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.

Print Page

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.

Print Page

Whether jurisdiction of high court Article 226 of the Constitution is ousted if there is arbitration clause?

Therefore, while exercising its jurisdiction under Article 226, the Court is entitled to enquire into whether the action of the State or its instrumentalities is arbitrary or unfair and in consequence, in violation of Article 14. The jurisdiction under Article 226 is a valuable constitutional safeguard against an arbitrary exercise of state power or a misuse of authority. In determining as to whether the jurisdiction should be exercised in a contractual dispute, the Court must, undoubtedly eschew, disputed questions of fact which would depend upon an evidentiary determination requiring a trial. But equally, it is well-settled that the jurisdiction under Article 226 cannot be ousted only on the basis that the dispute pertains to the contractual arena. This is for the simple reason that the State and its instrumentalities are not exempt from the duty to act fairly merely because in their business dealings they have entered into the realm of contract. Similarly, the presence of an arbitration clause does oust the jurisdiction under Article 226 in all cases though, it still needs to be decided from case to case as to whether recourse to a public law remedy can justifiably be invoked. The jurisdiction under Article 226 was rightly invoked by the Single Judge and the Division Bench of the Andhra Pradesh in this case, when the foundational representation of the contract has failed. TSIIC, a state instrumentality, has not just reneged on its contractual obligation, but hoarded the refund of the principal and interest on the consideration that was paid by Unitech over a decade ago. It does not dispute the entitlement of Unitech to the refund of its principal.

 In the Supreme Court of India

(Before Dhananjaya Y. Chandrachud and M.R. Shah, JJ.)

Civil Appeal No. 317 of 2021

Unitech Limited and Others  Vs  Telangana State Industrial Infrastructure Corporation (TSIIC) and Others 

Decided on February 17, 2021

The Judgment of the Court was delivered by

Dhananjaya Y. Chandrachud, J.:—

Citation: 2021 SCC OnLine SC 99

Print Page

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.

Print Page

What is the difference between Article 32 and Article 226 of Indian Constitution?

Article 32 differs from Article 226. Article 32 can be invoked only for the enforcement of Fundamental Rights whereas Article 226 can be invoked not only for the enforcement of Fundamental Rights but for ‘any other purpose’ as well. This means that the Supreme Court’s power under Article 32 is restricted as compared with the power of a High Court under Article 226, for, if an administrative action does not affect a

Print Page

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

Print Page

Whether high court can direct magistrate to release accused on bail?

As could be seen from the above said paragraph of Kartar Singh case (supra) this Court has made it very clear that High Court has no power to entertain an application for bail Under Article 226 of the Constitution of India. It has made further clear that the power should be exercised sparingly relating to the cases under the 1987 Act, that too only in rare and appropriate cases in extreme circumstances. Upon the said passage from the judgment of Kartar Singh case (supra), learned senior Counsel for Respondent Nos. 1 to 4 has placed strong reliance in justification of the order passed by the High Court in giving direction to the learned Magistrate regarding the bail application that would be filed by Respondent Nos. 1 to 4. The reliance upon the aforesaid passage from the judgment of Katar Singh case has no application to the fact situation for the reason that the High Court has neither given any reason, whatsoever, for exercising its power sparingly and also not mentioned that the case for grant of such direction is in extreme circumstances. In the absence of not assigning such reasons the learned senior Counsel for the Respondent Nos. 1 to 4 cannot place reliance upon the said decision of the Constitution Bench of this Court. Therefore, we have to accept the submission made by learned senior Counsel for the Appellant that exercise of power by the High Court giving mandatory direction to the learned Magistrate to consider the bail application that would be filed by Respondent Nos. 1 to 4 and enlarge them on bail on furnishing personal bonds and one surety each to the satisfaction of the learned Magistrate, the said direction is contrary to the decision of this Court extracted in paragraph 22 in Hema Mishra case (supra) upon which reliance has rightly been placed by learned senior Counsel for the Appellant. In our opinion, the submission made by learned senior Counsel for the Appellant is well founded. We must accept the same. The direction to the learned Magistrate to enlarge the Respondent Nos. 1 to 4 on bail is contrary to the law laid down by this Court, hence, the same is liable to be set aside. Consequently, we allow this appeal and the impugned order passed by the High Court is set aside and we remand the matter to the learned Magistrate to consider the bail application afresh in accordance with law after giving an opportunity of hearing to the parties. 

IN THE SUPREME COURT OF INDIA

Crl. A. No. 426 of 2015 (Arising out of SLP (Crl.) No. 9603 of 2014)

Decided On: 10.03.2015

 Mahima Savin Bansal
Vs.
Savin Bansal and Ors.

