preferring one view to another of factual appreciation of evidence, the High Court transgressed its limits of jurisdiction under article 227 of the Constitution. On the first point, therefore, the High Court was in error." 18. In Ouseph Mathai v. M. Abdul Khadir [2002] 1 SCC 319, the Hon'ble Apex court, in paragraph 4, held thus: 'It is not denied that the powers conferred upon the High Court under articles 226 and 227 of the Constitution are extraordinary and discretionary powers as distinguished from ordinary statutory powers. No doubt, article 227 confers a rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 could not be exercised "as the cloak of an appeal in disguise". 20. In Surya Deo Rai v. Ram Chander Rai [2003] 6 SCC 675, the Hon'ble Apex court has held that exercise of power under article 226 is available only to correct the error committed by the court or the authority and the error should be self-evidence. The Hon'ble Apex Court had also cautioned that such an error which needs to be established by lengthy and complicated arguments or by indulging in a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. 21. In Ranjeet Singh v. Ravi Prakash [2004] 3 SCC 682 the Hon'ble Apex court has held that unless, the High Court finds patent error in the order of the Tribunal or appellate board, it would not be proper to interfere in such order in exercise of jurisdiction under article 227 of the Constitution. 22. The Superintendence power of the High Court under article 227 of the Constitution of India, over all courts and Tribunals is basically to keep the subordinate courts/Tribunals/Appellate Authorities constituted under statutes within their bounds and not for correcting mere errors. The exercise of power is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry remedite before a writ is granted is a rule of self-imosed limitation, a rule of policy, and discretion rather than a rule of law and the court may therefore, in exceptional cases issue a writ such as a writ of certiorari, notwithstanding the fact that the statutory remedies have not been exhausted." (ii) In Mohammed Nooh (supra), the Hon'ble Supreme Court held thus: " ......... If, therefore, the existence of other adequate legal remedies is not per se a bar to the issue of a writ of certiorari and if in a proper case it may be the duty of the superior court to issue a writ of certiorari to correct the errors of an inferior court or tribunal called upon to exercise judicial or quasi-judicial functions and not to relegate the petitioner to other legal remedies available to him and if the superior court can in a proper case exercise its jurisdiction in favour of a petitioner who has allowed the time to appeal to expire or has not perfected his appeal ......... " (iii) In Ramesh Ahluwalia (supra), the Hon'ble Supreme Court held thus: " ............ The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still hold field." 89. It is worthwhile to reproduce the decisions considered in Nivedita Sharma (cited supra) as hereunder: "11. We have considered the respective arguments/submissions. There cannot be any dispute that the power of the High Courts to issue directions, orders or writs including writs in the nature of habeas corpus, certiorari, mandamus, quo warranto and prohibition under Art.226 of the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary legislation L. Chandra Kumar v. Union of India 1997 (3) SCC 261. However, it is one thing to say that in exercise of the power vested in it under Art.226 of the Constitution, the High Court can entertain a writ petition against any order passed by or action taken by the State and/or its agency/instrumentality or any public authority or order passed by a quasi - judicial body/authority, and it is an altogether different thing to say that each and every petition filed under Art.226 of the Constitution must be entertained by the High Court as a matter of cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Gordon Grant and Co. Ltd. 1935 AC 532 and Secy. of State v. Mask and Co. (1939-40) 67 IA 222 : AIR 1940 PC 105. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine." 14. In Mafatlal Industries Ltd. v. Union of India 1997 (5) SCC 536, B. P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed: "So far as the jurisdiction of the High Court under Art.226 or for that matter, the jurisdiction of this Court under Art.32 is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Art.226/Art.32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment." 90. In New Saravana Stores Bramandamai (supra), challenge was to the correctness of a common order directing the appellants therein to avail the alternate remedy provided under the Statute. While dismissing the writ petitions, wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ. It will be a sound exercise of discretion to refuse to interfere in a petition under Article 226 of the Constitution, unless there are good grounds to do, otherwise. (ii) In C.A. Ibrahim v. ITO, AIR 1961 SC 609, H.B. Gandhi v. M/s. Gopinath & sons, 1992 (Suppl) 2 SCC 312 and in Karnataka Chemical Industries v. Union of India, 1999 (113) E.L.T. 17(SC) : 2000 (10) SCC 13, the Hon'ble Supreme Court held that where there is a hierarchy of appeals provided by the statute, the party must exhaust the statutory remedies before resorting to writ jurisdiction. (iii) The general principles of law to be followed while entertaining a writ petition, when an alternative remedy is available, as per the decision of the Hon'ble Apex Court in U.P. State Spinning Co. Ltd. v. R.S. Pandey and Another [2005] 8 SCC 264, at para No. 11 are as follows: "Except for a period when Article 226 was amended by the Constitution (Forty-Second Amendment) Act, 1976, the power relating to al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution. 45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision etc., and the particular legislation contains a detailed mechanism for redressal of his grievance." (v) In Nivedita Sharma v. Cellular Operators Association of India ((2011) 14 Supreme Court Cases 337), the Hon'ble Apex Court held thus:- "An alternative remedy is not a bar to the entertaining of writ petition filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order under challenge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ram and Shyam Co. v. State of Haryana [1985] 3 SCC 267, this Court has noticed that if an appeal is from "Caesar to Caesar's wife", the existence of alternative remedy would be a mirage and an exercise in futility. 17. In the instant case, neither has the writ petitioner assessee described the available alternate remedy under the Act, as ineffectual and non-efficacious while invoking the writ jurisdiction of the High Court nor has the High Court ascribed cogent and satisfactory reasons to have exercised its jurisdiction in the facts of the instant case. In light of the same, we are of the considered opinion that the writ Court ought not to have entertained the writ petition filed by the assessee, wherein he has only questioned the correctness or otherwise of the notices issued under section 148 of the Act, the reassessment orders passed and the consequential demand notices issued thereon. 18. In view of the above, we allow this appeal and set aside the judgment and order passed by the High Court in Chhabil Dass Agarwal v. Union of India (W.P.(c) No. 44 of 2009, decided on 5/10/2010). We grant liberty to the respondent, if he so desires, to file an appropriate petition/appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Dunlop India Ltd. ((1985) 1 SCC 260), Ramendra Kishore Biswas v. State of Tripura ((1999) 1 SCC 472, Shivgonda Anna Patil v. State of Maharashtra ((1999) 3 SCC 5), C.A. Abraham v. ITO ((1961) 2 SCR 765), Titaghur Paper Mills Co Ltd., v. State of Orissa ((1983) 2 SCC 433), H.B. Gandhi v. Gopi Nath & Sons (1992 Supp (2) SCC 312), Whirlpool Corpn v. Registrar of Trade Marks ((1998) 8 SCC 1), Tin Plate Co. of India Ltd., v. State of Bihar ((1998) 8 SCC 272), Sheela Devi v. Jaspal Singh ((1999) 1 SCC 209) and Punjab National Bank v. O.C. Krishnan ((2001) 6 SCC 569), this Court held that where hierarchy of appeals is provided by the statute, the party must exhaust the statutory remedies before resorting to writ jurisdiction." 91. Giving due consideration to the facts of this case and the decisions cited supra, we are of the view that the instant writ petition filed under Article 226 of the Constitution of India was not maintainable on the ground that there is an alternative remedy. Judicial orders of the Court/Tribunal can be challenged only under Article 227 of the Constitution of India and not under Article 226. 92. In the case on hand, admittedly, all parties in the writ petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... college was seeking reinstatement in service. The Court refused to grant the relief although it was found that the dismissal was wrongful. This Court instead granted substantial monetary benefits to the lecturer. This appears to be the preponderant judicial opinion because of the common law principle that a service contract cannot be specifically enforced. 14. But here the facts are quite different and, therefore, we need not go thus far. There is no plea for specific performance of contractual service. The respondents are not seeking a declaration that they be continued in service. They are not asking for mandamus to put them back into the college. They are claiming only the terminal benefits and arrears of salary payable to them. The question is whether the trust can be compelled to pay by a writ of mandamus ? 15. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to Mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guards. In particular, in order to qualify, the applicant had to get the leave of a judge. The Statute is phrased in flexible terms, It gives scope for development. It uses the words "having regard to". Those words are very indefinite. The result is that the courts are not bound hand and foot by the previous law. They are to 'have regard to' it. So the previous law as to who are-and who are not- public authorities, is not absolutely binding. Nor is the previous law as to the matters in respect of which relief may be granted. This means that the judges can develop the public law as they think best. That they have done and are doing. (See-The Closing Chapter by Rt. Hon Lord Denning p. 122)." 17. There, however, the prerogative writ of mandamus is confined only to public authorities to compel performance of public duty. The 'public authority' for them mean every body which is created by statute and whose powers and duties are defined by statute. So Government Departments local authorities, police authorities and statutory undertakings and corporations, are all 'public authorities'. But there is no such limitation for our High Courts to issue the writ 'i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself." 20. The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "Any parson or authority" used in Article 226 are. therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court is dismissed." (iii) In Federal Bank Ltd. v. Sagar Thomas [2003] 10 SCC 733], the Hon'ble Supreme Court observed as under: "18. From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Govt); (ii) Authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature (viii) a person or a body under liability to discharge any function under any Statute, to compel it to perform such a statutory function." 