Questions and answers on law (Part 80)

Q 1:-  Which is article of constitution under which  judgement of High court binding?

Ans:- Judgments of a High Court are binding on all subordinate courts and tribunals within its jurisdiction under Article 227 of the Constitution, which grants the High Court power of superintendence. While Article 141 makes Supreme Court rulings binding nationwide, High Court decisions are binding precedents within their respective states. 

Key Details on Binding Nature of High Court Judgments:

• Jurisdictional Scope: A High Court's decision is binding on subordinate courts/tribunals within its jurisdiction (i.e., within that state).

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Leading Supreme Court Judgment on distinction between Article 226 and 227 of Constitution of India

The difference between Articles 226 and 227 of the Constitution was well brought out in Umaji Keshao Meshram v. Radhikabai [MANU/SC/0132/1986 : 1986 Supp. SCC 401]. Proceedings Under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings Under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power Under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction. {Para 24}

25. Upon a review of decided cases and a survey of the occasions, wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction Under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common Under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction 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 or 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, maybe, 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.

20. It is the above holding, correctness of which was doubted in the referring order already mentioned above.

21. It is true that this Court has laid down that technicalities associated with the prerogative writs in England have no role to play under our constitutional scheme. There is no parallel system of King's Court in India and of all other courts having limited jurisdiction subject to supervision of King's Court. Courts are set up under the Constitution or the laws. All courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision Under Article 227. Writ jurisdiction is constitutionally conferred on all High Courts. Broad principles of writ jurisdiction followed in England are applicable to India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of Tribunals or authorities or courts other than judicial courts. There are no precedents in India for High Courts to issue writs to subordinate courts. Control of working of subordinate courts in dealing with their judicial orders is exercised by way of appellate or revisional powers or power of superintendence Under Article 227. Orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts. While appellate or revisional jurisdiction is regulated by statutes, power of superintendence Under Article 227 is constitutional. The expression "inferior court" is not referable to judicial courts, as rightly observed in the referring order in paras 26 and 27 quoted above.

22. 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.

65. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority.

66. We may also observe that in some High Courts there is a tendency of entertaining petitions Under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev and in view of the recent amendment to Section 115 of the Code of Civil Procedure by the Code of Civil Procedure (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 Code of Civil Procedure has been curtailed. In our view, even if the scope of Section 115 Code of Civil Procedure is curtailed that has not resulted in expanding the High Court's power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.

23. 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.

25. 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.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2548 of 2009 and SLP (C) No. 25828 of 2013

Decided On: 26.02.2015

Radhey Shyam and Ors. Vs. Chhabi Nath and Ors.

Hon'ble Judges/Coram:

H.L. Dattu, C.J.I., A.K. Sikri and Adarsh Kumar Goel, JJ.

Citation:  Citation: 2015/INSC/160, MANU/SC/0200/2015,

AIR 2015 SUPREME COURT 3269.

Author: Adarsh Kumar Goel, J.

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What is distinction between Article 226 and 227 of Constitution of India?

1. 1) Nature of Power:

   • Article 226 grants High Courts the power to issue writs for the enforcement of fundamental rights and for any other purpose. These writs include habeas corpus, mandamus, prohibition, quo warranto, and certiorari.
   • Article 227, on the other hand, confers upon High Courts the power of superintendence over all courts and tribunals within their jurisdiction. This power is more administrative in nature, ensuring proper functioning of the subordinate judiciary.

2. 2) Scope of Authority:

   • Article 226 allows High Courts to intervene in individual cases where fundamental rights are at stake or for other legal issues that warrant the issuance of writs.
   • Article 227 provides High Courts with the authority to oversee the entire judicial machinery within their territorial jurisdiction, ensuring uniformity and proper administration of justice.

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Under which circumstances court can interfere in the arbitral process under Article 226/227 of constitution?

  Having heard both parties and perusing the material available on record, the question which needs to be answered is whether the arbitral process could be interfered under Article 226/227 of the Constitution, and under what circumstance? {Para 10}

11. We need to note that the Arbitration Act is a code in itself. This phrase is not merely perfunctory, but has definite legal consequences. One such consequence is spelled out under Section 5 of the Arbitration Act, which reads as under “Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.” The non-obstante clause is provided to uphold the intention of the legislature as provided in the Preamble to adopt UNCITRAL Model Law and Rules, to reduce excessive judicial interference which is not contemplated under the Arbitration Act.

