Mini Transport Owner's Association vs Bhubaneswar Municipality and Others

P.C. Naik, J.—This petition under Articles 226 and 227 of the Constitution of India has been filed forquashing the orderdated 9-8-1996 passed by this Court in O.J.C. No. 6483 of 1995 (Bapujinagar Khudra Byabasai AssocatiOn v. Slate of Orissa and others) whereby the said writ petition filed by Bapujinagar Khudra Byabasai Association (opposite party No. 3 in the present writ petition) was allowed. The petitioner of that writ petition being apprehensive of being dispossessed under the Eviction Drive launched by the Bhubaneswar Municipality, had approached this Court for relief. The prayer was that as they had been in possession of different parcels of land from where they were carrying on their business and earning their livelihood, their dispossession without providing alternative site would ruin them as they would lose theirbusiness and hence their lovelihood. The Bhubaneswar Municipality on being noticed had undertaken that the persons who were to be dispossessed from the plot in question would be given alternative sites within a time-bound period on the basis of lottery system. That petition was accordingly disposed of on the basis of the undertaking given.

The case of the present petitioner is that the petitioner of the earlier writ petition had obtained that order by suppression of material facts and as such, the Court should, after perusing the record, quash the order dated 9-8-1996 passed in that writ petition. On being asked as to the process by which the order is to be quashed, the learned counsel contended that on the facts of the present case, writ of a cerliorari should issue. On being further asked as to whether this Court could issue such a writ to itself, the answer was in the affirmative. And, in support of his contention the learned counsel heavily relied on the decisions of the Apex Court in S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, , A.R. Antulay Vs. R.S. Nayak and Another, and Hari Narain Vs. Badri Das, , and a decision of Punjab and Haryana High Court in Charanji Lal and Others Vs. Financial Commissioner Haryana, Chandigarh and Others, .

Though we feel that the matter did not require any elaborate discussion, yet the seriousness with which the contentions were raised makes us to believe that there is still, in some quarters, a doubt about the nature and scope of certiorari and as to who can issue it and to whom. Therefore, we think it appropriate, may consider it necessary, to briefly deal with ''certjorari'' -- its nature, scope and objects --and for this, a reference to English decision will also become necessary because the origin of the writ can be traced back to England. But, before this, a reference may be made to the Corpus Juris Secondum (Vol. 14) at page 121 whereof it is stated that certiorari is a writ issued from a superior Court to an inferior Court or tribunal commanding the letter to send up the record of a particular case. It is further stated therein that certiorari, except in so far as it has been enlarged and extended by statute, is a writ issued from a superior Court and directed to a Court or Tribunal of inferior jurisdiction, commanding latter to certify and return to former the record in the particular case. The writ is also used, in many jurisdiction, to review not only proceedings of inferior Courts but also proceedings of inferior officers, boards, and tribunals exercising judicial or quasi judicial functions.

The nature and scope of certiorari was discussed in AIR 1943 164 (Privy Council) (in an appeal from the judgment reported in AIR 1938 Mad 381, wherein Viscound Simon LC. observed (at page 165) :

"..... The ancient writ of certiorari in England is an original writ which may issue out of a superior Court requiring that the record of the proceedings in some cause or matter pending before an inferior Court should be transmitted into the superior Court to be there dealt with. The writ is so named because, in its original Latin form, it required that the kind should "be certified" of the proceedings to be investigated, and the object is to secure by the exercise of the authority of a superior Court, that the jurisdiction of the inferior Tribunal should be properly exercised. This writ does not issue to correct purely executive acts, but, on the other hand, its application is not narrowly limited to inferior ''Courts'' in the strictest sense. Broadly speaking, it may be said that if the act done by the inferior body is ajudicial act, as distinguished from being a ministerial act, certiorari with lie. The remedy, in point of principle, is derived from the superintending authority which the Sovereign''s SuperiorCourts, and in particular the Court of King''s Bench, possess and exercise over inferior jurisdiction. This principle has been transplanted to other parts of the King''s dominions, and operates, within certain limits, in British India."

