SHALINI SHYAM SHETTY Vs RAJENDRA SHANKAR PATIL
Bench: G.S. SINGHVI,ASOK KUMAR GANGULY, , ,
Case number: C.A. No.-005896-005896 / 2010
Diary number: 8137 / 2009
Advocates: JITENDRA MOHAN SHARMA Vs
SHIVAJI M. JADHAV
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5896 OF 2010 (Arising out of SLP (Civil) No.7445 of 2009)
Shalini Shyam Shetty and another ..Appellant(s)
Versus
Rajendra Shankar Patil ..Respondent(s)
J U D G M E N T
GANGULY, J.
1. Leave granted.
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
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Article 226 of the Constitution of India. The
High Court dismissed the writ petition in view
of concurrent finding of two 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 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 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.
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4. Plaintiff claims that somewhere in January 2000,
the 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
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 the defendant to remove those articles
but the request of the 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
premises. In the said suit injunction was
granted. Thereafter, the plaintiff had
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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 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 10’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
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.
7. The learned Court of Small Causes at Mumbai,
Bandra Branch vide its judgment dated 30.10.07
decreed the suit of the plaintiff/respondent and
directed the defendantS to hand over the vacant
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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, 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 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
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
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the plaintiff’s 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
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 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 resulted in unhygienic conditions as
it was impossible to clean the drains. On behalf
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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 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 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 defendants against the plaintiff,
the defendants have specifically come out with
the case that the dispute between the deceased
defendant and the plaintiff with regard to the
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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 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 reliance on para 10
of the affidavit of examination-in-chief of the
defendants came to a 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 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
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causing waste and damage to plaintiff’s
property.
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 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 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 Courts below
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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 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 dispute between landlord and tenant in which
both are private parties and the dispute is of
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 the
Bombay High Court Rules, such petitions are
called writ petitions.
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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 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:
“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 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 of 2007 together with Exh.8 in RAE Suit No.146 of 2001 and also R.A.D. Suit Stamp No.61 of 2001 (Suit No.6/8 of 2001)
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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 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
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:
“2B. Petitions/applications under Article 226 an/or 227 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 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.”
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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 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
Article 228 and rules for issue of writs and
orders under those Articles. In Chapter XVII,
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 and Rule 17 of the same
Chapter it will be clear that petitions under
Article 226 and those under Article 227 are
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treated differently. Both these Rules are set
out one after the other:
“1. (i) Applications for issue of writs, directions, etc. under Article 226 of the Constitution
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 Bench to be appointed by the Chief Justice. The application shall set out therein the relief sought and the grounds on which it is sought, it shall 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 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 approached.
If the applicant makes an application to the Supreme Court in respect of the same matter during the pendency of the application in the High Court, he shall forthwith bring this fact to the notice of the High Court filing an affidavit in the case and shall furnish a copy of such affidavit to the other side.
(iii) Hearing may be adjourned pending decision by Supreme Court.
The Court may adjourn the hearing of the application made to it pending the decision of the Supreme Court in the matter.”
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“17. (i) Applications under Article 227 and 228
An application invoking the jurisdiction of the High 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 grounds on which it is sought. It shall be solemnly affirmed or supported by an affidavit. In every such application, the applicant shall state whether he has made any other application to the Supreme Court or the High Court in respect of the same matter and how that application is disposed of.
(ii) Application to inform Court, if, during pendency of an application, the Supreme Court is approached.
If the applicant makes an application to the Supreme Court in respect of the same matter during the pendency of the application in the High Court, he shall forthwith bring this fact to the notice of the High Court by filing an affidavit in the case and shall furnish a copy of such affidavit to the other side.
(iii) Hearing may be adjourned pending decision by Supreme Court
The Court may adjourn the hearing of the application made to it pending the decision of the Supreme Court in the matter.
(iv) Rule 2 to 16 to apply mutatis mutandis Provision of Rules 2 to 16 above shall
apply mutatis mutandis to all such applications.
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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. Ramanlal Maneklal Kantawala (AIR 1975 Bombay 182) the Bombay High Court held:
“2. This High Court since its establishment in 1862 under the Letters Patent has been exercising original as well as appellate jurisdiction and its functioning is regulated by 'the 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 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 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 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 the petition, when it is not attracted or by merely making
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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”
26. In paragraph 4 of Jhaman (supra), the High Court 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:
“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 constituted Bench as the Chief Justice may appoint. The application shall be by petition setting out therein the relief sought and the grounds on which it is sought. The petition shall be supported by an affidavit. In every such petition the petitioner shall state whether he has made any other application to the Supreme Court or the High Court in respect of the same matter and how that application has been disposed of. The petitioner shall move for a Rule Nisi in open Court.