Coram:V. Gopala Gowda and C. Nagappan, JJ.

Citation:(2015) 16 SCC228

Print Page

Whether high court exercises appellate powers in petition under article 226 of constitution?

In “State of Madhya Pradesh and Ors. –vs M.V.Vyavsaya and Company” [(1997) 1 SCC 156] it was held -

“15. - It has been repeatedly held by this Court that the

power of the High Court Under Article 226 of the

Constitution is not akin to appellate power. It is a

supervisory power. While exercising this power, the

Court does not go into the merits of the decision taken

by the authorities concerned but only ensures that the

decision is arrived at in accordance with the procedure

prescribed by law and in accordance with the

principles of natural justice wherever applicable.

Further, where there are disputed questions of fact, the

High Court does not normally go into or adjudicate

upon the disputed questions of fact.

IN THE HIGH COURT AT CALCUTTA

(Ordinary Original Civil Jurisdiction)

 Original Side

Present:

The Hon’ble Justice Sudip Ahluwalia

W.P. No. 493 of 2011

With

G.A No. 2776 of 2012

Angel Distribution Co. Pvt. Ltd. & Anr.

Vs.

Kotak Mahindra Bank Ltd. & Ors.

Judgement On : 20-05-2016

Print Page

How to challenge award passed by Special Land Acquisition Officer?

It is well settled that a civil court has no jurisdiction to give a declaration that the award passed by the Special Land Acquisition Officer is null and void, and for challenging the award a writ petition under Article 226 of the Constitution has to be filed in the High Court. The decree passed by the Civil Court therefore is null and void, and therefore is of no assistance to the Petitioner.

IN THE HIGH COURT OF BOMBAY

Sahebrao Gulabrao Dhamale vs. Special Land Acquisition Officer and Ors. (07.03.2016 )

Writ Petition No. 1536 of 1999
Decided On: 07.03.2016

Hon'ble Judges/Coram:V.M. Kanade and B.P. Colabawalla, JJ.

Print Page

When court can interfere in case of grant of government contract?

 This court is conscious that its conclusions have the effect of
invalidating the award of contract to some of the respondents. There is no
doubt that a court, in its judicial review jurisdiction, exercises a limited role.
That does not include the wisdom of the decision of the Government or
executive agency which awards the contract. This court recollects the
decision of the Supreme Court in Air India Ltd. v. Cochin International
Airport Ltd & Ors. (2000) 2 SCC 617, in this context, that:
"7………………The award of a contract, whether it is by a private party or
by a public body or the State, is essentially a commercial transaction. In
arriving at a commercial decision considerations which are of paramount are
commercial considerations. The state can choose its own method to arrive at
a decision. It can fix its own terms of invitation to tender and that is not open
to judicial scrutiny. It can enter into negotiations before finally deciding to
accept one of the offers made to it. Price need not always be the sole
criterion for awarding a contract. It is free to grant any relaxation, for bona
fide reasons, if the tender conditions permit such a relaxation. It may not
accept the offer even though it happens to be the highest or the lowest. But
the State, its corporations, instrumentalities and agencies are bound to
adhere to the norms, standards and procedures laid down by them and cannot
depart from them arbitrarily. Though that decision is not amenable to
judicial review, the court can examine the decision-making process and
interfere if it is found vitiated by mala fides, unreasonableness and
arbitrariness. The State, its corporations, instrumentalities and agencies have
the public duty to be fair to all concerned. Even when some defect is found
in the decision- making process the court must exercise its discretionary
power under Article 226 with great caution and should exercise it only in
furtherance of public interest and not merely on the making out of a legal
point. The court should always keep the larger public interest in mind in
order to decide whether its intervention is called for or not. Only when it
comes to a conclusion that overwhelming public interest requires
interference, the court should intervene.” 
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : TENDER MATTER

Decided on: 27.09.2013
W.P.(C)4056/2013 & C.M. APPL. 9559/2013
MI2C SECURITY & FACILITIES PRIVATE LIMITED ..... 
versus
GOVERNMENT OF NCT & ORS. ...
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE NAJMI WAZIRI
MR. JUSTICE S. RAVINDRA BHAT

Print Page

Leading judgment on government contract and tender proces

In Reliance Airport Developers (P) Ltd. vs. Airports
Authority of India & Ors., (2006) 10 SCC 1, this Court held
that while judicial review cannot be denied in contractual
matters or matters in which the Government exercises its
contractual powers, such review is intended to prevent
arbitrariness and must be exercised in larger public interest.

