Supreme Court of India
SHALINI SHYAM SHETTY AND ANOTHERversusRAJENDRA SHANKAR PATIL
- Citation
- 2010 INSC 422
- Decided
- 23 July 2010
- Disposal
- Dismissed
- Bench
- G S SINGHVI
Holding
The High Court lacked jurisdiction to entertain the writ petition; writ courts should not interfere in private property disputes absent a statutory breach or collusion with the State, and petitions under Article 227 are not writ petitions.
Summary
The Supreme Court examined an appeal filed by tenants challenging a Bombay High Court order that dismissed their writ petition under Article 226. The petition sought a writ of certiorari against the landlord’s eviction suit, a pure civil dispute between private parties. The Court held that writ jurisdiction is a remedy in public law and may be exercised only against the State, its agencies, or private persons acting in collusion with a statutory authority; it is not available for ordinary landlord‑tenant disputes. It further clarified that petitions under Article 227 are not writ petitions. Consequently, the High Court erred in entertaining the writ petition, although its order of non‑interference on the basis of concurrent factual findings was acceptable. The appeal was dismissed, affirming the High Court’s dismissal of the writ petition on merits.
Issues considered
- The appropriateness of invoking Article 226 writ jurisdiction in a pure landlord‑tenant dispute between private parties.
- Whether a petition filed under Article 227 can be termed a writ petition.
- The jurisdiction of the High Court to entertain the writ petition.
- The validity of the High Court’s order of non‑interference based on concurrent findings of fact.
Legislation cited
Subjects
writ jurisdictionArticle 226Article 227landlord-tenant disputeprivate partiessuperintendencehigh courtproperty disputecivil procedurepublic law
Judgment
[2010] 8 S.C.R. 836
A SHALINI SHYAM SHETIY AND ANOTHER
v.
RAJENDRA SHANKAR PATIL
(Civil Appeal No. 5896 of 2010)
JULY 23, 2010
B
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]
Constitution of India, 1950:
c Articles 226, 227 and 32 - Dispute between landlord and
tenant- Writ petition by tenant challenging the decree passed
by trial court and affirmed by first appellate court - Dismissed
by High Court - On appeal, held: High Court erred in
entertaining the writ petition - In cases of property rights and
in disputes between private individuals writ court should not
0
interfere unless there is any infraction of statute or it can be
shown, that private individual is acting in collusion with a
statutory authority - Writ petition was filed in a pure dispute
between landlord and tenant amongst private parties and the
only respondent is plaintiff landlord - Petition filed under
E Article 227 cannot be called a writ petition - Writs can be
issued by High Courts only under Article 226 and by the
Supreme Court only under Article 32 - No writ petition can
be moved under Article 227 nor can a writ be issued under
Article 227 - Bombay High Court (Appellate Side) Rules,
F 1960.
Articles 226 and 227 - Jurisdiction under Articles 226
and 227 - Distinction between - Explained.
Article 227 - Power of superintendence over all courts
G and tribunals by the High Court - Exercise of - Principles
formulated.
Article 226 - Writ - Issuance of - Held: Writ petition is a·
remedy in public law - High Court can issue writ to any
H 836
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA 837
SHANKAR PATIL
person, but person against whom writ will be issued must have A
some statutory or public duty to perform - Main respondent
should be either Government, Governmental agencies or a
State or instrumentalities of a State within the meaning of
Article 12 - Private individuals cannot be equated with State
or instrumentalities of State - All respondents in a writ petition B
cannot be private parties - But private parties acting in
collusion with State can be respondents in a writ petition.
The respondent-landlord filed a suit for eviction on
various grounds against the appellant-tenants. The trial C
court decreed the suit in favour of the respondent. The
first appellate court upheld the order of the trial court. The
tenants then filed a writ petition before the High Court
and prayed for a writ of certiorari. The High Court
dismissed the writ petition. Therefore, the tenants filed the
instant appeal. D
Dismissing the appeal, the Court
HELD: 1.1 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 E
be shown, that a private individual is acting in collusion
with a statutory authority. A private person becomes
amenable to writ jurisdiction only if he is. connected with
~ statutory authority or only if he/she discharges any
official duty. In the instant case, none of the said features F
are present. Even then a writ petition was filed in a pure
dispute between landlord and tenant amongst private
parties and the only respondent is the plaintiff landlord.
Therefore, the High Court erred in entertaining the writ
petition. The course adopted by the High Court cannot G
be approved. Certainly, the High Court's order of non-
interference in view of concurrent findings of facts is
unexceptionable. [Paras 72, 73, 79 and 83] [877-G-H; 876-
B-D; 878-G] ·;
H
838 SUPREME COURT REPORTS [2010] 8 S.C.R.
A 1.2 A writ petition is a remedy in public law which
may be filed by any person but the main respondent
should be either Government, Governmental agencies or
a State or instrumentalities of a State within the meaning
of Article 12. Private individuals cannot be equated with
B State or instrumentalities of the State. All the respondents
in a writ petition cannot be private parties. But private
parties acting in collusion with State can be respondents
in a writ petition. Under the phraseology of Article 226,
High Court can issue writ to ~ny person, but the person
c against whom writ will be issued must have some
statutory or public duty to perform. It is only a writ of
Habeas Corpus which can be directed not only against
the State but also against private person. The writ of
Habeas Corpus is issued not only for release from
detention by the State but also for release from private
0
detention. [Paras 64 and 70] [873-F-G; 875-F]
Sohan Lal vs. Union of India and Anr. AIR 1957 SC 529
- followed.
E Engineering Mazdoor Sabha and Anr. vs. Hind Cycles
Ltd. AIR 1963 SC 874; Rohtas Industries Ltd. and Anr. vs.
Rohtas Industries Staff Union and Ors. (1976) 2 SCC 82 -
referred to.
1.3 A proceeding under Article 226 is not the
F appropriate forum for adjudication of property disputes
or disputes relating to title. [Paras 74 and 75] [876-D-F]
Mohammed Hanif vs. The State of Assam 1969 (2) SCC
782; T.C. Basappa vs. T. Nagappa and Anr. AIR 1954 SC
G 440; Mis. Hindustan Steel Limited, Rourke/a vs. Smt. Ka/yani
Banerjee and Ors. (1973) 1 SCC 273; State of Rajasthan vs.
Bhawani Singh and Ors. 1993 Supp. (1) SCC 306 Mohan
Pandey and Anr. vs. Usha Rani Rajgaria and Ors. (1992) 4
SCC 61 Prasanna Kumar Roy Karmakar vs. State of WB and
H Ors. (1996) 3 SCC 403; P.R. Murlidharan and Ors. vs. Swami
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA 839
SHANKAR PATIL
Dharmananda Theertha Padar and Ors. (2006) 4 SCC 501 A
- referred to.
2.1 The submission that petitions under Article 227
of the Constitution are filed against orders of civil court
and even in disputes between landlord and tenant, under
8
the Bombay High Court (Appellate Side) Rules, 1960,
such petitions are called writ petitions, cannot be
accepted. It does not appear from the Bombay High
Court Rules that petitions under Article 227 are called writ
petitions. It is provided under the said Rules that petitions
under Article 227 filed in respect of certain category of C
cases would be heard by a Division Bench hearing writ
petitions. That is merely indicative of the forum where
such petitions will be heard. Chapter XVII of the Rules
deals with the petitions under Articles 226 and 227 and
applications under Article 228 and rules for issue of writs D
and orders under those Articles. [Paras 16, 21, 22 and 23)
[852-D; 853-E-H]
2.2 The petitions under Article 226 and those under
Article 227 are treated differently. To a proceeding under E
Article 227 of the Constitution of India only the appellate
side Rules of the High Court apply. But to a proceeding
under Article 226, either the original side or the appellate
side Rules, depending on the situs of the cause of action,
would apply. Therefore, High Court Rules treat the two
F
proceedings differently in as much as a proceeding
under Article 226, being an original proceeding, can be
governed under Original Side Rules of the High Court,
depending on the situs of the cause of action. A
proceeding under Article 227 is never an original G
proceeding and can never be governed under Original
Side Rules of the High Court. Apart from that, writ
proceeding by its very nature is a different species of
proceeding. [Paras 24, 27, 28 and 29) [854-B; 857-H; 858-
A-C]
H
840 SUPREME COURT REPORTS [2010] 8 S.C.R.
A Jhaman Karamsingh Dadlani vs. Raman/al Manek/a/
Kantawala AIR 1975 Bombay 182 - referred to.
