Radhey Shyam & Anr. Vs. Chhabi Nath & ors. (writ against judicial order, no violation of fundamental rights by judicial order, difference between article 226 and 227, supervisory power under article 227)

CASE DETAILS

Bench H.L. Duttu C.J. A.K. Sikri J. A.K. Goel J.

Case no. (2015) 3 SCC 67

Acts/law Constitution Article 226 & 227

This matter had been placed before 3 judges in order to look into the correctness of the law laid down by 2 judges in Surya devi vs. Ram Chander Rai (2003) 6 SCC 675 wherein the court affirmed that the court can invoke writ jurisdiction under article 226 against civil court’s order.
The case in hand deals with issue concerning writ against order of civil court, no violation of fundamental rights by judicial order, difference between power of court under article 226 and 227 of constitution, also supervisory power of high court under article 227.

Timeline of case:

Since the matter is concerning question of law facts are not relevant and case need not be decided on merits. It is sufficed to understand that a writ petition was filed before high court thereby assailing the interim order of civil court in a pending suit. The high court was pleased to allow the said petition and vacated the interim order. Further the matter was challenged before Supreme court filing a SLP thereby contending that the writ against judicial order is not maintainable under article 226 of constitution. The said contention was objected by relying on the Surya devi vs. Ram Chander Rai(supra) thereby pleading that writ is maintainable. 

Finding of two judges bench- (supervisory power under 227)

In Radhey Shyam & Anr. Vs. Chhabi Nath & ors. (2009) 5 SCC 616 Supreme court did not consider it amenable to intervene in any civil order by writ of certiorari. Moreover, power of high court under article 227 is superintendent power which should be exercised sparingly, and not to be exercised to correct mistake of fact or law. The matter was referred to larger bench.

In Radhey Shyam case 1, court did not persuade law laid down in Surya devi(supra) as in the said case court did not appreciate the law settled in 9 judges’ bench in Naresh Shridhar Mirajkar vs. state of Maharashtra AIR (1967) SC 1 wherein court concluded that writ certiorari does not lie against the order of civil court.

ISSUE:

1. Whether the writ under article 226 of Constitution of India lie against the order of the civil court?
2. Whether the finding of the court in Surya devi Rai (supra) is correct?

Reference case:

In order to adjudicate the issue in the case in hand court had relied on the several precedents wherein court delved into the scope of writ jurisdiction under article 226 of constitution of India:  

T.C. Basappa vs. T. Nagappa: AIR 1954 SC 440:

Hon’ble court emphasized on the power of the court to invoke writ of certiorari in following manner:

1. To remove and adjudicate the validity of judicial act, which also includes quasi-judicial functions of administrative bodies;
2. Writ jurisdiction power is merely in supervisory and not appellate capacity;
3. Writ of certiorari is granted when inferior court acted without or excess of its jurisdiction;
4. Mere wrong decision can not be corrected under writ there has to be error apparent on the face of proceeding based on the clear ignorance pf law or absence or excess of jurisdiction.

Ujjam Bai vs. state of U.P. AIR 1962 SC 1621 12: (no violation of fundamental rights by judicial order)

…. Bench of seven Judges on the scope of writ of certiorari against an order of assessment under the provisions of sales tax law passed in violation of a fundamental right. Majority of six Judges took the view that except an order under a void law or “ultra vires” or “without jurisdiction” order, there could be no violation of fundamental right by a quasi-judicial order or a statutory authority and such order could not be challenged under Article 32. A writ of certiorari could however, lie against a patently erroneous order under Article 226. It was observed that the judicial orders of courts stood on different footing.

Naresh Shridhar Mirajkar vs. state of Maharashtra AIR (1967) SC 1:

It was scrutinized by the apex court 9 judges’ bench that a judicial order of the competent court could not be violative of fundamental rights even when there is incidental violation.

Rupa Ashok Hurra vs. Ashok Hurra (2002) 4 SCC 388: ( no writ against judicial order):

It was rendered that the final order of the can not be assailed under article 32 as violative of fundamental rights. Court relied on Mirajkar (supra) and A. R. Antulay vs. R. S. Nayak (1988) 2 SCC 602. It is not open to apex court to exercise power administered under article 32 against any final order passed by the competent court.

Sadhana Lodh vs. National Insurance Co. Ltd. (2003) 3 SCC 524: (writ, appeal and revision):

3 judges bench of apex court looked into an issue that whether writ could be availed when remedy of appeal is on limited ground. This court ascertained that remedy of appeal is a statutory remedy and is the same is limited it cannot be enlarged under article 226 and 227 of constitution.

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. 

                                                              (emphasis supplied)

RATIO OF JUDGMENT:

• In paragraph no. 18 of case in hand court evaluated that:

……..the question whether judicial order could violate a fundamental right, it was clearly laid down that challenge to judicial orders could lie by way of appeal or revision or under Article 227 and not by way of a writ under Articles 226 and 32.

• In para no. 21 court distinctly articulated that order of civil court could be challenged under 227 and not under 226 of the constitution.
• In para no. 25 court viewed that writ jurisdiction is conferred under constitution on all the high courts, and the said writ power is not issued against subordinate courts;
• Order of civil court stands on different footing from order of tribunal or order of court other then judicial courts;
• Appellate and revisional power is a statutory power and power under 227 is superintendence power of high court;
• Curtailment of jurisdiction under section 115 of CPC in 1999, and jurisdiction of high court under article 227 remain unaffected, despite said amendment;
• Contrary view of Surya Devi Rai (supra) was overruled
• Judicial order of civil court are not amenable to writ jurisdiction under article 226 of constitution.
• Jurisdiction under 226 is different from jurisdiction under article 227 of constitution.