(i) In what context the phrase ‘original jurisdiction’ appearing in Clause 15 of the Letters Patens should be construed, that is, by taking into consideration the plain meaning of the same as the Court’s power to hear and decide the matter before any other court and review the same; or should it be construed in the context with the power of the Court to issue a writ under Article 226 of the Constitution of India, which is always original. (ii) Assuming the words “to issue to any person or authority” as contained in Article 226 of the Constitution are interpreted so as to include the tribunal or the Court, then in such circumstances, would it be the correct proposition of law to say that appellate tribunal is not amenable to a writ of certiorari and the only remedy available to the litigant to challenge the order passed by an appellate tribunal is under Article 227 of the Constitution and, ancillary one, when a petition assails an order of the tribunal, be it a tribunal of first instance or an appellate tribunal, should it be necessarily treated as a petition under Article 226 of the Constitution of India in every case or it would depend upon facts of each case, more particularly the grounds of challenge and the nature of order passed. (iii) Whether in a petition for issue of a writ of Certiorari under Article 227 of the Constitution of India, the tribunal/Court whose order is impugned in a petition must be a party to the petition so that the writ sought from the Court can be issued against the tribunal/Court, but if the petition is for the relief under Article 227 only, then the tribunal/Court whose order is under assail need not be a party-respondent on the reasoning that by entertaining a petition under Article 227 of the Constitution, the High Court exercises its power of superintendence which is analogous to the revisional jurisdiction. - (A) Whether a letters patent appeal would lie against the order passed by the learned Single Judge that has travelled to him from the other tribunals or authorities, would depend upon many a facet. The Court fee payable on a petition to make it under Article 226 or Article 227 or both, would depend upon the rules framed by the High Court. (B) The order passed by the civil court is only amenable to be scrutinized by the High Court in exercise of jurisdiction under Article 227 of the Constitution of India which is different from Article 226 of the Constitution and as per the pronouncement in Radhey Shyam (supra), no writ can be issued against the order passed by the civil court and, therefore, no letters patent appeal would be maintainable. (C) The writ petition can be held to be not maintainable if a tribunal or authority that is required to defend the impugned order has not been arrayed as a party, as it is a necessary party. (D) Tribunal being or not being party in a writ petition is not determinative of the maintainability of a letters patent appeal. 37. Having recorded our conclusions in seriatim, we think it appropriate that the matters should be remanded to the High Court to be heard by the Division Bench in accordance with the principles laid down in this judgment and accordingly we so direct. Resultantly, with the modifications in the order of the High Court, the appeals stand disposed of. There shall be no order as to costs.

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 2374 OF 2015
                  [Arising out of SLP(C) No. 10203 of 2014]


Sh Jogendrasinhji Vijaysinghji               ... Appellant

                                   Versus

State of Gujarat & Ors.                      ... Respondents


                                    WITH

C.A. NOS. 2375-76 OF 2015 (@ SLP(C) NO.11756-57/2014)
C.A. NO. 2717 OF 2015 (@ SLP(C) NO. 12027/2014)
C.A. NOS. 2669-2716 OF 2015 (@ SLP(C) NO.14264-14311/2014)
C.A. NOS. 2378-2385 OF 2015 (@ SLP(C) NO.17496-17503/2014)
C.A. NO. 2386 OF 2015 (@ SLP(C) NO. 18398/2014)
C.A. NOS. 2387-2388 OF 2015 (@ SLP(C) NO. 19567-68/2014)
C.A. NO. 2665 OF 2015 (@ SLP(C) NO. 20828/2014)
C.A. NOS. 2389-2390 OF 2015 (@ SLP(C) NO. 20975-76/2014)
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C.A. NOS. 2141-2144 OF 2015 (@ SLP(C) NOS. 6504-6507) (CC NO 858-861/2015)
C.A. NO. 2664 OF 2015 (@ SLP(C) NO. 20809/2014)



                               J U D G M E N T


Dipak Misra, J.





      In this batch of appeals, by special leave,  the  appellants  call  in
question  the  legal  substantiality  of  the  judgment  and   order   dated
26.12.2013 passed by the Special Bench of the High Court  of  Gujarat  in  a
bunch of Letters Patent Appeals preferred under Clause  15  of  the  Letters
Patent.

2.    As the factual matrix would unveil, the Division Bench  that  referred
the matter to a larger Bench, noticed  conflict  in  Revaben  Wd/o.  Ambalal
Motibhai and others v.  Vinubhai  Purshottambhai  Patel  and  others[1]  and
Dilavarsinhsinh Khodubha Jadeja v. State of Gujarat  and  others[2]  and  at
that juncture framed two questions.   The  Special  Bench  adverted  to  the
facts  necessitating  the  reference  in  detail  and  took  note   of   the
preliminary objections of the learned counsel for the State as  regards  the
maintainability of the Letters Patent Appeal on many a score and  thereafter
thought it appropriate to frame the  questions  afresh  and  accordingly  it
formulated questions.

3.    At the outset, we may state that  though  eight  questions  have  been
drawn up by the special Bench yet we are disposed to  think  that  they  can
really be put into three basic compartments, namely:

(i)   In what  context  the  phrase  ‘original  jurisdiction’  appearing  in
Clause 15 of the Letters Patens should be  construed,  that  is,  by  taking
into consideration the plain meaning of the same as  the  Court’s  power  to
hear and decide the matter before any other court and review  the  same;  or
should it be construed in the context with the power of the Court  to  issue
a writ under Article 226 of the  Constitution  of  India,  which  is  always
original.

(ii) Assuming the words “to issue to any person or authority”  as  contained
in Article 226 of the Constitution are interpreted  so  as  to  include  the
tribunal or the Court, then in such circumstances, would it be  the  correct
proposition of law to say that appellate tribunal is not amenable to a  writ
of certiorari and the only remedy available to  the  litigant  to  challenge
the order passed by an appellate  tribunal  is  under  Article  227  of  the
Constitution and, ancillary one, when a petition assails  an  order  of  the
tribunal, be it a tribunal of  first  instance  or  an  appellate  tribunal,
should it be necessarily treated as a petition  under  Article  226  of  the
Constitution of India in every case or it would depend upon  facts  of  each
case, more particularly the grounds of challenge and  the  nature  of  order
passed.

(iii) Whether in a petition for issue of a writ of Certiorari under  Article
227 of  the  Constitution  of  India,  the  tribunal/Court  whose  order  is
impugned in a petition must be a party to the  petition  so  that  the  writ
sought from the Court can be issued against the tribunal/Court, but  if  the
petition is for the relief under Article 227 only, then  the  tribunal/Court
whose order is under assail need not be a party-respondent on the  reasoning
that by entertaining a petition under Article 227 of the  Constitution,  the
High Court exercises its power of superintendence which is analogous to  the
revisional jurisdiction.

4.    The special bench as is evincible  from  the  judgment  impugned,  has
delved into the questions framed by it, if we permit ourselves  to  say  so,
at great length and recorded its conclusions in seriatum.   It is  necessary
to reproduce the relevant conclusions, which are as follows:-

“(iii) When a writ is issued under Article 226 of the  Constitution,  it  is
issued  in  exercise  of  its  original  jurisdiction  whether  against  the
Tribunal or inferior Court or administrative authority.

(iv) The power exercised  under  Article  226  of  the  Constitution  is  in
exercise of original jurisdiction and not supervisory jurisdiction.

      xxx            xxx          xxx

(vii) A writ of certiorari lies in appropriate cases against  the  order  of
Tribunal or Court subordinate to the High  Court  where  such  a  Court,  or
Tribunal acts not only as an authority of first instance but even if such  a
Court or Tribunal acts as an appellate or revisional  authority  provided  a
case for a writ of certiorari is made out to the satisfaction of  the  Court
concerned.  Thus, if an appellate  or  revisional  order  of  the  Court  or
Tribunal, subordinate to a High Court, suffers from a patent  error  of  law
or jurisdiction, the same could be challenged before  the  High  Court  with
the aid of Article 226 of the Constitution and it could  not  be  said  that
such an appellate or revisional order of the  Court  or  Tribunal  could  be
challenged with the aid of Article 227 alone.

      xxx              xxx              xxx

(ix) The term “original jurisdiction” as  contained  in  Clause  15  of  the
Letters Patent should be understood in context with the power  of  the  High
Court to issue a high prerogative writ  like  a  writ  of  certiorari  under
Article 226 of the Constitution of India.  It  is  that  original  power  to
issue a writ under Article 226 of the Constitution of India which makes  the
proceedings original and the exercise of such power will always be  original
jurisdiction.