12. The Arbitration Act itself gives various procedures and forums to challenge the appointment of an arbitrator. The framework clearly portrays an intention to address most of the issues within the ambit of the Act itself, without there being scope for any extra statutory mechanism to provide just and fair solutions.

13. Any party can enter into an arbitration agreement for resolving any disputes capable of being arbitrable. Parties, while entering into such agreements, need to fulfill the basic ingredients provided under Section 7 of the Arbitration Act. Arbitration being a creature of contract, gives a flexible framework for the parties to agree for their own procedure with minimalistic stipulations under the Arbitration Act.

14. If parties fail to refer a matter to arbitration or to appoint an arbitrator in accordance with the procedure agreed by them, then a party can take recourse for court assistance under Section 8 or 11 of the Arbitration Act.

15. In this context, we may state that the Appellant acted in accordance with the procedure laid down under the agreement to unilaterally appoint a sole arbitrator, without Respondent No. 1 mounting a judicial challenge at that stage. Respondent No. 1 then appeared before the sole arbitrator and challenged the jurisdiction of the sole arbitrator, in terms of Section 16(2) of the Arbitration Act.

16. Thereafter, Respondent No. 1 chose to impugn the order passed by the arbitrator under Section 16(2) of the Arbitration Act through a petition under Article 226/227 of the Indian Constitution. In the usual course, the Arbitration Act provides for a mechanism of challenge under Section 34. The opening phase of Section 34 reads as ‘Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and subsection (3)’. The use of term ‘only’ as occurring under the provision serves two purposes of making the enactment a complete code and lay down the procedure.

18. It is therefore, prudent for a Judge to not exercise discretion to allow judicial interference beyond the procedure established under the enactment. This power needs to be exercised in exceptional rarity, wherein one party is left remediless under the statute or a clear ‘bad faith’ shown by one of the parties. This high standard set by this Court is in terms of the legislative intention to make the arbitration fair and efficient.

19. In this context we may observe Deep Industries Limited v. Oil and Natural Gas Corporation Limited, 2019 SCC OnLine SC 1602, wherein interplay of Section 5 of the Arbitration Act and Article 227 of the Constitution was analyzed as under:

“15. Most significant of all is the nonobstante clause contained in Section 5 which states that notwithstanding anything contained in any other law, in matters that arise under Part I of the Arbitration Act, no judicial authority shall intervene except where so provided in this Part. Section 37 grants a constricted right of first appeal against certain judgments and orders and no others. Further, the statutory mandate also provides for one bite at the cherry, and interdicts a second appeal being filed (See Section 37(2) of the Act)

16. This being the case, there is no doubt whatsoever that if petitions were to be filed under Articles 226/227 of the Constitution against orders passed in appeals under Section 37, the entire arbitral process would be derailed and would not come to fruition for many years. At the same time, we cannot forget that Article 227 is a constitutional provision which remains untouched by the non-obstante clause of Section 5 of the Act. In these circumstances, what is important to note is that though petitions can be filed under Article 227 against judgments allowing or dismissing first appeals under Section 37 of the Act, yet the High Court would be extremely circumspect in interfering with the same, taking into account the statutory policy as adumbrated by us herein above so that interference is restricted to orders that are passed which are patently lacking in inherent jurisdiction.”

20. In the instant case, Respondent No. 1 has not been able to show exceptional circumstance or ‘bad faith’ on the part of the Appellant, to invoke the remedy under Article 227 of the Constitution. No doubt the ambit of Article 227 is broad and pervasive, however, the High Court should not have used its inherent power to interject the arbitral process at this stage. It is brought to our notice that subsequent to the impugned order of the sole arbitrator, a final award was rendered by him on merits, which is challenged by the Respondent No. 1 in a separate Section 34 application, which is pending.

22. If the Courts are allowed to interfere with the arbitral process beyond the ambit of the enactment, then the efficiency of the process will be diminished.

27. It must be noted that Section 16 of the Arbitration Act, necessarily mandates that the issue of jurisdiction must be dealt first by the tribunal, before the Court examines the same under Section 34. Respondent No. 1 is therefore not left remediless, and has statutorily been provided a chance of appeal. 

In Deep Industries case (supra), this Court observed as follows:

“22. One other feature of this case is of some importance. As stated herein above, on 09.05.2018, a Section 16 application had been dismissed by the learned Arbitrator in which substantially the same contention which found favour with the High Court was taken up. The drill of Section 16 of the Act is that where a Section 16 application is dismissed, no appeal is provided and the challenge to the Section 16 application being dismissed must await the passing of a final award at which stage it may be raised under Section 34.”