93. Now, let us consider a few decisions on the aspect of the powers exercised under Articles 226 and 227 of the Constitution of India, as under: (i) In Hindustan Petroleum Corporation Ltd. v. Dolly Das [1999] 4 SCC 450, when contractual rights were sought to be enforced by filing a writ petition under Article 226 of the Constitution of India, the Hon'ble Apex Court, at para 7, held thus: "7. In the absence of constitutional or statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Court to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution of India with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself...." 10. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e inapplicable: the rights of its members depend upon their contract of membership, and are to be protected by declaration and injunction, which accordingly are the remedies employed in such cases." 11. Judicial review is designed to prevent the cases of abuse of power and neglect of duty by public authorities. However, under our Constitution, Article 226 is couched in such a way that a writ of mandamus could be issued even against a private authority. However, such private authority must be discharging a public function and that the decision sought to be corrected or enforced must be in discharge of a public function. The role of the State expanded enormously and attempts have been made to create various agencies to perform the governmental functions. Several corporations and companies have also been formed by the government to run industries and to carry on trading activities. These have come to be known as Public Sector Undertakings. However, in the interpretation given to Article 12 of the Constitution, this Court took the view that many of these companies and corporations could come within the sweep of Article 12 of the Constitution. At the same time, there are private bodie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver and Merges, Ex parte Datafin Plc. and Anr. [1987] 1 QBD 815, a question arose whether the Panel of Take-over and Mergers had acted in concert with other parties in breach of the City Code on Take-over and Mergers. The panel dismissed the complaint of the applicants. Though the Panel on Take-over and Mergers was purely a private body, the Court of Appeal held that the supervisory jurisdiction of the High Court was adaptable and could be extended to any body which performed or operated as an integral part of a system which performed public law duties, which was supported by public law sanctions and which was under an obligation to act judicially, but whose source of power was not simply the consent of those over whom it exercised that power; that although the panel purported to be part of a system of self-regulation and to derive its powers solely from the consent of those whom its decisions affected, it was in fact operating as an integral part of a governmental framework for the regulation of financial activity in the City of London, was supported by a periphery of statutory powers and penalties, and was under a duty in exercising what amounted to public powers to act judiciall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are what can be described as a public element, which can take many different forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to is jurisdiction." 16. The above guidelines and principles applied by English courts cannot be fully applied to Indian conditions when exercising jurisdiction under Article 226 or 32 of the Constitution. As already stated, the power of the High Courts under Article 226 is very wide and these powers have to be exercised by applying the constitutional provisions and judicial guidelines and violation, if any, of the fundamental rights guaranteed in Part III of the Constitution. In the matter of employment of workers by private bodies on the basis of contracts entered into between them, the courts had been reluctant to exercise the powers of judicial review and whenever the powers were exercised as against private employers, it was solely done based on public law element involved therein. 17. This view was expressly stated by this Court in various decisions and one of the earliest decisions is The Praga Tools Corporation v. Shri C.A. Imanual and Ors. [1969] II LLJ 479 SC. In this case, the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatutory or public duty. The High Court, therefore, was right in holding that no writ petition for a mandamus or an order in the nature of mandamus could lie against the company." 18. It was also observed that when the High Court had held that the writ petition was not maintainable, no relief of a declaration as to invalidity of an impugned agreement between the company and its employees could be granted and that the High Court committed an error in granting such a declaration. 19. In VST Industries Limited v. VST Industries Workers' Union and Anr. 2000 (8) SCALE 95, the very same question came up for consideration. The appellant-company was engaged in the manufacture and sale of cigarettes. A petition was filed by the first respondent under Article 226 of the Constitution seeking a writ of mandamus to treat the members of the respondent Union, who were employees working in the canteen of the appellant's factory, as employees of the appellant and for grant of monetary and other consequential benefits. Speaking for the Bench, Rajendra Babu, J., (as he then was), held as follows : "7. In de Smith, Woolf and Jowell's Judicial Review of Administrative Action, 5th Edn. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmally govern the dispute." 20. Applying the above principles, this Court held that the High Court rightly held that it had no jurisdiction. 21. Another decision on the same subject is General Manager, Kisan Sahkar Chini Mills Limited, Sultanpur, UP v. Satrughan Nishad and Ors. [2003] III LLJ 1108 SC. The appellant was a cooperative society and was engaged in the manufacture of sugar. The respondents were the workers of the appellant and they filed various writ petitions contending that they had to be treated as permanent workmen. The appellant challenged the maintainability of those writ petitions and applying the principles enunciated in VST Industries' case (supra), it was held by this Court that the High Court had no jurisdiction to entertain an application under Article 226 of the Constitution as the mill was engaged in the manufacture and sale of sugar which would not involve any public function. 22. In Federal Bank Limited v. Sagar Thomas and Ors. [2004] ILLJ 161 SC, the respondent was working as a Branch Manager of the appellant Bank. He was suspended and there was a disciplinary enquiry wherein he was found guilty and dismissed from service. The respondent challe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. According to Halsbury's Laws of England 3rd ed. Vol. 30, page-682, "a public authority is a body not necessarily a county council, municipal corporation or other local authority which has public statutory duties to perform and which perform the duties and carries out its transactions for the benefit of the public and not for private profit." There cannot be any general definition of public authority or public action. The facts of each case decide the point. 30. A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. But nevertheless it may be noticed that the Government or Government authorities at all levels is increasingly employing contractual techniques to achieve its regulatory aims. It cannot be said that the exercise of those powers are free from the zone of judicial review and that there would be no limits to the exercise of such powers, but in normal circumstances, judicial review principles cannot be used to enforce the contractual obligations. When that contractual power is being used for public purpose, it is certainly amenable to judicial review. The power must be used for la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the action taken by the respondent company." (iii) In U.P. State Spinning Co. Ltd. v. R.S. Pandey [2005] 8 SCC 264, termination of employment was challenged by way of a Writ Petition under Article 226 of the Constitution of India, despite the availability of an alternative remedy under Industrial Tribunal. The Hon'ble Apex Court laid down the principle of law, as to when a Writ Petition can be entertained, at paragraphs 11, 16 and 17, hereunder; "11. Except for a period when Article 226 was amended by the Constitution (42nd Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction of discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the" statute. It was noted by this Court in L. Hirday Narain v. Income-tax Officer, Bareilly, [1970] 78 ITR 26 (SC) that if the High Court had entertained a petition despite availability of alternative remedy and heard the parties on merits it would be ordinarily unjustifiable for the High Court to dismiss the same on the ground of non exhaustion of statutory remedies; unless the High Court finds that factual disputes are involved and it would not be desirable to deal with them in a writ petition." (iv) In City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala [2009] 1 SCC 168, the Hon'ble Apex Court considered, as to whether the writ court should do while exercising the extrao ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposing of the Writ Petition and the Review Petition." (v) In Ram Kishan Fauji v. State of Haryana [2017] 5 SCC 533, the issue considered by the Hon'ble Supreme Court was whether a letter patent appeal is maintainable against the judgement rendered in a writ petition. The Hon'ble Apex Court held as under: "32. In this regard, reference to Umaji Keshao Meshram and Ors. v. Radhikabai and Anr. 1986 (Supp.) SCC 401 would be fruitful. In the said case, the controversy arose whether an appeal lies under clause 15 of the Letters Patent of the Bombay High Court to a Division Bench of two judges of that High Court from the judgment of a Single Judge of that High Court in a petition filed Under Article 226 or 227 of the Constitution of India. The Court referred to the Letters Patent of Calcutta, Bombay and Madras High Courts which are pari materia in the same terms with minor variations that have occurred due to amendments made subsequently. The Court referred to the provisions of the Government of India Act, the Indian Independence Act, 1947 and the debates of the Constituent Assembly and observed that the historical evidence shows that our Constitution did not make a break wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against persons, authorities and the State. The power of superintendence conferred upon every High Court by Article 227 is a supervisory jurisdiction intended to ensure that subordinate courts and tribunals act within the limits of their authority and according to law (see State of Gujarat v. Vakhatsinghji Vajesinghji Vaghela AIR 1968 SC 1481 and Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand [1973] 1 SCR 185). The orders, directions and writs Under Article 226 are not intended for this purpose and the power of superintendence conferred upon the High Courts by Article 227 is in addition to that conferred upon the High Courts by Article 226. Though at the first blush it may seem that a writ of certiorari or a writ of prohibition partakes of the nature of superintendence inasmuch as at times the end result is the same, the nature of the power to issue these writs is different from the supervisory or superintending power Under Article 227. The powers conferred by Articles 226 and 227 are separate and distinct and operate in different fields. The fact that the same result can at times be achieved by two different