(x) If the Special Civil Application is described  as  one  not  only  under
Article 226  of  the  Constitution,  but  also  under  Article  227  of  the
Constitution of India and the Court or the Tribunal whose  order  is  sought
to be quashed, is not made a party, the application is not  maintainable  as
one for the relief of certiorari in the absence of  the  concerned  Tribunal
or Court as party, but the same may be treated as one under Article  227  of
the Constitution of India.  If the Court or Tribunal is not impleaded  as  a
party respondent in the main petition, then by merely impleading such  court
or tribunal for the first time in the Letters Patent Appeal will not  change
the nature and character  of  the  proceedings  before  the  learned  Single
Judge.  By merely impleading such a Court or Tribunal for the first time  in
the  LPA,  the  appeal  could  not  be  said  to  be  maintainable,  if  the
proceedings before the learned  Single  Judge  remained  in  the  nature  of
supervisory proceedings under Article 227 of the Constitution.

(xi) If the learned Single Judge, in exercise of  a  purported  power  under
Article 227 of the Constitution sets aside the order of  Tribunal  or  Court
below and at the same time, the essential conditions for issue  of  writ  of
certiorari are absent, no appeal will be maintainable against such order  in
view of the specific bar created under  Clause  15  of  the  Letters  Patent
itself and such an order can be challenged only by way of  a  Special  Leave
Petition before the Supreme Court.

      To put it very explicitly, take a case where a petition is only  under
Article 227 of the Constitution of India, invoking superintending powers  of
the High Court and not under Article  226  of  the  Constitution  of  India.
After examining the matter, if the court finds  substance  in  the  petition
and sets aside the order of an authority, court or a tribunal, then  against
such an order, an LPA would not lie on the argument  that  since  the  court
has set aside the order it has decided the matter  on  merits  having  found
substance in the same.

      To put it in other words, once a petition is under Article 227 of  the
Constitution of India, and while entertaining such a petition under  Article
227 of the Constitution of India, if the court allows a petition by  setting
aside the order impugned, then against such an order no LPA would lie.

xii) If a learned Single Judge, in  exercise  of  a  purported  power  under
Article 227 of the Constitution modifies the order of Tribunal/Authority  or
Court below and thereby partly allows a petition to a certain  extent,  then
in such circumstances, it could not be said that  the  Court  exercised  its
certiorari jurisdiction and no appeal  will  be  maintainable  against  such
order in view of the specific bar created under Clause  15  of  the  Letters
Patent itself.

      However, if a learned Single Judge, in  purported  exercise  of  power
under  Article  226  of  the  Constitution  of  India,  issues  a  writ   of
certiorari, although the same is not maintainable, an  appeal  under  Clause
15 of the Letters Patent would nevertheless  be  maintainable  against  such
order.

      To put it in other words, take  a  case  where  a  party  on  his  own
invokes supervisory jurisdiction under Article 227 of  the  Constitution  of
India, and in such a petition, the Court issues a writ of  certiorari,  then
against such an order an LPA would be maintainable.

      To put it explicitly clear, take a case where in  a  petition  neither
there  is  a  prayer  for  issue  of  a   writ   of   certiorari   nor   the
Tribunal/Authority or Court whose order is impugned is impleaded as a  party
respondent, and despite such being the position, if the  Court  proceeds  to
issue a writ of certiorari, then against such  an  order  an  LPA  would  be
maintainable.

(xiii) A combined application  under  both  Articles  226  and  227  of  the
Constitution of India can be entertainable only when the court fees  payable
for invoking both the provisions have been  paid  in  aggregate.   If  court
fees payable for invoking only one of the Articles 226  and  227  have  been
affixed, the Court before dismissing the  application  on  that  ground  may
give option to the petitioner to choose only one of such provisions,  if  he
does not pay the balance amount of court fees and the application should  be
treated accordingly.  It is, however, for the Court to  decide  whether  the
facts of the case justify invocation of original jurisdiction  or  it  is  a
fit case for exercising supervisory jurisdiction.

      xxx              xxx              xxx

(xv) When a remedy for filing the Revision under Section 115  of  the  Civil
Procedure Code has been expressly barred, then in such a  case,  a  petition
under Article 227 of the Constitution of India would  lie  and  not  a  writ
petition  under  Article  226  of  the  Constitution  of  India.   When  the
Parliament has thought fit to restrict the powers under Section 115  of  the
Code with a definite object, then, under such circumstances an  order  which
is not revisable under Section 115 of the Code of Civil Procedure cannot  be
challenged by way of filing  a  Writ  Petition  under  Article  226  of  the
Constitution invoking extraordinary jurisdiction of the High Court and  that
too an interlocutory order passed by the  Civil  Court  in  a  Regular  Suit
proceedings.”

5.    At this juncture, we are obligated to state that the conclusions  have
been recorded by the High Court to cover all kinds of possibilities, but  we
are of the considered opinion that it may not always be possible  to  do  so
and  hence,  advertence  in  detail  to  the  said  conclusions  is  neither
necessitous nor warranted.
6.    Having said that, presently we shall proceed to deal  with  the  first
question we have stated hereinbefore.  In  this  regard,  reference  to  the
authority in T.C. Basappa v. T. Nagappa and Another[3]  would  be  fruitful.
The controversy before the Constitution Bench,  apart  from  other  aspects,
also  pertained  to  scope  of  jurisdiction  under  Article  226   of   the
Constitution.  Dealing with the said facet, the larger Bench opined that:-
“7. One of the fundamental principles in regard to the issuing of a writ  of
‘certiorari’, is, that the  writ  can  be  availed  of  only  to  remove  or
adjudicate on the validity of judicial acts. The expression “judicial  acts”
includes the exercise of quasi-judicial functions by  administrative  bodies
or other authorities or persons obliged to exercise such  functions  and  is
used in contrast with what are purely ministerial  acts.  Atkin,  L.J.  thus
summed up the law on this point in Rex v. Electricity Commissioners[4]:

“Whenever anybody or persons having legal authority to  determine  questions
affecting the rights of subjects and having the duty to act  judicially  act
in excess of their legal authority, they  are  subject  to  the  controlling
jurisdiction of the King's Bench Division exercised in these writs.”

The second essential feature of a writ of ‘certiorari’ is that  the  control
which is exercised through it over judicial or quasi-judicial  tribunals  or
bodies is not in an appellate but supervisory capacity. In granting  a  writ
of certiorari the  superior  court  does  not  exercise  the  powers  of  an
appellate tribunal. It does not review or reweigh the  evidence  upon  which
the determination  of  the  inferior  tribunal  purports  to  be  based.  It
demolishes the order which  it  considers  to  be  without  jurisdiction  or
palpably erroneous but does not substitute its own views for  those  of  the
inferior tribunal. The offending order or proceeding so to say  is  put  out
of the way as one which should not be used to the detriment of  any  person,
vide per Lord Cairns in – ‘Walsall’s Overseers v. L. & N. W.Rly. Co[5].

8. The  supervision  of  the  superior  court  exercised  through  writs  of
‘certiorari’ goes on two points, as has been expressed  by  Lord  Sumner  in
King  v.  Nat  Bell  Liquors  Limited[6].  One  is  the  area  of   inferior
jurisdiction and the qualifications and  conditions  of  its  exercise;  the
other is the observance of law in the course  of  its  exercise.  These  two
heads normally cover all the grounds on which a writ of  ‘certiorari’  could
be demanded. In fact there is little difficulty in the  enunciation  of  the
principles; the difficulty really arises in applying the principles  to  the
facts of a particular case.

9. ‘Certiorari’ may lie and is generally granted  when  a  court  has  acted
without or in excess of its  jurisdiction.  The  want  of  jurisdiction  may
arise from the nature of the subject-matter of the proceeding  or  from  the
absence of some preliminary proceeding  or  the  court  itself  may  not  be
legally  constituted  or  suffer  from  certain  disability  by  reason   of
extraneous circumstances, vide ‘Halsbury, 2nd edition, Vol.  IX,  page  880.
When the jurisdiction of the  court  depends  upon  the  existence  of  some
collateral fact, it is well  settled  that  the  court  cannot  by  a  wrong
decision of the fact give it  jurisdiction  which  it  would  not  otherwise
possess, vide Bunbury v. Fuller[7] &  R.  v.  Income  Tax  Special  Purposes
Commissioners’[8]

      xxx              xxx              xxx

11. In dealing with the powers of the High Court under Article  226  of  the
Constitution, this Court has expressed itself in almost similar terms,  vide
‘Veerappa Pillai v. Raman and Raman Ltd.[9] and said:

“Such writs as are referred to in Article  226  are  obviously  intended  to
enable the High Court to issue them in grave  cases  where  the  subordinate
tribunals or bodies or officers  act  wholly  without  jurisdiction,  or  in
excess of it, or in violation of  the  principles  of  natural  justice,  or
refuse to exercise a jurisdiction vested in  them,  or  there  is  an  error
apparent on the face of the record, and such act, omission, error or  excess
has resulted in manifest injustice. However extensive the  jurisdiction  may
be, it seems to us that it is not so wide or large as  to  enable  the  High
Court to convert itself into a court of appeal and examine  for  itself  the
correctness of the decision impugned and decide what is the proper  view  to
be taken or the order to be made.”

