Supreme Court of India
SH JOGENDRASINHJI VIJAYSINGHJIversusSTATE OF GUJARAT & ORS.
- Citation
- 2015 INSC 485
- Decided
- 6 July 2015
- Disposal
- Disposed off
- Bench
- DIPAK MISRA
Holding
An order of a civil court is exclusively reviewable under Article 227, so no letters patent appeal lies against it; a letters patent appeal is only maintainable when the Single Judge’s order is exercised under Article 226 (or a composite of Articles 226/227) and the tribunal or court whose order is impugned is a necessary party.
Summary
The Supreme Court examined whether a letters patent appeal could be filed against an order of a Single Judge that arose from civil court proceedings or other tribunals. It held that orders of civil courts are only reviewable under Article 227 of the Constitution and therefore are not amenable to writ jurisdiction under Article 226, making any intra‑court appeal under the Letters Patent untenable. A letters patent appeal is maintainable only when the Single Judge’s order is exercised under Article 226, or a composite jurisdiction of Articles 226 and 227, and the tribunal or court whose order is impugned must be a necessary party to the writ petition. The Court clarified that the presence of the tribunal as a party is essential for certiorari relief, but its absence does not alone determine the maintainability of a letters patent appeal. It also emphasized that the distinction between Articles 226 and 227 is substantive and not merely procedural. Consequently, the appeals were disposed of and the matters remanded to the Gujarat High Court for a division‑bench hearing in accordance with the principles laid down.
Issues considered
- Whether a letters patent appeal lies against an order of a Single Judge that has originated from a civil court or other tribunal.
- Whether orders of civil courts are amenable to writ jurisdiction under Article 226 or only under Article 227 of the Constitution.
- Whether the tribunal or court whose order is sought to be quashed must be impleaded as a necessary party for the writ petition to be maintainable.
- How to determine the nature of jurisdiction (Article 226, 227 or composite) exercised by the Single Judge for the purpose of letters patent appeal maintainability.
- Whether the status of the tribunal as a party affects the maintainability of a letters patent appeal.
Legislation cited
- Code of Civil Procedure, 1908s. 115
- Constitution of Indias. Art.226, s. Art.227
- Letters Patent (Gujarat High Court)s. Clause 15
Subjects
Letters Patent AppealArticle 226Article 227High Court jurisdictionWrit of CertiorariNecessary partyCivil court ordersIntra-court appealMaintainability
Judgment
(2015] 6 S.C.R. 504
A SH JOGENDRASINHJI VIJAYSINGHJI
v.
STATE OF GUJARAT & ORS.
(Civil Appeal No. 237 4 of 2015)
B
JULY6,2015
[DIPAK MISRA AND ADARSH KUMAR GOEL, JJ.]
Letters Patent Appeal: Maintainability of - Held: Whether a
c letters patent appeal would lie against the order passed by
the Single Judge that has travelled to him from the other
tribunals or authorities, would depend upon many a facet -
The order passed by the civil court is only amenable to be
scrutinized by the High Court in exercise of jurisdiction u/
D Article 227 which is different from Article 226 and no.writ
can be issued against the order passed by the civil court
and, therefore, no letters patent appeal would be
maintainable - Tribunal being or not being party is not
determinative of maintainability of a letters patent appeal -
E Constitution of India, 1950- Arts.226 and 227.
Necessary party: Court or tribunal whose order is sought to
be quashed, if not arrayed as party in writ petition - Held:
Writ petition can be held not maintainable if a tribunal or
F authority that is required to defend the impugned order has
not been arrayed as a party, as it is a necessary party -
Constitution of India, 1950 - Arts. 226 and 227.
Constitution of India, 1950: Arts.226 and 227 - Scope of-
G Held: Judicial orders of civil court are not amenable to writ
jurisdiction u/Art. 226 - An order passed by a civil court can
only be assailed u/Art.227 - Once it is exclusively assailable
u/Article 227, no intra-court appeal is maintainable.
Disposing of the appeals, the Court
H
504
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF 505
GUJARAT & ORS.
HELD: 1. An order passed by a civil court can A
only be assailed under Article 227 of the Constitution of
India. Once it is exclusively under Article 227, no intra
court appeal is maintainable. [para 16) [528-G; 529-A]
Radhey Shyam & Anr. v. Chhabi Nath & Ors. 2015 B
(3) SCALE 88 - Followed.
T.C. Basappa v. T. Nagappa and Anr. AIR 1954 SC
440: 1955 SCR 250; Hari Vishnu Karnath v. Ahmad
lshaque and Ors. AIR 1955 SC 233: 1955 c
SCR1104; Nagender Nath Bora v. The Commissioner
of Hills Division and Appeals, Assam and Ors. AIR
1958 SC 398: 1958 SCR 1240; State of Uttar
Pradesh and Ors. v. Dr. Vijay Anand Maharaj AIR
1963 SC 946: 1963 SCR 1; Hamid Hassan v. D
Banwarilal Roy AIR 1947 PC 90; Naresh Shridhar
Mirajkar v. State of Maharashtra and Anr. AIR 1967
SC 1 1966 SCR744; Budan Chaudhry v. State of
Bihar AIR 1955 SC 191: 1955 SCR1045; Parbhani
Transport Cooperative Society Ltd. v. Regional E
Transport Authority, Aurangabad AIR 1960 SC 801:
1960 SCR 177; Prem Chand Garg v. Excise
Commissioner, U.P Allahabad AIR 1963 SC 996:
1963 Suppl. SCR 885; Rupa Ashok Hurra v. Ashok
Hurra and Anr. (2002) 4 SCC 388: 2002 (2) SCR F
1006; Triveniben v. State of Gujarat (1989) 1 SCC
678: 1989 (1) SCR 509 - relied on.
Revaben Wd/o. Ambalal Motibhai and Ors. v. Vinubhai
Purshottambhai Patel and Ors. 2013 (1) GLH 440; G
Dilavarsinhsinh Khodubha Jadeja v. State of Gujarat
and Ors. 1995 (1) GLH 58 - referred to.
2. Jurisdiction under Article 227 is distinct from
jurisdiction under Article 226 of the Constitution and, H'
506 SUPREME COURT REPORTS [2015] 6 S.C.R.
A therefore, a letters patent appeal or an intra-court appeal
in respect of an order passed by the Single Judge dealing
with an order arising out of a proceeding from a Civil
Court would not lie before the Division Bench.
Maintainability of a letters patent appeal would depend
B upon the pleadings in the writ petition, the nature and
character of the order passed by the Single Judge, the
type of directions issued regard being had to the
jurisdictional perspectives in the constitutional context.
Barring the civil court, from which order a writ petition
C can lie only under Article 227 of the Constitution, orders
from tribunals cannot always be regarded for all
purposes to be under Article 227 of the Constitution.
There can be orders passed by the Single Judge which
can be construed as an order under both the articles in
0
a composite manner, for they can co-exist, coincide and
imbricate. It would depend upon the nature, contour
and character of the order and it will be the obligation of
the Division Bench hearing the letters patent appeal to
E discern and decide whether the order has been passed
by the Single Judge in exercise of jurisdiction under
Article 226 or 227 of the Constitution or both. The
Division Bench would also be required to scrutinize
whether the facts of the case justify the assertions made
F in the petition to invoke the jurisdiction under both the
articles and the relief prayed on that foundation. [Paras
17, 25] [529-C, D; 537-C-H]
3. The next facet pertains to the impleadment of
G the Court or tribunal as a party. Even if application is
described as one not only under Article 226 of the
Constitution, but also under Article 227, the Court or
tribunal whose order is sought to be quashed, if not
arrayed as a party, the application would not be
H maintainable as one of the relief of certiorari, in the
SH'JOGENDRASINHJIVIJAYSINGHJI v. STATE OF 507
GUJARAT & ORS.
absence of the concerned tribunal or Court as a party, A
cannot be granted. If the Court or tribunal has not been
impleaded as party-respondent in the main writ petition,
then by merely impleading such Court or tribunal for
the first time in letters patent appeal would not change
the nature and character of the proceeding before the B
Single Judge and, therefore, intra-court appeal would
not be maintainable. Where plain question on issuing
directions arises, it is conceivable that there should be
in existence a person or authority to whom such
directions could be issued. [Paras 26, 30] [538-B-E; 545- C
E-F]
Surya Dev Rai v. Ram Chander Rai and Ors. (2003) 6
SCC 675: 2003 (2) Suppl. SCR 290; Sadhana Lodh v.