17) In Jagdish Mandal vs. State of Orissa and Others,
(2007) 14 SCC 517, the following conclusion is relevant:
“22. Judicial review of administrative action is intended to
prevent arbitrariness, irrationality, unreasonableness, bias
and mala fides. Its purpose is to check whether choice or
decision is made “lawfully” and not to check whether choice
or decision is “sound”. When the power of judicial review is
invoked in matters relating to tenders or award of contracts,
certain special features should be borne in mind. A contract
is a commercial transaction. Evaluating tenders and
awarding contracts are essentially commercial functions.
Principles of equity and natural justice stay at a distance. If
the decision relating to award of contract is bona fide and is
in public interest, courts will not, in exercise of power of
judicial review, interfere even if a procedural aberration or
error in assessment or prejudice to a tenderer, is made out.
The power of judicial review will not be permitted to be
invoked to protect private interest at the cost of public
interest, or to decide contractual disputes. The tenderer or
contractor with a grievance can always seek damages in a
civil court. Attempts by unsuccessful tenderers with
imaginary grievances, wounded pride and business rivalry,
to make mountains out of molehills of some
technical/procedural violation or some prejudice to self, and
persuade courts to interfere by exercising power of judicial
review, should be resisted. Such interferences, either interim
or final, may hold up public works for years, or delay relief
and succour to thousands and millions and may increase
the project cost manifold. Therefore, a court before
interfering in tender or contractual matters in exercise of
power of judicial review, should pose to itself the following
questions:
(i) Whether the process adopted or decision made by the
authority is mala fide or intended to favour someone;
OR
Whether the process adopted or decision made is so
arbitrary and irrational that the court can say: “the decision
is such that no responsible authority acting reasonably and
in accordance with relevant law could have reached”;

(ii) Whether public interest is affected.
If the answers are in the negative, there should be no
interference under Article 226. Cases involving blacklisting
or imposition of penal consequences on a
tenderer/contractor or distribution of State largesse
(allotment of sites/shops, grant of licences, dealerships and
franchises) stand on a different footing as they may require a
higher degree of fairness in action.”
18) The same principles have been reiterated in a recent
decision of this Court in Tejas Constructions &
Infrastructure Pvt. Ltd. vs. Municipal Council, Sendhwa &
Anr., (2012) 6 SCC 464.
19) From the above decisions, the following principles
emerge:
(a) the basic requirement of Article 14 is fairness in action
by the State, and non-arbitrariness in essence and substance
is the heartbeat of fair play. These actions are amenable to
the judicial review only to the extent that the State must act
validly for a discernible reason and not whimsically for any
ulterior purpose. If the State acts within the bounds of
reasonableness, it would be legitimate to take into
consideration the national priorities;
(b) fixation of a value of the tender is entirely within the
purview of the executive and courts hardly have any role to

play in this process except for striking down such action of the
executive as is proved to be arbitrary or unreasonable. If the
Government acts in conformity with certain healthy standards
and norms such as awarding of contracts by inviting tenders,
in those circumstances, the interference by Courts is very
limited;
(c) In the matter of formulating conditions of a tender
document and awarding a contract, greater latitude is
required to be conceded to the State authorities unless the
action of tendering authority is found to be malicious and a
misuse of its statutory powers, interference by Courts is not
warranted;
(d) Certain preconditions or qualifications for tenders have
to be laid down to ensure that the contractor has the capacity
and the resources to successfully execute the work; and
(e) If the State or its instrumentalities act reasonably, fairly
and in public interest in awarding contract, here again,
interference by Court is very restrictive since no person can
claim fundamental right to carry on business with the
Government.

20) Therefore, a Court before interfering in tender or
contractual matters, in exercise of power of judicial review,
should pose to itself the following questions:
(i) Whether the process adopted or decision made by the
authority is mala fide or intended to favour someone; or
whether the process adopted or decision made is so arbitrary
and irrational that the court can say: “the decision is such
that no responsible authority acting reasonably and in
accordance with relevant law could have reached”; and (ii)
Whether the public interest is affected. If the answers to the
above questions are in negative, then there should be no
interference under Article 226.

REPORTABLE

 IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL NO. 5898 OF 2012
(Arising out of SLP (C) No. 25802 of 2008
M/s Michigan Rubber (India) Ltd. .... Appellant (s)
Versus
The State of Karnataka & Ors. .... Respondent(s)
 Dated:AUGUST 17, 2012.

 P. Sathasivam, J.

Print Page

When earlier proceedings before HC U/A 226 would operate as bar for subsequent original proceedings U/A 32 before SC?