In R. v. Morthumberland Compensation Appeal Tribunal, Ex parte Shaw (1952) 1 AILER 122, the question was whether ''certiorari'' could issue to quash the decision of a statutory Tribunal not only when the Tribunal had exceeded its jurisdiction, but also where an error of law appeared on the face of the record. In view of the contention raised, the nature and scope of certiorari came up for consideration and Singleton, L.J. quoted a passage from R. v. London Country Council, Exp. Entertainments Protection Association Ltd. (1931) 2 KB 215 (at page 233) which reads thus :

"The writ of cerliorari is a very old and high prerogative writ drawn up for the purpose of enabling the Court of King''s Bench to control the action of inferior courts and to make it certain that they shall not exceed tgheir jurisdiction; and therefore the writ of certiorari is intended to bring into the High Court the decision of the inferior Tribunal, in order that the High Court may be certified whether the decision is within the jurisdiction of the inferior Court. There has been a great deal of discussion and a large number of cases extending the meaning of ''court''. It is not necessary that it should be a court in the sense in which this Court is a Court; it is enough if it is exercising, after hearing evidence, judicial functions in Ihe sense that it has to decide on evidence between a proposal and and opposition and it is not necessary to be strictly a court; if it is a Tribunal which has to decide rights after hearing evidence and opposition, it is amenable to the writ of certiorari; and I do not discuss further the nature of the writ, because very elaborate discussions of it will be found in the recent cases of R. v. Electricity Commrs. Exp. London Electricity Joint Committee Co. (1920) (2) & R. v. Minister of Health. Ex. p. Davis (3)."

While concluding. Denning, LJ. observed :

"The origin of this controlling power was the writ of certiorari by which the King commanded the Judges of any inferior Court of record to certify the record of any matter in their court with all things touching the same and to send it lo the King''s Court to be examined. The wording of the writ was for many centuries as follows, being originally in Latin and afterwards in English :

"We being willing for certain reasons that all and singular orders made by you (as is said) be sent by you before us, do command that you do send forthwith before us all an singular the said orders with all things touching the same, as fully and perfectly as they have been made by you and now remain in your custody or power, together with this our writ, that we may cause further to be done thereon what of right and according to the law and custom of England we shall see fit to be done.''

He further observed :

"Of recent years the scope of certiorari seems to have been somewhat forgotten. It has been supposed to be confined to the correction of excess of jurisdiction, and not to extend to the correction of errors of law. and several learned Judges have said as much. But the Lord Chief Justice has, in the present case, restored certiorari to its righful position and shown that it can be used to correct errors of law which appear on the face of the record, even though they do not go to jurisdiction. ....."

Reference may now be made to The Bharat Bank Ltd., Delhi Vs. Employees of the Bharat Bank Ltd., Delhi and The Bharat Bank Employees'' Union, Delhi, . where the queslion involved was whether an award of the Industrial Tribunal was appeable to the Supreme Court under Article 136 of the Constitution of India. Therein, it has been observed (at page 211 of AIR) :

"Where the direction is committed to anybody or a Tribunal exercising quasi-judicial functions which are not fettered by ordinary rules of law, the Tribunal should in the absence of any provision to the contrary be deemed to have the final authority in the exercise of that discretion. We cannot sit in appeal over their decision and substitute our own discretion for theirs. Questions, however, may and do arise where such quasi-judicial body attempts to usurp jurisdiction which it does not possess. It may assume jurisdiction under a mistaken view of law or refuse to exercise jurisdiction properly by adoption of extraneous or irrelevant considerations; or there may be cases where in its proceedings the Tribunal violates the principles of natural juslice. In all such cases the most proper and adequate remedy would be by writs of certiorari or prohibition and Ihe Court having authority may direct that the decision of the body or Tribunal might be brought up to be quashed for lack of jurisdiction or for mistake apparent on the face of it; and if the proceedings had not terminated at that time, a writ of prohibition may also be issued for preventing the Tribunal from exceeding its jurisdiction. The issuing of such writs would not be on exercise of appellate powers which means the rehearing of the case and passing of such judgment which in the opinion of the appellate Court the original Tribunal should have made. The object of those writs is simply to keep the exercise of powers by these quasi-judicial Tribunals within the limits of jurisdiction assigned to them by law and to restrain them from acting in excess of their authority. These principles are well-settled and require no elucidation. Our conclusion, therefore, is that Article 136 of the Constitution docs not contemplate a determination given by the Industrial Tribunal."