National Insurance Co. Ltd. (2003) 3 SCC 524: 2003 (1) D
SCR 567; Umaji Keshao Meshram and Ors. v. Radhikabai
and Anr. 1986 (Supp) SCC 401: 1986 SCR 731; Sushilabai
Laxminarayan Mudliyar and Ors. v. Nihalchand Waghajibhai
Shaha and Ors. 1993 Supp. (1) SCC 11; Mangalbhai and
Ors. v. Radhyshyam (1992) 3 SCC 448: 1992 (3) SCR 537; E
Lokmat Newspapers Pvt. Ltd. v. Shankarprasad (1999) 6
SCC 275: 1999 (3) SCR 907; Kishorilal v. Sa/es Officer,
District Land Development Bank and Ors. (2006) 7 SCC 496:
2006 (5) Suppl. SCR 274; Ashok K. Jha and others v. Garden F
Silk Mills Ltd. andAnr. (2009) 10 sec 584: 2009 (13) SCR
886; Ratnagiri Dist. Central Coop. Bank Ltd. v. Dinkar
Kashinath Watve (1993) Supp (1) SCC 9; Ramesh Chandra
Sank/a v. Vikram Cement (2008) 14 SCC 58: 2008 (10)
SCR 243; Messrs. Ghaio Mal & Sons v. State of Delhi and G
Ors. AIR 1959 SC 65: 1959 SCR 1424; Udit Narain Singh
Malpaharia v. Addi. Member, Board of Revenue AIR 1963
SC 786: 1963 Suppl. SCR 676 - relied on.
4. Civil courts, which decide matters, are courts H
508 SUPREME COURT REPORTS [2015] 6 S.C.R.
A in the strictest sense of the term. Neither the court nor
the Presiding Officer defends the order before the
superior court it does not contest. If the High Court, in
exercise of its writ jurisdiction or revisional jurisdiction,
as the case may be, calls for the records, the same can
B always be called for by the High court without the Court
or the Presiding Officer being impleaded as a party.
Similarly, with the passage of time there have been many
a tribunal which only adjudicate and they have nothing
to do with the lis. For example; the tribunals constituted
C under the Administrative Tribunals Act, 1985, the
Custom, Excise & Service Tax Appellate Tribunal, the
Income Tax Appellate Tribunals, the Sales Tax Tribunal
and such others. Every adjudicating authority may be
nomenclatured as a tribunal but the said authority(ies)
0
are different and pure and simple adjudicating
authorities and that is why they are called the authorities.
An Income Tax Commissioner, whatever rank he may
be holding, when he adjudicates, he has to be made a
E party, for 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,
F 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
G own order, and in that case such tribunals need not be
arrayed as parties. [Para 34] [548-D-H; 549-A-C]
King v. Electricity Commissioners 19241 KB; Ahmeda/li
v. M.D. Lalkaka AIR 1954 Bom 33, 34; Kanglu Bau/a
H v. Chief Executi11e Officer AIR 1955 Nag. 49 - referred
to.
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF 509
GUJARAT & ORS.
Case Law Reference A
2013 (1) GLH 440 referred to Para 2
1995 (1) GLH 58 referred to Para 2
1955 SCR 250 relied on. Para 6
1955 SCR 1104 relied on. Para 7 B
1958 SCR 1240 relied on. Para 8
1963 SCR 1 relied on. Para 9
. AIR 1947 PC 90 relied on . Para 10
1966 SCR 744 relied on. Para 11 c
1955 SCR 1045 relied on. Para 12
1960 SCR 177 relied on. Para 12
1963 Suppl. SCR 885 relied on. Para 12
2002 (2) SCR 1006 relied on. Para 13 D
.1989 (1) $CR 509 relied on. Para 13
2015 (3) SCALE 88 Followed. Para 14
2003 (2) Suppl. SCR 290relied on Para 14
2003 (1) SCR 567 relied on Para 14
E
1986 SCR 731 relied on Para 18
1993 Supp. (1) sec 11 relied on Para 19
1992 (3) SCR 537 relied on Para 20
1999 (3) SCR 907 relied on Para 21
2006 (5) Suppl. SCR 274relied on Para 22 F
2009 (13) SCR 886 relied on Para 23
(1993) Supp (1) sec 9 relied on Para 23
2008 (10) SCR 243 relied on Para 23
1959 SCR 1424 relied on Para 26 G
1963 Suppl. SCR 676 relied on Para 26
19241 KB referred to. Para 29
AIR 1954 Born 33, 34 referred to. Para 30
AIR 1955 Nag. 49 referred to. Para 30 H
510 SUPREME COURT REPORTS [2015] 6 S.C.R.
A CIVILAPPELLATE JURISDICTION: Civil Appeal
No. 2374 of 2015
From the Judgment and Order dated 22.01.2014 in
LPA No. 603 of 2007 of the High Court of Gujarat
B
WITH
CIVIL APPEAL N0.8 2375-2376, 2378-2385, 2386, 2387-
2388, 2389-2390, 2665, 2669-2716, 2717, 2391-2392, 2662-
2663, 2141-2144, 2664 OF 2015
c
Dayan Krishnan, Percy Kavina, Kirtiman Singh,
Gautam Narayan. Asmita Singh, Nachiketa Joshi, Sudhakar
Joshi, Chaitanya Joshi, Bhushan M. Oza, 0. P. Bhadani,
Ashok Anand, Rakesh Kumar 3ingn, Sanjay Kapur, D.G.
D Chauhan, Anmol Chandan, Priyanka Das, Daisy Hannah,
Jatin Zaveri, Mohit D. Ram, Manisha T. Karia, Purvish
Jitendra Malkan, Sunil Fernandes, Astha Sharma, Raghav
Chad ha, Mithu Jain, Preetesh Kapur, Hemantika Wahi, Jesal,
Preeti Bhardwaj, Gaurav Goel, Sanjoy Ghose, Kaustubh
E Anshuraj, Abhijeet Sinha, J. Prabhakar, Vikash Singh, Yogen
N. Pandya, Padhyaru, Rameshwar Prasad Goyal for the
appearing parties.
The Judgment of the Court was delivered by
F
DIPAK MISRA, J. - In this batch of appeals, by special
leave, the appellants call in question the legal substantiality
of the judgment and order dated 26.12.2013 passed by the
Special Bench of the High Court of Gujarat in a bunch of
G Letters Patent Appeals preferred under Clause 15 of the
Letters Patent.
2. As the factual matrix would unveil, the Division
Bench that referred the matter to a larger Bench, noticed
H conflict in Revaben Wdlo. Ambalal Motibhai and oth,.rs
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF 511
GUJARAT & ORS. [DIPAK MISRA, J.]
v. Vinubhai Purshottambhai Patel and others' and A
Dilavarsinhsinh Khodubha Jadeja v. State of Gujarat and
others2 and at that juncture framed two questions. The-
Special Bench adverted to the facts necessitating the
reference in detail and took note of the preliminary objections
of the learned counsel for the State as regards the B
maintainability of the Letters Patent Appeal on many a score
and thereafter thought it appropriate to frame the questions
afresh and accordingly it formulated questions.
3. At the outset, we may state that though eight C
questions have been drawn up by the special Bench yet we
are disposed to think that they can really be put into three
basic compartments, namely:
(i) In what context the phrase 'original jurisdiction' D
appearing in Clause 15 of the Letters Patens should be
construed, that is, by taking into consideration the plain
meaning of the same as the Court's power to hear and decide
the matter before any other court and review the same; or
should it be construed in the context with the power of the E
Court to issue a writ under Article 226 of the Constitution of
India, which is always original.
(ii) Assuming the words "to issue to any person or
authority" as contained in Article 226 of the Constitution are F
interpreted so as to include the tribunal or the Court, then in
such circumstances, would it be the correct propositiun of
law to say that appellate tribunal is not amenable to a writ of
certiorari and the only remedy available to the litigant to
challenge the order passed by an appellate tribunal is under G
Article 227 of the Constitution and, ancillary one, when a
petition assails an order of the tribunal, be it a tribunal of first
instance or an appellate tribunal, should it be necessarily
1
2013 (1) GLH 440
2 1995 (1) GLH 58 H
512 SUPREME COURT REPORTS [2015] 6 S.C.R.
A treated as a petition under Article 226 of the Constitution of
India in every case or it would depend upon facts of each
case, more particularly the grounds of challenge and the
nature of order passed.
B (iii) Whether in a petition for issue of a writ of Certiorari
under Article 227 of the Constitution of India, the tribunal/
Court whose order is impugned in a petition must be a party
to the petition so that the writ sought from the Court can be
issued against the tribunal/Court, but if the petition is for the
C relief under Article 227 only, then the tribunal/Court whose
order is under assail need not be a party-respondent on the
reasoning that by entertaining a petition under Article 227 of
the Constitution, the High Court exercises its power of
superintendence which is analogous to the revisional
D jurisdiction.
4. The special bench as is evincible from the judgment
impugned, has delved into the questions framed by it, if we
permit ourselves to say so, at great length and recorded its
E conclusions in seriatum. It is necessary to reproduce the
relevant conclusions, which are as follows:-
"(iii) When a writ is issued under Article 226 of the
Constitution, it is issued in exercise of its original
F jurisdiction whether against the Tribunal or inferior Court
or administrative authority.
(iv) The power exercised under Article 226 of the
Constitution is in exercise of original jurisdiction and
not supervisory jurisdiction.
