Maintainability of the Writ Petition challenging Judicial Orders under Article 226 and 227: State of Jharkhand v. Surendra Kumar Shrivastav

Introduction

Articles 226 and 227 are the two important articles of the constitution dealing with the powers of the High Courts in India. High Courts under Article 226 exercises original jurisdiction and while exercising such jurisdiction it may quash or annual a proceeding as the Article empowers the High Courts to issue, “to any person or authority, including the government, directions, orders or writs, including writs like habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them for the enforcement of any of the fundamental rights conferred by part III of the Constitution or for any other purpose.”[1]

While under Article 227 of the Constitution of India, the High Court exercises supervisory jurisdiction which is similar to the revisional jurisdiction as defined under section 115 of the Civil Procedure Code, 1908 and while exercising such jurisdiction “it won’t just quash or set aside the impugned proceedings but will also make such directions as the facts and circumstances of the case may warrant, maybe by the way of guiding the inferior Court or Tribunal.”[2] The apex court in the in case of Umaji Keshao Meshram v. Radhikabai ruled out that under Article 227 of the Constitution of India, “the power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.”[3]

The perplexity between Article 226 and 227 will emerge just in case of a writ of certiorari as the Writ can be issued by the High Court under both the Articles i.e. 226 and 227. The Writ may even be issued by the Hon’ble Supreme Court for quashing the decision delivered by an inferior court or any quasi-judicial body. Referring to the judgment in the case of Umaji Leshao,[4] where the court held that the “Proceedings under Article 226 are in the exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory”, therefore the question that arises is about theway how the High Court exercises its powers and jurisdiction under these two articles as by issuing the Writ of  Certiorari, the High Court not only quashes a decision passed by an inferior court but it may also issue directions to the inferior court guiding it in the manner it should proceed to adjudicate the dispute.

The two-judge bench comprising of Justice Indu Malhotra and Justice Ashok Bhushan of Supreme Court in the recent case of State of Jharkhand v. Surendra Kumar Srivastava[5]have reiterated that a writ petition seeking a writ of certiorari filed under  Article 226 of the Constitution of India against the judicial orders passed by civil courts is not maintainable and thereupon observed that a writ petition filed under “Article 227 of the Constitution of India challenging the orders passed by Civil Courts refusing to grant an interim injunction under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, could very well be maintainable.” 

Facts and Journey of the Case

The Respondent[6] had purchased land (“suit property”) situated adjacent to the land belonging to Bihar State Road Transport Corporation by way of two unregistered Sale Deeds and thereafter raised a structure over a part of the suit property, and used the other part for cultivation. In 1992, Smt. Shyal Devi filed Title Suit before the Additional Munsif, Jamshedpur alleging that the officials of the Bihar State Road Transport Corporation were disturbing her possession of the suit property since 1990.

The Additional Munsif passed a judgment in favour of Smt. Shyal Devi and thereafter confirmed her possession over the “suit property” and restrained Bihar State Road Transport Corporation from further interference. Aggrieved by the judgment passed by the Additional Munsif, Bihar State Road Transport Corporation filed a Title appeal before the Additional District Judge, East Singhbhum, which was dismissed on the grounds of possession. The District Judge also held that the Plaintiff had failed to establish her title, and therefore, it would be open for the Bihar State Road Transport Corporation to file a suit against late Smt. Shyal Devi for declaration of title over the land, and to seek her eviction. A second appeal was also filed by the Bihar State Road Transport Corporation against the Judgment passed by the Additional District Judge before the Jharkhand High Court, where late Smt. Shyal Devi did not challenge the finding that she had failed to establish her title.

In the meantime i.e. during the pendency of the second appeal, a no-objection certificate with regards to the construction of an Electricity Sub-station over the “suit property” was conveyed by the Transport Commissioner to the Deputy Commissioner, East Singhbhum, Jamshedpur. Thereafter, the respondent filed a title suit before the Civil Judge (JD–I) seeking a permanent injunction to restrain Jharkhand State Electricity Board from interfering with their alleged possession of the suit property, along with an application for Temporary Injunction. However, the Civil Judge dismissed the application for Temporary Injunction because respondent had failed to describe the specific area/portion of the suit property, over which the construction was being carried out. An appeal to the High Court by the respondents challenging the decision of the Civil Judge was once again dismissed on the same grounds. The High Court further held that the respondent had failed to demarcate the suit property.