It could thus be seen that Their Lordships of the Apex Court, have
culled   out   following   categories   for   consideration   as   to   whether   the   earlier
proceedings  before   the  High  Court   under  Article   226   would  operate   as  bar  for
subsequent original proceedings under Article 32 before the Apex Court :­
I. Where the matter is contested between the parties and the Court has
decided the petition under Article 226 on merits, the same would bind the
parties, unless modified or reversed by the Appellate Court.   In such a case, it
would not be open to parties to ignore the said judgment and move the Apex
Court under Article 32 by  a original petition.  

II. Where the petition is dismissed merely on the ground of laches or
availability of alternate remedy,  the same would not operate as a bar for
subsequent proceedings.
III. When the petition is dismissed in limine and the order is passed in that
behalf, whether such a dismissal would constitute a bar or not would depend
upon the nature of the order passed by the High Court,
IV. When the petition is withdrawn, the same would not operate as a bar.
15] We find that when the aforesaid guidelines are laid by Their Lordships
for entertaining subsequent original petition under Article 32, the same would also
apply to the subsequent petition under Article 226 before this Court.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
              WRIT PETITION     NO.    29   OF    2014
Deepak s/o Yadavrao Gotefode,

             // VERSUS //
Dy. Director (R)  &  MemberSecretary,
Scheduled Tribe
Caste Certificate Scrutiny
Committee, 
   CORAM :  B.R. GAVAI & P.N. DESHMUKH, JJ.     
   DATED  :  DECEMBER 4, 2015.
    Citation;2016(3)ALLMR58

Print Page

Whether overseas citizen can invoke Article 226 of constitution?

A foreign national is entitled to invoke Article 226 of the Constitution of India for redressal of breach of the rights available to him. The same would, therefore, be available to an overseas citizen of India as defined in Section 2(ee) of the Act of 1955 for redressal of infringement of the rights available to him. An overseas citizen therefore would have a right to approach the Court under Article 226 of the Constitution if any of the rights noted above are infringed.

45. The third issue is answered by holding that an overseas citizen can approach a Court under Article 226 of the Constitution of India for redressal of infringement of rights recognized to be available to him.

IN THE HIGH COURT OF CALCUTTA

W.P. No. 15515 (W) of 2014

Decided On: 28.01.2016

Kunal Saha Vs. The State of West Bengal and Ors.

Hon'ble Judges/Coram:Debangsu Basak, J.

Citation;AIR 2016(NOC)308 Cal

Print Page

Whether Revision is maintainable against order passed under S 156(3) CRPC?

 Insofar as the question framed by us is concerned,
we find that there is a passing reference in paragraph
no.31 made by the Division Bench about availability of
several efficacious alternative statutory remedies under
the Criminal Procedure Code to challenge the order u/s
156(3). We think though it is obiter dicta, nevertheless
the same is binding on us as we respectively agree with
the said view, for the above reasons that the order u/s
156(3) of the Code not being an interlocutory order, but
being a final order in a proceeding u/s 156(3) of the
Code would certainly be revisable under the revisional
powers of the Sessions Court or the High Court. The
Division Bench in the case of B.S. Khatri v. State of

Maharashtra
& another (supra), however, clearly held that
the exercise of extraordinary jurisdiction under Article
226 of the Constitution should not be made for
considering the challenge to order u/s 156(3) of the Code
with which again we respectfully agree. We, however,
state that the bar to exercise extraordinary jurisdiction
under Article 226 of the Constitution is the one of selfimposed
rule. We, however, hold that the order u/s
156(3) of the Code not being an interlocutory order,
would obviously be revisable. We thus hold that the
order u/s 156(3) of the Code of Criminal Procedure, 1973,
is not an interlocutory order, but is a final order
terminating the proceeding u/s 156(3) of the Code and
that the revision u/s 397 or Section 401 of the Code
would lie.
THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.159 OF 2014

Avinash  Trimbakrao Dhondage,Vs  The State of Maharashtra,

CORAM:
A.B. CHAUDHARI &
INDIRA K. JAIN, JJ.

JUDGMENT PRONOUNCED ON : 21.10.2015
Citation; 2016CRLJ (NOC)102 Bom,2016 ALLMR(CRI)985

Print Page

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

Print Page

Whether writ petition under Article 226 of Constitution can be filed by power of attorney holder?