G
xxx xxx xxx
(vii) A writ of certiorari lies in appropriate cases against
the order of Tribunal or_ Court subordinate to the High
Court where s~ch a Court, or Tribunal acts not only as
H
an authority of first instance but even if such a Court or
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF 513
GUJARAT & ORS. [DIPAK MISRA, J.]
Tribunal acts as an appellate or revisional authority A
provided a case for a writ of certiorari is made out to
the satisfaction of the Court concerned. Thus, if an
appellate or revisional order of the Court or Tribunal,
subordinate to a High Court, suffers from a patent error
of law or jurisdiction, the same could be challenged B
before the High Court with the aid of Article 226 of the
Constitution and it could not be said that such an
appellate or revisional order of the Court or Tribunal
could be challenged with the aid of Article 227 alone.
c
xxx xxx xxx
(ix) The term "original jurisdiction" as contained in
Clause 15 of the Letters Patent should be understood
in context with the power of the High Court to issue a
high prerogative writ like a writ of certiorari under Article D
226 of the Constitution of India. It is that original power
to issue a writ under Article 226 of the Constitution of
India which makes the proceedings original and the
exercise of such power will always be original
E
jurisdiction.
(x) If the Special Civil Application is described as one
not only under Article 226 of the Constitution, but also
under Article 227 of the Constitution of India and the
Court or the Tribunal whose order is sought to be F
quashed, is not made a party, the application is not
maintainable as one for the relief of certiorari in the
absence of the concerned Tribunal or Court as party,
but the same may be treated as one under Article 227
of the Constitution of India. If the Court or Tribunal is G
not impleaded as a party respondent in the main
petition, then by merely impleading such court or
tribunal for the first time in the Letters Patent Appeal
will not change the nature and character of the
H
proceedings before the learned Single Judge. By
514 SUPREME COURT REPORTS [2015] 6 S.C.R.
A merely imp leading such a Court or Tribunal for the first
time in the LPA, the appeal could not be said to be
maintainable, if the proceedings before the learned
Single Judge remained in the nature of supervisory
proceedings under Article 227 of the Constitution.
8
(xi) If the learned Single Judge, in exercise of a
purported power under Article 227 of the Constitution
sets aside the order of Tribunal or Court below and at
the same time, the essential conditions for issue of
C writ of certiorari are absent, no appeal will be
maintainable against such order in view of the specific
bar created under Clause 15 of the Letters Patent itself
and such an order can be challenged 011ly by way of a
Special Leave Petition before the Supreme Court.
D
To put it very explicitly, take a case where a petition
is only under Article 227 of the Constitution of India,
invoking superintending powers of the High Court and
not under Article 226 of the Constitution of India. After
E examining the matter, if the court finds substance in
the petition and sets aside the order of an authority,
court or a tribunal, then against such an order, an LPA
would not lie on the argument that since the court has
set aside the order it has decided the matter on merits
F having found substance in the same.
To put it in other words, once a petition is under
Article 227 of the Constitution of India, and while
entertaining such a petition under Article 227 of the
G Constitution of India, if the court allows a petition by
setting aside the order impugned, then against such
an order no LPA would lie.
xii) If a learned Single Judge, in exercise of a purported
H power under Article 227 of the Constitution modifies
SH JOGENDRASINHJI VIJAYSINGHJi v. STATE OF 515
GUJARAT & ORS. [DIPAK MISRA, J.)
the order of Tribunal/Authority or Court below and A
thereby partly allows a petition to a certain extent, then
in such circumstances, it could not be said that the
Court exercised its certiorari jurisdiction and no appeal
will be maintainable against such order in view of the •
specific bar created under Clause 15 of the Letters B
Patent itself.
However, if a learned Single Judge, in purported
exercise of power under Article 226 of the Constitution
of India, issues a writ of certiorari, although the same c
is not maintainable, an appeal under Clause 15 of the
Letters Patent would nevertheless be maintainable
against such order.
To put it in other words, take a case where a party D
on his own invokes supervisory jurisdiction under Article
227 of the Constitution of India, and in such a petition,
the Court issues a writ of certiorari, then against such
an order an LPA would be maintainable.
E
To put it explicitly clear, take a case where in a
petition neither there is a prayer for issue of a writ of
certiorari nor the Tribunal/Authority or Court whose
order is impugned is impleaded as a party respondent,
and despite such being the position, if the Court F
proceeds to issue a writ of certiorari, then against such
an order an LPA would be maintainable.
(xiii) A combined application under both Articles 226
and 227 of the Constitution of India can be entertainable
G
only when the court fees payable for invoking both the
provisions have been paid in aggregate. If court fees
payable for invoking only one of the Articles 226 and
227 have been affixed, the Court before dismissing the
application on that ground may give option to the H
516 SUPREME COURT REPORTS (2015) 6 S.C.R.
A petitioner to choose only one of such provisions, if he
does not pay the balance amount of court fees and the
application should be treated accordingly. It is, however,
for the Court to decide whether the facts of the case
justify invocation of original jurisdiction or it is a fit case
·a for exercising supervisory jurisdiction.
xxx xxx xxx
(xv) When a remedy for filing the Revision under
Section 115 of the Civil Procedure Code has been
c expressly barred, then in such a case, a petition under
Article 227 of the Constitution of India would lie and
not a writ petition under Article 226 of the Constitution
of India. When the Parliament has thought fit to restrict
the powers under Section 115 of the Code with a definite
D object, then, under such circumstances an order which
is not revisable under Section 115 of the Code of Civil
Procedure cannot be challenged by way of filing a Writ
Petition under Article 226 of the Constitution invoking
extraordinary jurisdiction of the High Court and that too
E
an interlocutory order passed by the Civil Court in a
Regular Suit proceedings."
5. At this juncture, we are obligated to state that the
conclusions have been recorded by the High Court to cover
F all kinds of possibilities, but we are of the considered opinion
that it may not always be possible to do so and hence,
advertence in detail to the said conclusions is neither
necessitous nor warranted.
G 6. Having said that, presently we shall proceed to deal
with the first question we have stated hereinbefore. In this
regard, reference to the authority in T.C. Basappa v. T.
Nagappa and Another" would be fruitful. The controversy
before the Constitution Bench, apart from other aspects, also
H 3 AIR 1954 SC 440
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF 517
GUJARAT & ORS. [DIPAK MISRA, J.]
pertained to scope of jurisdiction under Article 226 of the A
Constitution. Dealing with the said facet, the larger Bench
opined that:-
"7. One of the fundamental principles in regard to the
issuing of a writ of 'certiorari', is, that the writ can be B
availed of only to remove or adjudicate on the validity
of judicial acts. The expression "judicial acts" includes
the exercise of quasi-judicial functions by administrative
bodies or other authorities or persons obliged to
exercise such functions and is useci in contrast with C
what are purely ministerial acts. Atkin, L.J. thus summed
up the law on this point in Rex v. Electricity
Commissioners•:
"Whenever anybody or persons having legal D
authority to deter· 11ine 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." E
The second essential feature of a writ of 'certiorari' is
that the control which is exercised through it over judicial
or quasi-judicial tribunals or bodies is not in an appellate
but superv"isory capacity. In granting a writ of certiorari F
the superior court does not exercise the powers of an
appellate tribunal. It does not review or reweigh. the
evidence upon which the determination of the inferior
tribunal purports to be based. It demolishes the order
which it considers to be without jurisdiction or palpably G
erroneous but does not substitute its own views for
those of the inferior tribunal. The offending order or
proceeding so to say is put out of the way as one which
should not be used to the detriment of any person,
4
1924-1 KB 171 at p.205 (C) H
518 SUPREME COURT REPORTS [2015] 6 S.C.R.
A vide per Lord Cairns in - 'Walsall's Overseers v. L. &
N. W.Rly. Co 5 .
8. The supervision of the superior court exercised
through writs of 'certiorari' goes on two points, as has
B been expressed by Lord Sumner in King v. Nat Bell
Liquors Limited6. 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
C 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.
D
9. 'Certiorari' may lie and is generally granted when a
court has acted without or in excess of its jurisdiction.
The want of jurisdiction may arise from the nature of
the subject-matter of the proceeding or from the
E absence of some preliminary proceeding or the court
itself may not be legally constituted or suffer from certain
disability by reason of extraneous circumstances, vide
'Halsbury, znd edition, Vol. IX, page 880. When the
jurisdiction of the court depends upon the existence of
F some collateral fact, it is well settled that the court
cannot by a wrong decision of the fact give it jurisdiction
Which it would not otherwise possess, vide Bunbury v.
Fuller7 & R. v. Income Tax Special Purposes
Commissioners'8
G
xxx xxx xxx
5 (1879) 4 AC 30 at p. 39 (D)
6 (1922) 2 AC 128 at p. 156 (E)
7 (1854) 9 EX 111 (F)
H '(1889) 21 QBD 313 (G)
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF 519
GUJARAT & ORS. [DIPAK MISRA, J.]