These passages indicate with  sufficient  fullness  the  general  principles
that govern the exercise of jurisdiction in the matter of granting writs  of
‘certiorari’ under Article 226 of the Constitution.”

7.    In Hari Vishnu Kamath v. Ahmad Ishaque and Ors.[10],  a  seven-  Judge
Bench, while dealing with the scope of proceeding under Article 226  of  the
Constitution, observed that there can be no dispute that the orders  of  the
Election Tribunals are subject to the supervisory jurisdiction of  the  High
Courts under Article 226 and a writ of certiorari under  that  Article  will
be competent against decisions of the Election Tribunals also.    The  Court
referred to the decision in T.C. Basappa (supra) and other  authorities  and
ruled thus:-

“We are also of opinion that the  Election  Tribunals  are  subject  to  the
superintendence of the High Courts under Article 227  of  the  Constitution,
and that superintendence is both judicial and administrative. That was  held
by this Court in Waryam Singh v. Amarnath[11], where it  was  observed  that
in this respect Article 227 went further than Section 224 of the  Government
of  India  Act,  1935,  under   which   the   superintendence   was   purely
administrative, and that it restored the position under Section 107  of  the
Government of India Act, 1915.  It  may  also  be  noted  that  while  in  a
‘certiorari’ under Article 226 the High Court can only  annul  the  decision
of the Tribunal, it can, under Article 227, do that, and also issue  further
directions in the matter. We must accordingly hold that the  application  of
the appellant  for  a  writ  of  ‘certiorari’  and  for  other  reliefs  was
maintainable under Articles 226 and 227 of the Constitution.”


      In the said case, the court directed as follows:-
“Under the circumstances, the proper order to pass is to quash the  decision
of the Tribunal and remove it out of the way by ‘certiorari’  under  Article
225,and to set aside the election of the first  respondent  in  exercise  of
the powers conferred by Article 227.”

8.    In Nagender Nath Bora  v.  The  Commissioner  of  Hills  Division  and
Appeals, Assam and others[12], while dealing with the scope of Articles  226
and 227  of  the  Constitution,  the  Constitution  Bench  referred  to  the
authority in Waryam Singh (supra) and held that:-
“It is, thus, clear that the powers of judicial interference  under  Article
227 of the Constitution with orders of judicial  or  quasi-judicial  nature,
are not greater than the powers  under  Article  226  of  the  Constitution.
Under Article 226, the power of  interference  may  extend  to  quashing  an
impugned order on the ground of a  mistake  apparent  on  the  face  of  the
record.  But  under  Article,  227  of  the  Constitution,  the   power   of
interference is limited to seeing that the  tribunal  functions  within  the
limits of its authority. Hence, interference by the  High  Court,  in  these
cases, either under  Article  226  or  227  of  the  Constitution,  was  not
justified.”

9.    In this context, we may usefully refer to another  Constitution  Bench
decision  in  State  of  Uttar  Pradesh  and  others  v.  Dr.  Vijay   Anand
Maharaj[13], wherein it has been ruled:-
“9. Article 226 confers a power on a High Court to issue the writs,  orders,
or directions mentioned therein for the enforcement of  any  of  the  rights
conferred by Part  III  or  for  any  other  purpose.  This  is  neither  an
appellate nor a revisional jurisdiction of the High Court. Though the  power
is not confined to the prerogative writs issued by the  English  Courts,  it
is modelled on the said writs mainly to enable the High Courts to  keep  the
subordinate tribunals within bounds.”

10.   After so stating, the larger Bench referred to the decision  in  Hamid
Hassan v. Banwarilal Roy[14] wherein the Privy  Council  had  observed  that
the original civil jurisdiction which the  Supreme  Court  of  Calcutta  had
possessed over certain classes of persons outside the territorial limits  of
that jurisdiction was a matter of original  jurisdiction.   Thereafter,  the
Court referred to certain High Court decisions and opined:-
“.... It is, therefore, clear from the nature of the power  conferred  under
Article 226 of the Constitution and the decisions on the  subject  that  the
High Court in exercise of its power under Article 226  of  the  Constitution
exercises original jurisdiction, though the said jurisdiction shall  not  be
confused with the ordinary  civil  jurisdiction  of  the  High  Court.  This
jurisdiction, though original in character as contrasted with its  appellate
and revisional jurisdictions, is exercisable throughout the  territories  in
relation to which it exercises jurisdiction and  may,  for  convenience,  be
described as extraordinary original jurisdiction. If that be so,  it  cannot
be contended that a petition under Article 226  of  the  Constitution  is  a
continuation of the proceedings under the Act.”

11.   In this context, reference to the nine-Judge Bench decision in  Naresh
Shridhar Mirajkar v. State of  Maharashtra  and  another[15]  is  absolutely
imperative.  In the said case, the Court was dealing with the lis whether  a
judicial order passed by  the  High  Court  could  violate  any  fundamental
right.  The majority, speaking through Gajendragadkar, C.J.,  commenting  on
the order of the High Court expressed:-
“38. .....  It  is  singularly  inappropriate  to  assume  that  a  judicial
decision pronounced by a Judge of competent jurisdiction in or  in  relation
to a matter brought before him for adjudication can affect  the  fundamental
rights of the citizens under  Article  19(1).  What  the  judicial  decision
purports to do is to decide the  controversy  between  the  parties  brought
before the court and nothing more. If this basic  and  essential  aspect  of
the judicial process is borne in mind, it would be plain that  the  judicial
verdict pronounced by court in or in relation to a matter brought before  it
for its decision  cannot  be  said  to  affect  the  fundamental  rights  of
citizens under Article 19(1).”

      After so stating, the learned Chief Justice observed thus:-
“39. ..... Just as an order passed  by  the  court  on  the  merits  of  the
dispute before it can be challenged only in appeal and  cannot  be  said  to
contravene the fundamental rights of the  litigants  before  the  Court,  so
could the impugned order be challenged in appeal under Article  136  of  the
Constitution, but it cannot be said to affect the fundamental rights of  the
petitioners. The character of the judicial order remains  the  same  whether
it is passed in a matter directly  in  issue  between  the  parties,  or  is
passed incidentally to make the adjudication  of  the  dispute  between  the
parties fair and effective. On this view of the matter, it seems to us  that
the whole attack against the impugned order based on the assumption that  it
infringes the petitioners' fundamental  rights  under  Article  19(1),  must
fail.”

12.   It is apt to note here that the nine-Judge  Bench  referred  to  Budan
Choudhry v. State of Bihar[16], Parbhani Transport Cooperative Society  Ltd.
v. Regional Transport Authority,  Aurangabad[17]  and  Prem  Chand  Garg  v.
Excise  Commissioner,  U.P.  Allahabad[18]  and  explained  the   same   and
eventually held:-
“If the decision of a superior court on a question of  its  jurisdiction  is
erroneous, it can, of course, be corrected by appeal or revision as  may  be
permissible under the law; but until the adjudication by  a  superior  court
on such a point is set aside by adopting the appropriate  course,  it  would
not be open to be corrected by the exercise  of  the  writ  jurisdiction  of
this Court.”

13.   In the first decade of this century  in  Rupa  Ashok  Hurra  v.  Ashok
Hurra and Another[19], the Constitution Bench referred to the Triveniben  v.
State of Gujarat[20], reiterated the same principle and observed:-
“It is well settled now that a judgment of court  can  never  be  challenged
under Articles 14 or 21 and therefore the judgment  of  the  court  awarding
the sentence of death is not open to challenge as violating  Article  14  or
Article 21 as has been laid down by this Court in Naresh  Shridhar  Mirajkar
v. State of Maharashtra (supra) and also in A.R. Antulay v.  R.S.  Nayak[21]
, the only jurisdiction which could be sought to be exercised by a  prisoner
for infringement of his rights can be to  challenge  the  subsequent  events
after the final judicial verdict is pronounced and it  is  because  of  this
that on the ground of long or inordinate delay a  condemned  prisoner  could
approach this Court and that is what has  consistently  been  held  by  this
Court. But it will not be open to this Court  in  exercise  of  jurisdiction
under Article 32 to go behind or to examine the final verdict reached  by  a
competent court convicting and sentencing the condemned  prisoner  and  even
while considering the circumstances in order to reach  a  conclusion  as  to
whether the inordinate delay coupled with subsequent circumstances could  be
held to be sufficient for coming to  a  conclusion  that  execution  of  the
sentence of death will not be just and proper.”