If the Petitioner makes an application to the Supreme Court in respect of the same
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matter during the pendency of the petition in the High Court, he shall forthwith bring this fact to the notice of the High Court by filing an affidavit in the case and shall furnish a copy of such affidavit to the other side.
The Court may adjourn the hearing of the application made to it pending the decision of the Supreme Court in the matter.”
27. From a perusal of paragraph 4 of Jhaman (supra) it is clear that to a proceeding under 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,
will apply.
28. Therefore High Court rules treat the two
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
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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 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 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, 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
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under Section 16 of the High Courts 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 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 issued by High
Courts only under Article 226 of the
Constitution and by the Supreme Court only under
Article 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
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
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have been separately dealt with under the said
rules.
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.
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
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.
2
35. Section 15 of the Indian High Courts Act of 1861
runs as under:
“15. Each of the High Courts established under this Act shall have superintendence over all Courts which may be subject to its Appellate Jurisdiction, and shall have Power to call for Returns, and to direct the Transfer of any Suit or Appeal for any such Court to any other Court of equal or superior Jurisdiction, and shall have Power to make 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 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 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 respective Presidencies.”
36. Then in the Government of India Act, 1915
Section 107 continued this power of
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superintendence with the High Court. Section 107
of the Government of India Act, 1915 was
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 following things, that is to say:-
(a) call for returns; (b) direct the transfer of any suit or
appeal from 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;
(d) prescribe forms in which books, entries and 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 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-General in council, and in other cases of the local government.”
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37. In the Government of India Act, 1935 the said
Section 107 was continued with slight changes in
Section 224 of the 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 to say,-
(a) call for returns; (b) make and issue general rules and
prescribe forms for regulating the practice and proceedings of such courts;
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts; and
(d) settle tables of fees to be allowed to the sheriff, attorneys and all clerks and officers of courts:
Provided that such rules, forms and tables shall not be inconsistent with the provisions of any law for the time being in force, and shall require the previous approval of the Governor.
(2) Nothing in this Section shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior Court which is not otherwise subject to appeal or revision.”
38. The history of this power has been elaborately
traced by a Division Bench of Calcutta High
2
Court in the case of Jahnabi Prosad Banerjee and another vs. Basudeb Paul & others, reported in AIR 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 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 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 Court relied on the Special Bench judgment
delivered by Chief Justice Harries in Dalmia Jain Airways Limited vs. Sukumar Mukherjee (AIR 1951 Calcutta 193).
2
41. In paragraph 14 page 217 of Waryam Singh (supra) this Court neatly formulated the ambit of High
Court’s power 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), to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the 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, 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 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
2
corresponds to Article 227 of the Constitution), does not vest the High 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 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)
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:
“...superintendence is not a legal fiction whereby a High Court Judge is vested with omnipotence but is as Norman, J., had said a term having a legal force and signification. The general superintendence which this Court has over all jurisdiction subject to appeal is a duty to keep them within the bounds of their authority, to see that they do what their duty requires and that they do it in a legal manner. It does not involve responsibility for the correctness of their decisions, either in fact or law.
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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
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 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 an (a)
unwarranted assumption of jurisdiction, not
vested in Court or tribunal, or (b) gross abuse
of jurisdiction or (c) an unjustifiable refusal
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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 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 to be 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 case of Nagendra Nath Bora & another vs. Commissioner of Hills Division and Appeals, Assam & others (AIR 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 same passage, which has been excerpted above (See paragraph 30, page
413 of the report).
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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 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)
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 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
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the limits of their authority and to ensure that
they obey law.
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 Constitution Bench decisions.
50. Same principles have been followed by this Court
in the case of Mani Nariman Daruwala @ Bharucha (deceased) through Lrs. & others vs. Phiroz N. Bhatena and others etc. reported in (1991) 3 SCC 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 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
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‘limited extent’ the High Court has no
jurisdiction to interfere with the findings of
fact (see para 18, page 149-150).
51. In coming to the above finding, this Court
relied on its previous decision rendered in the
case of Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram reported in (1986) 4 SCC 447. The decision in Chandavarkar (supra) is based on the 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 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
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fundamental principle 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
222-234 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 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 discussed the
principles of interference by High Court under
Article 227. Of course in Surya Dev Rai (supra) 3
this Court held 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 SCC 616] and a request to the Hon’ble Chief Justice for a reference to
a larger Bench is pending. But in so far as the
formulation 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 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 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
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being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.”
56. Sub-paras (5), (7) and (8) of para 38 are also
on the same lines and extracted below:
“(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) xxx xxx
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory
3
jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.”