11. In dealing with the powers of the High Court under Article A
226 of the Constitution, this Court has expressed itself in
almost similar terms, vide 'Veerappa Pillai v. Raman and
Raman Ltd. 9 and said:
"Such writs as are referred to in Article 226 are obviously B
intended to enable the High Court to issue them in grave
cases where the subordinate tribunals or bodies or
officers act wholly without jurisdiction, or in excess of
it, or in violation of the principles of natural justice, or
refuse to exercise a jurisdiction vested in them, or there C
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 D
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 E
principles that govern the exercise of jurisdiction in the matter
of granting writs of 'certiorari' under Article 226 of the
Constitution."
7. In Harl Vishnu Karnath v. Ahmad /shaque and F
Ors. 10 , a seven- Judge Bench, while dealing with the scope
of proceeding under Article 226 of the Constitution, observed
that there can be no dispute that the orders of the Election
Tribunals are subject to the supervisory jurisdiction of the
High Courts under Article 226 and a writ of certiorari under G
that Article will be competent against decisions of the Election
Tribunals also. The Court referred to the decision in T.C.
Basappa (supra) and other authorities and ruled thus:-
' AIR 1952 SC 192 at pp. 195·196 (I)
io AIR 1955 SC 233 H
520 SUPREME COURT REPORTS [2015) 6 S.C.R.
A "We are also of opinion that the Election Tribunals are
subject to the superintendence of the High Courts under
Article 227 of the Constitution, and that
superintendence is both judicial and administrative.
That was held by this Court in Waryam Singh v.
B Amamath 11 , where it was observed that in this respect
Article 227 went further than Section 224 of the
Government of India Act, 1935, under which the
superintendence was purely administrative, and that it
restored the position under Section 107 of the
c Government of India Act, 1915. It may also be noted
that while in a 'certiorari' under Article 226 the High
Court can only annul the decision of the Tribunal, it
can, under Article 227, do that, and also issue further
directions in the matter. We must accordingly hold that
D
the application of the appellant for a writ of 'certiorari'
and for other reliefs was maintainable under Articles
226 and 227 of the Constitution."
In the said case, the court directed as follows:-
E
"Under the circumstances, the proper order to pass is
to quash the decision of the Tribunal and remove it out
of the way by 'certiorari' under Article 225,and to set
aside the election of the first respondent in exercise of
F the powers conferred by Article 227."
8. In Nagender Nath Bora v. The Commissioner of
Hills Division and Appeals, Assam and others 12 , while
dealing with the scope of Articles 226 and 227 of the
G Constitution, the Constitution Bench referred to the authority
in Waryam Singh (supra) and held that:-
"It is, thus, clear that the powers of judicial interference
under Article 227 of the Constitution with orders of
H 11 AIR 1954 SC 215
12 AIR 1958 SC 398
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF 521
GUJARAT & ORS. [DIPAK MISRA, J.)
judicial or quasi-judicial nature, are not greater than A
the powers under Article 226 of the Constitution. Under
·Article 226, the power of interference may extend to
quashing an impugned order on the ground of a mistake
apparent on the face of the record. But under Article,
227 of the Constitution, the power of interference is B
limited to seeing that the tribunal functions within the
limits of its authority. Hence, interference by the High
Court, in these cases, either under Article 226 or 227
of the Constitution, was not justified."
c
9. In this context, we may usefully refer to another
Constitution Bench decision in State of Uttar Pradesh and
others v. Dr. Vijay Anand Maharaj1 3 , wherein it has bee_n
ruled:-
D
"9. Article 226 confers a power on a High Court to issue
the writs, orders, or directions mentioned therein for
the enforcement of any of the rights conferred by Part
Ill orfor any other purpose. This is neither an appellate
nor a revisional jurisdiction of the High Court. Though E
the power is not confined to the prerogative writs issued
by the English Courts, it is modelled on the said writs
mainly to enable the High Courts to keep the
subordinate tribunals within bounds."
F
10. After so stating, the larger Bench referred to the
decision in Hamid Hassan v. Banwarilal Roy14 wherein the
Privy Council had observed that the original civil jurisdiction
which the Supreme Court of Calcutta had possessed over
certain classes of persons outside the territorial limits of that G
jurisdiction was a matter of original jurisdiction. Thereafter,
the Court referred to certain High Court decisions and
opined:-
13
AIR 1963 SC 946
14
AIR 1947 PC 90 H
522 SUPREME COURT REPORTS [2015] 6 S.C.R.
A " It is, therefore, clear from the nature of the power
conferred under Article 226 of the Constitution and the
decisions on the subject that the High Court in exercise of
its power under Article 226 of the Constitution exercises
original jurisdiction, though the said jurisdiction shall not be
B confused with the ordinary civil jurisdiction of the High Court.
This jurisdiction, though original in character as contrasted
with its appellate and revisional jurisdictions, is exercisable
throughout the territories in relation to which it exercises
jurisdiction and may, for convenience, be described as
C extraordinary original jurisdiction. If that be so, it cannot be
contended that a petition under Article 226 of the Constitution
is a continuation of the proceedings under the Act."
D
11. In this context, reference to the nine-Judge Bench
decision in Naresh Shridhar Mirajkar v. State of
Maharashtra and another15 is absolutely imperative. In the
said case, the Court was dealing with the lis whether a judicial
E order passed by the High Court could violate any fundamental
right. The majority, speaking through Gajendragadkar, C.J.,
commenting on the order of the High Court expressed:-
"38 ...... It is singularly inappropriate to assume that a
F judicial decision pronounced by a Judge of competent
jurisdiction in or in relation to a matter brought before
him for adjudication can affect the fundamental rights
of the citizens under Article 19(1 ). What the judicial
decision purports to do is to decide the controversy
G between the parties brought before the court and
nothing more. If this basic and essential aspect of the
judicial process is borne in mind, it would be plain that
the judicial verdict pronounced by court in or in relation
to a matter brought before it for its decision cannot be
H 15 AIR 1967 SC 1
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF
0
523
GUJARAT & ORS. [DIPAK MISRA, J.)
said to affect the fundamental rights of citizens under A
Article 19(1)."
After so stating, the learned Chief Justice observed
thus:-
B
"39 ...... Just as an order passed by the court on the
merits of the dispute before it can be challenged only
in appeal and cannot be said to contravene the
fundamental rights of the litigants before the Court, so
could the impugned order be challenged in appeal c
under Article 136 of the Constitution, but it cannot be
said to affect the fundamental rights of the petitioners.
The character of the judicial order remains the s.ame
whether it is passed in a matter directly in issue between
the parties, or is passed incidentally to make the D
adjudication of the dispute between the parties fair and
effective. On this view of the matter, it seems to us that
the whole attack against the impugned order based on
the assumption that it infringes the petitioners'
fundamental rights under Article 19(1 ), must fail." E
12. It is apt to note here that the nine-Judge Bench
referred to Budan Chaudhry v. State of Bihar16 , Parbhani
Transport Cooperative Society Ltd. v. Regional Transport
Authority, Aurangabad1 7 and Prem Chand Garg v. Excise F
Commissioner, U.P. Allahabad1 8 and explained the same
and eventually held:-
"If the decision of a superior court on a question of its
jurisdiction is erroneous, it can, of course, be corrected G
by appeal or revision as may be permissible under the
law; but until the adjudication by a superior court on
such a point is set aside by adopting the appropriate
16 AIR 1955 SC 191
17
AIR 1960 SC 801
18 AIR 1963 SC 996 H
524 SUPREME COURT REPORTS [2015] 6 S.C.R.
A course, it would not be open to be corrected by the
exercise of the writ jurisdiction of this Court."
13.In the first decade of this century in Rupa
Ashok Hurra v. Ashok Hurra and Another19 , the
B Constitution Bench referred to the Triveniben v. State of
Gujaraf- 0 , reiterated the same principle and observed:-
"lt is well settled now that a judgment of court can never
be challenged under Articles 14 or 21 and therefore
c the judgment of the court awarding the sentence of
death is not open to challenge as violating Article 14 or
Article 21 as has been laid down by this Court in Naresh
Shridhar Mirajkar v. State of Maharashtra (supra) and
also in A.R. Antulayv. R.S. Nayak21 , the only jurisdiction
D which could be sought to be exercised by a prisoner
for infringement of his rights can be to challenge the
subsequent events after the final judicial verdict is
pronounced and it is because of this that on the ground
of long or inordinate delay a condemned prisoner could
E approach this Court and that is what has consistently
been held by this Court. But it will not be open to this
Court in exercise of jurisdiction under Article 32 to go
behind or to examine the final verdict reached by a
competent court convicting and sentencing the
F condemned prisoner and even while considering the
circumstances in order to reach a conclusion as to
whether the inordinate delay coupled with subsequent
circumstances could be held to be sufficient for coming
to a conclusion that execution of the sentence of death
G will not be just and proper."