processes does not mean that these two processes are the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution, shall be filed on the Appellate Side of the High Court and be heard and disposed of by a Division bench to be appointed by the Chief Justice. The application shall set out therein the relief sought and the grounds on which it is sought. It shall be solemnly affirmed or supported by an affidavit. In every such application, the applicant shall state whether he has made any other application to the Supreme Court or the High Court in respect of the same matter and how that application is disposed of. (ii) Application to inform Court, if, during pendency of an application, the Supreme Court is approached. If the applicant makes an application to the Supreme Court in respect of the same matter during the pendency of the application in the High Court, he shall forthwith bring this fact to the notice of the High Court by filing an affidavit in the case and shall furnish a copy of such affidavit to the other side. (iii) Hearing may be adjourned pending decision by Supreme Court. The Court may adjourn the hearing of the application made to it pending the decision of the Supreme Court in the matter. (iv) R.2 to 16 to apply mutatis mutandis. Provision of R.2 to 16 above sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally within Greater Bombay, be heard and disposed of by such one of the Judges sitting on the Original Side or any specially constituted Bench as the Chief Justice may appoint. The application shall be by petition setting out therein the relief sought and the grounds on which it is sought. The petition shall be supported by an affidavit. In every such petition the petitioner shall state whether he has made any other application to the Supreme Court or the High Court in respect of the same matter and how that application has been disposed of. The petitioner shall move for a Rule Nisi in open Court. If the Petitioner makes an application to the Supreme Court in respect of the same matter during the pendency of the petition in the High Court, he shall forthwith bring this fact to the notice of the High Court by filing an affidavit in the case and shall furnish a copy of such affidavit to the other side. The Court may adjourn the hearing of the application made to it pending the decision of the Supreme Court in the matter." 27. From a perusal of paragraph 4 of Jhaman (supra) it is clear that to a proceeding under Art.227 of the Constitution of India only the appellate side rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been separately dealt with under the said rules. 33. The High Court's power of superintendence under Art.227 of the Constitution has its origin as early as in Indian High Courts Act of 1861. This concept of superintendence has been borrowed from English Law. 34. The power of superintendence owes its origin to the supervisory jurisdiction of King's Bench in England. In the Presidency towns of the then Calcutta, Bombay, Madras initially Supreme Court was established under the Regulating Act of 1973. Those Courts were endowed with the power of superintendence, similar to the powers of Kings Bench under the English Law. Then the Indian High Courts in three Presidency towns were endowed with similar jurisdiction of superintendence. Such power was conferred on them under S.15 of the Indian High Courts Act, 1861. 35. S.15 of the Indian High Courts Act of 1861 runs as under: "15. Each of the High Courts established under this Act shall have superintendence over all Courts which may be subject to its Appellate Jurisdiction, and shall have Power to call for Returns, and to direct the Transfer of any Suit or Appeal for any such Court to any other Court of equal or superior J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce over all Courts in India for the time being subject to its appellate jurisdiction, and may do any of the following things, that is to say,-- (a) call for returns; (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts; and (d) settle tables of fees to be allowed to the sheriff, attorneys and all clerks and officers of courts: Provided that such rules, forms and tables shall not be inconsistent with the provisions of any law for the time being in force, and shall require the previous approval of the Governor. (2) Nothing in this Section shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior Court which is not otherwise subject to appeal or revision." 38. The history of this power has been elaborately traced by a Division Bench of Calcutta High Court in the case of Jahnabi Prosad Banerjee and Another v. Basudeb Paul and Others reported in AIR 1950 Calcutta 536 and that was followed in a Division Bench Judgment of Allahabad High Court in Sukhdeo Baiswar v. Bri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort). 43. In stating the aforesaid principles, Chief Justice Harries relied on what was said by Chief Justice George Rankin in Manmatha Nath Biswas v. Emperor reported in AIR 1933 Calcutta 132. At page 134, the learned Chief Justice held: "...superintendence is not a legal fiction whereby a High Court Judge is vested with omnipotence but is as Norman, J., had said a term having a legal force and signification. The general superintendence which this Court has over all jurisdiction subject to appeal is a duty to keep them within the bounds of their authority, to see that they do what their duty requires and that they do it in a legal manner. It does not involve responsibility for the correctness of their decisions, either in fact or law." 44. Justice Nasir Ullah Beg of Allahabad High Court in a very well considered judgment rendered in the case of Jodhey and Others v. State through Ram Sahai reported in AIR 1952 Allahabad 788, discussed the provisions of S.15 of the Indian High Courts Act of 1861, S.107 of the Government of India Act 1915 and S.224 of the Government of India Act 1935 and compared them with almost similar provisions of Art.227 of the Constitution. 45. The lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls subordinate to the High Court 'within the bounds of their authority' used in Manmatha Nath Biswas (supra), to indicate the ambit of High Court's power of superintendence has been repeated over again and again by this Court in its Constitution Bench decisions. 50. Same principles have been followed by this Court in the case of Mani Nariman Daruwala @ Bharucha (deceased) through Lrs. and Others v. Phiroz N. Bhatena and Others etc. reported in [1991] 3 SCC 141, wherein it has been held that in exercise of its jurisdiction under Art.227, the High Court can set aside or reverse finding of an inferior Court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the Court or tribunal has come to. This Court made it clear that except to this 'limited extent' the High Court has no jurisdiction to interfere with the findings of fact (see para 18, page 149-150). 51. In coming to the above finding, this Court relied on its previous decision rendered in the case of Chandavarkar Sita Ratna Rao v. Ashalata S. Guram reported in [1986] 4 SCC 447. The decision in Chandavarkar (supra) is based on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction." 56. Sub-paras (5), (7) and (8) of para 38 are also on the same lines and extracted below: "(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. (6). ** ** ** (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i (supra), para 25 page 690 and also the decision of the Constitution Bench of this Court in Hari Vishnu Kamath v. Ahmad Ishaque and Others, AIR 1955 SC 233, para 20 page 243). 61. Jurisdiction under Art.226 normally is exercised where a party is affected but power under Art.227 can be exercised by the High Court suo motu as a custodian of justice. In fact, the power under Art.226 is exercised in favour of persons or citizens for vindication of their fundamental rights or other statutory rights. Jurisdiction under Art.227 is exercised by the High Court for vindication of its position as the highest judicial authority in the State. In certain cases where there is infringement of fundamental right, the relief under Art.226 of the Constitution can be claimed ex - debito justicia or as a matter of right. But in cases where the High Court exercises its jurisdiction under Art.227, such exercise is entirely discretionary and no person can claim it as a matter of right. From an order of a Single Judge passed under Art.226, a Letters Patent Appeal or an intra Court Appeal is maintainable. But no such appeal is maintainable from an order passed by a Single Judge of a High Court in exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and 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 just 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) High Court's power of superintendence under Art.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 the case of L. Chandra Kumar v. Union of India and Others reported in 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 S.115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents in a writ petition. Under the phraseology of Art.226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform. 65. Reference in this connection may be made to the Constitution Bench decision of this Court in the case of Sohan Lal v. Union of India and Another reported in AIR 1957 SC 529. 66. The facts in Sohan Lal (supra) are that Jagan Nath, a refugee from Pakistan, filed a writ petition in the High Court of Punjab against Union of India and Sohan Lal alleging unauthorized eviction from his residence and praying for a direction for restoration of possession. The High Court directed Sohan Lal to restore possession to Jagan Nath. Challenging that order, Sohan Lal approached this Court. The Constitution Bench of this Court accepted the appeal and overturned the verdict of the High Court. 67. In paragraph 7, page 532 of the judgment, the unanimous Constitution Bench speaking though Justice Imam, laid down a few salutary principles which are worth remembering and are set out: "7. The eviction of Jagan Nath was in contravention of the express provisions of S.3 of the Public Premises ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed by the Sub-Registrar (Registration) dated 28th June 2008. The appellant further prayed for a declaration that the Extinguishment Deed dated 9th August 2001 as well as the subsequent two deeds dated 21st April, 2004 and 11th July, 2006 are void ab initio, with a further direction to the Inspector General (Registration) and the Sub-Registrar (Registration) to record the cancellation of those documents. The Hon'ble High Court of Madhya Pradesh dismissed the Writ Petition primarily on the ground that the appellant therein had already resorted to a remedy (a dispute) before the appropriate Forum under the Act of 1960, which was pending; and held that the declaration, as sought for can be considered in those proceedings after recording of the evidence and production of other material to be relied on by the parties therein. Accordingly, the Court held that since an alternative remedy before a competent Forum was available and was pending between the parties, it was not feasible to invoke the writ jurisdiction Under Article 226 of the Constitution of India. Indeed, the High Court adverted to the reported cases relied on by the parties to buttress their stand. Relevant p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was right in refusing to interfere and exercise its writ jurisdiction. 