14.   Recently, in Radhey Shyam & Anr. v. Chhabi Nath & Ors.[22],  a  three-
Judge Bench while dealing with the correctness of the law  laid  down  by  a
two-Judge Bench, as there was a reference by  a  Division  Bench  expressing
its doubt about the ratio laid down in Surya Dev Rai v. Ram Chander Rai  and
others[23] that judicial orders passed by the Civil Court  can  be  examined
and then corrected/reversed by the writ court under Article 226 in  exercise
of its power under writ of certiorari, speaking through one  of  us  (Adarsh
Kumar Goel, J.), referred to number  of  judgments  including  some  of  the
decisions we have cited hereinabove and reproduced the opinion expressed  in
Sadhana Lodh v. National Insurance Co. Ltd.[24], which is to  the  following
effect:-
"6. The right  of  appeal  is  a  statutory  right   and   where   the   law
provides remedy by filing an appeal on limited  grounds,  the   grounds   of
challenge cannot  be  enlarged  by  filing   a   petition   under   Articles
226/227  of  the Constitution on the premise that the  insurer  has  limited
grounds  available for challenging the award given by the Tribunal.  Section
149(2) of the Act limits the insurer to file an appeal on those   enumerated
 grounds  and  the appeal being a product of the statute it is not  open  to
an insurer  to  take any  plea  other  than  those  provided  under  Section
149(2)  of  the   Act   (see  National  Insurance  Co.  Ltd.  v.  Nicolletta
Rohtagi[25]).  This being the legal position, the   petition   filed   under
Article   227   of   the  Constitution   by   the   insurer    was    wholly
misconceived.  Where a statutory right to file an appeal has  been  provided
for, it is not open to the High Court to entertain a petition under  Article
227 of the Constitution.  Even if where a remedy by way  of  an  appeal  has
not been provided for against  the  order  and  judgment   of   a   District
Judge,  the  remedy  available  to   the  aggrieved  person  is  to  file  a
revision before the High Court  under  Section 115  of  the  Code  of  Civil
Procedure.  Where remedy for filing a revision before the High  Court  under
Section 115 CPC has been expressly barred by  a  State  enactment,  only  in
such case a petition under Article 227 of the  Constitution  would  lie  and
not under Article 226 of the Constitution.  As  a  matter  of  illustration,
where a trial court  in   a   civil   suit   refused   to  grant   temporary
injunction  and  an  appeal  against  refusal   to    grant  injunction  has
been rejected, and a State enactment has   barred   the   remedy  of  filing
revision under Section  115  CPC,  in  such  a  situation  a  writ  petition
under Article 227  would  lie   and   not   under   Article   226   of   the
Constitution. Thus, where the State  Legislature  has  barred  a  remedy  of
filing a revision petition before the High Court under Section 115  CPC,  no
petition under Article 226 of the Constitution  would  lie  for  the  reason
that a mere  wrong  decision  without  anything  more  is  not   enough   to
attract  jurisdiction  of  the  High  Court  under  Article   226   of   the
Constitution."



15.   After so stating, the three-Judge Bench referred  to   Surya  Dev  Rai
(supra), the analysis made by the two-Judge Bench  and  ultimately  came  to
hold thus:-
“.... There are no precedents in India for High Courts  to  issue  writs  to
subordinate courts.   Control of working of subordinate  courts  in  dealing
with  their  judicial  orders  is   exercised   by   way   of  appellate  or
revisional  powers  or  power   of   superintendence   under   Article  227.
Orders of civil  court  stand  on  different  footing  from  the  orders  of
authorities or Tribunals or courts other than judicial/civil courts.   While
appellate or revisional jurisdiction is   regulated   by   statutes,   power
of  superintendence   under   Article   227    is    constitutional.     The
expression "inferior court" is not referable to judicial courts, as  rightly
observed in the referring order in paras 26 and 27 quoted above.”

      After so stating, the Court proceeded to hold as follows:-
“The Bench in Surya Dev Rai also observed in para 25 of  its  judgment  that
distinction between Articles 226 and  227  stood  almost  obliterated.    In
para 24 of the said judgment  distinction  in  the  two  articles  has  been
noted.  In view thereof, observation that scope of Article 226 and  227  was
obliterated was not correct as rightly observed by the  referring  Bench  in
Para 32 quoted above.  We make it clear that though despite the  curtailment
of revisional jurisdiction  under   Section   115   CPC   by   Act   46   of
1999, jurisdiction of the High Court under Article 227  remains  unaffected,
it   has  been  wrongly  assumed  in  certain  quarters   that   the    said
jurisdiction  has been  expanded.   Scope of Article 227 has been  explained
in several decisions including Waryam Singh and another  vs.   Amarnath  and
another (supra), Ouseph Mathai  vs.  M.  Abdul  Khadir[26],  Shalini   Shyam
Shetty  vs.  Rajendra Shankar Patil[27] and Sameer Suresh  Gupta  vs.  Rahul
Kumar  Agarwal[28].”

      The eventual conclusions read as follows:-
“23.   Thus, we are of the view that judicial orders  of  civil  courts  are
not amenable to a writ of certiorari under Article 226.    We  are  also  in
agreement with the view of the referring Bench that a writ of mandamus  does
not lie against a private person not discharging any public duty.  Scope  of
Article 227 is different from Article 226.

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

25.   Accordingly, we answer the question referred as follows:

"(i)    Judicial  orders  of  civil  court  are  not    amenable   to   writ
jurisdiction under Article 226 of the Constitution;

(ii)        Jurisdiction under Article 227  is  distinct  from  jurisdiction
from jurisdiction under Article 226.

Contrary view in Surya Dev Rai is overruled."

16.   The aforesaid authoritative pronouncement makes it clear as  day  that
an order passed by a civil court can only be assailed under Article  227  of
the Constitution of India and the parameters of challenge have been  clearly
laid down by this Court in series of decisions which have been  referred  to
by a  three-Judge  Bench  in  Radhey  Shyam  (supra),  which  is  a  binding
precedent. Needless to emphasise that  once  it  is  exclusively  assailable
under Article 227 of the Constitution of India,  no  intra-court  appeal  is
maintainable.
17.   The next aspect that has to be adverted to is under what situation,  a
Letters Patent Appeal is maintainable before a Division  Bench.   We  repeat
at the cost of repetition, we have referred to series of judgments  of  this
Court which have drawn the distinction between Article 226 and  227  of  the
Constitution of India and the three-Judge Bench in Radhey Shyam (supra)  has
clearly  stated  that  jurisdiction  under  Article  227  is  distinct  from
jurisdiction under  Article  226  of  the  Constitution  and,  therefore,  a
letters patent appeal or an  intra-court  appeal  in  respect  of  an  order
passed by the learned Single Judge dealing with an order arising  out  of  a
proceeding from a Civil Court would  not  lie  before  the  Division  Bench.
Thus, the question next arises under what  circumstances  a  letters  patent
appeal or an intra-court appeal would be maintainable  before  the  Division
Bench.
18.   In Umaji Keshao Meshram and  Others  v.  Radhikabai  and  Another[29],
this Court has held thus:-

“106. The non obstante clause in Rule 18, namely, “Notwithstanding  anything
contained in Rules 1, 4 and 17 of this chapter”, makes it  abundantly  clear
why that rule uses the words “finally disposed of”.  As  seen  above,  under
Rules 1 and 17, applications under Articles 226 and 227 are required  to  be
heard and disposed of by a Division Bench. Rule 4, however, gives  power  to
a Single Judge to issue rule nisi on an application under  Article  226  but
precludes him from passing any  final  order  on  such  application.  It  is
because a Single Judge has no power under Rules 1, 4  and  17  to  hear  and
dispose of a petition under Article 226 or 227 that the non obstante  clause
has been introduced in Rule 18. The use of the words “be heard  and  finally
disposed of by a Single Judge” in Rule  18  merely  clarifies  the  position
that in such cases the power of the Single Judge is not confined  merely  to
issuing a rule nisi. These words  were  not  intended  to  bar  a  right  of
appeal. To say that the words “finally disposed of”  mean  finally  disposed
of so far as the High Court is concerned is illogical  because  Rules  1,  4
and 7 use the words “be heard and disposed of by  a  Divisional  Bench”  and
[pic]were the reasoning of the Full Bench correct, it  would  mean  that  so
far as the High Court is concerned, when a Single Judge hears a  matter  and
disposes it of, it  is  finally  disposed  of  and  when  a  Division  Bench
disposes it of, it is not finally disposed of. The right of  appeal  against
the judgment of a Single Judge is given by the  Letters  Patent  which  have
been continued in force by Article 225 of the  Constitution.  If  under  the
Rules of the High Court, a matter is heard  and  disposed  of  by  a  Single
Judge, an appeal lies against his judgment unless it is barred either  under
the Letters Patent or some other enactment. The word “finally” used in  Rule
18 of Chapter XVII of the Appellate Side Rules does not and cannot  possibly
have the effect of barring a  right  of  appeal  conferred  by  the  Letters
Patent. As we have seen above, an intra-court appeal  against  the  judgment
of a Single Judge in a petition  under  Article  226  is  not  barred  while
clause 15 itself bars an  intra-court  appeal  against  the  judgment  of  a
Single Judge in a petition under Article 227.