14. Recently, in Radhey Shyam & Anr. v. Chhabi
19 (2002) 4 sec 388
20 (1989) 1 sec 678
H 21 (1988) 2 sec 602
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF 525
GUJARAT & ORS. [DIPAK MISRA, J.]
Nath & Ors. 22 , a three-Judge Bench while dealing with the A
correctness of the law laid down by a two-Judge Bench, as
there was a reference by a Division Bench expressing its
doubt about the ratio laid down in Surya Dev Rai v. Ram
Chander Rai and others23 that judicial orders passed by
the Civil Court can be examined and then corrected/reversed B
by the writ court under Article 226 in exercise of its power
under writ of certiorari, speaking through one of us (Adarsh
Kumar Goel, J.), referred to number of judgments including
some of the decisions we have cited hereinabove and
reproduced the opinion expressed in Sadhana Lodh v. C
National Insurance Co. Ltd. 24 , which is to the following
effect:-
"6. The right of appeal is a statutory right and where
the law provides remedy by filing an appeal on limited D
grounds, the grounds of challenge cannot be enlarged
by filing a petition under Articles 226/227 of the
Constitution on the premise that the insurer has limited
grounds available for challenging the award given by
the Tribunal. Section 149(2) of the Act limits the insurer E
to file an appeal on those enumerated grounds and
the appeal being a product of the statute it is not open
to an insurer to take any plea other than those provided
under Section 149(2) of the Act (see National
F
Insurance Co. Ltd. v. Nicolletta Rohtagi25 ). This being
the legal position, the petition filed under Article 227
of the Constitution by the insurer was wholly
misconceived. Where a statutory right to file an appeal
has been provided for, it is not open to the High Court G
to entertain a petition under Article 227 of the
Constitution. Even if where a remedy by way of an
22
2015 (3) SCALE 88
23
c2003) s sec 675
• c2003) 3 sec 524
2
25 c2002) 1 sec 456 H
526 SUPREME COURT REPORTS [2015] 6 S.C.R.
A 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
B the High Court under Section 115 CPC 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
c 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 CPC, in
such a situation a writ petition under Article 227
D
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 CPC, no petition under
E Article 226 of the Constitution would lie for the reason
that a mere wrong decision without anything more is
not enough to attract jurisdiction of the High Court
under Article 226 of the Constitution."
F 15. After so stating, the three-Judge Bench referred
to Surya Dev Rai (supra), the analysis made by the two-
Judge Bench and ultimately came to hold thus:-
".... There are no precedents in India for High Courts to
issue writs to subordinate courts. Control of working
G 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
H
other than judicial/civil courts. While appellate or
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF 527
GUJARAT & ORS. [DIPAK MISRA, J.]
revisional jurisdiction is regulated by statutes, power A
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."
B
After so stating, the Court proceeded to hold as follows:-
"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 c
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 D
curtailment of revisional jurisdiction under Section 115
CPC 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 E
227 has been explained in several decisions including
Waryam Singh and another vs. Amamath and another
(supra), Ouseph Mathai vs. M. Abdul Khadir2 6 , Shalini
Shyam Shetty vs. Rajendra Shankar Pati/27 and
Sameer Suresh Gupta vs. Rahul Kumar Agarwa/28 ." F
The eventual conclusions read as follows:-
"23. Thus, we are of the view that judicial orders of civil
courts are not amenable to a writ of certiorari under G
Article 226. We are also in agreement with the view of
the referring Ben·ch that a writ of mandamus does not
lie against a private person not discharging any public
26 (2002) 1 sec 319
"(2010) s sec 329 H
sec 374
26 (2013) 9
528 SUPREME COURT REPORTS [2015] 6 S.C.R.
A duty. Scope of Article 227 is different from Article 226.
24. 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 Shai/,
B 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
c 227 as is clear from para 3 of the said judgment.
There is no discussion on the issue of maintainability
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
D subordinate legislation can whittle down the jurisdiction
conferred by the Constitution. Similarly, in Sa/em 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.
E
25. Accordingly, we answer the question referred as
follows:
"(i) Judicial orders of civil court are not amenable to
F 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."
G 16. The aforesaid authoritative pronouncement makes
it clear as day that an order passed by a civil court can only
be assailed under Article 227 of the Constitution of India
and the parameters of challenge have been clearly laid down
by this Court in series of decisions which have been referred
H to by a three-Judge Bench in Radhey Shyam (supra), which
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF 529
GUJARAT & ORS. [DIPAK MISRA, J.]
is a binding precedent. Needless to emphasise that once it A
is exclusively assailable under Article 227 of the Constitution
of India, no intra-court appeal is maintainable.
17. The next aspect that has to be adverted to is under
what situation, a Letters Patent Appeal is maintainable before B
a Division Bench. We repeat at the cost of repetition, we
have referred to series of judgments of this Court which have
drawn the distinction between Article 226 and 227 of the
Constitution of India and the three-Judge Bench in Radhey
Shyam (supra) has clearly stated that jurisdiction under C
Article 227 is distinct from jurisdiction under Article 226 of
the Constitution and, therefore, a letters patent appeal or an
intra-court appeal in respect of an order passed by the
learned Single Judge dealing with an order arising out of a
proceeding from a Civil Court would not lie before the Division D
Bench. Thus, the question next arises under what
circumstances a letters patent appeal or an intra-court appeal
would be ma.intainable before the Division Bench.
18. In Umaji Keshao Meshram and Others v. E
Radhikabai and Another9, this Court has held thus:-
"106. The non obstante clause in Rule 18, namely,
"Notwithstanding anything contained in Rules 1, 4 and
17 of this chapter", makes it abundantly clear why that F
rule uses the words "finally disposed of'. As seen above,
under Rules 1 and 17, applications under Articles 226
and 227 are required to be heard and disposed of by a
Division Bench. Rule 4, however, gives power to a
Single Judge to issue rule nisi on an application under G
Article 226 but precludes him from passing any firlal
order on such application. It is because a Single Judge
has no power under Rules 1, 4 and 17 to hear and
dispose of a petition under Article 226 or 227 that the
2' 1sss (Supp) sec 401 H
530 SUPREME COURT REPORTS [2015] 6 S.C.R.
A non obstante clause has been introduced in Rule 18.
The use of the words "be heard and finally disposed of
by a Single Judge" in Rule 18 merely clarifies the
position that in such cases the power of the Single
Judge is not confined merely to issuing a rule nisi.
B These words were not intended to bar a right of appeal.
To say that the words "finally disposed of' mean finally
disposed of so far as the High Court is concerned is
illogical because Rules 1, 4 and 7 use the words "be
heard and disposed of by a Divisional Bench" and .were
c the reasoning of the Full Bench correct, it would mean
that so far as the High Court is concerned, when a
Single Judge hears a matter and disposes it of, it is
finally disposed of and when a Division Bench disposes
it of, it is not finally disposed of. The right of appeal
D
against the judgment of a Single Judge is given by the
Letters Patent which have been continued in force by
Article 225 of the Constitution. If under the Rules of
the High Court, a matter is heard and disposed of by a
E Single Judge, an appeal lies against his judgment
unless it is barred either under the Letters Patent or
some other enactment. The word "finally" used in Rule
18 of Chapter XVII of the Appellate Side Rules does
not and cannot possibly have the effect of barring a
F right of appeal conferred by the Letters Patent. As we
have seen above, an intra-court appeal against the
judgment of a Single Judge in a petition under Article
226 is not barred while clause 15 itself bars an intra-
court appeal against the judgment of a Single Judge in
G a petition under Article 227.
107. Petitions are at times filed both under Articles 226
and 227 of the Constitution. The case of Hari Vishnu
Karnath v. Syed Ahmad /shaque 30 before this Court was
H 30 (1955) 1SCR1104: AIR 1955 SC 233
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF 531
GUJARAT & ORS. [DIPAK MISRA, J.]