25. It is a well established position that the remedy of Writ Under Article 226 of the Constitution of India is extra-ordinary and discretionary. In exercise of writ jurisdiction, the High Court cannot be oblivious to the conduct of the party invoking that remedy. The fact that the party may have several remedies for the same cause of action, he must elect his remedy and cannot be permitted to indulge in multiplicity of actions. The exercise of discretion to issue a writ is a matter of granting equitable relief. It is a remedy in equity. In the present case, the High Court declined to interfere at the instance of the Appellant having noticed the above clinching facts. No fault can be found with the approach of the High Court in refusing to exercise its writ jurisdiction because of the conduct of the Appellant in pursuing multiple proceedings for the same relief and also because the Appellant had an alternative and efficacious statutory remedy to which he has already resorted to. This view of the High Court has found favour with Justice Dipak Misra. We respectfully agree with that view." (ii) In Wayne Burt Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Director of Mines & Geology, seeking the benefit of deemed extension of the lease beyond 25-5-2018 upto 31-3-2020 in terms of section 8A(6) of the Mines & Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as MMDR Act, 1957). (v) Finding that there was no response, the Interim Resolution Professional filed a writ petition in WP No. 23075 of 2018 on the file of the High Court of Karnataka, seeking a declaration that the mining lease should be deemed to be valid upto 31-3-2020 in terms of section 8A(6) of the MMDR Act, 1957. (vi) During the pendency of the writ petition, the Government of Karnataka passed an Order dated 26-9-2018, rejecting the proposal for deemed extension, on the ground that the Corporate Debtor had contravened not only the terms and conditions of the Lease Deed but also the provisions of Rule 37 of the Mineral Concession Rules, 1960 and Rule 24 of the Minerals (Other than Atomic and Hydro Carbons Energy Minerals) Rules, 2016. (vii) In view of the Order of rejection passed by the Government of Karnataka, the Corporate Debtor, represented by the Interim Resolution Professional, withdrew the Writ Petition No. 23075 of 2018) on 28-9- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mining lease. (xiii) Overruling the objections of the State, the NCLT Chennai passed an Order dated 3-5-2019 allowing the Miscellaneous Application, setting aside the order of rejection and directing the Government of Karnataka to execute Supplemental Lease Deeds. (xiv) Challenging the Order of the NCLT, Chennai, the Government of Karnataka moved a writ petition in WP No. 41029 of 2019 before the High Court of Karnataka. When the writ petition came up for orders as to admission, the Corporate Debtor represented by the Resolution Professional appeared through counsel and took notice and sought time to get instructions. Therefore, the High Court, by an Order dated 12-9-2019 adjourned the matter to 23-9-2019 and granted a stay of operation of the direction contained in the impugned Order of the Tribunal. Interim Stay was necessitated in view of a Contempt Application moved by the Resolution Professional before the NCLT against the Government of Karnataka for their failure to execute Supplement Lease deeds. (xv) It is against the said ad Interim Order granted by the High Court that the Resolution Applicant, the Resolution Professional and the Committee of Creditors have come up w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Supreme Court had stated as follows:-- "44. One of the examples cited as an abuse of the process of the court is re-litigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to re-litigate the same issue which has already been tried and decided earlier against him. The re-agitation may or may not be barred as res judicata. But if the same issue is sought to be re-agitated, it also amounts to an abuse of the process of the court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the court especially where the proceedings are absolutely groundless. The court then has the power to stop such proceedings summarily and prevent the time of the public and the court from being wasted. Undoubtedly, it is a matter of the court's discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued in violation of their fundamental rights as well as the whole of the population, numbering about 65,000, residing in the locality covered by those orders. Being aggrieved, appellants filed W.P.(C) No. 10542 of 2020, seeking to call for the records leading to Exhibits-P1 and P2 orders dated 15-12-2019 and 10-2-2020 respectively, and to issue a writ of certiorari or any other writ, order or direction, in the nature of certiorari, to quash Exhibit-P2. Writ court, after considering the submissions advanced and perusing the materials on record, by judgment dated 17-6-2020, disposed of W.P.(C) No. 10542/2020, holding that appellants/writ petitioners are free to take up the matter before the Government, by filing an application, as provided under section 144(6) of the Cr.P.C. Writ court further held that if the appellants do so, the Government shall consider their representations and pass a speaking order, after hearing them or their representatives, by any convenient means, including video conferencing. "13. Before the writ court, learned counsel for the appellants had relied on the decisions of the Hon'ble Supreme Court in Jagdishwaranand Avadhuta v. Commissioner of Polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion of India [(2007) 6 SCC 120], the Hon'ble Supreme Court, at Paragraphs 11 to 14, held as follows: "11. The court's jurisdiction to determine the lis between the parties, therefore, may be viewed from the human rights concept of access to justice. The same, however, would not mean that the court will have no jurisdiction to deny equitable relief when the complainant does not approach the court with a pair of clean hands; but to what extent such relief should be denied is the question. 12. It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. It is also trite that a person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication were asked, or to rescission in connection with a matter not in any way connected with the bribe. Therefore that point, which was argued with great strenuousness by counsel for the defendant, Hatt, appears to me to fail, and we have to consider the merits of the case." 14. In Halsbury's Laws of England, 4th Edn., Vol. 16, pp. 874-76, the law is stated in the following terms: "1303. He who seeks equity must do equity. "In granting relief peculiar to its own jurisdiction a court of equity acts upon the rule that he who seeks equity must do equity. By this it is not meant that the court can impose arbitrary conditions upon a plaintiff simply because he stands in that position on the record. The rule means that a man who comes to seek the aid of a court of equity to enforce a claim must be prepared to submit in such proceedings to any directions which the known principles of a court of equity may make it proper to give; he must do justice as to the matters in respect of which the assistance of equity is asked. In a court of law it is otherwise: when the plaintiff is found to be entitled to judgment, the law must take its course; no terms can be imposed. * * * 1305. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter. 34. The object underlying the above principle has been succinctly stated by Scrutton, L.J., in R v. Kensington Income-tax Commissioners [(1917) 1 KB 486 : 86 LJ KB 257 : 116 LT 136], in the following words: "(I)t has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should made a full and fair disclosure of all the material facts, not law. He must not misstate the law if he can help the Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside, any action which it has taken on the faith of the imperfect statement". (Emphasis Supplied) 35. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a Writ Court will indeed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of the importance of any fact which he has omitted to bring forward." 55. In Castelli v. Cook [1849 (7) Hare, 89, 94], Vice Chancellor Wigram, formulated the same principles as follows: "A plaintiff applying ex parte comes under a contract with the Court that he will state the whole case fully and fairly to the Court. If he fails to do that, and the Court finds, when the other party applies to dissolve the injunction, that any material fact has been suppressed or not properly brought forward, the plaintiff is told that the Court will not decide on the merits, and that, as has broken faith with the Court, the injunction must go." 56. In the case of Republic of Peru v. Dreyfus Brothers & Company [55 L.T. 802, 803], Justice Kay reminded us of the same position by holding thus: "...If there is an important misstatement, speaking for myself, I have never hesitated, and never shall hesitate until the rule is altered, to discharge the order at once, so as to impress upon all persons who are suitors in this Court the importance of dealing in good faith with the Court when ex parte applications are made." 57. In one of the most celebrated cases upholding this principle, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final." (v) In Kishore Samrite v. State of U.P. [2013] 2 SCC 398, at paragraphs 32 to 36, the Hon'ble Apex Court held as follows: "32. With the passage of time, it has been realised that people used to feel proud to tell the truth in the Courts, irrespective of the consequences but that practice no longer proves true, in all cases. The Court does not sit simply as an umpire in a contest between two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neshwari v. Union of India & Anr. [(2011) 3 SCC 287)]. 34. The person seeking equity must do equity. It is not just the clean hands, but also clean mind, clean heart and clean objective that are the equi-fundamentals of judicious litigation. The legal maxim jure naturae aequum est neminem cum alterius detrimento et injuria fieri locupletiorem, which means that it is a law of nature that one should not be enriched by the loss or injury to another, is the percept for Courts. Wide jurisdiction of the court should not become a source of abuse of the process of law by the disgruntled litigant. Careful exercise is also necessary to ensure that the litigation is genuine, not motivated by extraneous considerations and imposes an obligation upon the litigant to disclose the true facts and approach the court with clean hands. 