107. Petitions are at times filed both under Articles 226  and  227  of  the
Constitution. The case of Hari  Vishnu  Kamath  v.  Syed  Ahmad  Ishaque[30]
before this Court was of such a type.  Rule  18  provides  that  where  such
petitions  are  filed  against  orders  of  the  Tribunals  or   authorities
specified in Rule 18 of Chapter XVII of the Appellate Side Rules or  against
decrees or orders of courts specified in that rule, they shall be heard  and
finally disposed of by a Single Judge. The question  is  whether  an  appeal
would lie from the decision of the Single Judge  in  such  a  case.  In  our
opinion, where the facts justify a party in  filing  an  application  either
under Article 226 or 227 of the Constitution, and the party chooses to  file
his application under both these articles, in fairness and justice  to  such
party and in order not to deprive him of the valuable right  of  appeal  the
court ought to treat the application as being made under  Article  226,  and
if in deciding the matter, in the final  order  the  court  gives  ancillary
directions which may pertain to Article 227, this ought not to  be  held  to
deprive a party of the right of  appeal  under  clause  15  of  the  Letters
Patent where the substantial  part  of  the  order  sought  to  be  appealed
against is under Article 226. Such was the view taken by the Allahabad  High
Court in Aidal Singh v. Karan Singh[31] and by the Punjab High Court in  Raj
Kishan Jain v. Tulsi  Dass[32]  and  Barham  Dutt  v.  Peoples’  Cooperative
Transport Society Ltd., New Delhi[33] and we are in agreement with it.”

19.   Similar view was reiterated in Sushilabai  Laxminarayan  Mudliyar  and
others v. Nihalchand Waghajibhai Shaha and others[34], which arose from  the
High Court of Bombay.
20.   In Mangalbhai  and  Others  v.  Radhyshyam[35]  the  dismissal  of  an
application for eviction by the Deputy Collector  and  Rent  Controller  and
its assail in appeal not resulting in success,  compelled  the  landlord  to
file a writ petition under Articles 226  and  227  of  the  Constitution  of
India before the Bombay High Court.  Before this  Court,  an  objection  was
raised with regard to the maintainability  of  the  letters  patent  appeal.
This Court referred to the decision in Umaji  Keshao  Meshram  case  (supra)
and opined as follows:-

“6. Applying the correct ratio  laid  down  in  Umaji  Keshao  Meshram  case
(supra) and perusing the writ petition filed in the present case as well  as
the order passed by the learned Single Judge we  are  clearly  of  the  view
that the present case clearly falls within the ambit of Article 226  of  the
Constitution. In Umaji Keshao Meshram  case  (supra)  it  was  clearly  held
that:

[pic]“Where the facts justify a party in filing an application either  under
Article 226 or 227 of the Constitution, and the party chooses  to  file  his
application under both these Articles,  in  fairness  and  justice  to  such
party and in order not to deprive him of the valuable right  of  appeal  the
court ought to treat the application as being made under Article 226 ….”


7. The learned Single Judge in his  impugned  judgment  dated  December  11,
1987 nowhere mentioned that he was exercising the powers under  Article  227
of the Constitution. The learned Single Judge examined the matter  on  merit
and set aside the orders of the Rent Controller  as  well  as  the  Resident
Deputy Collector on the ground that the aforesaid judgments  were  perverse.
The findings of the Rent Controller and Resident Deputy Collector  were  set
aside on the question of habitual defaulter as well  as  on  the  ground  of
bona fide need. Thus in the totality of the facts and circumstances  of  the
case, the pleadings of the parties in the writ petition and the judgment  of
the learned Single Judge leaves no manner of doubt  that  it  was  an  order
passed under Article 226 of the Constitution and in that view of the  matter
the Letters Patent Appeal was maintainable before the High Court.”

21.   In Lokmat Newspapers Pvt. Ltd. v. Shankarprasad[36],  the  controversy
arose  from  the  order  passed  by  the  Labour  Court  which  had  secured
affirmation from the Industrial Tribunal.  The said orders  were  challenged
by the respondent therein by filing a writ petition under Articles  226  and
227 of the Constitution of India before the High Court.  The Court  adverted
to the facts and also the order passed by the learned Single  Judge  and  in
that context ruled:-

“As seen earlier, he was  considering  the  aforesaid  writ  petition  moved
under Article 226 as well as Article  227  of  the  Constitution  of  India.
Under these circumstances, it is not possible to agree with  the  contention
of learned counsel for the appellant  that  the  learned  Single  Judge  had
refused to interfere only under Article 227 of  the  Constitution  of  India
when he dismissed the writ petition of the respondent.”

      Thereafter, the learned Judges referred  to  the  authority  in  Umaji
Keshao Meshram (supra) and ruled:-
“The aforesaid decision squarely gets attracted on the facts of the  present
case. It was open to the respondent to invoke the jurisdiction of  the  High
Court both under Articles 226 and 227 of the  Constitution  of  India.  Once
such a jurisdiction was invoked and when his writ petition was dismissed  on
merits, it cannot be said that the learned Single Judge  had  exercised  his
jurisdiction only under Article 226 (sic 227) of the Constitution of  India.
This conclusion directly flows from the relevant averments made in the  writ
petition and the nature of jurisdiction invoked by the respondent  as  noted
by the learned Single Judge in his judgment, as seen earlier.  Consequently,
it could not be said that clause 15 of the Letters Patent was not  attracted
for preferring appeal against the judgment of the learned Single Judge.”

22.   In Kishorilal v. Sales Officer, District  Land  Development  Bank  and
Others[37], a recovery  proceeding  was  initiated  by  the  respondent-Bank
therein and the land mortgaged to the Bank were sold.  An  appeal  preferred
before the Joint  Registrar,  Cooperative  Societies  was  dismissed  and  a
further appeal was preferred before the Board of  Revenue  which  interfered
with the order passed by the Joint  Registrar.   The  order  passed  by  the
Board of Revenue was called in question by  the  District  Land  Development
Bank, which was allowed by the  learned  Single  Judge.   A  letters  patent
appeal was preferred challenging the  order  of  the  learned  Single  Judge
which opined that the order passed by  the  learned  Single  Judge  was  not
maintainable as he had exercised the jurisdiction under Article 227  of  the
Constitution of India.  Dealing with the maintainability of the appeal,  the
two-Judge Bench held that:-

“The learned Single Judge of the High Court, in our  opinion,  committed  an
error in interfering with the findings of fact arrived at by  the  Board  of
Revenue. The Division Bench of the High Court  also  wrongly  dismissed  the
LPA without noticing that an  appeal  would  be  maintainable  if  the  writ
petition was filed under Articles 226 and 227 of the Constitution  of  India
as was held by this Court in Sushilabai Laxminarayan Mudliyar v.  Nihalchand
Waghajibhai Shaha[38].”



23.   In Ashok K. Jha and others v. Garden Silk Mills Ltd. and  Another[39],
as the factual matrix would reveal, the employees had approached the  Labour
Court for certain reliefs.  The Labour Court on consideration of  the  facts
and law, declined to grant the relief.  Being  dissatisfied,  the  employees
and the Union preferred a joint appeal before the  Industrial  Court,  Surat
which set aside the order of the Labour Court and issued certain  directions
against the employer.   The employer called in  question  the  defensibility
of the order of the Industrial Court by filing a Special  Civil  Application
under Article 226 and 227 of the  Constitution  of  India  before  the  High
Court of Gujarat.   The learned Single Judge dismissed the petition.   Being
grieved by the aforesaid order, a letters patent appeal was preferred  under
clause 15 of the Letters Patent.  The Division Bench allowed the appeal  and
set aside the judgment and order passed by  the  learned  Single  Judge.   A
contention was raised before this Court  pertaining  to  maintainability  of
letters patent appeal under clause 15 of the Letters  Patent.   R.M.  Lodha,
J. (as His Lordship then was)  speaking  for  the  Court,  referred  to  the
authorities in Umaji Keshao Meshram (supra), Ratnagiri Dist.  Central  Coop.
Bank Ltd. v. Dinkar Kashinath Watve[40], Ramesh  Chandra  Sankla  v.  Vikram
Cement[41] and stated thus:-

“36. If the judgment under appeal falls  squarely  within  four  corners  of
Article 227, it goes  without  saying  that  intra-court  appeal  from  such
judgment would not be maintainable. On the other  hand,  if  the  petitioner
has invoked the jurisdiction of the High Court for issuance of certain  writ
under  [pic]Article  226,  although  Article  227  is  also  mentioned,  and
principally the judgment appealed  against  falls  under  Article  226,  the
appeal would be maintainable. What is important to  be  ascertained  is  the
true nature of order passed by the Single Judge and not  what  provision  he
mentions while exercising such powers.

37. We agree with the view of this Court in Ramesh  Chandra  Sankla  (supra)
that a statement by a learned Single  Judge  that  he  has  exercised  power
under Article 227, cannot take away right of appeal  against  such  judgment
if power is otherwise found to have been exercised under  Article  226.  The
vital factor for determination of maintainability of the intra-court  appeal
is the nature of jurisdiction invoked by the party and the  true  nature  of
principal order passed by the Single Judge.”