of such a type. Rule 18 provides that where such A
petitions are filed against orders of the Tribunals or
authorities specified in Rule 18 of Chapter XVII of the
Appellate Side Rules or against decrees or orders of
courts specified in that rule, they shall be heard and
finally disposed of by a Single Judge. The question is B
whether an appeal would lie from the decision of the
Single Judge in such a case. In our opinion, where the
facts justify a party in filing an application either under
Article 226 or 227 of the Constitution, and th~ party
chooses to file his application under both these articles, c
. in fairness and justice to such party and in order not to
deprive him of the valuable right of appeal the court
ought to treat the application as being made under
Article 226, and if in deciding the matter, in the final
D
order the court gives ancillary directions which may
pertain to Article 227, this ought not to be held to deprive
a party of the right of appeal under clause 15 of the
Letters Patent where the substantial part of the order
sought to be appealed against is under Article 226. E
Such was the view taken by the Allahabad High Court
in Aida/ Singh v. Karan Singh 31 and by the Punjab High
Court in Raj Kishan Jain v. Tulsi Dass32 and Barham
Dutt v. Peoples' Cooperative Transport Society Ltd.,
New Delhi33 and we are in agreement with 'it." F
19. Similar view was reiterated in Sushilabai
Laxminarayan Mud/iyar and others v. Niha/chand
Waghajibhai Shaha and others34 , which arose from the
High Court of Bombay. G
20. In Mangalbhai and Others v. Radhyshyam35 the
31
AIR 1957 All 414: 1957 All LJ 388 (FB)
32
AIR 1959 Punj 291
33
AIR 1961 Punj 24 : ILR (1961) 1 Punj 283
34
1993 Supp. (1) sec 11 H
35 (1992) 3 sec 448
532 SUPREME COURT REPORTS [2015) 6 S.C.R.
A dismissal of an application for eviction by the Deputy
Collector and Rent Controller and its assail in appeal not
resulting in success, compelled the landlord to file a writ
petition under Articles 226 and 227 of the Constitution of
India before the Bombay High Court. Before this Court, an
B objection was raised with regard to the maintainability of the
letters patent appeal. This Court referred to the decision in
Umaji Keshao Meshram case (supra) and opined as
follows:-
C "6. Applying the correct ratio laid down in Umaji Keshao
Meshram case (supra) and perusing the writ petition
filed in the present case as well as the order passed by
the learned Single Judge we are clearly of the view
that the present case clearly falls within the ambit of
D Article 226 of the Constitution. In Umaji Keshao
Meshram case (supra) it was clearly held that:
"Where the facts justify a party in filing an
application either under Article 226 or 227 of the
E Constitution, and the party chooses to file his
application under both these Articles, in fairness
and justice to such party and in order not to
deprive him of the valuable right of appeal the
court ought to treat the application as being made
F under Article 226 .... "
7. The learned Single Judge in his impugned judgment
dated December 11, 1987 nowhere mentioned that he
was exercising the powers under Article 227 of the
G Constitution. The learned Single Judge examined the
matter on merit and set aside the orders of the Rent
Controller as well as the Resident Deputy Collector on
the ground that the aforesaid judgments were perverse.
The findings of the Rent Controller and Resident Deputy
H Collector were set aside on the question of habitual
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF 533
GUJARAT & ORS. [DIPAK MISRA, J.]
defaulter as well as on the ground of bona fide need. A
Thus in the totality of the facts and circumstances of
the case, the pleadings of the parties in the writ petition
and the judgment of the learned Single Judge leaves
no manner of doubt that it was an order passed urider
Article 226 of the Constitution and in that view of the B
matter the Letters Patent Appeal was maintainable
before the High Court."
21. In Lokmat Newspapers Pvt. Ltd. v.
Shankarprasad3 8, the controversy arose from the order C
passed by the Labour Court which had secured affirmation
from the Industrial Tribunal. The said orders were challenged
by the respondent therein by filing a writ petition under Articles
226 and 227 of the Constitution of India before the High
Court. The Court adverted to the facts and also the order D
passed by the learned Single Judge and in that context ruled:-
"As seen earlier, he was considering the aforesaid writ
petition moved under Article 226 as well as Article 227
of the Constitution of India. Under these circumstances, E
it is not possible to agree with the contention of learned
counsel for the appellant that the learned Single Judge
had refused to interfere only under Article 227 of the
Constitution of India when he dismissed the writ petition
of the respondent." F
Thereafter, .the learned Judges referred to the
authority in Umaji Keshao Meshram (supra) and ruled:-
"The aforesaid decision squarely gets attracted on the G
facts of the present case. It was open to the respondent
to invoke the jurisdiction of the High Court both under
Articles 226 and 227 of the Constitution of India. Once
such a jurisdiction was invoked and when his writ
'" (1999) e sec 21s H
534 SUPREME COURT REPORTS [2015] 6 S.C.R.
A petition was dismissed on merits, it cannot be said that
the learned Single Judge had exercised his jurisdiction
only under Article 226 (sic 227) of the Constitution of
India. This conclusion directly flows from the relevant
averments made in the writ petition and the nature of
B jurisdiction invoked by the respondent as noted by the
learned Single Judge in his judgment, as seen earlier.
Consequently, it could not be said that clause 15 of the
Letters Patent was not attracted for preferring appeal
against the judgment of the learned Single Judge."
c
22. In Kishorilal v. Sales Officer, District Land
Development Bank and Others3 7 , a recovery proceeding
was initiated by the respondent-Bank therein and the land
mortgaged to the Bank were sold. An appeal preferred before
D the Joint Registrar, Cooperative Societies was dismissed
and a further appeal was preferred before the Board of
Revenue which interfered with the order passed by the Joint
Registrar. The order passed by the Board of Revenue was
called in question by the District Land Development Bank,
E which was allowed by the learned Single Judge. A letters
patent appeal was preferred challenging the order of the
learned Single Judge which opined that the order passed by
the learned Single Judge was not maintainable as he had
F exercised the jurisdiction under Article 227 of the Constitution
of India. Dealing with the maintainability of the appeal, the
two-Judge Bench held that:-
"The learned Single Judge of the High Court, in our •
opinion, committed an error in interfering with the
G findings of fact arrived at by the Board of Revenue.
The Division Bench of the High Court also wrongly
dismissed the LPA without noticing that an appeal would
be maintainable if the writ petition was filed under
Articles 226 and 227 of the Constitution of India as
H 37
(2006) 1 sec 496
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF 535
GUJARAT & ORS. [DIPAK MISRA, J.]
was held by this Court in Sushilabai Laxminarayan A
38
Mudliyar v. Nihalchand Waghajibhai Shaha ."
23. In Ashok K. Jha and others v. Garden Silk Mills
Ltd. and Another39 , as the factual matrix would reveal, the
employees had approached the Labour Court for certain B
reliefs. The Labour Court on consideration of the facts and
law, declined to grant the relief. Being dissatisfied, the
employees and the Union preferred a joint appeal before
the Industrial Court, Surat which set aside the order of the
Labour Court and issued certain directions against the C
employer. The employer called in question the defensibility
of the order of the Industrial Court by filing a Special Civil
Application under Article 226 and 227 of the Constitution of
India before the High Court of Gujarat. The learned Single
Judge dismissed the petition. Being grieved by the aforesaid D
order, a letters patent appeal was preferred under clause 15
of the Letters Patent. The Division Bench allowed the appeal
and set aside the judgment and order passed by the learned
Single Judge. A contention was raised before this Court
pertaining to maintainability of letters patent appeal under E
clause 15 of the Letters Patent. RM. Lodha, J. (as His
Lordship then was) speaking for the Court, referred to the
authorities in Umaji Keshao Meshram (supra), Ratnagiri
Dist. Central Coop. Bank Ltd. v. Dinkar Kashinath F
Watve4°, Ramesh Chandra Sank/av. Vikram Cement41 and
stated thus:-
"36. If the judgment under appeal falls squarely within
four corners of Article 227, it goes without saying that
intra-court appeal from such judgment would not be G
maintainable. On the other hand, if the petitioner has
invoked the jurisdiction of the High Court for issuance
38 1993 supp (1) sec 11
" (2009J 1osec 584
•
0
(1993) supp (1) sec 9 H
41 (2008) 14 sec 58
536 SUPREME COURT REPORTS [2015) 6 S.C.R.
A of certain writ under Article 226, although Article 227 is
also mentioned, and principally the judgment appealed
against falls under Article 226, the appeal would be
maintainable. What is important to be ascertained is
the true nature of order passed by the Single Judge
B and not what provision he mentions while exercising
such powers.
37. We agree with the view of this Court in Ramesh
Chandra Sank/a (supra) that a statement by a learned
c Single Judge that he has exercised power under Article
227, cannot take away right of appeal against such
judgment if power is otherwise found to have been
exercised under Article 226. The vital factor for
determination of maintainability of the intra-court appeal
D is the nature of jurisdiction invoked by the party and
the true nature of principal order passed by the Single
Judge."
24. At this juncture, we think it appropriate to
E reproduce a passage from Ramesh Chandra Sank/a (supra)
which has been quoted in Ashok Jha (supra). In the said
case, the two-Judge Bench while dealing with the
maintainability of letters patent appeal under clause 15 of
the Letters Patent has ruled that:-
F
"47. In our judgment, the learned counsel for the
appellant is right in submitting that nomenclature of
the proceeding or reference to a particular article of
the Constitution is not final or conclusive. He is also
G right in submitting that an observation by a Single Judge
as to how he had dealt with the matter is also not
decisive. If it were so, a petition strictly falling under
Article 226 simpliciter can be disposed of by a Single
Judge observing that he is exercising power of
H superintendence under Article 227 of the Constitution.
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF 537
GUJARAT & ORS. [DIPAK MISRA, J.)