35. No litigant can play "hide and seek" with the courts or adopt "pick and choose". True facts ought to be disclosed as the Court knows law, but not facts. One, who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of material facts is impermissible to a litigant or even as a technique of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner, before the Commissioner of the Santal Parganas and as it was dismissed, he moved the Board of Revenue, Bihar, and obtained a stay of the settlement of the said shop. On July 13, 1961, the Board of Revenue dismissed the petition filed by Hari Prasad Sah. Meanwhile Jadu Manjhi died and when the fact was brought to the notice of the Deputy Commissioner, he decided to hold a fresh lot on June 19, 1961 and the lot was drawn in favour of the appellant. Hari Prasad Sah filed a petition in the revenue court and obtained a stay of the settlement of the shop in favour of the appellant. Meanwhile one Basantilal Bhagat filed an application under Art. 226 of the Constitution in the High Court at Patna and obtained an interim stay; but he withdrew his application on September 8, 1961. The petition filed by Hari Prasad Sah was dismissed by the Board of Revenue on July 13, 1961. On September 11, 1961, the appellant furnished security and the shop was settled on him and a licence was issued in his name. The appellant filed a petition under Art. 226 of the Constitution in the High Court at Patna to quash the said orders. Neither Phudan Manjhi nor Bhagwan Rajak in whose favour the Board of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts an inferior tribunal or authority to transmit to itself the record of proceedings pending therein for scrutiny and, if necessary, for quashing the same. It is well settled law that a certiorari lies only in respect of a judicial or quasi-judicial act as distinguished from an administrative act. The following classic test laid down by Lord Justice Atkin, as he then was, in The King v. The Electricity Commissioner [1924] 1 K.B. 171, and followed by this Court in more than one decision clearly brings out the meaning of the concept of judicial act : "Wherever any body of persons having legal authority to determine 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." Lord Justice Slesser in The King v. London County Council [1931] 2 K.B. 215, dissected the concept of judicial act laid down by Atkin, L J., into the following heads in his judgment : "wherever any body of persons (1) having legal authority (2) to determine questions affecting rights of subjects and (3) having the duty to act judicially (4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeding. In this case, the Board of Revenue and the Commissioner of Excise were rightly made parties in the writ petition. 9. The next question is whether the parties whose rights are directly affected are the necessary parties to a writ petition to quash the order of a tribunal. As we have seen, a tribunal or authority performs a judicial or quasi-judicial act after hearing parties. Its order affects the right or rights of one or the other of the parties before it. In a writ of certiorari the defeated party seeks for the quashing of the order issued by the tribunal in favour of the successful party. How can the High Court vacate the said order without the successful party being before it ? Without the presence of the successful party the High Court cannot issue a substantial order affecting his right. Any order that may be issued behind the back of such a party can be ignored by the said party, with the result that the tribunal's order would be quashed but the right vested in that party by the wrong order of the tribunal would continue to be effective. Such a party, therefore, is a necessary party and a petition filed for the issue of a writ of certiorari without making hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases or Criminal Miscellaneous Cases as the case may be. Rule 4. Every application shall, soon after it is registered, be posted for orders before a Division Bench as to issue of notice to the respondents. The Court may either direct notice to issue and pass such interim order as it may deem necessary or reject the application. Rule 5. The notice of the application shall be served on all persons directly affected and on such other persons as the Court may direct." Both the English rules and the rules framed by the Patna High Court lay down that persons who are directly affected or against whom relief is sought should be named in the petition, that is all necessary parties should be impleaded in the petition and notice served on them. In "The Law of Extraordinary Legal Remedies" by Ferris, the procedure in the matter of impleading parties is clearly described at p. 201 thus: "Those parties whose action is to be reviewed and who are interested therein and affected thereby, and in whose possession the record of such action remains, are not only proper, but necessary parties. It is to such parties that notice to show cause against the issuance of the writ must be given, and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agwan Rajak were parties before the Commissioner as well as before the Board of Revenue. They succeeded in the said proceedings and the orders of the said tribunal were in their favour. It would be against all principles of natural justice to make an order adverse to them behind their back; and any order so made could not be an effective one. They were, therefore, necessary parties before the High Court. The record discloses that the appellant first impleaded them in his petition but struck them out at the time of the presentation of the petition. He did not file any application before the High Court for impleading them as respondents. In the circumstances, the petition filed by him was incompetent and was rightly rejected." (ii) In Jogendrasinhji Vijaysinghji v. State of Gujarat [(2015) 9 SCC 1], the challenge was to the legal substantiality of the judgment/order dated 26-12-2013 passed by the Special Bench of the High Court of Gujarat in a bunch of Letters Patent Appeals preferred under clause 15 of the Letters Patent. The Hon'ble Supreme Court held thus; "26. The next facet pertains to the impleadment of the Court or Tribunal as a party. The special Bench has held that e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hagwan Rajak, who was not an applicant before the Deputy Commissioner, filed an application before the Commissioner alleging that there should have been fresh advertisement for the settlement of the shop. The Commissioner allowed his application and directed the Deputy Commissioner to take steps for fresh settlement of the shop in accordance with the rules. The said order was assailed before the Board of Revenue which dismissed the petition and directed that unless the Deputy Commissioner came to a definite conclusion that Phudan Manjhi was unfit to hold licence, he should be selected as a licensee in accordance with rules. As a result of the said proceedings, the appellant's licence stood cancelled and the Deputy Commissioner was directed to hold a fresh settlement giving preferential treatment to Phudan Manjhi. A writ petition was filed under Art.226 of the Constitution before the High Court for quashment of the said orders and before the writ Court neither Phudan Manjhi nor Bhagwan Rajak in whose favour the Board of Revenue had decided was made a party. During the pendency of an appeal before this Court, the Deputy Commissioner had conducted an enquiry and come to the conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws that the High Court in exercising its jurisdiction shall also act judicially in disposing of the proceedings before it. It is implicit in such a proceeding that a Tribunal or authority which is directed to transmit the records must be a party in the writ proceedings, for, without giving notice to it, the record of proceedings cannot be brought to the High Court. It is said that in an appeal against the decree of a subordinate Court, the Court that passed the decree need not be made a party and on the same parity of reasoning it is contended that a Tribunal need not also be made a party in a writ proceeding. But there is an essential distinction between an appeal against a decree of a subordinate Court and a writ of certiorari to quash the order of a Tribunal or authority: in the former, the proceedings are regulated by the Code of Civil Procedure and the Court making the order is directly subordinate to the Appellate Court and ordinarily acts within its bounds, though sometimes wrongly or even illegally, but in the case of the latter, a writ of certiorari is issued to quash the order of a Tribunal which is ordinarily outside the appellate or revisional jurisdiction of the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a party may suo motu approach the Court for being impleaded therein." After so stating, the four - Judge Bench referred to English practice as recorded in Halsbury's Laws of England, Vol. 11, 3rd Edn. (Lord Simonds') and a Division Bench judgment of the Bombay High Court in Ahmedalli v. M. D. Lalkaka AIR 1954 Bom. 33, 34 and a Full Bench decision of Nagpur High Court in Kanglu Baula v. Chief Executive Officer AIR 1955 Nag. 49 and summarised thus: "To summarise: in a writ of certiorari not only the Tribunal or authority whose order is sought to be quashed but also parties in whose favour the said order is issued are necessary parties. But it is in the discretion of the Court to add or implead proper parties for completely settling all the questions that may be involved in the controversy either suo motu or on the application of a party to the writ or an application filed at the instance of such proper party." 30. The High Court, as we find, relied on the aforesaid decision to form the foundation that unless a Court or a Tribunal is made a party, the proceeding is not maintainable. What has been stated in Hari Vishnu Kamath (supra), which we have reproduced hereinb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition and describing them as contesting respondents. We do not approve of the course adopted by the petitioner which would cause unnecessary disturbance to the functions of the judicial officers concerned. They cannot be in any way equated to the officials of the Government. It is high time that the practice of impleading judicial officers disposing of civil proceedings as parties to writ petitions under Art.226 of the Constitution of India or special leave petitions under Art.136 of the Constitution of India was stopped. We are strongly deprecating such a practice." 33. The High Court after referring to the controversy involved in Savitri Devi (supra) has opined thus: "In our opinion, the observations of the Supreme Court pertained to the judicial officers being made parties in the proceedings as against a person, authority or a State being made a party in a petition under Art.226 and a Court or a Tribunal not being so required in a petition under Art.227 of the Constitution of India." After so stating, the High Court has proceeded to express the view that it is not a binding precedent and thereafter opined: "We are of the opinion that although in Hari Vishnu Kamath (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 own order, and in that case such Tribunals need not be arrayed as parties. To give another example: in certain enactments, the District Judges function as Election Tribunals from whose orders a revision or a writ may lie depending upon the provisions in the Act. In such a situation, the superior Court, that is the High Court, even if required to call for the records, the District Judge need not be a party. Thus, in essence, when a Tribunal or authority is required to defend its own order, it is to be made a party failing which the proceeding before the High Court would be regarded as not maintainable. ** ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l is not a necessary party to the proceedings in a Special Civil Application. 