In the Supreme Court of India

(Before N.V. Ramana, Surya Kant and Hrishikesh Roy, JJ.)

Bhaven Construction  Vs Executive Engineer Sardar Sarovar Narmada Nigam Ltd. and Another 

Citation: 2021 SCC OnLine SC 8

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Whether bar U/S 8 Of Commercial Courts Act On Revision Application is Applicable To Petitions Under Article 227?

  We are of the view that once the Commercial Courts Act has expressly barred the remedy of a revision application under Section 115 of the CPC, with respect to the suits within its ambit, the purpose thereof cannot be permitted to be defeated by opening up the gates of Article 227 of the Constitution of India. The scope and ambit of a petition under Article 227 is much wider than the scope and ambit of a revision application under Section 115 of the CPC; whatever can be done in exercise of powers under Section 115 of the CPC, can also be done in exercise of powers under Article 227 of the Constitution. Allowing petitions under Article 227 to be preferred even against orders against which a revision application under Section 115 CPC would have been maintainable but for the bar of Section 8 of the Commercial Courts Act, would nullify the legislative mandate of the Commercial Courts Act. Recently, in Deep Industries Limited Vs. Oil and Natural Gas Corporation Limited (2020) 15 SCC 706, in the context of petitions under Article 227 of the Constitution of India with respect to orders in an appeal against an order of the Arbitral Tribunal under Section 17 of the Arbitration & Conciliation Act, 1996, it was held that if petitions under Article 226 / 227 of the Constitution against orders passed in appeals under the Arbitration Act were entertained, the entire arbitral process would be derailed and would not come to fruition for many years. It was observed that though Article 227 is a constitutional provision which remains untouched by an non-obstante Clause 5 of the Arbitration Act but what is important to note is that though petitions can be filed under Article 227 against judgments allowing or dismissing First Appeals under the Arbitration Act, yet the High Court would be extremely circumspect in interfering with the same taking into account the statutory policy, so that interference is restricted to orders which are patently lacking in inherent jurisdiction. Thus, though we are of the view that gates of Article 227

ought not to be opened with respect to orders in commercial suits at the level of the District Judge against which a revision application under CPC was maintainable but which remedy has been taken away by the Commercial Courts Act, but abiding by the judgments aforesaid, hold that it cannot be said to be the law that jurisdiction under Article 227 is completely barred. However the said jurisdiction is to be exercised very sparingly and more sparingly with respect to orders in such suits which under the CPC were revisable and which remedy has been taken away by a subsequent legislation i.e. the Commercial Courts Act, and ensuring that such exercise of jurisdiction by the High Court does not negate the legislative intent and purpose behind the Commercial Courts Act and does not come in the way of expeditious disposal of commercial suits.{Para 30}

31. We thus hold the petition under Article 227 of the Constitution of India to be maintainable with respect to the order impugned in CM(M) No.132/2021. However the discretion, whether in the facts and circumstances such petition is to be entertained or not, having under the roster been vested in the Single Judge, we leave it to the Single Judge to exercise such discretion.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

  CM(M) 132/2021 & CM No.5689/2021 (FOR STAY) 

BLACK DIAMOND TRACKPARTS PVT. LTD. & ORS.  Vs BLACK DIAMOND MOTORS PVT. LTD. 

CORAM:  MR. JUSTICE RAJIV SAHAI ENDLAW HON'BLE MR. JUSTICE AMIT BANSAL

AUTHOR: RAJIV SAHAI ENDLAW, J. 

Dated : 10th August, 2021.

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Whether any order passed by arbitral tribunal during arbitration can be challenged under Article 226 or 227 of Constitution?