For the reasons which we have indicated earlier, we hold that we cannot subscribe to the broad principle of law which has been enunciated in the following decisions: 
(1) Dr Prabhu Nath Prasad Gupta Vs State of U P, 2003 (52) ALR 520; 
(2) Rustam Khusro Shapoor Ji Gandhi Vs State of U P, 2010 (80) ALR 25; and 
(3) Gurmeet Kaur Kwatra Vs Vice Chairman, Varanasi Development Authority, Varanasi, CMWP No 44007 of 1998 (decided on 14 December 2009). 
When a writ petition under Article 226 of the Constitution is instituted through a power of attorney holder, the holder of the power of attorney does not espouse a right or claim personal to him but acts as an agent of the donor of the instrument. The petition which is instituted, is always instituted in the name of the principal who is the donor of the power of attorney and through whom the donee acts as his agent. In other words, the petition which is instituted under Article 226 of the Constitution is not by the power of attorney holder independently for himself but as an agent acting for and on behalf of the principal in whose name the writ proceedings are instituted before the Court. 
Having held so, we must, at the same time, emphasize the necessity of observing adequate safeguards where a writ petition is filed through the holder of a power of attorney. These safeguards should necessarily include the following: 
(1) The power of attorney by which the donor authorises the donee, must be brought on the record and must be filed together with the petition/application; 
(2) The affidavit which is executed by the holder of a power of attorney must contain a statement that the donor is alive and specify the reasons for the inability of the donor to remain present before the Court to swear the affidavit; and 
(3) The donee must be confined to those acts which he is authorised by the power of attorney to discharge. 
For these reasons, we hold and have come to the conclusion that the question referred for adjudication before the Full Bench must be answered in the affirmative and is accordingly answered, subject to due observance of the safeguards which we have indicated above. 
ALLAHABAD HIGH COURT
Case :- CONSOLIDATION No. - 534 of 2002

 Syed Wasif Husain Rizvi 
Vs

 Hasan Raza Khan & 6 Ors Citation: 2016(2)ADJ571

Hon'ble Dr Dhananjaya Yeshwant Chandrachud, Chief Justice
Hon'ble Devendra Kumar Upadhyaya, J
Hon'ble Rajan Roy, J Dated:- 22.1.2016  

Print Page

Whether case diary can be called in civil proceeding or proceeding under article 32 and article 226 of constitution?

The bar under
Sub-section (2) to Section 172 Cr.P.C. is a limited bar and does not
apply to civil proceedings or proceedings under Articles 32 and 226 of
the Constitution of India, particularly when the party calling for thecase diary is neither an accused nor an agent. Rejecting the contention
that the principle behind Section 172 Cr.P.C. is to exclude the report of
investigation altogether in other proceedings for it would jeopardize 
secrecy of investigation, the Supreme Court affirmatively observed that
for truth to emerge, all relevant facts to the inquiry must be brought
before the court and nothing should be shut out, otherwise the opinion
formed may be distorted or incomplete, which might result in injustice. A
judgment should not be founded on partial or speculative presentation of
facts as it would affect the integrity of the judicial system and public
confidence. In exceptional cases, where weighty and compelling
competing interest requires withholding or secrecy, legislature has
provided for exceptions but the exclusion should be strictly interpreted

and not expansively construed.

IN THE HIGH COURT OF DELHI AT NEW DELHI
 CRIMINAL APPEAL NO. 485/2012
 Date of Decision:11th February, 2016
LAXMI @ LACCHO AND ANOTHER 
Versus
STATE NCT OF DELHI 
CORAM:
HON’BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE R.K. GAUBA

Print Page

Supreme court;Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of Constitution

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.”
(emphasis added)
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.
We may also deal with the submission made on behalf
of the respondent that the view in Surya Dev Rai stands
approved by larger Benches in Shail, Mahendra Saree
Emporium and Salem Advocate Bar Assn and on that
ground correctness of the said view cannot be gone into by
this Bench. In Shail, though reference has been made to
Surya Dev Rai, the same is only for the purpose of scope
of power under Article 227 as is clear from para 3 of the
said judgment.
maintainability
There is no discussion on the issue of
of
a
petition
under
Article
226.
In
Mahendra Saree Emporium, reference to Surya Dev Rai
is made in para 9 of the judgment only for the proposition
that no subordinate legislation can whittle down the
jurisdiction conferred by the Constitution.
Similarly, in
Salem Bar Assn. in para 40, reference to Surya Dev Rai
is for the same purpose. We are, thus, unable to accept the
submission of learned counsel for the respondent.
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.”

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2548 OF 2009
RADHEY SHYAM & ANR.

VERSUS
CHHABI NATH & ORS.
Dated;FEBRUARY 26, 2015

Print Page