9. The Appellant instituted a proceeding before the Tribunal to challenge an order of dismissal passed against him in disciplinary proceedings. Before the Tribunal, the legality of the order of dismissal was in question. The lawfulness of the punishment imposed upon the Appellant was a matter for the employer to defend against a challenge of illegality in the Special Civil Application. The Tribunal was not required to defend its order in the writ proceedings before the learned Single Judge. Even if the High Court was to require the production of the record before the Tribunal, there was no necessity of impleading the Tribunal as a party to the proceedings. The Tribunal not being required in law to defend its own order, the proceedings under Art.226 and Art.227 of the Constitution were maintainable without the Tribunal being impleaded." (ii) In Motilal S/o. Khamdeo Rokade (supra), the Hon'ble Bombay High Court held thus: ".............In our view, it depends upon the facts and circumstances of each case as to whether the tribunal or the authority which passed an order is a necessary party, withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ahadeolal Kanodia v. The Administrator General of West Bengal AIR 1960 SC 936 said (at p. 941) : "We have noticed with some regret that when the earlier decision of two Judges of the same High Court in Deorajin's case, 58 Cal WN 64 : AIR 1954 Cal. 119 was cited before the learned Judges who heard the present appeal they took on themselves to say that the previous decision was wrong, instead of following the usual procedure in case of difference of opinion with an earlier decision, of referring no less than legal propriety form the basis of judicial procedure. If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another's decision." 19. The attitude of Chief Justice, Gajendragadkar, in Lala Shri Bhagwan v. Ram Chand AIR 1965 SC 1767 was not quite different (at p. 1773) : "It is hardly necessary to emphasize that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and would not know how to advise their clients. Subordinate Courts would find themselves in an embarrassing position to choose between the conflicting opinions. The general public would be in dilemma to obey or not to obey such law and it ultimately falls into disrepute." 103. In Kasi S. (cited supra), the Hon'ble Supreme Court, at paragraphs 31 to 33, held thus: "31. Learned Single Judge in the impugned judgment has taken a contrary view to the earlier judgment of learned Single Judge in Settu v. The State (supra). It is well settled that a coordinate Bench cannot take a contrary view and in event there was any doubt, a coordinate Bench only can refer the matter for consideration by a Larger Bench. The judicial discipline ordains so. This Court in State of Punjab and Another v. Devans Modern Breweries Ltd. and Another [2004] 11 SCC 26, in paragraph 339 laid down following: "339. Judicial discipline envisages that a coordinate Bench follow the decision of an earlier coordinate Bench. If a coordinate Bench does not agree with the principles of law enunciated by another Bench, the matter may be referred only to a Larger Bench. (See Pradip Chandra Parija v. Pramod Chandra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expressly overruled, cannot, in its opinion stand with a decision of the House of Lords and (3) the Court of Appeal is not bound to follow a decision of its own if given per incuriam." (ii) In M. Subbarayudu v. State AIR 1955 Andhra 87, a Hon'ble Full Bench of the Andhra Pradesh High Court held that, the binding nature of the precedents of one Court on another depends upon the fact whether such Courts are Courts of co-ordinate jurisdiction or not and co-ordinate Jurisdiction does not connote the same idea as concurrent jurisdiction or simultaneous jurisdiction. The connotation of the word 'co-ordination' is not the same as that of the words 'concurrence or simultaneity'. Simultaneity or coexistence is not a necessary ingredient of coordination. Co-ordination is more comprehensive and takes in successive acts of the same status or level. (iii) In Anand Municipality v. Union of India reported in AIR 1960 Guj. 40, a Hon'ble Full Bench of the Gujarat High Court applied the principles of binding effect, declared in M. Subbarayudu's case (cited supra). (iv) A Full Bench of the Gujarat High Court in State of Gujarat v. Gordhandas Keshavji Gandhi reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedents sub silentio are not regarded as authoritative. A decision passed sub silentio when the particular point of law involved in the decision is not perceived by the Court or present to its mind." (v) In State of Orissa v. Sudhansu Sekar Misra reported in AIR 1968 SC 647, the Hon'ble Supreme Court explained as to when a decision can be taken as a precedent, and held as follows:- "A decision is only an authority for what it actually decides. What is of the essence of a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic, this is what Earl of Halsbury LC said in Quinn v. Leathem reported in 901 AC 495. "Now before discussing the case of Allen v. Flood reported in 1898 AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p Jeyasingh v. The Jt. Regr. of Co-op. Societies reported in 1992 (2) MLJ 309, a Full Bench of the Hon'ble Madras High Court, held as follows: "49. The ratio decidendi of a decision may be narrowed or widened by the judges before whom it is cited as a precedent. In the process the ratio decidendi which the judges who decided the case would themselves have chosen may be even different from the one which has been approved by subsequent judges. This is because Judges, while deciding a case will give their own reasons but may not distinguish their remarks in a right way between what they thought to be the ratio decidendi and what were their obiter dicta, things said in passing having no binding force, though of some persuasive power. It is said that "a judicial decision is the abstraction of the principle from the facts and arguments of the case". A subsequent judge may extend it to a broader principle of wider application or narrow it down for a narrower application." (xi) A Hon'ble Division Bench of Bombay High Court in CIT v. Thana Electricity Supply Ltd. reported in [1994] 206 ITR 727 (Bombay), held as follows: "(a) The law declared by the Supreme Court being binding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... precedent, and held as follows:- "Before adverting to and considering whether solatium and interest would be payable under the Act, at the outset, we will dispose of the objection raised by Shri Vaidyanathan that Union of India v. Hari Krishan Khosla [1993] Suppl. 2 SCC 149, is not a binding precedent nor does it operate as ratio decidendi to be followed as a precedent and is per se per incuriam. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi According to the well-settled theory of precedents, every decision contains three basic postulates--(i) findings of material facts, direct and inferential. A inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the esse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent. The Calcutta High Court itself has rejected such a plea. The matter is pending in appeal. An order passed to the contrary by another learned Single Judge in ignorance of the earlier binding precedent by itself would not constitute a binding precedent and may be held to have been rendered per incuriam." (xiv) In State of Punjab v. Devans Modern Breweries Ltd. [2004] 11 SCC 26, the Hon'ble Supreme Court explained the doctrine of precedents and when a judgment becomes per incuriam. Paragraphs 334 to 336, 339 and 343 of the judgment are relevant and they are as follows:- "334. The doctrine of precedent is a well-accepted principle. A ruling is generally considered to be binding on lower courts and courts having a smaller bench structure: "A precedent influences future decisions. Every decision is pronounced on a specific set of past facts and from the decision on those facts a rule has to be extracted and projected into the future. No one can foresee the precise situation that will arise, so the rule has to be capable of applying to a range of broadly similar situations against a background of changing conditions. It has therefore to be in general terms and 'malleab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication of the doctrine of sub silentio or per incuriam without assigning specific reasons therefor. I, for one, do not see as to how Kalyani Stores (cited supra) and K.K. Narula (cited supra) read together can be said to have been passed sub silentio or rendered per incuriam." (xv) In Raman Gopi v. Kunju Raman Uthaman 2011 (4) KLT 458, a Hon'ble Full Bench of the Kerala High Court held that,- "when a Bench of higher number of judges of the concerned court decided a question on the subject, then that is binding on the Bench of co-equal judges or lesser number of judges of that court. Further, it is settled law that, if a decision has been rendered by the same High Court, then any decision rendered by any other High Court is not binding on the other High Court but it has got only persuasive value." 105. Keeping in mind the pronouncement of law on precedents, let us consider, what is decided in W.P.(C) No. 41662 of 2017 dated 21-12-2017, which the writ petitioners/respondents 1 & 2 claim as a precedent for entertaining a writ petition. The judgment dated 21-12-2017 in W.P.(C) No. 41662 of 2017 is reproduced: "This writ petition is filed by the petitioner seeking the followin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench in Alexander Correya (cited supra), is squarely applicable to the case on hand. In the said decision, the Hon'ble Division Bench held thus: "3. ... The NCLT by order dated 4-7-2017 in Company Petition No.29 of 2017, passed an interim order firstly restraining the directors/the respondents therein, from transferring any property. They then stayed the notice dated 19-5-2017 seeking to expel the appellants from the membership of the company. It is not in dispute that before the NCLT, the company, the managing director and four directors appeared and had filed their counter affidavits and were contesting the matter on merits. Notwithstanding the interim order of stay granted by NCLT, as the petitioners before the NCLT were expelled from the membership, contempt proceedings were initiated and are pending before the NCLT. 4. It now appears that the writ petitioners, who also claim to be directors of the company, but not made parties before the NCLT, being aware of the proceedings as before the NCLT, filed the writ petition and challenged the interim order as passed by the NCLT and based thereon the learned single Judge has granted interim relief as noted above. 5. We have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ddressed by us. 109. First of all, there is an alternative remedy under Rule 49(2) of the NCLT Rules, 2016, to set aside an ex parte order. As stated above, writ petitioners/respondents 1 & 2 herein have not chosen to approach the NCLT under the said rule. Having directed the writ petitioners/respondents to avail a right of appeal, before NCLAT, writ court ought not to have entertained the writ petition for the reason that, it would be amounting to allowing the writ petitioners/respondents to prosecute their challenge to the interim order passed in I.A. No. 83/2020 in C.P. No. 114/KOB/2019 in two different forums; one before NCLAT, New Delhi and by way of filing a writ petition under Article 226 of the Constitution of India. 110. In the foregoing paragraphs, we have clearly held that a writ petition under Article 226 of the Constitution of India, against the order of the Tribunal is not maintainable in law. On the issue as to whether an order of the Tribunal can be challenged by filing a writ petition under Article 226 or 227 of the Constitution of India, we have already considered the Radhey Shyam case (cited supra). 