3.1 Before the coming of the Constitution on 26th
January, 1950, no Court in India except three High Courts
of Calcutta, Bombay and Madras could issue the writs,
8
that too within their original jurisdiction. Prior to Article
226 of the Constitution, under Section 45 of the Specific
Relief Act, the power to issue an order in the nature of
mandamus was there. The power to issue writs
underwent a sea-change with the coming of the
C Constitution from 26th January, 1950. Now writs can be
issued by High Courts only under Article 226 of the
Constitution and by the Supreme Court only under Article
32 of the Constitution. No writ petition can be moved
under Article 227 of the Constitution nor can a writ be
D issued under Article 227 of the Constitution. Therefore,
a petition filed under Article 227 of the Constitution
cannot be called a writ petition. This is clearly the
Constitutional position. No Rule of any High Court can
amend or alter this clear Constitutional scheme. In fact
E the Rules of Bombay High Court have not done that and
proceedings under Articles 226 and 227 have been
separately dealt with under the said Rules. [Paras 30, 31
and 32] [858-0-H; 859-A-C]
F Law of Writs by V. G. Ramchandran, Eastern Book
Company Volume 1 - referred to.
3.2 Articles 226 and 227 stand on substantially
different footing. Prior to the Constitution, the Chartered
High Courts as also the Judicial Committee of the Privy
G Council could issue prerogative writs in exercise of their
original jurisdiction. However, after the Constitution every
High Court has been conferred with the power to issue
writs under Article 226 and these are original proceeding.
The jurisdiction under Article 227 on the other hand is not
H original nor is it appellate. This jurisdiction of
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA 841
SHANKAR PATIL
superintendence under Article 227 is for both A
administrative and judicial superintendence. Therefore,
the powers conferred under Articles 226 and 227 are
separate and distinct and operate in different fields. Under
Article 226, the High Court normally annuls or quashes
an order or proceeding but in exercise of its jurisdiction B
under Article 227, the High Court, apart from annulling the
proceeding, can also substitute the impugned order by
the order which the inferior tribunal should have made.
[Paras 57, 58, 59 and 60] [868-F-H; 869-A-C]
Jahnabi Prasad Banerjee and Anr. vs. Basudeb Paul C
and Ors. AIR 1950 Calcutta 536; Sukhdeo Baiswar vs. Brij
Bhushan Misra and Ors. AIR 1951 Allahabad 667; Dalmia
Jain Airways Limited vs. Sukumar Mukherjee AIR 1951
Calcutta 193; Manmatha Nath Biswas vs. Emperor AIR 1933
Calcutta 132; Jodhey and Ors. vs. State through Ram Sahai D
AIR 1952 Allahabad 788; Nagendra Nath Bora and Anr. vs.
Commissioner of Hills Division and Appeals, Assam and Ors.
AIR 1958 SC 398; State of Gujarat etc. vs. Vakhatsinghji
Vajesinghji Vaghela (dead) Thr LRs and Ors. AIR 1968 SC
1481; Mani Nariman Daruwala @ Bharucha (deceased) E
through Lrs. and Ors. vs. Phiroz N. Bhatena and Ors,
etc. (1991) 3 SCC 141; Chandavarkar Sita Ratna Rao vs.
Ashalata S. Guram (1986) 4 SCC 447; Laxmikant Revchand
Bhojwani and Anr. vs. Pratapsingh Mohansingh Pardeshi
(1995) 6 SCC 576; Sarpanch, Lonand Grampanchayat vs. F
Ramgiri Gosavi and Anr. AIR 1968 SC 222; Jijabai Vithalrao
Gajre vs. Pathankhan and Ors. (1970) 2 SCC 717;
Ahmedabad Manufacturing and Calico Ptg. Co. Ltd. vs. Ram
Tahel Ramnand and Ors. (1972) 1 SCC 898; Surya Dev Rai
vs. Ram Chander Rai and Ors. (2003) 6 SCC 675; Radhey G
Shyam and Anr. vs. Chhabi Nath and Ors. (2009) 5 SCC 616
- referred to.
State of UP. and Ors. vs. Dr. Vijay Anand Mahraraj AIR
1963 SC 946; Surya Dev Rai vs. Ram Chander Rai and Ors.
(2003) 6 SCC 675; Hari Vishnu Karnath vs. Ahmad /shaque H
842 SUPREME COURT REPORTS [201 O] 8 S.C.R.
A and Ors. AIR 1955 SC 233 - relied to.
3.3 Jurisdiction under Article 226 normally is
.exercised where a party is affected but power under
Article 227 can be exercised by the High Court suo motu
as a custodian of justice. In fact, the power under Article
8
226 is exercised in favour of persons or citizens for
vindication of their fundamental rights or other statutory
rights. Jurisdiction under Article 227 is exercised by the
High Court for vindication of its position as the highest
judicial authority in the State. In certain cases where there
C is infringement of fundamental right, the relief under
Article 226 can be claimed ex-debito justicia or as a matter
of right. But in cases where the High Court exercises its
jurisdiction under Article 227, such exercise is entirely
discretionary and no person can claim it as a matter of
D right. From an order of a Single Judge passed under
Article 226, a Letters Patent Appeal or an intra Court
Appeal is maintainable. But no such appeal is
maintainable from an order passed by a Single Judge of
a High Court in exercise of power under Article 227. In
E almost all High Courts, Rules have been framed for
regulating the exercise of jurisdiction under Article 226.
No such Rule appears to have been framed for exercise
of High Court's power under Article 227 possibly to keep
such exercise entirely in the domain of the discretion of
F High Court. [Para 61] [869-0-H]
3.4 The principles on the exercise of High Court's
jurisdiction under Article 227 of the Constitution may be
formulated:
G (a) A petition under Article 226 of the Constitution is
different from a petition under Article 227. The mode of
exercise of power by High Court under these two Articles
is also different.
(b) In any event, a petition under Article 227 cannot
H
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA 843
SHANKAR PATIL
be called a writ petition. The history of the conferment of A
writ jurisdiction on High Courts is substantially different
from the history of conferment of the power of
Superintendence on the High Courts under Article 227.
(c) High Courts cannot, ordinarily, in exercise of its
B
power of superintendence under Article 227 of the
Constitution, interfere with the orders of tribunals or
courts inferior to it. Nor can it, in exercise of this power,
act as a court of appeal over the orders of court or tribunal
subordinate to it. In cases where an alternative statutory
mode of redressal has been provided, that would also C
operate as a restrain on the exercise of this power by the
High Court.
(d) The parameters of interference by High Courts in
exercise of its power of superintendence have been o
repeatedly laid down by this Court. In this regard the High
Court must be guided by the principles laid down by the
Constitution Bench of this Court in Watyam Singh's case
which have been repeatedly followed by subsequent
Constitution Benches and various other decisions of this E
court.
(e) According to the ratio in Watyam Singh's case, the
High Court in ·exercise of its jurisdiction of
superintendence can interfere in order only to keep the
tribunals and courts subordinate to it, 'within the bounds F
of their authority'.
(f) In order to ensure that law is followed by such
tribunals and courts by exercising jurisdiction which is
vested in them and by not declining to exercise the G
jurisdiction which is vested in them.
(g) The High Court can interfere in exercise of its
power of superintendence when there has been a patent
perversity in the orders of tribunals and Courts
H·
844 SUPREME COURT REPORTS [2010] 8 S.C.R.
A subordinate to it or where there has been a gross and
manifest failure of justice or the basic principles of natural
justice have been flouted.
(h) In exercise of its power of superintendence, the
High Court cannot interfere to correct mere errors of law
8
or fact or just because another view than the one taken
by the tribunals or courts subordinate to it, is a possible
view. In other words the jurisdiction has to be very
sparingly exercised.
C (i) High Court's power of superintendence under
Article 227 cannot be curtailed by any statute. It has been
declared a part of the basic structure of the Constitution
and therefore abridgement by a Constitutional
amendment is also very doubtful.
D (j) It may be true that a statutory amendment of a
rather cognate provision, like section 115 of the Civil
Procedure Code by the Civil Procedure Code
(Amendment) Act, 1999 does not and cannot cut down
the ambit of High Court's power under Article 227. At the
E same time, it must be remembered that such statutory
amendment does not correspondingly expand the High
Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be
F exercised on equitable principle. In an appropriate case,
the power can be exercised suo motu.
(I) On a proper appreciation of the wide and
unfettered power of the High Court. under Article 227, it
transpires that the main object of this Article is to keep
G strict administrative and judicial control by the High Court
on the administration of justice within its territory.
(m) The object of superintendence, both
administrative and judicial, is to maintain efficiency,
H smooth and orderly functioning of the entire machinery
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA 845
SHANKAR PATIL
of justice in such a way as it does not bring it into any A
disrepute. The power of interference under this Article is
to be kept to the minimum to ensure that the wheel of
justice does not come to a halt and the fountain of justice
remains pure and unpolluted in order to maintain public
confidence in the functioning of the tribunals and courts B
subordinate to High Court.
(n) This reserve and exceptional power of judicial
intervention is not to be exercise.d just for grant of relief
in individual cases but should be directed for promotion
of public confidence in the administration of justice in the C.
larger public interest whereas Article 226 is meant for
protection of individual grievance. Therefore, the power
.under Article 227 may be unfettered but its exercise is
subject to high degree of judicial discipline.