24.   At this juncture, we think it appropriate to reproduce a passage  from
Ramesh Chandra Sankla (supra) which has been quoted in  Ashok  Jha  (supra).
In  the  said  case,  the   two-Judge   Bench   while   dealing   with   the
maintainability of letters patent appeal under  clause  15  of  the  Letters
Patent has ruled that:-
 “47. In our judgment, the learned counsel for the  appellant  is  right  in
submitting that nomenclature of the proceeding or reference to a  particular
article of the Constitution is not final or conclusive. He is also right  in
submitting that an observation by a Single Judge as  to  how  he  had  dealt
with the matter is also not decisive. If it were  so,  a  petition  strictly
falling under Article 226 simpliciter can be disposed of by a  Single  Judge
observing that he is exercising power of superintendence under  Article  227
of the Constitution. Can such statement by a Single  Judge  take  away  from
the party aggrieved a right of appeal against the judgment if otherwise  the
petition is under Article 226 of the Constitution and subject to  an  intra-
court/letters patent appeal? The reply unquestionably is in the negative….”

25.   From the  aforesaid  pronouncements,  it  is  graphically  clear  that
maintainability of a letters patent appeal would depend upon  the  pleadings
in the writ petition, the nature and character of the order  passed  by  the
learned Single Judge, the type of directions issued regard being had to  the
jurisdictional perspectives in  the  constitutional  context.   Barring  the
civil court, from which order as held by the  three-Judge  Bench  in  Radhey
Shyam (supra) that a writ petition can lie only under  Article  227  of  the
Constitution, orders from  tribunals  cannot  always  be  regarded  for  all
purposes to be under Article 227 of the Constitution.  Whether  the  learned
Single Judge has exercised the  jurisdiction  under  Article  226  or  under
Article 227 or both,  needless  to  emphasise,  would  depend  upon  various
aspects that have been emphasised in the  aforestated  authorities  of  this
Court.  There can be orders passed by the learned Single Judge which can  be
construed as an order under both the articles in  a  composite  manner,  for
they can co-exist, coincide and imbricate.  We  reiterate  it  would  depend
upon the nature, contour and character of the  order  and  it  will  be  the
obligation of the Division  Bench  hearing  the  letters  patent  appeal  to
discern and decide whether the order has been passed by the  learned  Single
Judge  in  exercise  of  jurisdiction  under  Article  226  or  227  of  the
Constitution or both.    The  Division  Bench  would  also  be  required  to
scrutinize whether the facts of the case justify the assertions made in  the
petition to invoke the jurisdiction under both the articles and  the  relief
prayed on that foundation.   Be it stated, one of the  conclusions  recorded
by the High Court in the impugned judgment pertains to  demand  and  payment
of court fees.  We do not intend to  comment  on  the  same  as  that  would
depend upon the rules framed by the High Court.
26.   The next facet pertains to the impleadment of the  Court  or  tribunal
as a party.  The  special  Bench  has  held  that  even  if  application  is
described as one not only under article 226 of the  Constitution,  but  also
under article 227, the Court  or  tribunal  whose  order  is  sought  to  be
quashed,  if  not  arrayed  as  a  party,  the  application  would  not   be
maintainable as one of the relief of  certiorari,  in  the  absence  of  the
concerned tribunal or Court as a party, cannot  be  granted.   It  has  also
been held that if the Court or tribunal has not  been  impleaded  as  party-
respondent in the main writ petition, then by merely impleading  such  Court
or tribunal for the first time in letters patent  appeal  would  not  change
the nature and character of the proceeding before the learned  Single  Judge
and, therefore, intra-court appeal would not be  maintainable.    To  arrive
at the said conclusion, the High Court has referred to Messrs. Ghaio  Mal  &
Sons v. State of Delhi  and  others[42],  Hari  Vishnu  Kamath  (supra)  and
relied upon a four-Judge Bench judgment in Udit Narain Singh  Malpaharia  v.
Addl. Member, Board of Revenue[43].
27.   In Hari Vishnu Kamath (supra), after  referring  to  the  decision  in
T.C. Basappa (supra) and quoting  a  passage  from  Corpus  Juris  Secundum,
Volume 14 at page 123, which deals with the nature  of  certiorari,  it  has
been laid down:-
“11. The writ for quashing is thus directed  against  a  record,  and  as  a
record can be brought up only through human agency,  it  is  issued  to  the
person or authority whose decision is to be reviewed. If it  is  the  record
of the decision that has to be removed by ‘certiorari’, then the  fact  that
the tribunal has become ‘functus officio’ subsequent to the  decision  could
have no effect on the jurisdiction of the court to remove the record. If  it
is a question of issuing directions, it is conceivable that there should  be
in existence a person or authority to whom they could be issued, and when  a
‘certiorari’ other than one to quash the decision is proposed to be  issued,
the fact that the tribunal has ceased to exist might operate  as  a  bar  to
its issue. But if the true scope of ‘certiorari’ to quash is that it  merely
demolishes the offending order, the presence  of  the  offender  before  the
court, though proper, is not necessary for the exercise of the  jurisdiction
or to render its determination effective.

12. Learned counsel for the first respondent invites our  attention  to  the
form of the ‘order nisi’ in a writ of ‘certiorari’, and contends that as  it
requires the court or tribunal whose proceedings  are  to  be  reviewed,  to
transmit the records to the superior court, there is, if  the  tribunal  has
ceased to exist, none to whom the writ could be issued and  none  who  could
be compelled to produce the record. But then, if  the  writ  is  in  reality
directed against the record, there is no reason why it should not be  issued
to whosoever has the custody thereof. The following statement of the law  in
Ferris on the Law of Extraordinary Legal Remedies is apposite:

“The writ is directed to the body or officer whose determination  is  to  be
reviewed, or to any other person having the custody of the record  or  other
papers to be certified.””

28.   In Ghaio Mal & Sons (supra), the Court found a specific fact  was  not
brought  on  record  and  evasive  replies  were  filed  which  were  wholly
unconvincing.  In that context, the  Constitution  Bench,  speaking  through
S.R. Das, C.J. observed:-
 “... It is needless to say that the adoption of  such  dubious  devices  is
not calculated to produce a favourable impression on the mind of  the  court
as to the good faith of the authorities concerned in  the  matter.  We  must
also point out that when a superior court issues a rule  on  an  application
for certiorari it is incumbent on the inferior court or  the  quasi-judicial
body, to whom the rule is addressed, to produce the  entire  records  before
the court along with its return. The whole object of a  writ  of  certiorari
is to bring up the records of the inferior  court  or  other  quasi-judicial
body for examination by the  Superior  Court  so  that  the  latter  may  be
satisfied that the inferior court or the quasi-judicial body  has  not  gone
beyond its jurisdiction  and  has  exercised  its  jurisdiction  within  the
limits fixed by the law. Non-production of the  records  completely  defeats
the purpose for which such writs are issued, as it did in the  present  case
before the High Court. We strongly deprecate this attempt  on  the  part  of
the official respondents to bypass the court.”

29.    In  Udit  Narain  Singh  Malpaharia  (supra),  as  the  facts   would
demonstrate the counsel for the  respondent  therein  raised  a  preliminary
objection that the persons in whose favour the Board  decided  the  petition
had not been made parties before the High Court.  Be it noted, in  the  said
case a country liquor shop was settled in favour of the  appellant  therein.
After expiry of the said licence, it was  renewed  in  his  favour  in  1962
which was called  in  question  by  one  Phudan  Manjhi  before  the  Deputy
Commissioner for substituting his name in place of his father on  the  basis
of the lot drawn in favour of his father.  The Deputy Commissioner  rejected
the same which was assailed by Phudan  Manjhi  before  the  Commissioner  of
Excise who remanded the case to the  Deputy  Commissioner  to  consider  the
fitness of Phudan Manjhi to get the license and to  consider  his  claim  on
certain parameters.  One Bhagwan Rajak, who was not an applicant before  the
Deputy Commissioner, filed an application before the  Commissioner  alleging
that there should have been fresh advertisement for the  settlement  of  the
shop.  The Commissioner allowed his  application  and  directed  the  Deputy
Commissioner to take steps for fresh settlement of the  shop  in  accordance
with the rules.  The said order was assailed before  the  Board  of  Revenue
which  dismissed  the  petition  and  directed  that   unless   the   Deputy
Commissioner came to a definite conclusion that Phudan Manjhi was  unfit  to
hold licence, he should be selected as a licensee in accordance with  rules.
 As a  result  of  the  said  proceedings,  the  appellant’s  licence  stood
cancelled  and  the  Deputy  Commissioner  was  directed  to  hold  a  fresh
settlement  giving  preferential  treatment  to  Phudan  Manjhi.    A   writ
petition was filed under Article 226 of the  Constitution  before  the  High
Court for quashment of the said orders and before  the  writ  court  neither
Phudan Manjhi nor Bhagwan Rajak in whose favour the  Board  of  Revenue  had
decided was made a party.  During the pendency  of  an  appeal  before  this
Court, the Deputy Commissioner had conducted an  enquiry  and  come  to  the
conclusion that Phudan Manjhi was not  fit  to  be  selected  for  grant  of
licence and he was waiting for making a  fresh  settlement.   In  course  of
hearing of the appeal, a preliminary objection was  raised  by  the  learned
counsel for the respondent that as Phudan Manjhi and Bhagwan Rajak who  were
necessary parties to the writ petition  were  not  made  parties,  the  High
Court was justified in dismissing the writ petition in limini.   This  Court
accepted the preliminary objection holding that the law on  the  subject  is
well settled that a person who is a necessary party is one without  whom  no
order can be made effectively and a proper party is one in whose absence  an
effective order can be made but his presence is necessary for  complete  and
final decision on  the  question  involved  in  the  proceeding.   After  so
stating, the four- Judge Bench proceeded to deal with the nature of writ  of
certiorari   and   reproduced   a   passage   from   King   v.   Electricity
Commissioners[44], which is as follows:-
“8. “....Wherever any body of persons having legal  authority  to  determine
questions affecting the rights of subjects,  and  having  the  duty  to  act
judicially, act in excess of their legal authority they are subject  to  the
controlling jurisdiction of the King's Bench  Division  exercised  in  these
writs.”