111. In AGDP. Ltd. (cited supra), during the course of hearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e them to file a counter affidavit. Nevertheless, the appellants, by citing settled propositions of law, seemed to have made oral submissions on the maintainability of the writ petition. The abovesaid fact of not furnishing the entire cause papers is also fortified by the Registry's objection at the time of entertaining the Writ Appeal, with an office note that the entire cause papers have not been filed along with the appeal memorandum, which note was also sustained by us, at the time, when the Writ Appeal was listed before this Court, with the office note on defects. 114. Writ Appeal has been re-presented, after curing the defect. Thus, from the above, it could be deduced that the writ court ought to have granted sufficient time for the appellants to file counter affidavit, which, in our view, amounts to violation of the principles of natural justice. 115. In this context, let us consider as to what jurisdictional fact/jurisdictional error/lack of jurisdiction etc., as explained by the Hon'ble Supreme Court, and thereafter, to decide as to whether, the interim order passed by the Tribunal (Exhibit-P1) can be interfered with, in exercise of powers under Article 226 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s collateral to the actual matter which the tribunal has to try and the determination whether it exists or not is logically prior to the determination of the actual question which the tribunal has to try. The tribunal must itself decide as to the collateral fact when, at the inception of an inquiry by a tribunal of limited jurisdiction, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether it will act or not, and for that purpose to arrive at some decision on whether it has jurisdiction or not. There may be tribunals which, by virtue of legislation constitution them, have the power to determine finally the preliminary facts on which the further exercise of their jurisdiction depends; but, subject to that an inferior tribunal cannot, by a wrong decision with regard to a collateral fact, give itself a jurisdiction which it would not otherwise possess." (Halsbury's Laws of England, 3rd Edn. Vol. 11 page 59). The characteristic attribute of judicial act or decision is that it binds, whether it be right or wrong. An error of law or fact committed by a judicial or quasi-judicial body cannot, in general, be impeached otherwise than on appeal unless th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rk upon an enquiry; in the sense of the latter it is used in several aspects, one of such aspects being that the decision of the tribunal is in non-compliance with the provisions of the Act. Accordingly, a determination by a tribunal of a question other than the one which the statute directs it to decide would be a decision not under the provisions of the Act, and therefore, in excess of its jurisdiction." (iv) In M.L. Sethi v. R.P. Kapur [1972] 2 SCC 427, the Hon'ble Supreme Court, at paragraph 12, held thus:- "12. ...The "jurisdiction" is a verbal coat of many colours. Jurisdiction originally seems to have had the meaning which Lord Reid ascribed to it in Anisminic Ltd. v. Foreign Compensation Commission, namely, the entitlement "to enter upon the enquiry in question". If there was an entitlement to enter upon an enquiry into the question, then any subsequent error could only be regarded as an error within the jurisdiction. The best known formulation of this theory is that made by Lord Denean in R. v. Bolton. He said that the question of jurisdiction is determinable at the commencement, not at the conclusion of the enquiry. In Anisminic Ltd. case (supra), Lord Reid said: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruction of a statute can be represented as "basing their decision on a matter with which they have no right to deal", "imposing an unwarranted condition" or "addressing themselves to a wrong question". The majority opinion in the, case leaves a Court or Tribunal with virtually no margin of legal error. Whether there is excess of jurisdiction or merely error within jurisdiction can be determined only by construing the empowering statute, which will, give little guidance. It is really a question of how much latitude the Court is prepared to allow. In the end it can only be a value judgment (see H.W.R. Wade, "Constitutional and Administrative Aspects of the Anismanic case", Law Quarterly Review, Vol. 85, 1969, p. 198). Why is it that a wrong decision on a question of limitation or res judicata 'was treated as a jurisdictional error and liable to be interfered with in revision ? It is a it difficult to understand how an erroneous decision on a question of limitation or res judicata would oust the jurisdiction of the Court in the primitive sense of the term and render the decision or a decree embodying the decision a nullity liable to collateral attack. The reason can only be that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Asstt. Commissioner [2006 (3) KLT 581], wherein the concept of jurisdiction has been drastically expanded after the decision of the House of Lords in Anisminic v. The Foreign Compensation Commission [1967] 2 AER 986. Now, every error of law if a jurisdictional error. If a decisive fact is wrongly understood, even then, the decision will be outside jurisdiction. This concept is best explained by K.S. Paripoornan, J., in his Lordship's separate Judgment in Mafatlal Industries v. Union of India [1997] 5 SCC 536. The relevant portion of the said Judgment reads as follows: "Opinions may differ as to when it can be said that in the 'public law' domain, the entire proceeding before the appropriate authority is illegal and without jurisdiction or the defect or infirmity in the order goes to the root of the matter and makes it in law invalid or void (referred to in Illuri Subbayya Chetty case and approved in Dhulabhai case). The matter may have to be considered in the light of the provisions of the particular statute in question and the fact-situation obtaining in each case. It is difficult to visualise all situations hypothetically and provide an answer. Be that as it may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the Judgment of a two member Bench in M.L. Sethi v. R.P. Kapur AIR 1972 SC 2379, Mathew, J., in paras 10 and 11 of the Judgment explained the legal position after Anisminic case to the following effect: "10. The word 'jurisdiction is a verbal cost of many colours. Jurisdiction originally seems to have had the meaning which Lord Baid ascribed to it in Anisminic Ltd. v. Foreign Compensation Commission, namely, the entitlement 'to enter upon the enquiry in question. If there was an entitlement to enter upon an enquiry into the question, then, any subsequent error could only be regarded as an error within the jurisdiction. The best known formulation of this theory is that made by Lord Dennan in 'R. v. Boltan. He said that the question of jurisdiction is determinable at the commencement, not at the conclusion of the enquiry. In Anisminic Ltd., Lord Reid said: 'But there are many cases, where, although the tribunal had jurisdiction to enter on the enquiry, it has done for failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction or merely error within jurisdiction can be determined only by construing the empowering statute, which will give little guidance. It is really a question of how much latitude the court is prepared to allow ........." (viii) In Hari Prasad Mulshanker Trivedi v. V.B. Raju AIR 1973 SC 2602, a Constitution Bench of the Hon'ble Supreme Court, stated thus: (SCC pp 423-24, para 28). "Though the dividing line between lack of jurisdiction or power and erroneous exercise of it has become thin with the decision of the House of Lords in the Anisminic case, we do not think that the distinction between the two has been completely wiped out. We are aware of the difficulty in formulating an exhaustive rule to tell when there is lack of power and when there is an erroneous exercise of it. The difficulty has arisen because the word 'jurisdiction' is an expression which is used in a variety of senses and takes its colour from its context (see per Diplock, J. at p.394 in the Anisminic case). Whereas the 'pure' theory of jurisdiction would reduce jurisdictional control to a vanishing point, the adoption of a narrower meaning might result in a more useful legal concept eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titled as 'Jurisdiction, Vires, Law and Fact' (pp-223-204), there is exhaustive analysis about the concept 'Jurisdiction' and its ramifications. The authors have discussed the pure theory of jurisdiction, the innovative decision in Anisminic case, the development of the law in the post-Anisminic period, the scope of the 'finality' clauses (exclusion of jurisdiction of courts) in the statutes and have laid down a few propositions at pp-250, 256 which could be advanced on the subject. The authors have concluded the discussion thus at p.256: 'After Anisminic virtually every error of law is a jurisdictional error, and the only place left for non-jurisdictional error is where the components of the decision made by the inferior body included matters of fact and policy as well as law or where the error was evidential (concerning for example, the burden of proof or admission of evidence). Perhaps the most precise indication of jurisdictional error is that advanced by Lord Diplock in Raccal Communications, when he suggested that a tribunal is entitled to make an error when the matter 'involves, as many do interrelated questions of law, fact and degree' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a valid adjudication. Excess of jurisdiction is not materially distinguishable from lack of jurisdiction and the expression may be used interchangeably. Where the jurisdiction of tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described as preliminary to, or collateral to the merits of, the issue, or as jurisdictional. There is a presumption in construing statutes which confer jurisdiction or discretionary powers on a body, that if that body makes an error of law while purporting to act within that jurisdiction or in exercising those powers, its decision or action will exceed the jurisdiction conferred and will be quashed. The error must be one on which the decision or action depends. An error of law going to jurisdiction may be committed by a body which fails to follow the proper procedure required by law, which takes legally irrelevant considerations into account, or which fails to take relevant considerations into account, or which asks itself and answers the wrong question. The presumption that error of law goes to jurisdiction may be rebutted on the construction of a particular statute, so that the relevant body w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) jurisdictional (b) found on the basis of no evidence; or (c) wrong, misunderstood or ignored. Errors of law Old rule: The court would quash only if the error was- (a) jurisdictional (b) on the face of the record. New rule: The court will quash for any decisive error, because all errors of law are now jurisdictional. (ix) In Arun Kumar v. Union of India [2007] 1 SCC 732, the Hon'ble Supreme Court, at Paragraphs 74, 80 to 84, held as follows: "74. A "jurisdictional fact" is a fact which must exist before a Court, Tribunal or an Authority assumes jurisdiction over a particular matter. A jurisdictional fact is one on existence or non-existence of which depends jurisdiction of a court, a tribunal or an authority. It is the fact upon which an administrative agency's power to act depends. If the jurisdictional fact does not exist, the court, authority or officer cannot act. If a Court or authority wrongly assumes the existence of such fact, the order can be questioned by a writ of certiorari. The underlying principle is that by erroneously assuming existence of such jurisdictional fact, no authority can confer upon itself jurisdiction which it otherwise does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been under the impression that the Income-tax Officer was the sole judge of the fact whether the firm in question was resident or nonresident. This conclusion, in our opinion, is wholly wrong. No authority, much less a quasi-judicial authority, can confer jurisdiction on itself by deciding a jurisdictional fact wrongly The question whether the jurisdictional fact has been rightly decided or not is a question that is open for examination by the High Court in an application for a writ of certiorari. If the High Court comes to the conclusion, as the learned single Judge has done in this case, that the Income-tax Officer had clutched at the jurisdiction by deciding a jurisdictional fact erroneously, then the assesses was entitled for the writ of certiorari prayed for by him. It is incomprehensible to think that a quasi- judicial authority like the Income-tax Officer can erroneously decide a jurisdictional fact and thereafter proceed to impose a levy on a citizen." (Emphasis Supplied) 84. From the above decisions, it is clear that existence of 'jurisdictional fact' is sine qua non for the exercise of power. If the jurisdictional fact exists, the authority can proceed with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced by the parties. It is no doubt true that it is very difficult to distinguish 'jurisdictional fact' and 'fact in issue' or 'adjudicatory fact'. Nonetheless the difference between the two cannot be overlooked. ......... 