D
(o) An improper and a frequent exercise of this power
will be counter-productive and will divest this
· extraordinary power of its strength and vitality. [Para 62]
[870-A-H; 871-A-H; 872-A-H; 873-A-D]
Waryam Singh and Anr. vs. Amarnath and Anr. AIR 1954 E
SC 215; L. Chandra Kumar vs. Union of India and Ors.
(1997) 3 sec 261 - followed.
4.1 It is discerned that of late there is a growing trend
amongst several High Courts to entertain writ petition in F
cases of pure property disputes. Disputes relating to
partition suits, matters relating to execution of a decree,
in cases of dispute between landlord and tenant and also
in a case of money decree and in various other cases
where disputed questions of property are involved, writ G
courts are entertaining such disputes. In some cases
High Courts, in a routine manner, entertain petition under
Article 227 over such disputes and such petitions are
treated as writ petitions. Even if the scope of s. 115 CPC
is curtailed that has not resulted in expanding High
H
846 SUPREME COURT REPORTS [2010] 8 S.C.R.
A Court's power of superintendence. In exercising its
jurisdiction, the High Court must follow the regime of law.
[Paras 78 and 80) [877-E-H; 878-A-C)
4.2 As a result of frequent interference by the High
Court either under Article 226 or 227 with pending civil
8
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 High Court will follow
C the time honoured principles. 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. [Paras 81 and 82)
[878-D-E]
D
Case Law Reference:
AIR 1975 Bombay 182 Referred to. Para 25
AIR 1950 Calcutta 536 Referred to. Para 38
E AIR 1951 Allahabad 667 Referred to. Para 38
AIR 1951 Calcutta 193 Referred to. Para 40
AIR 1933 Calcutta 132 Referred to. Para 43
F AIR 1952 Allahabad 788 Referred to. Para 44
AIR 1958 SC 398 Referred to. Para 46
AIR 1968 SC 1481 Referred to. Para 48
(1991) 3 sec 141 Referred to. Para 50
G
(1986) 4 sec 447 Referred to. Para 51
(1995) 6 sec 576 Referred to. Para 52
AIR 1968 SC 222 Referred to. Para 53
H
SHAUN! SHYAM SHETTY AND ANR. v. RAJENDRA 847
SHANKAR PATIL
(1970) 2 sec 111 Referred to. Para 53 A
(1972) 1 sec 898 Referred to. Para 53
(2009) 5 sec 616 Referred to. Para 54
AIR 1963 SC 946 Relied on. Para 58
B
AIR 1955 SC 233 Relied on. Para 60
(2003) 6 sec 675 Relied on. Para 60
AIR 1954 SC 215 Followed. Para 62
(1997) 3 sec 261 Followed. Para 62
c
AIR 1957 SC 529 Followed. Para 68
AIR 1963 SC 874 Referred to. Para 69
(1976) 2 sec a2 Referred to. Para 71 D
1969 (2) sec 782 Referred to. Para 74
AIR 1954 SC 440 Referred to. Para 75
(1973) 1 sec 213 Referred to. Para 76 E
1993 Supp. (1) sec 306 Referred to. Para 76
(1992) 4 sec 61 Referred to. Para 76
(2006) 4 sec 501 Referred to. Para 76
F
(1996) 3 sec 403 Referred to. Para 77
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5896 of 2010.
From the Judgment and Order dated 09.02.2009 of the G
High Court of Judicature at Bombay in WP No. 7926 of 2008.
Jitendra Mohan Sharma, Sandeep Singh and Sandeep
Malik for the appellants.
H
848 SUPREME COURT REPORTS [2010] 8 S.C.R.
A Shivaji M. Jhadav for the Respondent.
The Judgment of the Court was delivered by
GANGULY, J. 1. Leave granted.
B 2. This appeal has been filed by the original defendant
challenging the judgment and order dated 09.02.2009 of the
Bombay High Court rendered in the Writ Petition filed under
Article 226 of the Constitution of India. The High Court
dismissed the writ petition in view of concurrent finding of two
C lower courts and High Court thought that no interference in
exercise of its writ jurisdiction is warranted.
3. The facts of the case are that the respondent/plaintiff
filed a suit for eviction on the grounds of breach of terms of
tenancy, damage to the property as well as causing nuisance
D and annoyance to the plaintiff and the other occupants. As per
the plaintiff the original defendant was the tenant in respect of
Room No.3 (hereinafter as suit premises) and was paying
monthly rent of Rs.20/- including the water charges and
excluding the electricity charges. The case of the plaintiff is that
E only the suit premises was let out though the original tenant was
allowed to use a covered space of 10'x 4', but the same was
for common usage and for access to W.C and water tap along
with the other tenants.
4. Plaintiff claims that somewhere in January 2000, the
F defendant had requested the plaintiff to give keys of the two
doors to clean the 'Sherry' portion. But the said keys were not
returned even after 2-3 days and the plaintiff became suspicious
and requested the defendant for returning the keys, but in vain.
Suspecting some foul play, the plaintiff entered the 'sherry' to
G find that the defendant had placed his items over there and
removed the drainage cover which was there in the Sherry. A
police complaint was made with regard to the unauthorized
possession but nothing happened. The plaintiff then requested
H
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA 849
SHANKAR PATIL [ASOK KUMAR GANGULY, J.]
the defendant to remove those articles but the request of the A
plaintiff was not heeded.
5. The defendant/appellant's father is said to have filed a
suit for relief of declaration as tenant in the premises and to
further restrain the landlord from interfering in the tenanted 8
premises. In the said suit injunction was granted. Thereafter,
the plaintiff had demolished a wall that was there in the Sherry
and put up a new door.
6. The original defendant expired during the pendency of
the suit and his LRs were brought on record and they, in their C
written statement, admitted the relationship between the
parties, but they denied all the allegations against them. They
made a claim that the space measuring about 1O'x4' abutting
the entrance door of suit premises was in their exclusive use.
As regards the suit filed by the appellant's father it was D
submitted that the same was settled outside the court with the
understanding that the defendant would withdraw his suit,
whereas the plaintiff will withdraw his suit simultaneously. An
affidavit dated 16.03.01 was filed to that effect.
E
7. The learned Court of.Small Causes at Mumbai, Sandra
Branch, vide its judgment dated 30.10.07 decreed the suit of
the plaintiff/respondent and directed the defendants to hand
over the vacant and peaceful possession of the suit premises
to the plaintiff within a period of four months from the date of
the order. It was held that at the time of filing of the present suit, F
as per evidence on record, the defendants were in unlawful
occupation of the sherry portion of the suit property, which was
admittedly not let out. As regards the settlement outside court
it was held that the affidavit, Exhibit 'E', relied on by the
defendants merely speaks of withdrawal of the suit of G
defendants and settlement of dispute. There is no mention
about the present suit being settled. It was noted that admittedly
the plaintiff has no documentary evidence to prove that the
defendants had encroached and occupied the sherry portion
of the suit property. But it was observed that there is H
850 SUPREME COURT REPORTS [2010] 8 S.C.R.
A corroborative evidence in this behalf in the form of NC Slip
Exhibit 'G' which shows that the complaint was filed
immediately after the plaintiff learnt about this unlawful
possession. Reliance was also placed on paragraph 10 of the
examination-in-chief of the D.W.1 which supports the plaintiffs
B version.
8. It was held that the defendants admit that at some point
prior to the filing of the present suit the 'sherry portion' was in
the occupation of the deceased defendant. This has to be read
C in the light of the fact that the aforesaid portion was never let
out to the deceased defendant. As such the occupation of the
deceased defendant over the said portion was unlawful as he
had no right to occupy the same.
9. Further reference was made to the suit filed by the
D appellant's father wherein an injunction order was passed in his
favour. It was after the said injunction order that the defendants
had demolished the wall in the sherry and constructed a door.
They had also removed chamber covers and replaced it with
tiles. As such it was held that the conduct of the defendants
E resulted in unhygienic conditions as it was impossible to clean
the drains. On behalf of the defendants there was no whisper
or challenge to the entire testimony on this point anywhere in
the cross-examination. The result of this was nuisance and
annoyance to the plaintiff as well as to other occupants of the
F suit property and this testimony has also not been challenged.
10. An appeal was filed against this order. The First
Appellate Court vide its order dated 11.09.08 partly allowed the
appeal. The trial Court's judgment was confirmed on the ground
of causing waste and damage as contemplated under Section
G 16 (1) (a) of the Maharashtra Rent Control Act, but the findings
of the trial Court on the ground of nuisance and annoyance were
set aside.