 Having heard learned counsel for the parties
at length, we find that the judgment of the High
Court is liable to be set aside on one ground alone.
The High Court entertained a writ petition under
Article 227 of the Constitution of India against an
order of the learned District Judge, Gautam Budh
Nagar purportedly passed under Section 20 of the
Arbitration and Conciliation Act, 1996(for short,
"the Arbitration Act") read with Section 19 of the
Micro, Small & Medium Enterprises Development Act,
2006 (for short, "the MSME Act"). This application
was made to the District Judge by respondent No. 1-
Jayprakash Associates Ltd. against a partial award
made under Section 16 of the Arbitration Act. Such
an application was not tenable vide Section 16 (6) of
the Arbitration Act. Since such an application was
not tenable, we fail to understand how in a writ

petition filed against an order made by the District
Judge in an untenable application, the High Court
could have set aside the partial award. This is
clearly contrary to law. This court in the case of
SBP & Co. vs. Patel Engineering Ltd. & Anr., reported
in (2005) 8 SCC 618 in Paragraph No. 45 held as
follows.
"45.It is seen that some High Courts
have proceeded on the basis that any
order passed by an arbitral tribunal
during arbitration, would be capable
of being challenged under Article 226
or 227 of the Constitution of India.
We see no warrant for such an
approach. Section 37 makes certain
orders of the arbitral tribunal
appealable. Under Section 34, the
aggrieved party has an avenue for
ventilating his grievances against
the award including any in-between
orders that might have been passed by
the arbitral tribunal acting under
Section 16 of the Act. The party
aggrieved by any order of the
arbitral tribunal, unless has a right
of appeal under Section 37 of the
Act, has to wait until the award is
passed by the Tribunal. This appears
to be the scheme of the Act. The
arbitral tribunal is after all, the
creature of a contract between the
parties, the arbitration agreement,
even though if the occasion arises,
the Chief Justice may constitute it
based on the contract between the
parties. But that would not alter the
status of the arbitral tribunal. It
will still be a forum chosen by the
parties by agreement. We, therefore,
disapprove of the stand adopted by
some of the High Courts that any
order passed by the arbitral tribunal

is capable of being corrected by the
High Court under Article 226 or 227
of the Constitution of India. Such an
intervention by the High Courts is
not permissible."
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 7117-7118 OF 2017

M/S. STERLING INDUSTRIES Vs JAYPRAKASH ASSOCIATES LTD.

Dated:JULY 10,2019.

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When party can challenge order passed by district court before high court by revision as well as by writ petition?

34. We, therefore, answer the reference as under:

(I) The view taken by the learned Single Judge in the Case of Dilip Bidesh & Ors. vs. Shivgopal Madangopal Chaurasia & Ors. that revision under Section 115 of the Code would not be tenable against the order under Section 26-A of the said Act does not lay down the correction position of law.

(II) The view taken by the learned Single Judge in the case of Dhuliabai Mana Praga and Ors. vs. Manikbai Vithalrao Bhusarath (Deceased), to the extent that revision under Section 115 of the Code is tenable against an order passed under the analogous provisions, is correct. However, the view that the writ petition would not be tenable under Article 227 of the Constitution of India against such an order, in our view, does not lay down correct position of law.

(III) In our considered view, a party aggrieved by the order passed under Section 26-A of the Provincial small cause courtsAct by the District Court would be at liberty to choose to file either Civil Revision Application under Section 115 of the Code or a petition under Article 227 of the Constitution of India.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition Nos. 5552 and 3431/2013

Decided On: 07.12.2016

 Gajanan and Ors. Vs.  Mohd. Jamil Mohd. Amad and Ors.

Hon'ble Judges/Coram:

B.R. Gavai and V.M. Deshpande, JJ.

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Whether award of lok adalat can be challenged by filing writ petition?

In our considered view, the aforesaid law laid down by this Court is binding on all the Courts in the country by virtue of mandate of Article 141 of the Constitution. This Court, in no uncertain terms, has laid down that challenge to the award of Lok Adalat can be done only by filing a writ petition Under Article 226 and/or Article 227 of the Constitution of India in the High Court and that too on very limited grounds.

28. In the light of clear pronouncement of the law by this Court, we are of the opinion that the only remedy available to the aggrieved person (Respondents herein/Plaintiffs) was to file a writ petition Under Article 226 and/or 227 of the Constitution of India in the High Court for challenging the award dated 22.08.2007 passed by the Lok Adalat. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 11345 of 2017 (Arising out of S.L.P. (C) No. 23605 of 2015)

Decided On: 07.09.2017

Bharvagi Constructions and Ors. Vs. Kothakapu Muthyam Reddy and Ors.

Hon'ble Judges/Coram:

R.K. Agrawal and Abhay Manohar Sapre, JJ.

Citation: AIR 2017 SC 4428,(2018) 13 SCC 480

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When high court should not entertain writ petition?