The District Court, on the other hand, passed an order against the respondents disentitling them with an injunction to which a Writ Petition was filed before the Jharkhand High Court seeking a writ of certiorari to quash the order dated 07.04.2015 passed by the Civil Judge. The writ petition was allowed by the High Court and it was held that the finding of the District Court was erroneous as the Application for Temporary Injunction filed by Respondent was dismissed even when the description of the disputed suit property was not objected by the Jharkhand State Electricity Board. Aggrieved by the judgment of the High Court the State of Jharkhand filed the SLP. Placing reliance over the judgment given in the case of Radhey Shyam v. Chhabi Nath, the learned Counsel appearing for the Appellants challenges the maintainability of the Writ Petition seeking a writ of certiorari as it was filed to challenge judicial orders passed by Civil Court. The appellants further submitted that the respondent had consistently failed to establish any title over the suit property and the State of Jharkhand was the real owner of the suit property, which could be evidenced from the revenue records of the suit property.

On the other hand, the counsel for the respondents submits that the issue of the title of the property has already been clarified by the Additional Munsif and the appeal lying against the judgment of the Additional Munsif was dismissed by the Additional District Judge, therefore, the pendency of the Second Appeal filed by the Bihar State Road Transport Corporation would not entitle them to transfer the disputed suit property to the Appellant i.e. State of Jharkhand. Furthermore, no cogent evidence has been produced by the Appellant to establish their title over the Suit Property. The counsel for the respondents also relied upon the decisions given in the case of Meghmala & Ors. v. G. Narasimha Reddy[7] and Rame Gowda (dead) by LRs v. M. Varadappa Naidu (dead) by LRs[8] to submit that “a person who is in settled possession, even in case he is a trespasser, has the right to be protected against forcible eviction, and can be evicted only after following the procedure prescribed.”

The moot question that arose before the Hon’ble Supreme Court was whether the findings of the learned Single Judge of the High Court was justified in directing the parties to maintain status quo during the pendency of the Title Suit No. 45/2015 before the Court of Civil Judge (Junior Division – I), Jamshedpur.

To answer the question regarding the maintainability of the Writ Petition filed by Respondent for a writ of certiorari to quash the Order passed by the Civil Judge  and the District Judge, the court relied upon the judgment given in the case of Radhey Shyam v. Chhabi Nath & Ors.,[9] where the court held that the “Judicial orders of the civil court are not amenable to writ jurisdiction under Article 226 of the Constitution and the jurisdiction under Article 227 is distinct from jurisdiction under Article 226.” Therefore, the court noted that the present petition is not maintainable given the ratio laid down by the three-judge bench in Radhey Shyam v. Chhabi Nath. However, the Supreme Court refused to unsettle the judgment given by the High Court on this sole ground and thereupon, went to state the reasons for the same. The court observed that “Respondents in the Writ Petition, did not challenge the maintainability of the Writ Petition under Article 226 of the Constitution of India, and secondly, had the Appellants raised the above objection regarding maintainability of the Writ Petition, the course open for Plaintiffs/Respondent Nos. 1 to 3 was to amend the cause title of the writ petition under Article 227 of the Constitution, and such a Writ Petition under Article 227 would have been maintainable.” 

The Hon’ble Supreme Court observed that the “Writ Petition under Article 227 challenging the orders passed by Civil Courts refusing to grant interim injunction could very well be maintainable, and the opportunity to amend the cause title by Respondent Nos. 1 to 3 by raising any objection to that effect having been denied to them, we, instead of setting aside the judgment of the High Court on the above ground, proceed to examine the contentions on merits.”

Given the aforesaid facts and circumstances, the Hon’ble Supreme Court set aside the impugned judgment passed by the Learned Single Judge of Jharkhand High Court and held that the failure of the respondents to establish their possession over the suit property disentitle them to any compensation. Further, “the overriding public interest of providing electricity to the local populace would far outweigh the alleged interest of Respondents.” The court also noted that the decision of the Civil Judge and District Judge in refusing to grant a Temporary Injunction was justified and therefore restored it.


[1] Pushkraj Deshpande, Articles 226 And 227 Of The Constitution Of India – Their Scope, Powers And Differences, <http://www.mondaq.com/india/x/691090/court+procedure/Articles+226+And+227+Of+The+Constitution+Of+India+Their+Scope+Powers+And+Differences>

[2] Surya Devi Rai vs. Ram Chander Rai

[3] Umaji Keshao Meshram v. Radhikabai

[4] Umaji Keshao Meshram v. Radhikabai

[5] Himanshu v. B. Shivamurthy & another,

[6] Writ Petitioners/Respondent Nos. 1 to 3 herein, their mother – late Smt. Shyal Devi.

[7] Meghmala & Ors. v. G. Narasimha Reddy,

[8] Rame Gowda (dead) by LRs v. M. Varadappa Naidu (dead) by LRs,

[9] Radhey Shyam v. Chhabi Nath,

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