11. The Appellate Court noticed that in the suit filed by the
H defendants against the plaintiff, the defendants have specifically
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA 851
SHANKAR PATIL [ASOK KUMAR GANGULY, J.]
come out with the case that the dispute between the deceased A
defendant and the plaintiff with regard to the alleged Sherry
premises, was settled and an affidavit to this effect dated
16.03.01 was executed by the defendant. The Appellate Court
thought it would be just and proper to take on record the certified
copy of the order of dismissal of suit filed by the defendants B
dated 03.03.07 under provisions of Order 41 Rule 27 (b) CPC.
On perusal of the same it was found that the same was
dismissed for default.
12. The Appellate Court placing reli.ance on para 10 of the
affidavit of examination-in-chief of the defendants came to a C
conclusion that it was mentioned therein that the possession
of the Sherry was with him and the said defendants handed
over the possession to the plaintiff, as per affidavit dated
16.03.01. As such it was for the defendants to explain how they
were occupying the said premises, to which there has been no D
reasonable explanation offered. It was concluded that the
defendants had encroached upon the Sherry premises which
was not let out to them and the said act definitely amounted to
causing waste and damage to plaintiff's property.
E
13. With respect to the finding of nuisance it was observed
by the Appellate Court that admittedly, none of the
neighbouring occupier was examined by the plaintiff, which was
necessary. As such under such circumstances, just because
version of plaintiff is not challenged seriously it cannot be
F
concluded that the plaintiff has established his case. The
Appellate Court set aside the finding of the trial Court on this
ground only but confirmed the finding on other grounds of
eviction.
14. The appellants then moved to the High Court with a G
prayer to issue a writ of certiorari and/or any other writ, order
or command and call for the papers and proceedings from the
lower courts. The High Court dismissed the Writ Petition only
on the ground that against concurrent finding of facts by the
H
852 SUPREME COURT REPORTS [2010] 8 S.C.R.
A Courts below the exercise of writ jurisdiction is not warranted.
15. The facts of the case have been discussed in detail in
order to show that in a pure dispute of landlord and tenant
between private parties, a writ petition was entertained by the
High Court. It did not pass any order on the writ petition, inter
8 alia,
on the ground that there are concurrent findings of fact. If
the findings have not been concurrent, the High Court might
have interfered. In any event High Court did not hold that a writ
petition is not maintainable in a t..ispute between landlord and
tenant in which both are private parties and the dispute is of
C civil nature.
16. It was urged before this Court that petitions under
Article 227 of the Constitution are filed against orders of Civil
Court and even in disputes between landlord and tenant. Under
o the Bombay High Court Rules, such petitions are called writ
petitions.
17. This Court is unable to appreciate this submission.
First of all this Court finds that the petition which was filed before
the High Court was a pure and simple writ petition. It was
E labeled as Writ Petition No. 7926 of 2008 (page 75 of the SLP
paper book).
18. In paragraph 6 of the writ petition it had been
categorically stated:
F
'That no efficacious remedy is available to the petitioners
than the present petition under Article 226 of the
Constitution of India. (page 89 of SLP paper book)"
19. In the prayer portion also a writ of certiorari has been
G prayed for in the following terms:
"(a) That this Hon'ble Court be pleased to issue a writ
of certiorari and/or any other writ, order or command and
call upon the papers and proceedings of Appeal No.314
H of 2007 together with Exh.8 in RAE Suit No.146 of 2001
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA 853
SHANKAR PATIL [ASOK KUMAR GANGULY, J.]
and also R.A.D. Suit Stamp No.61 of 2001 (Suit No.6/8 A
of 2001) and after going through the legality, validity and
propriety of the said Appeal and the said other matters,
this Hon'ble Court be pleased to quash and/or set aside
the judgment and decree dated 11th September, 2008
passed by the Hon'ble Appeal Court in Appeal No.314 of B
2007 of the Petitioners and allow the same in toto".
20. Therefore, the petition filed before the High Court was
a writ petition.
21. Now coming to the Bombay High Court Rules, this C
Court finds that in Chapter I Rule 2B of the Bombay High Court
(Appellate Side) Rules, 1960 (hereinafter referred to as rules)
it is provided:
"28. Petitions/applications under Article 226 an/or 227 D
of the Constitution of India, arising out of/or relating
to an order of penalty or confiscation etc. passed
under any special statute •
All petitions/applications under Article 226 an/or 227
of the Constitution of India, arising out of or relating to an E
order of penalty or confiscation or an order in the nature
thereof an order otherwise of a penal character and
passed under any special statute shall be heard and
decided by a Division Bench hearing Writ Petitions."
F
22. It does not appear from the said Rules that petitions
under Article 227 are called writ petitions. What has been
provided under the said Rules is that petitions under Article 227
filed in respect of certain category of cases will be heard by a
Division Bench hearing writ petitions. That is merely indicative G
of the forum where such petitions will be heard.
23. Chapter XVII of the Rules deals petitions under Articles
226 and 227 and applications under Articl~ 228 and rules for
issue of writs and orders under those Articles. lri Chapter XVII,
H
854 SUPREME COURT REPORTS [2010] 8 S.C.R.
A Rules 1 to 16 deal with petitions under Article 226 of the
Constitution.
24. Rule 17 deals with application under Articles 227 and
228. If a comparison is made between Rule 1 of Chapter XVII
B and Rule 17 of the same Chapter it will be clear that petitions
under Article 226 and those under Article 227 are treated
differently. Both these Rules are set out one after the other:
"1. (i) Applications for is!'"ue of writs, directions, etc.
under Article 226 of the Constitution
c
Every application for the issue of a direction, order
or writ under Article 226 of the Constitution shall, if the
matter in dispute is or has arisen substantially outside
Greater Bombay, be heard and disposed of by a Division
D B_ench to be appointed by the Chief Justice. The
application shall set out therein the relief sought and the
grounds on which it is sought, it shall he solemnly affirmed
or supported by an affidavit In every such application, the
applicant shall state whether he has made any other
application to the Supreme Court or the High Court in
E
respect of the same matter and how that application has
been disposed of.
(ii) Applicant to inform Court, if during pendency of
an application, the Supreme Court has been
F approached.
If the applicant makes an application to the Supreme
Court in respect of the same matter during the pendency
of the application in the High Court, he shall forthwith bring
G this fact to the notice of the High Court filing an affidavit in
the case and shall furnish a copy of such affidavit to the
other side.
(iii) Hearing may be adjourned pending decision by
Supreme Court.
H
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA 855
SHANKAR PATIL [ASOK KUMAR GANGULY, J.]
The Court may adjourn the hearing of the application made A
to it pending the decision of the Supreme Court in the
matter."
"17. (i) Applications under Article 227 and 228
An application invoking the jurisdiction of the High B
Court under Article 227 of the Constitution or under Article
228 of the Constitution, shall be filed on the Appellate Side
of the High Court and be heard and disposed of by a
Division bench to be appointed by the Chief Justice. The
application shall set out therein the relief sought and the C
grounds on which it is sought. It shall be solemnly affirmed
or supported by an affidavit. In every such application, the
applicant shall state whether he has made any other
application to the Supreme Court or the High Court in
respect of the same matter and how that application is D
disposed of.
(ii) Application to inform Court, if, during pendency
of an application, the Supreme Court is approached.
If the applicant makes an application to the Supreme E
Court in respect of the same matter during the pendency
of the application in the High Court, he shall forthwith bring
this fact to the notice of the High Court by filing an affidavit
in the case and shall furnish a copy of such affidavit to the
other side. F
(iii) Hearing may be adjourned pending decision by
Supreme Court
The Court may adjourn the hearing of the application
made to it pending the decision of the Supreme Court in G
the matter.
(iv) Rule 2 to 16 to apply mutatis mutandis
Provision of Rules 2 to 16 above shall apply mutatis H
856 SUPREME COURT REPORTS [2010) 8 S.C.R.
A mutandis to all such applications.
25. The distinction between the two proceedings also
came up for consideration before the Bombay High Court and
in the case of Jhaman Karamsingh Dadlani vs. Raman/a/
B Manek/a/ Kantawala (AIR 1975 Bombay 182) the Bombay High
Court held:
"2. This High Court since its establishment in 1862 under
the Letters Paten.t has been exercising original as well as
appellate jurisdiction and its functioning is regulated by 'the
c Bombay High Court (Original Side) Rules, 1957' and
'Rules of the High Court of Judicature at Bombay,
Appellate Side, 1960' (hereinafter referred to respectively
as 'O. S. Rules' and 'A. S. Rules'). Rules also provide for
disposal of petitions under Articles 226 and 227 of the
D Constitution. Supervisory jurisdiction of the High Court
under Article 227 of the Constitution is exclusively vested
in a Bench on the Appellate Side and jurisdiction of either
of the two wings of this Court under Article 226, however,
depends upon whether "the matter in dispute" arises
E substantially in Greater Bombay or beyond it, the same
being exercisable by the original Side in the former case
and by the Appellate Side in the latter case. This is not
made dependent on the matter being in fact of an original
or appellate nature. The contention of the learned
Advocate General and Mr. Desai is that the matter in
F
dispute, on averments in the petition, must be said to have
arisen at any rate, substantially within the limits of Greater
Bombay and the petitioner cannot be permitted to avoid
the impact of these Rules and choose his own forum by
merely quoting Article 227 of the title and prayer clause of
G the petition, when it is not attraCted or by merely making a
pretence of the dispute having arisen beyond Greater
Bombay by referring to non-existing facts to attract the
Appellate Side jurisdiction under Article 226"
H
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA 857
SHANKAR PATIL [ASOK KUMAR GANGULY, J.]