Can such statement by a Single Judge take away from A
the party aggrieved a right of appeal against the
judgment if otherwise the petition is under Article 226
of the Constitution and subject to an intra-court/letters
patent appeal? The reply unquestionably is in the
g ·
neat IVe...." B
25. From the aforesaid pronouncements, it is
graphically clear that maintainability of a letters patent appeal
would depend upon the pleadings in the writ petition, the
nature and character of the order passed by the learned C
Single Judge, the type of directions issued regard being had
to the jurisdictional perspectives in the constitutional context.
Barring the civil court, from which order as held by the three-
Judge Bench in Radhey Shyam (supra) that a writ petition
can lie only under Article 227 of the Constitution, orders from D
tribunals cannot always be regarded for all purposes to be
under Article 227 of the Constitution. Whether the learned
Single Judge has exercised the jurisdiction under Article 226
or under Article 227 or both, needless to emphasise, would
depend upon various aspects that have been emphasised E
in the aforestated authorities of this Court. There can be
orders passed by the learned Single Judge which can be
construed as an order under both the articles in a composite
manner, for they can co-exist, coincide and imbricate. We F
reiterate i.t would depend upon the nature, contour and
character of the order and it will be the obligation of the
Division Bench hearing the letters patent appeal to discern
and decide whether the order has been passed by the
learned Single Judge in exercise of jurisdiction under Article G
226 or 227 of the Constitution or both. The Division Bench
would also be required to scrutinize whether the facts of the
case justify the assertions made in the petition to invoke the
jurisdiction under both the articles and the relief prayed on
that foundation. Be it stated, one of the conclusions recorded H
538 SUPREME COURT REPORTS [2015] 6 S.C.R.
A by the High Court in the impugned judgment pertains to
demand and payment of court fees. We do not intend to
comment on the same as that would depend upon the rules
framed by the High Court.
B 26. The next facet pertains to the impleadment of the
Court or tribunal as a party. The special Bench has held
that even if application is described as one not only under
article 226 of the Constitution, but also under article 227,
the Court or tribunal whose order is sought to be quashed, if
C not arrayed as a party, the application would not be
maintainable as one of the relief of certiorari, in the absence
of the concerned tribunal or Court as a party, cannot be
granted. It has also been held that if the Court or tribunal
has not been impleaded as party-respondent in the main
D writ petition, then by merely impleading such Court or tribunal
for the first time in letters patent appeal would not change
the nature and character of the proceeding before the learned
Single Judge and, therefore, intra-court appeal would not
be maintainable. To arrive at the said conclusion, the High
E Court has referred to Messrs. Ghaio Mal & Sons v. State
of Delhi and others42 , Hari Vishnu Karnath (supra) and
relied upon a four-Judge Bench judgment in Udit Narain
Singh Malpaharia v. Addi. Member, Board of Revenue43 .
F 27. In Hari Vishnu Karnath (supra), after referring to
the decision in T.C. Basappa (supra) and quoting a passage
from Corpus Juris Secundum, Volume 14 at page 123, which
deals with the nature of certiorari, it has been laid down:-
G "11. The writ for quashing is thus directed against a
record, and as a record can be brought up only through
human agency, it is issued to the person or authority
whose decision is to be reviewed. lf it is the record of
the decisjon that has to be removed by 'certiorari', then
H 42 AIR 1959 SC 65
4
' AIR 1963 SC 786
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF 539
GUJARAT & ORS. [DIPAK MISRA, J.]
the fact that the tribunal has become 'functus officio' A
subsequent to the decision could have no effect on the
jurisdiction of the court to remove the record. If it is a
question of issuing directions, it is conceivable that there
should be in existence a person or authority to whom
they could be issued, and when a 'certiorari' other than B
one to quash the decision is proposed to be issued,
the fact that the tribunal has ceased to exist might
operate as a bar to its issue. But if the true scope of
'certiorari' to quash is that it merely demolishes the
offending order, the presence of the offender before c
the court, though proper, is not necessary for the
exercise of the jurisdiction or to render its determination
effective.
12. Learned counsel for the first respondent invites our D
attention to the form of the 'order nisi' in a writ of'
'certiorari', and contends that as it requires the court or
tribunal whose proceedings are to be reviewed, to
transmit the records to the superior court, there is, if
the tribunal has ceased to exist, none to whom the writ E
could be issued and none who could be compelled to
produce the record. But then, if the writ is in reality
directed against the record, there is no reason why it
should not be issued to whosoever has the custody
F
thereof. The following statement of the law in Ferris on
the Law of Extraordinary Legal Remedies is apposite:
"The writ is directed to the body or officer whose
determination is to be reviewed, or to any other person
having the custody of the record or other papers to be G
certified.""
28. In Ghaio Mal & Sons (supra), the Court found a
specific fact was not brought on record and evasive replies
were filed which were wholly unconvincing. In that context, H
540 SUPREME COURT REPORTS [2015] 6 S.C.R.
A the Constitution Bench, speaking through S.R. Das, C.J.
observed:-
"... It is needless to say that the adoption of such
dubious devices is not calculated to produce a
B favourable impression on the mind of the court as to
the good faith of the authorities concerned in the matter.
We must also point out that when a superior court
issues a rule on an application for certiorari it is
incumbent on the inferior court or the quasi-judicial
c body, to whom the rule is addressed, to produce the
entire records before the court along with its return.
The whole object of a writ of certiorari is to bring up the
records of the inferior court or other quasi-judicial body
for examination by the Superior Court so that the latter
D may be satisfied that the inferior court or the quasi-
judicial body has not gone beyond its jurisdiction and
has exercised its jurisdiction within the limits fixed by
the law. Non-production of the records completely
defeats the purpose for which such writs are issued,
E as it did in the present case before the High Court. We
strongly deprecate this attempt on the part of the official
respondents to bypass the court."
29. In Udit Narain Singh Malpaharia (supra), as the
F facts would demonstrate the counsel for the respondent
therein raised a preliminary objection that the persons in
whose favour the Board decided the petition had not been
made parties before the High Court. Be it noted, in the said
case a country liquor shop was settled in favour of the
G appellant therein. After expiry of the said licence, it was
renewed in his favour in 1962 which was called in question
by one Phudan Manjhi before the Deputy Commissioner for
substituting his name in place of his father on the basis of
H the lot drawn in favour of his father. The Deputy
Commissioner rejected the same which was assailed by
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF 541
GUJARAT & ORS. [DIPAK MISRA, J.]
,
Phudan Manjhi before the Commissioner of Excise who A
remanded the case to the Deputy Commissioner to consider
the fitness of Phudan Manjhi to get the license and to
consider his claim on certain parameters. One Bhagwan
Rajak, who was not an applicant before the Deputy
Commissioner, filed an application before the Commissioner B
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 C
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. D
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 Article 226 of
the Constitution before the High Court for quashment of the E
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 conclusion that F
Phudan Manjhi was not fit to be selected for grant of licence
and he was waiting for making a fresh settlement. In course
of hearing of the appeal, a preliminary objection was raised
by the learned counsel for the respondent that as Phudan
Manjhi and Bhagwan Rajak who were necessary parties to G
the writ petition were not made parties, the High Court was
justified in dismissing the writ petition in limini. This Court
accepted the preliminary objection holding that the law on
the subject is well settled that a person who is a necessary
party is one without whom no order can be made effectively H
542 SUPREME COURT REPORTS [2015) 6 S.C.R.
A and a proper party is one in whose absence an effective
order can be made but his presence is necessary for
complete and final decision on the question involved in the
proceeding. After so stating, the four- Judge Bench
proceeded to deal with the nature of writ of certiorari and
B reproduced a passage from King v. Electricity
Commissioners44 , which is as follows:-
"8. ".... Wherever any body of persons having legal
authority to determine questions affecting the rights of
c 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."
D Lord Justice Slesser in King v. London County Counci/45
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
E (3) having the duty to act judicially (4) act in excess of
their legal authority- a writ of certiorari may issue." It
will be seen from the ingredients of judicial act that
there must be a duty to act judicially. A tribunal,
therefore, exercising a judicial or quasi-judicial act
F cannot decide against the rights of a party without giving
him a hearing or an opportunity to represent his case
in the manner known to law. If the provisions of a
particular statute or rules made thereunder do not
provide for it, principles of natural justice demand it.
G Any such order made without hearing the affected
parties would be void. As a writ of certiorari will be
granted to remove the record of proceedings of an
inferior tribunal or authority exercising judicial or quasi-
H " 1924 1 KB
45 (1931) 2 KB 215. (243)
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF 543
GUJARAT & ORS. [DIPAK MISRA, J.)
judicial acts, ex hypothhesi it follows that the High Court A
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 B
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 c
be made a party in a writ proceeding. But tht:Jre 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,
D
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 E
is issued to quash the order of a tribunal which is
ordinarily outside the appellate or revisional jurisdiction
of the court and the order is set aside on the ground
that the tribunal or authority acted without or in excess
of jurisdiction. If such a tribunal or authority is not made F
party to the writ, it can easily ignore the order of the
High Court quashing its order, for, not being a party, it
will not be liable to contempt. In these circumstances
whoever else is a necessary party or not the authority
or tribunal is certainly a necessary party to such a G
proceeding. In this case, the Board of Revenue and
the Commissioner of Excise were rightly made parties
in the writ petition."