31. It is thus clear that for assumption of jurisdiction by a Court or a Tribunal, existence of jurisdictional fact is a condition precedent. But once such jurisdictional fact is found to exist, the Court or Tribunal has power to decide adjudicatory facts or facts in issue." (xi) In Harpal Singh v. State of Punjab [2007] 13 SCC 387, the Hon'ble Supreme Court held as under; "9. At this stage it will be useful to refer to the dictionary meaning of the word 'Jurisdiction': Black's Law Dictionary: "Court's power to decide a case or issue a decree". Words and Phrases - Legally defined - Third Edition (p.497) : "By 'jurisdiction' is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constitute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority wrongly assumes the existence of such fact, the order can be questioned by a writ of certiorari. The underlying principle is that by erroneously assuming existence of such jurisdictional fact, no authority can confer upon itself jurisdiction which it otherwise does not posses". It was further observed: (SCC p.759, para 76) 76. "The existence of jurisdictional fact is thus sine qua non or condition precedent for the exercise of power by a court of limited jurisdiction". 70. Drawing the distinction between 'jurisdictional fact' and 'adjudicatory fact', the Court stated: (Arun Kumar case, SCC p.761, para 84) "84.... it is clear that existence of 'jurisdictional fact' is sine qua non for the exercise of power. If the jurisdictional fact exists, the authority can proceed with the case and take an appropriate decision in accordance with law. Once the authority has jurisdiction in the matter on existence of 'jurisdictional fact', it can decide the 'fact in issue' or 'adjudicatory fact'. A wrong decision on 'fact in issue' or on 'adjudicatory fact' would not make the decision of the authority without jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught to have directed the respondents/writ petitioners to make necessary amendments, to the provisions under which the writ petition ought to have been filed, or in the alternative, directed that the writ petition be placed before the concerned court, dealing with the challenges made to the orders passed by Courts, or Tribunals, as the case may be. Admittedly, the order impugned in the writ petition (Exhibit-P1) is not an administrative order, passed by the National Company Law Tribunal. 120. Writ court, without drawing a distinction between a writ petition filed under Articles 226 and 227 of the Constitutions of India, has erroneously proceeded to entertain the writ petition under Article 226 against an interim order passed by the NCLT, Kochi Bench, in I.A. No. 83/2020 in C.P.No.114/KOB/2019 dated 9-7-2020. In Maharashtra Chess Association v. Union of India 2019 SCC Online SC 932, the Hon'ble Supreme Court has considered, as to what the High Court should consider before entertaining a writ petition under Article 226 of the Constitution of India, and held as under: "22. This brings us to the question of whether clause 21 itself creates a legal bar on the Bombay High Court ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent deliberately moved the Calcutta High Court ignoring the fact that no part of the cause of action had arisen within the jurisdiction of that Court. It clearly shows that the litigation filed in the Calcutta High Court was thoroughly unsustainable." 24. The court examined the facts holistically, noting that the contract was executed and to be performed in Aligarh, and the arbitrator was to function at Aligarh. It did consider that the contract conferred jurisdiction on the courts at Aligarh, but this was one factor amongst several considered by the court in determining that the High Court of Calcutta did not have jurisdiction. 25. In the present case, the Bombay High Court has relied solely on clause 21 of the Constitution and Bye Laws to hold that its own writ jurisdiction is ousted. The Bombay High Court has failed to examine the case holistically and make a considered determination as to whether or not it should, in its discretion, exercise its powers under Article 226. The scrutiny to be applied to every writ petition under Article 226 by the High Court is a crucial safeguard of the rule of law under the Constitution in the relevant territorial jurisdiction. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n I.A. No. 83/2020, instant Writ Appeal has become infructuous. 124. In Union of India (UOI) v. Narender Singh [2005] 6 SCC 106, dismissal of the respondent therein was set aside by the Central Administrative Tribunal. Writ petition was filed by the appellant. During the pendency of the writ petition, the Tribunal's order was implemented. Later, the writ petition was dismissed as infructuous. Assailing the correctness of the dismissal as infructuous, Union of India has approached the Hon'ble Apex court. Considering the meaning of the word "infructuous", the Hon'ble Apex Court reversed the decision of the High Court and, at paragraphs 3 to 6, held as under: "3. Stand of the appellants in the present appeal is that the view taken by the High Court is clearly untenable. Merely because the respondent employee had been reinstated in service pursuant to the impugned orders that did not render the petition infructuous. 4. In response, learned counsel for the respondent employee submitted that the Tribunal's order is without blemish and even on merits there is no scope for interference with the said order. Even otherwise as has been rightly held by the High Court after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der a few decisions. (i) In Ex parte Seidel, 39 S.W.3d 221, 225 (Tex. Crim. App. 2001), Ex parte Spaulding, 687 S.W.2d at 745 (Teague, J., concurring). "A void judgment is a nullity from the beginning, and is attended by none of the consequences of a valid judgment. It is entitled to no respect whatsoever because it does not affect, impair, or create legal rights". (ii) In Valley v. Northern Fire & Marine Ins. Co. 1920 SCC Online US SC 188, the Hon'ble Supreme Court of U.S opined as under: "5. Of the construction of the statute there can be no controversy; what answer shall be made to the questions turns on other considerations, turns on the effect of the conduct of the company as an estoppel. That it has such effect is contended by the trustee, and there is an express concession that if objection had been made the company would have been entitled to a dismissal of the petition. It is, however, insisted that it is settled 'that an erroneous adjudication against an exempt corporation, whether made by default or upon a contest or trial before the bankruptcy court, can be attacked only by appeal, writ of error, or prompt motion to vacate,' and that section 4 does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or an order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court. [See Long v. Shorebank Development Corp. [182 F.3d 548]. (vi) In Krishnadevi Malchand Kamathia v. Bombay Environmental Action Group [2011] 3 SCC 363, the Hon'ble Apex Court held thus: "16. It is a settled legal proposition that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvil (dead) and Ors. AIR 1996 SC 906; Tayabbhai M. Bagasarwalla and Anr. v. Hind Rubber Industries Pvt. Ltd. etc. AIR 1997 SC 1240; M. Meenakshi and Ors. v. Metadin Agarwal (dead) by L.Rs. and Ors. [2006] 7 SCC 470; and Sneh Gupta v. Devi Sarup and Ors. [2009] 6 SCC 194, this Court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum. 17. In State of Punjab and Ors. v. Gurdev Singh, Ashok Kumar AIR 1991 SC 2219, this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opriate forum. [Vide: State of Kerala v. M.K. Munhikannan Nambiar Manjeri Manikoth, Naduvil (dead) & Ors. AIR 1996 SC 906; and Tyabbhai M. Bagasarwalla & Anr. v. Hind Rubber Industries Pvt. Ltd. AIR 1997 SC 1240]. 19. In Sultan Sadik v. Sanjay Raj Subba & Ors. AIR 2004 SC 1377, this court held that there cannot be any doubt that even if an order is void or voidable, the same requires to be set aside by the competent court. 20. In M. Meenakshi & Ors. v. Metadin Agarwal (dead) by Lrs. & Ors. [2006] 7 SCC 470, this Court considered the issue at length and observed that if the party feels that the order passed by the court or a statutory authority is non-est/void, he should question the validity of the said order before the appropriate forum resorting to the appropriate proceedings. The Court observed as under:- "It is a well settled principle of law that even a void order is required to be set aside by a competent Court of law, inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not non-est. An order cannot be declared to be void in collateral proceedings and that too in the absence of the authorities who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the suitors, or their solicitors, could themselves judge whether an order was null or valid-- whether it was regular or irregular. That they should come to the Court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the Court that it might be discharged. As long as it existed it must not be disobeyed." The said principle was approved by a Division Bench of this Court in D.M. Samyulla v. Commissioner, Corporation of City of Bangalore 1990 (1) Kar. L.J Pg.352 as under: "The principle laid down in the said decision is that a party who knows an order, whether it is null or valid, regular or irregular, cannot be permitted to disobey it and it would be dangerous to allow the party to decide as to whether an order was null or valid and whether it was regular or irregular. In our opinion, such a principle would be attracted in cases where there has been an order of the Court against any particular person or authority and that person or authority takes the stand that the order of the Court is illegal or it is bad for not following any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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