26. In paragraph 4 of Jhaman (supra}, the High Court A
further distinguished the nature of proceeding under Article 226
of the Constitution to which, depending upon the situs of the
cause of action, Rule 623 of Bombay High Court original Side
Rules will apply. The said rule is set out below:
B
"623. Every application for the issue of a direction, order
or writ under Article 226 of the Constitution other than an
application for a writ of Habeas Corpus shall, if the matter
in dispute is or has arisen substantially within Greater
Bombay, be heard and disposed of by such one of the
Judges sitting on the Original Side or any specially C
constituted Bench as the Chief Justice may appoint. The
application shall be by petition setting out therein the relief
sought and the grounds on which it is sought. The petition
shall be supported by an affidavit. In every such petition
the petitioner shall state whether he has made any other D
application to the Supreme Court or the High Court in
respect of the same matter and how that application has
been disposed of. The petitioner shall move for a Rule Nisi
in open Court.
E
If the Petitioner makes an application to the
Supreme ·Court in respect of the same matter during the
pendency of the petition in the High Court, he shall forthwith
bring this fact to the notice of the High Court by filing an
affidavit in the case and shall furnish a copy of such F
affidavit to the other side.
The Court may adjourn the hearing of the application
made to it pending the decision of the Supreme Court in
the matter."
G
27. From a perusal of paragraph 4 of Jhaman (supra) it
is clear that to a proceeding under Article 227 of the
Constitution of India only the appellate side rules of the High
Court apply. But to a proceeding under Article 226, either the
original side or the appellate side rules, depending on the situs H
858 SUPREME COURT REPORTS [2010) 8 S.C.R.
A of the cause of action, will apply.
28. Therefore High Court rules treat the two proceedings
differently in as much as a proceeding under Article 226, bein.g
an original proceeding, can be governed under Original Side
B Rules of the High Court, depending on the situs of the cause
of action. A proceeding under Article 227 of the Constitution
is never an original proceeding and can never be governed
under Original Side Rules of the High Court.
29. Apart from that, writ proceeding by its very nature is a
C different species of proceeding.
30. Before the coming of the Constitution on 26th January,
1950, no Court in India except three High Courts of Calcutta,
Bombay and Madras could issue the writs, that too within their
0 original jurisdiction. Prior to Article 226 of the Constitution, under
Section 45 of the Specific Relief Act, the power to issue an
order in the nature of mandamus was there. This power of
Courts to issue writs was very truncated and the position has
been summarized in the law of writs by V.G. Ramchandran,
E Volume 1 (Easter Book Company). At page 12, ·the learned
author observed:
" ... The power to issue writs was limited to three High
courts. The other High Courts in India, however, were
created by the Crown under Section 16 of the High Courts
F Act, 1861 but they had no such power. It is necessary to
mention that under Section 45 of the Specific Relief Act,
1877, even the High Courts of Madras, Calcutta and
Bombay could not issue the writs of prohibition and
certiorari or an order outside the local limits of their original
G civil jurisdiction."
31. The power to issue writs underwent a sea-change with
the coming of the Constitution from 26th January, 1950. Now
writs can be i.ssued by High Courts only under Article 226 of
H
SHALINI SHYAM SHETIY AND ANR. v. RAJENDRA 859
SHANKAR PATIL [ASOK KUMAR GANGULY, J.]
the Constitution and by the Supreme Court only under Article A
32 of the Constitution.
32. No writ petition can be moved under Article 227 of the
Constitution nor can a writ be issued under Article 227 of the
Constitution. Therefore, a petition filed under Article 227 of B
the Constitution cannot be called a writ petition. This is clearly
the Constitutional position. No rule of any High Court can amend
or alter this clear Constitutional scheme. In fact the rules of
Bombay High Court have not done that and proceedings under
Articles 226 and 227 have been separately dealt with under
the said rules. C
33. The High Court's power of superintendence under
Article 227 of the Constitution has its origin as early as in Indian
High Courts Act of 1861. This concept of superintendence has
been borrowed from English Law. D
34. The power of superintendence owes its origin to the
supervisory jurisdiction of King's Bench in England. In the
Presidency towns of the then Calcutta, Bombay, Madras initially
Supreme Court was established under the Regulating Act of E
1793. Those Courts were endowed with the power of
superintendence, similar to the powers of Kings Bench under
the English Law. Then the Indian High Courts in three
Presidency towns were endowed with similar jurisdiction of
superintendence. Such power was conferred on them under
Section 15 of the Indian High Courts Act, 1861. F
35. Section 15 of the Indian High Courts Act of 1861 runs
as under:
"15. Each of the High Courts established under this Act G
shall have superintendence over all Courts which may be
subject to its Appellate Jurisdiction, and shall have Power
to call for Returns, and to direct the Transfer of any Suit
or Appeal for any such Court to any other Court of equal
or superior Jurisdiction, and shall have Power to make H
860 SUPREME COURT REPORTS [2010] 8 S.C.R.
A and issue General Rules for regulating the Practice and
Proceedings of such Courts, and also to prescribe Forms
for every Proceeding in the said Courts for which it shall
think necessary that a form be provided, and also for
keeping all Books, Entries, and Accounts to be kept by the
B officers, and also to settle Tables of Fees to be allowed
to the Sheriff, Attorneys, and all Clerks and Officers of
Courts, and from Time to Time to alter any such Rule or
Form or Table; and the Rules so made, and the Forms so
framed, and the Tables so settled, shall be used and
observed in the said Courts, provided that such General
c Rules and Forms and Tables be not inconsistent with the
Provisions of any law in force, and shall before they are
issued have received the Sanction, in the Presidency of
Fort William of the Governor-General in Council, and in
Madras or Bombay of the Governor in Council of the
D respective Presidencies."
36. Then in the Government of India Act, 1915 Section 107
continued this power of superintendence with the High Court.
Section 107 of the Government of India Act, 1915 was
E structured as follows:
"107. Powers of High Court with respect to
subordinate Courts. - Each of the High courts has
superintendence over all High Courts for the time being
subject to its appellate jurisdiction, and may do any of the
F
following things, that is to say:-
(a) call for returns;
(b) direct the transfer of any suit or appeal from
G any such court any other court of equal or
superior jurisdiction;
(c) make and issue general rules and prescribe
forms for regulating the practice and
proceedings of such courts;
H
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA 861
SHANKAR PATIL [ASOK KUMAR GANGULY, J.]
(d) prescribe forms in which books, entries and A
accounts shall be kept by the officers of any
such courts; and
(e) settle tables of fees to be allowed to the
sheriff, attorneys and all clerks and officers 8
of courts:
Provided that such rules, forms and tables shall not
be inconsistent with the provisions of any law for the time
being in force, and shall require the previous approval, in
the case of the high court at Calcutta, of the Governor- C
General in council, and in other cases of the local
government."
37. In the Government of India Act, 1935 the said Section
107 was continued with slight changes in Section 224 of the o
Act, which is as follows:
"224. Administrative functions of High Courts.- (1)
Every High Court shall have superintendence over all
Courts in India for the time being subject to its appellate
jurisdiction, and may do any of the following things, that is E
to say,-
(a) call for returns;
(b) make and issue general rules and prescribe F
forms for regulating the practice and
proceedings of such courts;
(c) prescribe forms in which books, entries and
accounts shall be kept by the officers of any
such courts; and G
(d) settle tables of fees to be allowed to the
sheriff, attorneys and all clerks and officers
of courts:
.-~·-
H
862 SUPREME COURT REPORTS [2010] 8 S.C.R.
A Provided that such rules, forms and tables shall not
be inconsistent with the provisions of any law for the time
being in force, and shall require the previous approval of
the Governor.
(2) Nothing in this Section shall be construed as
B
giving to a High Court any jurisdiction to question any
judgment of any inferior Court which is not otherwise
subject to appeal or revision."
38. The history of this power has been elaborately traced
C by a Division Bench of Calcutta High Court in the case of
Jahnabi Prasad Banerjee and another vs. Basudeb Paul &
others, reported in Al R 1950 Calcutta 536 and that was
followed in a Division Bench Judgment of Allahabad High Court
in Sukhdeo Baiswar vs. Brij Bhushan Misra and others in AIR
D 1951 Allahabad 667.