Lord Justice Slesser in King v.  London  County  Council[45]  dissected  the
concept of judicial act laid down by Atkin, L.J., into the  following  heads
in his judgment: “Wherever any body of persons (1)  having  legal  authority
(2) to determine questions affecting rights of subjects and (3)  having  the
duty to act judicially (4) act in excess of their legal authority —  a  writ
of certiorari may issue.” It will be seen from the ingredients  of  judicial
act that there must be a duty to  act  judicially.  A  tribunal,  therefore,
exercising a judicial  or  quasi-judicial  act  cannot  decide  against  the
rights of a party  without  giving  him  a  hearing  or  an  opportunity  to
represent his case in the manner known  to  law.  If  the  provisions  of  a
particular  statute  or  rules  made  thereunder  do  not  provide  for  it,
principles of natural  justice  demand  it.  Any  such  order  made  without
hearing the affected parties would be void. As a writ of certiorari will  be
granted to remove the record of  proceedings  of  an  inferior  tribunal  or
authority exercising judicial  or  quasi-judicial  acts,  ex  hypothhesi  it
follows that the High Court in exercising its jurisdiction  shall  also  act
judicially in disposing of the proceedings before  it.  It  is  implicit  in
such a proceeding  that  a  tribunal  or  authority  which  is  directed  to
transmit the records must be a party in the writ proceedings,  for,  without
giving notice to it, the record of proceedings  cannot  be  brought  to  the
High Court.  It  is  said  that  in  an  appeal  against  the  decree  of  a
subordinate court, the court that passed the  decree  need  not  be  made  a
party and on the same parity of reasoning it is contended  that  a  tribunal
need not also be made a  party  in  a  writ  proceeding.  But  there  is  an
essential distinction between an appeal against a decree  of  a  subordinate
court and a writ  of  certiorari  to  quash  the  order  of  a  tribunal  or
authority: in the former, the proceedings  are  regulated  by  the  Code  of
Civil Procedure and the court making the order is  directly  subordinate  to
the appellate court and ordinarily acts within its bounds, though  sometimes
wrongly or even illegally, but  in  the  case  of  the  latter,  a  writ  of
certiorari is issued to quash the order of a tribunal  which  is  ordinarily
outside the appellate or revisional jurisdiction of the court and the  order
is set aside on the ground that the tribunal or authority acted  without  or
in excess of jurisdiction. If such a  tribunal  or  authority  is  not  made
party to the writ, it  can  easily  ignore  the  order  of  the  High  Court
quashing its order, for, not being  a  party,  it  will  not  be  liable  to
contempt. In these circumstances whoever else is a necessary  party  or  not
the authority  or  tribunal  is  certainly  a  necessary  party  to  such  a
proceeding. In this case, the Board  of  Revenue  and  the  Commissioner  of
Excise were rightly made parties in the writ petition.”

      Thereafter, the Court proceeded to lay down thus:-
“9. The next question is whether  the  parties  whose  rights  are  directly
affected are the necessary parties to a writ petition to quash the order  of
a tribunal. As we have seen, a tribunal or authority performs a judicial  or
quasi-judicial act after hearing parties. Its order  affects  the  right  or
rights of one or  the  other  of  the  parties  before  it.  In  a  writ  of
certiorari the defeated party seeks for the quashing of the order issued  by
the tribunal in favour of the successful  party.  How  can  the  High  Court
vacate the said order without the successful party being before it?  Without
the presence  of  the  successful  party  the  High  Court  cannot  issue  a
substantial order affecting his right. Any order that may be  issued  behind
the back of such a party can be ignored by the said party, with  the  result
that the tribunal's order would be quashed but  the  right  vested  in  that
party by the wrong order of the tribunal would  continue  to  be  effective.
Such a party, therefore, is a necessary party and a petition filed  for  the
issue of a writ  of  certiorari  without  making  him  a  party  or  without
impleading him subsequently, if allowed by the  court,  would  certainly  be
incompetent. A party whose interests are directly affected is, therefore,  a
necessary party.

10. In addition, there may  be  parties  who  may  be  described  as  proper
parties, that is parties whose presence  is  not  necessary  for  making  an
effective order, but whose presence may facilitate the settling of  all  the
questions that may be involved in the controversy. The  question  of  making
such a person as a party to a writ  proceeding  depends  upon  the  judicial
discretion of the High Court in the circumstances of each case.  Either  one
of the parties to the proceeding may apply for  the  impleading  of  such  a
parry or such a party may suo motu approach the court  for  being  impleaded
therein.”

      After so stating, the four-Judge Bench referred  to  English  practice
as recorded  in  Halsbury’s  Laws  of  England,  Vol.  11,  3rd  Edn.  (Lord
Simonds’) and a  Division  Bench  judgment  of  the  Bombay  High  Court  in
Ahmedalli v. M.D. Lalkaka[46] and a  Full  Bench  decision  of  Nagpur  High
Court in Kanglu Baula v. Chief Executive Officer[47] and summarized thus:
“To summarise: in a writ of certiorari not only the  tribunal  or  authority
whose order is sought to be quashed but also parties  in  whose  favour  the
said order is issued are necessary parties. But it is in the  discretion  of
the court to add or implead proper parties for completely settling  all  the
questions that may be involved in the controversy either suo motu or on  the
application of a party to the writ or an application filed at  the  instance
of such proper party.”

30.   The High Court, as we find, relied on the aforesaid decision  to  form
the foundation that unless a Court or  a  tribunal  is  made  a  party,  the
proceeding is not maintainable.  What has been stated in Hari Vishnu  Kamath
(supra), which we have reproduced hereinbefore is that where plain  question
on issuing directions arises, it is conceivable  that  there  should  be  in
existence a person or authority to whom such  directions  could  be  issued.
The suggestion that non-existence of a tribunal might operate as  a  bar  to
issue such directions is not correct as the  true  scope  of  certiorari  is
that it merely demolishes the offending order and  hence,  the  presence  of
the offender before the Court,  though  proper  is  not  necessary  for  the
exercise of the jurisdiction or to render its determination effective.
31.   In Udit Narain Singh (supra), the fulcrum of the controversy was  non-
impleadment of the persons in whose favour the Board of Revenue  had  passed
a favourable order.   There  was  violation  of  fundamental  principles  of
natural justice.  A party cannot be visited with any kind of  adverse  order
in a proceeding without he being arrayed as a party.  As  we  understand  in
Hari Vishnu Kamath (supra), the seven-Judge Bench opined that  for  issuance
of writ of certiorari, a tribunal,  for  issue  of  purpose  of  calling  of
record, is a proper party, and even if the tribunal  has  ceased  to  exist,
there would be some one incharge of the tribunal from whom the  records  can
be requisitioned and who is bound in law to send the  records.   The  larger
Bench has clearly stated that while issuing a writ of certiorari, the  Court
merely demolishes the defending order, the presence of the  offender  before
the Court though proper but is not necessary for exercise  of  jurisdiction.
The said finding was recorded in the context of a tribunal.
32.   In this context, we may profitably refer to the  decision  in  Savitri
Devi (supra) wherein a three-Judge Bench, though  in  a  different  context,
had observed thus:-
“Before parting with this case, it is necessary for  us  to  point  out  one
aspect of the matter which is rather disturbing. In the writ petition  filed
in the High Court as well as  the  special  leave  petition  filed  in  this
Court, the District Judge, Gorakhpur and  the  4th  Additional  Civil  Judge
(Junior Division), Gorakhpur are shown as respondents  and  in  the  special
leave petition, they are shown  as  contesting  respondents.  There  was  no
necessity [pic]for impleading the judicial  officers  who  disposed  of  the
matter in a civil proceeding when the writ petition was filed  in  the  High
Court; nor is there any justification for impleading them as parties in  the
special leave petition and describing them as contesting respondents. We  do
not approve of the course  adopted  by  the  petitioner  which  would  cause
unnecessary  disturbance  to  the  functions  of   the   judicial   officers
concerned. They cannot be in  any  way  equated  to  the  officials  of  the
Government. It is  high  time  that  the  practice  of  impleading  judicial
officers disposing of civil proceedings as parties to writ  petitions  under
Article 226 of the Constitution of India or special  leave  petitions  under
Article 136 of the Constitution  of  India  was  stopped.  We  are  strongly
deprecating such a practice.”