In T.C. Basappa Vs. T. Nagappa and Another, , it was observed (at page 443 of AIR) :

"(5) The principles upon which the superior Courts in England interfere by issuing writs of ''certiorari'' are fairly well-known and they have generally formed the basis of decisions in our Indian Courts. It is true that there is lack of uniformity even in the pronouncements of English Judges, with regard to the grounds upon which a writ, or as it is now said, an order of ''certiorari'', could issue, but such difference of opinion are unavoidable in judge-made law which has developed through a long course of years.

As is well-known, the issue of the prerogative writs, within which ''certiorari'' is included, had their origin in England in the King''s prerogative power of superintendence over the due observance of law by his officials and Tribunals. The writ of ''certiorari'' is so named beeause in its original form it required that the King should be "certified of the proceedings to be investigated and the object was to secure by Ihe authority of a superior Court, that the jurisdiction of the inferior Tribunal should be properly exercised, vide AIR 1943 164 (Privy Council) at p. 178( A). These principles were transplanted to other parts of the King''s dominions."

xx xx xx (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.

xx xx xx 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 docs 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 jurisdiclion or palpably erroneous but does not substitute its own views for those of the inferior Tribunal.....

(8) The supervision of the superior Court exercised through writs of ''certiorari'' goes on two points, ..... 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 coverall the grounds on which a writ of ''certiorari'' could be demanded....."

In Syed Yakoob Vs. K.S. Radhakrishnan and Others, , while considering the questions regarding the jurisdiction of the High Court in issuing a writ of certiorari under Article 226 of the Constitution of India, it was observed (at page 479) :

"(7) The question about the limits of jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals; these are cases where orders are passed by inferior Courts or Tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where an exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court ....."

As a writ (or in the nature) of certiorari can be issued by the High Court in exercise of jurisdiction under Article 226/227 we may quote a small passage from the judgment rendered by the Supreme Court in Ramesh and Another Vs. Seth Gendalal Motilal Patni and Others, , which reads thus (at page 1449 of AIR) :

"We are concerned here with the exercise of extraordinary original civil jurisdiction under Article 226. Under that jurisdiction, the High Court does not hear an appeal or revision. The High Court is moved to intervene and to bring before itself, the record of a case decided by or pending before a Court orTribunal or any authority within the High Court''s jurisdiction. A petition to the High Court invoking this jurisdiction is a proceeding quite independent of the original controversy. The controversy in the High Court, in proceedings arising under Article 226 ordinarily is whether a decision of or a proceeding before a Court orTribunal or authority, should be allowed to stand or should be quashed, for want of jurisdiction or on account of errors of law apparent on the face of the record....."

6A. In Naresh Shridhar Mirajkar and Others Vs. State of Maharashtra and Another, , one of the questions that came up for consideration was, whether or not the judicial orders passed by the High Courts could be corrected by a writ of cerliorari under Article 32 of the Constitution of India and while considering the said question, the Constitution Bench observed (at page 19) :