39. The history of Article 227 has also been traced by this
Court in its Constitutional Bench judgment in Waryam Singh
and another vs. Amarnath and another [AIR 1954 SC 215]. In
E paragraph 13 at page 217 of the report this Court observed:
"... The only question raised is as to the nature of the power
of superintendence conferred by the article".
40. About the nature of the power of superintendence this
F Court relied on the Special Bench judgment delivered by Chief
Justice Harries in Dalmia Jain Airways Limited vs. Sukumar
Mukherjee (AIR 1951 Calcutta 193).
41. In paragraph 14 page 217 of Waryam Singh (supra)
this Court neatly formulated the ambit of High Court's power
G under Article 227 in the following words:
"This power of superintendence conferred by article 227
is, as pointed out by Harries C.J., in 'Dalmia Jain Airways
Ltd. v. Sukumar Mukherjee', AIR 1951 Cal 193 (SB) (B),
H to be exercised most sparingly and only in appropriate
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA 863
. SHANKAR PATIL [ASOK KUMAR GANGULY, J.]
cases in order to keep the Subordinate Courts within the A
bounds of their authority and not for correcting mere errors."
42. Chief justice Harries in the Full Bench decision in
Dalmia (supra) stated the principles on which the High Court
can exercise its power under Article 227 very succinctly which, B
we would better, quote:
"6. Though this Court has a right to interfere with decisions
of Courts and tribunals under its power of superintendence,
it appears to me that that right must be exercised most
sparingly and only in appropriate cases. The matter was C
considered by a Bench of this Court in Manmathanath v.
Emperor, AIR 1933 Cal 132. In that case a Bench over
which Sir George Rankin C. J. presided held that Section
107, Government of India Act (which roughly corresponds
to Article 227 of the Constitution), does not vest the High D
Court with limitless power which may be exercised at the
Court's discretion to remove the hardship of particular
decisions. The power of superintendence it confers is a
power of a known and well-recognised character and
should be exercised.on those judicial principles which give E
it its character. In general words, the High Court's power
of superintendence is a power to keep subordinate Courts
within the bounds of their authority, to see that they do what
their duty requires and that they do it in a legal manner."
(page 193-194 of the report) F
43. In stating the aforesaid principles, Chief Justice Harries
relied on what was said by Chief Justice George Rankin in
Manmatha Nath Biswas vs. Emperor reported in AIR 1933
Calcutta 132. At page 134, the learned Chief Justice held: G
I
" ... superintendence is not a legal fiction whereby a High
Court Judge is vested with omnipotence but is as Norman,
J .. had said a term having a legal force and signification.
The general superintendence which this Court has over all H
864 SUPREME COURT REPORTS (2010] 8 S.C.R.
A jurisdiction subject to appeal is a duty to keep them within
the bo~nds of their authority, to see that they do what their
duty requires and that they do it in a legal manner. It does
not involve responsibility for the correctness of their
decisions, either in fact or law.
B
44. Justice Nasir Ullah Beg of Allahabad High Court in a
very well considered judgment rendered in the case of Jodhey
and others vs. State through Ram Sahai, reported in AIR 1952
Allahabad 788, discussed the provisions of Section 15 of the
C Indian High Courts Act of 1861, Section 107 of the Government
of India Act 1915 and Section 224 of the Government of India
Act 1935 and compared them with almost similar provisions
of Article 227 of the Constitution.
45. The learned judge considered the power of the High
D Court under Article 227 to be plenary and unfettered but at the
same time, in paragraph 15 at page 792 of the report, the
learned judge held ,that High Court should be cautious in its
exercise. It was made clear, and rightly so, that the power of
superintendence is not to be exercised unless there has been
E an (a) unwarranted assumption of jurisdiction, not vested in
Court or tribunal, or (b) gross abuse of jurisdiction or (c) an
unjustifiable refusal to exercise jurisdiction vested in Courts or
tribunals. The learned judge clarified if only there is a flagrant
abuse of the elementary principles of justice or a manifest error
F of law patent on the face of the record or an outrageous
miscarriage of justice, power of superintendence can be
exercised. This is a discretionary power t0 he exercised by
Court and cannot be claimed as a matter or right by a party.
46. This Court in its Constitution Bench decision in the
G case of Nagendra Nath Bora & another vs. Commissioner of
Hills Division and Appeals, Assam & others (Al R 1958 SC
398) followed the ratio of the earlier Constitution Bench in
Waryam Singh (supra) about the ambit of High Court's power
of superintendence and quoted in Nagendra Nath (supra) the
H same passage, which has been excerpted above (See
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA 865
SHANKAR PATIL [ASOK KUMAR GANGUL-Y, J.]
paragraph 30, page 413 of the report). A
47. The Constitution Bench in Nagendra Nath (supra),
unanimously speaking through Justice B.P. Sinha, (as his
Lordship then was) pointed out that High Court's power of
interference under Article 227 is not greater than its power B
under Article 226 and the power of interference under Article
227 of the Constitution is limited to ensure that the tribunals
function within the limits of its authority.
(emphasis supplied)
c
48. The subsequent Constitution Bench decision of this
Court on Article 227 of the Constitution, rendered in the case
of State of Gujarat etc. vs. Vakhatsinghji Vajesinghji Vaghela
(dead) his legal representatives and others reported in AIR
1968 SC 1481 also expressed identical views. Justice 0
Bachawat speaking for the unanimous Constitution Bench
opined that the power under Article 227 cannot be fettered by
State Legislature but this supervisory jurisdiction is meant to
keep the subordinate tribunal within the limits of their authority
and to ensure that they obey law.
E
49. So the same expression namely to keep the Courts
and Tribunals subordinate to the High Court 'within the bounds
of their authority' used in Manmatha Nath Biswas (supra), to
indicate the ambit of High Court's power of superintendence
has been repeated over again and again by this Court in its F
Constitution Bench decisions.
50. Same principles have been followed by this Court in
the case of Mani Nariman Daruwa/a @ Bh.arucha (deceased)
through Lrs. & others vs. Phiroz N. Bhatena and others etc. G
reported in (1991) 3 sec 141, wherein it has been held that
in exercise of its jurisdiction under Article 227, the High Court
can set aside or reverse finding of an inferior Court or tribunal
only in a case where there is no evidence or where no
H
866 SUPREME COURT REPORTS [2010] 8 S.C.R.
A reasonable person could possibly have come to the conclusion
which the Court or tribunal has come to. This Court made it
clear that except to this 'limited extent' the High Court has no
jurisdiction to interfere with the findings of fact (see para 18,
page 149-150).
B
51. In coming to the above finding, this Court relied on its
previous decision rendered in the case of Chandavarkar Sita
Ratna Rao vs. Ashalata S. Guram reported in (1986) 4 SCC
447. The decision in Chandavarkar (supra) is based on the
C principle of the Constitution Bench judgments in Waryam Singh
(supra) and Nagendra Nath (supra) discussed above.
52. To the same effect is the judgment rendered in the case
of Laxmikant Revchand Bhojwani and another vs.
Pratapsingh Mohansingh Pardeshi reported in (1995) 6 SCC
D 576. In paragraph 9, page 579 of the report, this Court clearly
reminded the High Court that under Article 227 that it cannot
assume unlimited prerogative to correct all species of hardship
or wrong decisions. Its exercise must be restricted to grave
dereliction of duty and flagrant abuse of fundamental principle
E of law and justice (see page 579-580 of the report).
53. Same views have been taken by this Court in respect
of the ambit of High Court's power under Article 227 in the case
of Sarpanch, Lonand Grampanchayat vs. Ramgiri Gosavi and
another, reported in AIR 1968 SC 222, (see para 5 page 222-
F 234 of the report) and the decision of this Court in Jijabai
Vithalrao Gajre vs. Pathankhan and others reported in (1970)
2 SCC 717. The Constitution Bench ratio in Waryam Singh
(supra) about the scope of Article 227 was again followed in
Ahmedabad Manufacturing & Calico Ptg. Co. Ltd. vs. Ram
G Tahel Ramnand and others reported in (1972) 1 SCC 898.
54. In a rather recent decision of the Supreme Court in
case of Surya Dev Rai vs. Ram Chander Rai and others,
reported in (2003) 6 SCC 675, a two judge Bench of this Court
H discussed the principles of interference by High Court under
SHALINI SHYAM SH ETTY AND ANR. v. RAJENDRA 867
SHANKAR PATIL [ASOK KUMAR GANGULY, J.]
Article 227. Of course in Surya Dev Rai (supra) this Court held ·A
that a writ of Certiorari is maintainable against the order of a
civil Court, subordinate to the High Court (para 19, page 668
of the report). The correctness of that ratio was doubted by
another Division Bench of this Court in Radhey Shyam and
another vs. Chhabi Nath and others [(2009) 5 sec 616] and B
a request to the Hon'ble Chief Justice for a reference to a larger
Bench is pending. But in so far as the formulc;ition of the
principles on the scope of interference by the High Court under
Article 227 is concerned, there is no divergence of views.