33.   The  High  Court  after  referring  to  the  controversy  involved  in
Savitri Devi (supra) has opined thus:-
“In our opinion, the observations of the  Supreme  Court  pertained  to  the
judicial officers being  made  parties  in  the  proceedings  as  against  a
person, authority or a State being made a party in a petition under  Article
226 and a Court or a Tribunal not being so  required  in  a  petition  under
Article 227 of the Constitution of India.”


      After so stating, the High Court has proceeded  to  express  the  view
that it is not a binding precedent and thereafter opined:-
“We are of the opinion that although in  Hari  Vishnu  Kamath  (supra),  the
Supreme Court may have observed that the presence of the Tribunal  would  be
proper yet may not be necessary for the exercise of the jurisdiction  or  to
render its determination effective, but the said  principle  has  been  more
elaborately explained and made clear by the Supreme  Court  in  Udit  Narain
(supra) laying down as an absolute proposition of law that no writ could  be
issued under Article 226 of the Constitution  without  the  Tribunal,  whose
order is sought to be impugned, is made a party respondent.”

34.   As we notice, the decisions rendered in Hari  Vishnu  Kamath  (supra),
Udit Narain Singh (supra) and Savitri  Devi  (supra)  have  to  be  properly
understood.  In Hari Vishnu Kamath (supra), the  larger  Bench  was  dealing
with a case that arose from Election Tribunal which had ceased to exist  and
expressed the view how it is a proper party.  In Udit Narain Singh  (supra),
the Court was really dwelling  upon  the  controversy  with  regard  to  the
impleadment of parties in whose favour orders had been passed  and  in  that
context observed that tribunal is  a  necessary  party.    In  Savitri  Devi
(supra), the Court  took  exception  to  courts  and  tribunals  being  made
parties.  It is apposite to note here that propositions laid  down  in  each
case has to be  understood  in  proper  perspective.   Civil  courts,  which
decide matters, are courts in the strictest sense of the term.  Neither  the
court nor the Presiding Officer defends the order before the superior  court
it  does  not  contest.   If  the  High  Court,  in  exercise  of  its  writ
jurisdiction or revisional jurisdiction, as the case may be, calls  for  the
records, the same can always be called for by the  High  court  without  the
Court or the Presiding Officer being impleaded as a party.  Similarly,  with
the passage of time there have been many a tribunal  which  only  adjudicate
and they have nothing to do with the lis.  We may  cite  few  examples;  the
tribunals constituted under the  Administrative  Tribunals  Act,  1985,  the
Custom, Excise & Service Tax Appellate Tribunal, the  Income  Tax  Appellate
Tribunals, the Sales Tax  Tribunal  and  such  others.   Every  adjudicating
authority may be nomenclatured as a tribunal  but  the  said  authority(ies)
are different that pure and simple adjudicating authorities and that is  why
they are called the authorities.  An Income Tax Commissioner, whatever  rank
he may be holding, when he adjudicates, he has to be made a  party,  for  he
can  defend  his  order.   He  is  entitled  to  contest.   There  are  many
authorities under many a  statute.   Therefore,  the  proposition  that  can
safely be culled out is that the authorities or the tribunals,  who  in  law
are entitled to defend the orders passed by them, are necessary parties  and
if they are not arrayed as parties, the writ petition can be treated  to  be
not maintainable or the court may grant liberty to implead them  as  parties
in exercise of its discretion.  There are tribunals which  are  not  at  all
required to defend their own order, and in that  case  such  tribunals  need
not be arrayed as parties. To give another example:- in certain  enactments,
the District Judges function as  Election  Tribunals  from  whose  orders  a
revision or a writ may lie depending upon the provisions in  the  Act.    In
such a situation, the superior court,  that  is  the  High  Court,  even  if
required to call for the records, the District Judge need not  be  a  party.
Thus, in essence, when a tribunal or authority is  required  to  defend  its
own order, it is to be made a party failing which the proceeding before  the
High Court would be regarded as not maintainable.
35.   We have stated in the beginning that three issues  arise  despite  the
High Court framing number of issues and answering it at various levels.   It
is to be borne in mind how the jurisdiction under the letters patent  appeal
is to be exercised cannot exhaustively be stated.  It will depend  upon  the
Bench adjudicating the lis how it  understands  and  appreciates  the  order
passed by the learned Single  Judge.   There  cannot  be  a  straight-jacket
formula for the same.  Needless to say,  the  High  Court  while  exercising
jurisdiction under Article 227 of the Constitution has to be guided  by  the
parameters laid down by this Court and some of the judgments that have  been
referred to in Radhey Shyam (supra).
36.   In view of  the  aforesaid  analysis,  we  proceed  to  summarise  our
conclusions as follows:-

(A)   Whether a letters patent appeal would lie against the order passed  by
the learned Single Judge that has travelled to him from the other  tribunals
or authorities, would depend upon many a facet.  The Court fee payable on  a
petition to make it under Article 226 or Article 227 or both,  would  depend
upon the rules framed by the High Court.
(B)    The  order  passed  by  the  civil  court  is  only  amenable  to  be
scrutinized by the High Court in exercise of jurisdiction under Article  227
of the Constitution of India which is different  from  Article  226  of  the
Constitution and as per the pronouncement in Radhey Shyam (supra),  no  writ
can be issued against the order passed by the civil  court  and,  therefore,
no letters patent appeal would be maintainable.
(C)   The writ petition can be held to be not maintainable if a tribunal  or
authority that is required  to  defend  the  impugned  order  has  not  been
arrayed as a party, as it is a necessary party.
(D)   Tribunal  being  or  not  being  party  in  a  writ  petition  is  not
determinative of the maintainability of a letters patent appeal.
37.   Having recorded our conclusions in seriatim, we think  it  appropriate
that the matters should be remanded to the High Court to  be  heard  by  the
Division Bench in accordance with the principles laid down in this  judgment
and accordingly we so direct.  Resultantly, with the  modifications  in  the
order of the High Court, the appeals stand disposed of.  There shall  be  no
order as to costs.

                                        ..................................J.
                                 [Dipak Misra]



                                        ................................. J.
           [Adarsh Kumar Goel]

New Delhi
July 6, 2015
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[1]     2013 (1) GLH 440
[2]     1995 (1) GLH 58
[3]     AIR 1954 SC 440
[4]    1924-1 KB  171 at p.205 (C)
[5]    (1879) 4 AC 30 at p. 39 (D)
[6]    (1922) 2 AC 128 at p. 156 (E)
[7]    (1854) 9 EX 111 (F)
[8]    (1889) 21 QBD 313 (G)
[9]     AIR 1952 SC 192 at pp. 195-196 (I)
[10]    AIR 1955 SC 233
[11]    AIR 1954 SC 215
[12]    AIR 1958 SC 398
[13]   AIR 1963 SC 946
[14]    AIR 1947 PC 90
[15]    AIR 1967 SC 1
[16]    AIR 1955 SC 191
[17]    AIR 1960 SC 801
[18]    AIR 1963 SC 996
[19]   (2002) 4 SCC 388
[20]    (1989) 1 SCC 678
[21]   (1988) 2 SCC 602
[22]    2015 (3) SCALE 88
[23]    (2003) 6 SCC 675
[24]    (2003) 3 SCC 524
[25]   (2002) 7 SCC  456
[26]   (2002) 1 SCC 319
[27]   (2010) 8 SCC 329
[28]   (2013) 9 SCC 374
[29]   1986 (Supp) SCC 401
[30]   (1955) 1 SCR 1104 : AIR 1955 SC 233
[31]   AIR 1957 All 414 : 1957 All LJ 388 (FB)
[32]   AIR 1959 Punj 291
[33]   AIR 1961 Punj 24 : ILR (1961) 1 Punj 283
[34]    1993 Supp. (1) SCC 11
[35]   (1992) 3 SCC 448
[36]   (1999) 6 SCC 275
[37]   (2006) 7 SCC 496
[38]   1993 Supp (1) SCC 11
[39]   (2009) 10 SCC 584
[40]    (1993) Supp (1) SCC 9
[41]    (2008) 14 SCC 58
[42]    AIR 1959 SC 65
[43]    AIR 1963 SC 786
[44]    1924 1 KB
[45]   (1931) 2 KB 215, (243)
[46]    AIR 1954 Bom 33, 34
[47]    AIR 1955 Nag. 49

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