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)].
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 U.P. and others vs. Dr.
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Vijay Anand Maharaj – AIR 1963 SC 946, page 951].
59. The jurisdiction under Article 227 on the other
hand is not original nor is it appellate. This
jurisdiction of superintendence under Article
227 is for both administrative and judicial
superintendence. Therefore, the powers conferred
under Articles 226 and 227 are separate and
distinct and operate in different fields.
60. Another distinction between these two
jurisdictions is 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), para 25 page 690 and also the decision of the Constitution Bench of this Court
in Hari Vishnu Kamath vs. Ahmad Ishaque and others – [AIR 1955 SC 233, para 20 page 243]}.
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61. 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 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 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 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
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passed by a Single Judge of a High Court in
exercise of power under 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.
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
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 be called a writ petition. The
history of the conferment of writ
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jurisdiction on High Courts is
substantially different from the history of
conferment of the power of 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 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 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 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
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Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent
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 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 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 (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
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gross and manifest failure of justice or
the basic principles of natural justice
have been flouted.
(h) In exercise of its power of superintendence
High Court cannot interfere to correct mere
errors of law or fact or just because
another view than the one taken by the
tribunals or Courts subordinate to it, is a
possible view. In other words the
jurisdiction has to be very sparingly
exercised.
(i) High Court’s power of superintendence under
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 of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional
amendment is also very doubtful.
(j) It may be true that a statutory amendment
of a rather cognate provision, like Section
115 of the Civil Procedure Code by the
4
Civil Procedure Code (Amendment) Act, 1999
does not and cannot cut down the ambit of
High Court’s power under Article 227. At
the 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
exercised on equitable principle. In an
appropriate case, the power can be
exercised suo motu.
(l) 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 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
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a way 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 unpolluted in
order to maintain public confidence in the
functioning of the tribunals 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 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 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
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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.
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. 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 226, High Court can issue
writ to any person, but the person against whom
writ will be issued must have some statutory or
public duty to perform.
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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 529.
66. The facts in Sohan Lal (supra) are that Jagan Nath, a refugee from Pakistan, filed a writ
petition in the High Court of Punjab against
Union of India and Sohan Lal alleging
unauthorized eviction from his residence and
praying for a direction for restoration of
possession. The High Court directed Sohan Lal to
restore possession to Jagan Nath. Challenging
that order, Sohan Lal approached this Court. The
Constitution Bench of this Court accepted the
appeal and overturned the verdict of the High
Court.
67. In paragraph 7, page 532 of the judgment, the
unanimous Constitution Bench speaking though
Justice Imam, laid down a few salutary
4
principles which are worth remembering and are
set out:
“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 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 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 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 Union of India and the appellant had colluded, and the transaction between them was merely colourable, entered 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 mandamus against the appellant might be said to exist in a Court...”
4
68. These principles laid down by the Constitution
Bench 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 AIR 1963 SC 874, it was held that an arbitrator appointed under Section
10A 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
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 10A of the
Industrial Disputes Act, is a private
individual, he discharges public function. So
the ratio in the Constitution Bench decision in
Engineering Mazdoor Sabha (supra) is consistent with the decision in Sohan Lal (supra).
4
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 Bench of
this Court stated the principle as “the writ of
Habeas Corpus issues not only for release from
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 Industries Staff Union & 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 10A 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
4
ratio of Engineering Mazdoor Sabha (supra) was followed.
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 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.
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,
5
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].
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 M/s. Hindustan Steel Limited, Rourkela vs. Smt. 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 of the report). Again in State of Rajasthan vs. Bhawani Singh & others [1993 Supp.
5
(1) SCC 306] this Court held that a writ
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 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 (supra), this Court again in Prasanna Kumar Roy Karmakar vs. State of W.B 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 Theertha Padar & others [(2006) 4 SCC 501], this Court held that it would be an
5
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.
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 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.
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
5
court should not interfere unless there is any
infraction of statute or it can be shown, that a
private individual is acting in collusion with a
statutory authority.
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
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
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
5
Constitution with pending civil and at times criminal
cases, the disposal of cases by the civil and
criminal courts gets further impeded and thus causing
serious problems in the administration of justice.
82. This Court hopes and trusts that in exercising
its power 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.
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. The course adopted by the High Court cannot
be approved. Of course, High Court’s order of non-
interference in view of concurrent findings of facts
is unexceptionable. Consequently, the appeal is
dismissed. However, there shall be no order as to
costs.
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.....................J. (G.S. SINGHVI)
.....................J. (ASOK KUMAR GANGULY)
New Delhi July 23, 2010
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