55. In paragraph 38, sub-paragraph (4) at page 695 of the C
report, the following principles have been laid down in Surya
Dev Rai (supra) and they are set out:
"38 (4) Supervisory jurisdiction under Article 227 -of the
Constitution is exercised for keeping the subordinate · o
courts within the bounds of their jurisdiction. When a
··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 E
and failure _of justice or grave injustice has occasioned
thereby, the High Court may step in t.o exercise its
supervisory jurisdiction."
56. Sub-paras (5), (7) and (8) of para 38 are also on the
·same lines and extracted below: ·F
"(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 ·G
or utter disregard of the provisions of law, and (ii) a grave
injustice or gross failure of justice has occasioned thereby.
(6) xxx xxx
H
868 SUPREME COURT REPORTS [2010] 8 S.C.R.
A (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
B 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 correc'.ad at the conclusion of the
c proceedings in an appeal or revision preferred
thereagainst and entertaining a petition invoking certiorari
or supervisory jurisdiction of the High Court would obstruct
the smooth flow and/or early disposal of the suit or
proceedings. The High Court may feel inclined to intervene
where the error is such, as, if not corrected at that very
D
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.
E (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."
F 57. Articles 226 and 227 stand on substantially different
footing. As noted above, prior to the Constitution, the Chartered
High Courts as also the Judicial Committee of the Privy Council
could issue prerogative writs in exercise of their original
jurisdiction. [See 1986 (suppl.) SCC 401 at page 469)].
G
58. However, after the Constitution every High Court has
been conferred with the power to issue writs under Article 226
and these are original proceeding. [State of UP. and others
vs. Dr. Vijay Anand Maharaj - AIR 1963 SC 946, page 951].
H 59. The jurisdiction under Article 227 on the other hand is
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA 869
SHANKAR PATIL [ASOK KUMAR GANGULY, J.]
not original nor is it appellate. This jurisdiction of A
superintendence under Article 227 is for both administrative and
judicial superintendence. Therefore, the powers conferred
under A> 'cles 226 and 227 are separate and distinct and
operate in different fields.
60. Another distinction between these two jurisdictions is B
that under Article 226, High Court normally annuls or quashes
an order or proceeding but in exercise of its jurisdiction under
Article 227, the High Court, apart from annulling the proceeding,
can also substitute the impugned order by the order which the
inferior tribunal should have made. {See Surya Dev Rai (supra), C
para 25 page 690 and also the decision of the Constitution
Bench of this Court in Hari Vishnu Karnath vs. Ahmad /shaque
and others - [AIR 1955 SC 233, para 20 page 243]}.
61. Jurisdiction under Article 226 normally is exercised D
where a party is affected but power under Article 227 can be
exercised by the High Court suo motu as a custodian of justice.
In fact, the power under Article 226 is exercised in favour of
persons or citizens for vindication of their fundamental rights
or other statutory rights. Jurisdiction under Article 227 is E
exercised by the High Court for vindication of its position as
the highest judicial authority in the State. In certain cases where
there is infringement of fundamental right. the relief under Article
226 of the Constitution can be claimed ex-debito justicia or as
a matter of right. But in cases where the High Court exercises
F
its jurisdiction under Article 227, such exercise is entirely
discretionary and no person can claim it as a matter of right.
From an order of a Single Judge passed under Article 226, a
Letters Patent Appeal or an intra Court Appeal is maintainable.
But no such appeal is maintainable from an order passed by
a Single Judge of a High Court in exercise of power under G
Article 227. In almost all High Courts, rules have been framed
for regulating the exercise of jurisdiction under Article 226. No
such rule appears to have been framed for exercise of High
Court's power under Article 227 possibly to keep such exercise
entirely in the domain of the discretion of High Court. H
870 SUPREME COURT REPORTS [2010] 8 S.C.R.
A 62. On an analysis of the aforesaid decisions of this Court,
the following principles on the exercise of High Court's
jurisdiction under Article 227 of the Constitution may be
formulated:
(a) A petition under Article 226 of the
B
Constitution is different from a petition under
Article 227. The mode of exercise of power
by High Court under these two Articles is
also different.
c (b) In any event, a petition under Article 227
cannot be called a writ petition. The history.
of the conferment of writ jurisdiction on High
Courts is substantially different from the
history of conferment of the power of
D Superintendence on the High Courts under
Article 227 and have been discussed above.
(c) High Courts cannot, on the drop of a hat, in
exercise of its power of superintendence
under Article 227 of the Constitution, interfere
E with the orders of tribunals or Courts inferior
to it. Nor can it, in exercise of this power, act
as a Court of appeal over the orders of Court
or tribunal subordinate to it. In cases where
an altern-ative statutory mode of redressal
F has been provided, that would also operate
as a restrain on the exercise of this power
by the High Court.
(d) The parameters of interference by High
Courts in exercise of its power of
G superintendence have been repeatedly laid
down by this Court. In this regard the High
Court must be guided by the principles laid
down by the Constitution Bench of this Court
in Waryam Singh (supra) and the principles
H in Waryam Singh (supra) have been
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA 871
SHANKAR PATIL [ASOK KUMAR GANGULY, J.]
repeatedly followed by subsequent A
Constitution Benches and various other
decisions of this Court.
(e) According to the ratio in Waryam Singh
(supra), followed in subsequent cases, the
High Court in exercise of its jurisdiction of B
superintendence can interfere in order only
to keep the tribunals and Courts subordinate
to it, 'within the bounds of their authority'.
(f) In order to ensure that law is followed by such c
tribunals and Courts by exercising jurisdiction
which is vested in them and by not declining
to exercise the jurisdiction which is vested in
them.
(g) Apart from the situations pointed in (e) and D
(f), High Court can interfere in exercise of its
power of superintendence when there has
been a patent perversity in the orders of
tribunals and Courts subordinate to it or
where there has been a gross and manifest E
failure of justice or the basic principles of
natural justice have been flouted.
(h) In exercise of its power of superintendence
High Court canhot interfere to correct mere F
errors of law or fact or just because another
view than the one taken by the tribunals or
Courts subordinate to it, is a possible view.
In other words the jurisdiction has to be very
sparingly exercised.
G
(i) High Court's power of superintendence
under Article 227 cannot be curtailed by any
statute. It has been declared a part of the
basic structure of the Constitution by the
Constitution Bench of this Court in the case H
872 SUPREME COURl REPORTS [2010] 8 S.C.R.
A of L. Chandra Kumar vs. Union of India &
others, reported in (1997) 3 sec
261 and
therefore abridgement by a Constitutional
amendment is also very doubtful.
B U) It may be true that a statutory amendment of
a rather cognate provision, like Section 115
of the Civil Procedure Code by the Civil
Procedure Code (Amendment) Act, 1999
does not and cannot cut down the ambit of
High Court's power under Article 227. At the
c same time, it must be remembered that such
statutory amendment does not
correspondingly expand the High Court's
jurisdiction of superintendence under Article
227.
D
(k) The power is discretionary and has to be
exercised on equitable principle. In an
appropriate case, the power can be
.exercised suo motu.
E (I) On a proper appreciation of the wide and
unfettered power of the High Court under
Article 227, it transpires that the main object
of this Article is to keep strict administrative
and judicial control by the High Court on the
F administration of justice within its territory.
(m) The object of superintendence, both
administrative and judicial, is to maintain
efficiency, smooth and orderly functioning of
the entire machinery of justice in such a way
G
as it does not bring it into any disrepute. The
power of interference under this Article is to
be kept to the minimum to ensure that the
wheel of justice does not come to a halt and
the fountain of justice remains pure and
H unpolluted in order to maintain public
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA 873
SHANKAR PATIL [ASOK KUMAR GANGULY, J.]
confidence in the functioning of the tribunals A
and Courts subordinate to High Court.
(n) This reserve and exceptional power of
judicial intervention is not to be exercised just
for grant of relief in individual cases but
8
should be directed for promotion of public
confidence in the administration of justice in
the larger public interest whereas Article 226
is meant for protection of individual
grievance. Therefore, the power under Article C
227 may be unfettered but its exercise is
subject to high degree of judicial discipline'
pointed out above.
(o) An improper and a frequent exercise of this
power will be counter-productive and will o
divest this extraordinary power of its strength
and vitality.
63. In the facts of the present case we find that the petition
has been entertained as a writ petition in a dispute between
landlord and tenant amongst private parties. E
64. It is well settled that a writ petition is a remedy in public
law which may be filed by any person but the main respondent
should be either Government, Governmental agencies or a State
or instrumentalities of a State within the meaning of Article 12. F
Private individuals cannot be equated with State or
instrumentalities of the State.· All the respondents in a writ
petition cannot be private parties. But private parties acting in
collusion with State can be respondents in a writ petition. Under
the phraseology of Article 225, High Court can issue writ to any G
person, but the person against whom writ will be issued must
have some statutory or public duty to perform.