Thereafter, the Court proceeded to lay down thus:- H
544 SUPREME COURT REPORTS [2015] 6 S.C.R.
A "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
B 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
c 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
D
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 him a
E party or without impleading him subsequently, if allowed
by the court, would certainly be incompetent. A party
whose interests are directly affected is, therefore, a
necessary party.
10 .. In addition, there may be parties who may be
F
described as proper parties, that is parties whose
presence is not necessary for making an effective order,
but whose presence may facilitate the settling of all
the questions that may be involved in the controversy.
G The question of making such a person as a party to a
writ proceeding depends upon the judicial discretion of
the High Court in the circumstances of each case. Either
one of the parties to the proceeding may apply for the
impleading of such a parry or such a party may suo
H motu approach the court for being impleaded therein."
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF 545
GUJARAT & ORS. [DIPAK MISRA, J.]
After so stating, the four-Judge Bench referred to A
English practice as recorded in Halsbury's Laws of England,
Vol. 11, 3rr1 Edn. (Lord Simonds') and a Division Bench
judgment of the Bombay High Court in Ahmedal/i v. M.D.
La/kaka4 6 and a Full Bench decision of Nagpur High Court
in Kanglu Bau/a v. Chief Executive Officer47 and B
summarized 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 C
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 D
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. E
What has been stated in Hari Vishnu Karnath (supra), which
we have reproduced herein before is that where plain question
on issuing directions arises, it is conceivable that there should
be in existence a person or authority to whom such directions
could be issued. The suggestion that non-existence of a F
tribunal might operate as a bar to issue.such directions is
not correct as the true scope of certiorari is that it merely
demolishes the offending order and hence, the presence of
the offender before the Court, though proper is not necessary
for the exercise of the jurisdiction or to render its G
determination effective.
31. In Udit Narain Singh (supra), the fulcrum of the
46
AIR 1954 Born 33, 34
47 AIR 1955 Nag. 49 H
546 SUPREME COURT REPORTS [2015] 6 S.C.R.
A controversy was non-impleadment of the persons in whose
favour the Board of Revenue had passed a favourable order.
There was violation of fundamental principles of natural
justice. A party cannot be visited with any kind of adverse
order in a proceeding without he being arrayed as a party.
B As we understand in Hari Vishnu Karnath (supra), the
seven-Judge Bench opined that for issuance of writ of
certiorari, a tribunal, for issue of purpose of calling of record,
is a proper party, and even if the tribunal has ceased to exist,
there would be some one incharge of the tribunal from whom
C the records can be requisitioned and who is bound in law to
send the records. The larger Bench has clearly stated that
while issuing a writ of certiorari, the Court merely demolishes
the defending order, the presence of the offender before the
D Court though proper but is not necessary for exercise of
jurisdiction. The said finding was recorded in the context of
a tribunal.
32. In this context, we may profitably refer to the
decision in Savitri Devi (supra) wherein a three-Judge
E Bench, though in a different context, had observed thus:-
"Before parting with this case, it is necessary for us to
point out one aspect of the matter which is rather
disturbing. In the writ petition filed in the High Court as
F well as the special leave petition filed in this Court, the
District Judge, Gorakhpur and the 4th Additional Civil
Judge (Junior Division), Gorakhpur are shown as
respondents and in the special leave petit!::m, ti 1ey are
shown as contesting respondents. There was no
G necessity for impleading the judicial officers who
disposed of the matter in a civil proceeding when the
writ petition was filed in the High Court; nor is there
any justification for impleading them as parties in the
special leave petition and describing them as contesting
H
respondents. We do not approve of the course adopted
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF 547
GUJARAT & ORS. [DIPAK MISRA, J.]
by the petitioner which would cause unnecessary A
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 Article B
226 of the Constitution of India or special leave petitions
under Article 136 of the Constitution of India was
stopped. We are strongly deprecating such a practice."
33. The High Court after referring to the controversy C
involved in Savitri Devi (supra) has opined thus:-
"ln 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 o
State being made a party in a petition under Article
226 and a Court or a Tribunal not being so required in
a petition under Article 227 of the Constitution of India."
After so stating, the High Court has proceeded to E
express the view that it is not a binding precedent and
thereafter opined:-
"We are of the opinion that although in Hari Vishnu
Karnath (supra), the Supreme Court may have
F
observed that the presence of the Tribunal would be
proper yet may not be necessary for the exercise of
the jurisdiction or to render its determination effective,
but the said principle has been more elaborately
explained and made clear by the Supreme Court in G
Udit Narain (supra) laying down as an absolute
proposition of law that no writ could be issued under
Article 226 of the Constitution without the Tribunal,
whose order is sought to be impugned, is made a party
respondent." H
548 SUPREME COURT REPORTS [2015] 6 S.C.R.
A 34. As we notice, the decisions rendered in Hari
Vishnu Karnath (supra), Udit Narain Singh (supra) and
Savitri Devi (supra) have to be properly understood. In
Hari Vishnu Karnath (supra), the larger Bench was dealing
with a case that arose from Election Tribunal which had
B ceased to exist and expressed the view how it is a proper
party. In Udit Narain Singh (supra), the Court was really
dwelling upon the controversy with regard to the impleadment
of parties in whose favour orders had been passed and in
that context observed that tribunal is a necessary party. In
C Savitri Devi (supra), the Court took exception to courts and
tribunals being made parties. It is apposite to note here that
propositions laid down in each case has to be understood in
proper perspective. Civil courts, which decide matters, are
courts in the strictest sense of the term. Neither the court
0
nor the Presiding Officer defends the order before the
superior court it does not contest. If the High Court, in
exercise of its writ jurisdiction or revisional jurisdiction, as
the case may be, calls for the records, the same can always
E be called for by the High court without the Court or the
Presiding Officer being impleaded as a party. Similarly, with
the passage of time there have been many a tribunal which
only adjudicate and they have nothing to do with the lis. We
may cite few examples; the tribunals constituted under the
F Administrative Tribunals Act, 1985, the Custom, Excise &
Service Tax Appellate Tribunal, the Income Tax Appellate
Tribunals, the Sales Tax Tribunal and such others. Every
adjudicating authority may be nomenclatured as a tribunal
but the said authority(ies) are different that pure and simple
G adjudicating authorities and that is why they are called the
authorities. An Income Tax Commissioner, whatever rank
he may be holding, when he adjudicates, he has to be made
a party, for he can defend his order. He is entitled to contest.
There are many authorities under many a statute. Therefore,
H the proposition that can safely be culled out is that the
SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF 549
GUJARAT & ORS. [DIPAK MISRA, J.]
authorities or the tribunals, who in law are entitled to defend A
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 B
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 C
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 D.
proceeding before the High Court would be regarded as not
maintainable.
35. We have stated in the beginning that three issues
arise despite the High Court framing number of issues and
answering it at various levels. It is to be borne in mind how E
the jurisdiction under the letters patent appeal is to be
exercised cannot exhaustively be stated. It will depend upon
the Bench adjudicating the lis how it understands and
appreciates the order passed by the learned Single Judge. F
There cannot be a straight-jacket formula for. the same.
Needless to say, the High Court while exercising jurisdiction
under Article 227 of the Constitution has to be guided by the
parameters laid down by this Court and some of the
judgments that have been referred to in Radhey Shyam G.
(supra).
36. In view of the aforesaid analysis, we proceed to
summarise our conclusions as follows:-
(A) Whether a letters patent appeal would lie against the H
550 SUPREME COURT REPORTS (2015] 6 S.C.R.
A order passed by the learned Single Judge that has
travelled to him from the other tribunals or authorities,
would depend upon many a facet. The Court fee
payable on a petition to make it under Article 226 or
Article 227 or both, would depend upon the rules
B framed by the High Court.
(B) The order passed by the civil court is only amenable
to be scrutinized by the High Court in exercise of
jurisdiction under Article 227 of the Constitution of
C India which is different from Article 226 of the
Constitution and as per the pronouncement in
Radhey Shyam (supra), no writ can be issued against
the order passed by the civil court and, therefore, no
letters patent appeal would be maintainable.
D
(C) The writ petition can be held to be not maintainable if
a tribunal or authority that is required to defend the
impugned order has not been arrayed as a party, as
it is a necessary party.
E
(D) Tribunal being or not being party in a writ petition is
not determinative of the maintainability of a letters
patent appeal.
F 37. Having recorded our conclusions in seriatim, we
think it appropriate that the matters should be remanded to
the High Court to be heard by the Division Bench in
accordance with the principles laid down in this judgment
and accordingly we so direct. Resultantly, with the
G modifications in the order of the High Court, the appeals
stand disposed of. There shall be no order as to costs.
Devika Gujral Appeals disposed of.
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