"We are, therefore, satisfied that so far as the jurisdiction of this Court to issue writs of ccrtiorari is concerned, it is impossible to accept the argument of the petitioners that judicial orders passed by High Courts in or in relation to proceedings pending before them, are amenable to be corrected by exercise of the said jurisdiction. We have no doubt that it would be unreasonable to attempt to rationalise the assumption of jurisdiction by this Court under Article 32 to correct such judicial orders on the fanciful hypothesis that High Courts may pass extravagant orders in or in relation to matters pending before them and that a remedy by way of a writ of certiorari should, therefore, be sought for and be deemed to be included within the scope of Article 32. The words used in Article 32 are no doubt wide; but having regard to the considerations which we have set out in the course of this judgment, we are satisfied that the impugned order cannot be brought within the scope of this Court''s jurisdiction to issue a writ of certiorari under Article 32; to hold otherwise would be repugnant to the well-recognised limitations within which the jurisdiction to issue writs of certiorari can be exercised and inconsistent with the uniform trend of this Court''s decisions in relation to the said point."

Therein, it was further observed :

"If the decision of a superior Court on the question of jurisdiction is erroneous, it can, of course, be corrected by appeal or revision as may be permissible under law; but until 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 exercise of the writ jurisdiction of this Court."

From the above, there can be no doubt that a writ of certiorari issues out of a superior Court to a Judge or officer of an inferior Court or Tribunal requiring that the record of the proceedings in a matter pending before such inferior Court or Tribunal be transmitted to the superior Court to be dealt with by it. Thus, the object of certiorari is to keep the exercise of powers by inferior judicial and quasi-judicial Tribunals within the limits of their jurisdiction and to restrain them from acting in excess of their authority by calling upon them to certify the proceedings to the High Court for the purpose of quashing them if the inferior Court or Tribunal has gone beyond the limits of the jurisdiction. A certiorari is in fact a writ directed to officers of inferior courts to submit the records of the case to enable the superior Courts to enquire into the legality of the impugned order It, therefore, follows that a writ of certiorari can be issued under Article 226/227 of the Constitution of India, in exercise of supervisory jurisdiction of the High Court and not under its appellate jurisdiction.

The question whether a writ petition under Articles 226 and 227 of the Constitution of India lays against a decision of a single Judge, recently came up for consideration before a Full Bench of this Court in Ananda Bag v. Nilambar Pujhari (1997) 84 CIT 244 (FB), wherein it has been held that :

"..... a writ petition against an order passed by a single Judge having competent jurisdiction in any proceeding before him is not maintainable and/or an order of a single Judge with competent jurisdiction is not amenable to writ jurisdiction..."

If the contention of the counsel for the petitioner that a writ of certiorari can be issued by this Court to quash an earlier judgment rendered by it, is accepted, it would amount to the High Court itself exercising supervisory jurisdiction over itself. When a Judge either silting single or in division hears a matter, he does so as the ''High Court'' and the order passed in the proceeding is an order of the High Court. The order attains finality unless the statute under which the power was exercised itself provides or, there is a rule of the Court or procedure which provides for an inter-Court appeal. Reference may be made, for example, to the Letters Patent under which inter-Court appeal is provided -- from an order of a single Judge to a Division lench or to Section 438 of the Companies Act, 1956 which provides for an appeal to the same Court. But, it should be remembered that in such cases, the Division Bench exercises ''appellate powers'' and not supervisory powers'' and it is for this reason that a certiorari to quash the impugned order/judgment does issue not but the order impugned, if a case is made out, is corrected in exercise of the appellate jurisdiction.

In Chengalvaraya Naidu''s case (supra) relied upon by the petitioner what has been laid down is that a decree obtained by fraud is a nullity. This principle cannot be disputed. Nor can it be disputed, as it has been laid down in the other decisions cited by the learned Counsel, that a Court can dismiss an application on the ground of suppression of material facts. That stage is over in the case at hand as a judgment has already been passed and, so long as that judgment stands, it is binding. Therefore, the cases relied upon are of no assistance to the petitioner. If the order, according to the petitioner, is wrong, his remedy liesels where and definitely not by praying before this Cc lit toquash its own order by issuing a writ to itself".