65. Reference in this connection may be made to the
Constitution Bench decision of this Court in the case of Sohan
Lal vs. Union of India and another, reported in AIR 1957 SC H
874 SUPREME COURT REPORTS (2010] 8 S.C.R.
A 529.
66. The fa'cts in Sohan Lal (supra) are that Jagan Nath, a
refugee from Pakistan, filed a writ petition in the High Court of
Punjab against Union of India and Sohan Lal alleging
unauthorized eviction from his residence and praying for a
B direction for restoration of possession. The High Court directed
Sohan Lal to restore possession to Jagan Nath. Challenging
that order, Sohan Lal approached this Court. The Constitution
Bench of this Court accepted the appeal and overturned the
verdict of the High Court.
c
67. In paragraph 7, page 532 of the judgment. the
unanimous Constitution Bench speaking though Justice Imam,
laid down a few salutary principles which are worth
remembering and are set out:
D "7. The eviction of Jagan Nath was in contravention of the
express provisions of Section 3 of the Public Premises
(Eviction) Act. His eviction, therefore, was illegal. He was
entitled to be evicted in due course of law and a writ of
mandamus could issue to or an order in the nature of
E mandamus could be made against the Union of India to
restore possession of the property to Jagan Nath from
which he had been evicted if the property was still in the
possession of the Union of India. The property in dispute,
however, is in possession of the appellant. There is no
F evidence and no finding of the High Court that the appellant
was in collusion with the Union of India or that he had
knowledge that the eviction of Jagan Nath was illegal.
Normally, a writ of mandamus does not issue to or an order
in the nature of mandamus is not made against a private
G individual. Such an order is made against a person
directing him to do some particular thing, specified in the
order, which appertains to his office and is in the nature
of a public duty (Halsbury's Laws of England Vol. 11, Lord
Simonds Edition, p. 84). If it had been proved that the
H Union of India and the appellant had colluded, and the
SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA 875
SHANKAR PATIL [ASOK KUMAR GANGULY, J.]
transaction between them was merely colourable, entered A
into with a view to deprive Jagan Nath of his rights,
jurisdiction to issue a writ to or make an order in the nature
of r;1andamus against the appellant might be said to exist
in a Court ... "
68. These principles laid down by the Constitution Bench B
in Sohan Lal (supra) have not been doubted so far.
69. Subsequently in some other cases question arose
whether writ will lie against a private person. In Engineering
Mazdoor Sabha & another vs. Hind Cycles Ltd., reported in c
AIR 1963 SC 874, it was held that an arbitr<..ltor appointed under
Section 1OA of Industrial Disputes Act is not a private arbitrator
even though he cannot be equated with a tribunal to be
amenable under Article 136 of the Constitution of India. The
Court held that in discharging his duties as an arbitrator, the D
arbitrator is clothed with some trappings of a Court and a writ
of certiorari would be maintainable against him. So even though
an arbitrator, acting under Section 1OA of the Industrial
Disputes Act, is a private individual, he discharges public
function. So the ratio in the Constitution Bench decision in E
Engineering Mazdoor Sabha (supra) is consistent with the
decision in Sohan Lal (supra).
70. It is only a writ of Habeas Corpus which can be directed
not only against the State but also against private person.
Justice Hidaytullah (as his Lordship then was) on behalf of a F
Bench of this Court stated the principle as "the writ of Habeas
Corpus issues not only for release froni detention by the State
but also for release from private detention." (see AIR 1964 SC
1625 at 1630).
71. In Rohtas Industries Ltd., & another vs. Rohtas G
Industries Staff Uniorl & others [(1976) 2 SCC 82] this Court
held that in view of the amendment of the Industrial Disputes
Act, 1947, by amendment Act 36 of 1964 and in view of
provisions like Section 27 of the Act, an arbitrator under Section
H
876 SUPREME COURT REPORTS [2010] 8 S.C.R.
A 1QA of the Industrial Disputes Act is virtually a part of State's
sovereign dispensation of justice and his award is amenable
to review under Articles 226 & 227 of the Constitution. In
Rohtas (supra), the ratio of Engineering Mazdoor Sabha
(supra) was followed.
B
72. Therefore, a private person becomes amenable to writ
jurisdiction only if he is connected with a statutory authority or
only if he/she discharges any official duty.
73. In the instant case none of the above features are
c present, even then a writ petition was filed in a pure dispute
between landlord and tenant and where the only respondent is
the plaintiff landlord. Therefore, High Court erred by entertaining
the writ petition. However, the petition was dismissed on merits
by a rather cryptic order.
D 74. It has repeatedly been held by this Court that a
proceeding under Article 226 of the Constitution is not the
appropriate forum for adjudication of property disputes or
disputes relating to title. In Mohammed Hanif vs. The State of
Assam [1969 (2) SCC 782] a three Judge Bench of this Court,
E explaining the general principles governing writ jurisdiction
under Article 226, held that this jurisdiction is extraordinary in
nature and is not meant for declaring the private rights of the
parties. [See para 5, page 786 of the report].
F 75. In coming to the aforesaid conclusion in Hanif (supra),
this Court referred to the Constitution Bench decision in T. C.
Basappa vs. T. Nagappa and another [AIR 1954 SC 440].
76. Following the aforesaid principles in Hanif (supra), this
Court in Mis. Hindustan Steel Limited, Rourke/a vs. Smt.
G Kalyani Banerjee and others [( 1973) 1 SCC 273] held that ·
serious questions about title and possession of land cannot be
dealt with by writ court. In formulating these principles in Kalyani
Banerjee (supra), this Court relied on Constitution Bench
decision in Sohan Lal (supra) [See paragraph 16 page 282
H of the report). Again in State of Rajasthan vs. Bhawani Singh
SHAUN! SHYAM SHETTY AND ANR. v. RAJENDRA 877
SHANKAR PATIL [ASOK KUMAR GANGULY, J.]
& others [1993 Supp. (1) SCC 306] this Court held that a writ A
petition is not the appropriate forum to declare a person's title
to property. [see para 7, page 309 of the report]. Subsequently,
again in the case of Mohan Pandey & another vs. Usha Rani
Rajgaria & others reported in (1992) 4 SCC 61, this Court held
that a regular suit is the appropriate remedy for deciding B
property disputes between private persons and remedy under
Article 226 is not available to decide such disputes unless there
is violation of some statutory duty on the part of a statutory
authority. [See para 6, page 63 of the report].
77. Following the aforesaid ratio in Mohan Pandey C
(supra), this Court again in Prasanna Kumar Roy Karmakar
vs. State of WB and others [(1996) 3 SCC 403], held that in
a dispute between the landlord and tenant, a tenant cannot be
evicted from his possession by a writ court. Again in the case
of P.R. Murlidharan & others vs. Swami Dharmananda D
Theertha Padar & others [(2006) 4 SCC 501], this Court held
that it would be an abuse of the process to approach a writ court
in connection with dispute on questions of title for deciding
which civil court is the appropriate forum.
E
78. However, this Court unfortunately discerns that of late
there is a growing trend amongst several High Courts to
entertain writ petition in cases of pure property disputes.
Disputes relating to partition suits, matters relating to execution
of a decree, in cases of dispute between landlord and tenant
F
and also in a case of money decree and in various other cases
where disputed questions of property are involved, writ courts
are entertaining such disputes. In some cases High Courts, in
a routine manner, entertain petition under Article 227 over such
disputes and such petitions are treated as writ petitions.
G
79. 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 i.t can be shown, that a
private individual is acting in collusion with a statutory authority. H·
878 SUPREME COURT REPORTS [2010] 8 S.C.R.
A 80. We may also observe that in some High Courts there
is 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 (supra) and in view of the recent amendment to
B Section 115 of the Civil Procedure Code by Civil Procedure
Code (Amendment) Act, 1999. It is urged that as a result of the
amendment, scope of Section 115 of CPC has been curtailed.
In our view, even if the scope of Section 115 CPC is curtailed
that has not resulted in expanding High Court's power of
c superintendence. It is too well known to be reiterated that in
exercising its jurisdiction, High Court must follow the regime of
law.
81. As a result of frequent interference by Hon'ble High
Court either under Article 226 or 227 of the Constitution with
D 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.
82. This Court hopes and trusts that in exercising its power
E either under Article 226 or 227, 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.
F 83. For the reasons aforesaid, it is held that the High Court
committed an error in entertaining the writ petition in a dispute
between landlord and tenant and where the only respondent is
a private landlord. 1-he course adopted by the High Court cannot
be approved. Of course, High Court's order of non-interference
G in view of concurrent findings of facts is unexceptionable.
Consequently, the appeal is dismissed. However, there shall
be no order as to costs.
N.J. Appeal dismissed.
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