In Shalini Shyam Shetty v. Rajendran Shankar Patil

(2010 (8) SCC 329) in paras 64 to 67, the scope of Article 227

has been considered which read as follows:

    "64.However, this Court unfortunately discerns that of late 

there is a

           growing    trend  amongst several     High Courts     to entertain writ petition in

           cases of pure property disputes.     Disputes relating to partition suits, matters

           relating to execution of a decree, in cases of dispute between landlord and

           tenant and also in a case of money decree and in various other cases where

           disputed questions of property are involved, writ courts are entertaining such

           disputes. In some cases the High Courts , in a routine manner, entertain

           petitions under Article 227 over such disputes and such petitions are treated

           as writ petitions.

                    65. We would like to make it clear that in view of the law referred to

           above in cases of property rights and in disputes between private individuals

           writ court should not interfere unless there is any infraction of statute or it an

           be shown that a private individual is acting in collusion with a          statutory

           authority.

                    66. We may       also observe    that in some High Courts       there is a

           tendency of entertaining petition under Article 227 of the Constitution by

           terming them as writ petitions. This is sought to be justified on an erroneous

           appreciation of the ratio in Suraya Dev and in view of the recent amendment

           to Section 115 of the Civil Procedure       Code by the Civil Procedure Code

           (Amendment) Act, 1999. It is urged that as a result of the amendment, scope

           of Section 115 C.P.C has been curtailed. In our view , even if the scope of

           Section 115 C.P.C is curtailed that has not resulted in expanding the High

           Court's power of superintendence. It is too well know to be reiterated that in

           exercising its jurisdiction, High Court must follow the regime of law.

                    67. As a result of frequent interference by the Hon'ble High Court

           either under Article 226 or 227 of the Constitution with pending civil and at

           times criminal cases, the disposal of cases by the civil and criminal courts

           gets further impeded and thus causing serious problems in the administration

           of justice. This Court hopes and trusts that in exercising its power either

           under   Article 226 or     227,   the Hon'ble High Court       will follow the time

           honoured principles discussed above. Those 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".

IN THE HIGH COURT OF KERALA AT ERNAKULAM

              FRIDAY, THE 19TH DAY OF AUGUST 2016

                                OP(C).No. 1266 of 2016 (O)

                          

                     REV. C.CHRISPUS,

                     Vs

                    REV. M.ROBINSON,

                  

                                                                        

                          K. RAMAKRISHNAN, J.

                 

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Whether revision is maintainable against order of interim maintenance?

Learned Advocate for the petitioner has claimed that the petitioner has no means to maintain herself and her minor child and as such the amounts should be enhanced by exercising power of this Hon'ble Court under Article 227 of the Constitution of India. Learned Advocate for the respondent has argued that had there been no means of the petitioner as alleged for maintaining herself and her minor child certainly she would not pray for setting aside the impugned order and for stay of further proceedings of the case in the Court below. According to petitioner's claim the respondent earns huge amount as Ayurvedic Medical Practitioner but the respondent claims that he earns Rs.5000/- only per month as a compounder of a doctor. On going through the certified copy of the impugned order it appears that the learned Judicial Magistrate has considered the rival contentions of both the parties and considering the prima facie materials on record, the impugned order has been passed by him. It is needless to say that the impugned order is an interlocutory order and not a final order and revision against such application under the provisions of the Code of Criminal Procedure is hit by Section 397 (2) of the Code of Criminal Procedure.

Calcutta High Court (Appellete Side)

Smt. Priya Lodh vs Sri Subhankar Lodh on 20 August, 2015

Author: Sankar Acharyya

C.R.R. No. 3872 of 2014

Citation:2016 CRLJ(NOC)162 Cal

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What is difference between article 226 and 227 of constitution?

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 01.07.2002 in Section 115 of 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 supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction – by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate 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.

(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 (iii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.

(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 it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is 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 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 exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.

Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules. Not less than often the High Court would be faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise self-restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where 'a stitch in time would save nine'. At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge.

Supreme Court of India

Surya Dev Rai vs Ram Chander Rai & Ors on 7 August, 2003

Bench: R.C. Lahoti, Ashok Bhan

CASE NO.:Appeal (civil) 6110 of 2003

Citation: AIR2003SC3044,2003(4)ALLMR(SC)761,

This Judgment is overruled in 

Radhey Shyam and Ors. Vs. Chhabi Nath and Ors.  

2015/INSC/160, MANU/SC/0200/2015,

 AIR 2015 SUPREME COURT 3269.

https://www.lawweb.in/2024/03/leading-supreme-court-judgment-on.html

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