The contention of the petitioner that a writ should issue or else the directions contained in the earlierjudgmenl would be to the prejudice of and may bind the present petitioners who were strangers to the earlier writ petition, cannot also be accepted. While dealing with a somewhat similar argument advanced in a petition filed under Article 32 of the Constitution of India, the Apex Court in Naresh''s case (supra) observed :

"..... We have already seenthattheimpugned order passed by the learned Judge after hearing the parties and it was passed presumably because he was satisfied that the ends of justice required that Mr. Goda should be given protection by prohibiting the publication of his evidence in the newspapers during the course of the trial. This matter was directly related to the trial of the suit; and in exercise of his inherent power, the learned Judge made the order in the interest of justice. The order in one sense is inter paries, because it was passed after hearing arguments on both the sides. In another sense, it is not inter partes inasmuch as it prohibits strangers like the petitioners from publishing Mr. Coda''s evidence in the newspapers..... The order, no doubt, binds the strangers; but. nevertheless, it is a judicial orderand a person aggrieved by it, though a stranger, can move this Court by appeal under Article 136 of the Constitution .....If a judicial order like the one with which we are concerned in the present proceedings made by the High Court. binds strangers, the strangers may challenge the order by taking appropriate proceedings in appeal under Article 136. It would, however, not be open to them to invoke the jurisdiction of this Court under Article 32 and contend that a writ of ccrtiorari should be issued in respect of it. The impugned order is passed in exercise of the inherent jurisdiction of the Court and its validity is not open to be challenged by writ proceedings."

Thus, we see that through the ages scope of certiorari has expanded. Whereas at the time of its origin in England it was issued out of superior Courts requiring that the record of the proceedings in some cause or matter pending before a inferior Court to be transmitted to the superior Courts to be dealt with, it now embraces within its fold the inferior Tribunals and authority i.e. statutory authorities which are also exercising judicial and quasi-judicial powers and which have legal authority to decide. Henee, a writ of certiorari can be issued to quash judicial and quasi-judicial act, but before a writ can be issued, the following conditions have to be complied with : (1) the body of persons must have legal authority, (2) there must be authority to determine questions affecting the rights of subjects, and (3) the body of persons should have a duty to act judicially. (See Dwarka Nath Vs. Income Tax Officer, Special Circle D-ward, Kanpur and Another, .

In Syed Yakoob Vs. K.S. Radhakrishnan and Others, , the Apex Court has observed that with regard to the character and scope of the writ of certiorari and the conditions under which it can be issued, the following propositions may be taken as established : (1) Certiorari will be issued for correcting errors of jurisdiction, when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it, (2) Ceitiorari will also be issued when the Court or Tribunal acts illegally in the exereise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice and (3) the Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction.

Before concluding, we may refer to a decision of the Privy Council in the case of Goonesinha v. O.I. dc Kretser AIR 1945 PC 83 (84), wherein it has been observed that a Court having jurisdiction to issue a writ of certiorari will not and cannot issue it to bring up in order made by a Judge of that Court nor will a perior Court issue the writ directed to another superior. And, the judgment of the Apex Court in Mohd. Aslam Vs. Union of India and others, , wherein it has been laid down that Article 32 of the Constitution is not available to assail the correctness of a decision on merits or to claim its reconsideration.

In conclusion, we may hasten to all that we have referred to in brief the scope and object of writ of certiorari in general and have not dealt with it in details. Needless to say, the scope of certiorari has expanded over the period even in the country of its origin. In our country because of the express wording of Article 226 that the High Court shall have the power to issue writs --including the writs in the nature of-- certiorari for the enforcement of any right conferred in Part-Ill and for any other authority, the scope is larger.

For the reasons aforesaid the prayer for quashing the order of this Court cannot be entertained and accordingly, this writ petition is dismissed. However, this dismissal will not preclude the petitioner from availing any other remedy which he may have against the order passed in the earlier writ application.

P.K. Mohanty, J.

I agree.