DAMAGES AND GINGER BEER

(T. G. John, Advocate, Trichur)

There is nothing spreeish, crass, or scurrilous in a person stepping into a wayside cafeteria or a provision, store on a hot, stuffy evening and ordering for a bottle of ginger beer. And as he sits on the wire-legged stool watching the waiter dip the bottle and pour out for him the drink that will quench his thirst, and cheer him but not inebriate, he does not care two hoots whether, that particular bottle is opaque or otherwise. However things did not move so smoothly years ago, somewhere in England when a similar bottle of ginger beer was ordered for. For to the utter horror of the customer it was found in the bottle, couched in the lees of the drink the decomposed remains of a snail. From that moment began a controversy which consummated in the celebrated case Donoghue v. Stevenson (M'Alister v. Stevenson) or more familiarly known as the snail-in-the-bottle case, which is an important landmark in the history of English law of damages and incidentally on the question whether an action lies for nervous shock and if so under what circumstances.

Taking a cursory glance at the English authorities on this branch of law, one of the earliest cases is Victorian Railways Commissioners v. Coultas (1888). In that case the buggy of the plaintiffs, a husband and wife, was nearly but not quite run over by a passing train at a level crossing and it was held that the resulting shock and illness was damage which was too remote and hence not recoverable. The above Privy Council decision contains the following dictum: "In every case where an accident caused by negligence had given a person a serious nervous shock, there might be a claim for damages on account of mental injury. The difficulty which now often exists in case of alleged physical injuries of determining whether they were caused by the negligent act would be greatly increased and a wide field opened for imaginary claims". The reasoning seems to be that if one were to arrive at a different conclusion it will open wide the gates of imaginary claims and frivolous litigations.

The view which was not popular even in England gradually gave way by the pronouncement of Kennedy J. in Dulieu v. White & Sons (1901). The plaintiff who was in the family way was behind the bar of her husband's public house. The defendants by their servants negligently drove a horse carriage into the public house and the plaintiff prematurely gave birth to a child and became ill also. Kennedy. J. laid down two propositions, which as stated by Mr. K. Venkoba Rao in "Conundrum presented by shock cases", have become the starting point for discussions on the subject namely that unless the plaintiff is within the area of physical danger, he cannot recover damages for nervous shock and secondly .if a man is killed by the negligence of the defendants in sight of plaintiff and the plaintiff becomes ill, the damage is too remote a consequence of the negligence.

The case of Hambrook v. Siok.s Brothers (1925) is the next important step in the tumultuous march of English case law in this subject. The defendants' servant left a motor lorry at the top of a steep and narrow street u--attended with the engine running and without taking proper precautions to secure it. The lorry started off by itself and ran violently down the incline. Plaintiff's wife who had been walking up the street with her children had left them a little below a point where the street made a bond when she saw the lorry rushing down the bend towards her. She became frightened for the safety of her children whom she knew must have met the lorry in its course. A bystander informed her that a child answering to the description of one of hers had been injured. In consequence of her fright and anxiety, she suffered a nervous shock which eventually caused her death. The action was filed by her husband under the Fatal Accident Act. Bankes and Atkin L. JJ. (Sargant L. J. dissenting) held that on the assumption that shock was caused by what the woman saw with her own eyes as distinguished from what she was told by the bystanders, she was entitled to recover notwithstanding that the shock was brought by fear for her children's safety and not by fear for her own. Atkin L. J. made the following observation; "The legal effects of injury by shock have undoubtedly develop ed in the last 30 or 40 years. At one time the theory was held that damages at law could not be proved in respect of personal injuries, unless there was some injury which was variously called 'bodily' or 'physical' but which necessarily excluded an injury which was only 'mental'. There can be no doubt, at the present day, that this theory is wrong."

Chronologically, in the chain of English Shock Cases, Donoghue v. Stevensun (1932) fits in here. "In that case a manufacturer or ginger beer sold his ginger beer in opaque bottles. A snail had crept into one of the bottles which the manufacturer filled and corked up without noticing the presence of the snail which could not be seen as the bot*le was opaque. It was held that the manufacturer was liable for the injury caused to the retailer's customer who ultimately drank, the contents of the bottle". (Facts as digested in Halsbury's Laws of England, Second Edition, Volume 10). The plaintiff in this case suffered from shock and gastroenteritis. In a suit by the plaintiff to recover damages it was held that the defendants were liable.

The two important pronouncements of the post-Donoghue period are Hay v. Young (1943) and King v. Philips (1953) I All E. Reports 617. In the former case a woman who was in the family way suffered from fright and shock on account of notice produced by the collision between a motor cycle and a motor car. A month later she delivered a still born child In as much as she did not see the accident, standing about 45 feet from the point of impact and she being not within the area of potential danger and the duty of the motor cyclist being to drive with such reasonable care as would avoid risk of injury to such persons as he could reasonably foresee, the House of Lords held that she was not entitled to recover In King v. Philips (1953) a taxi driver negligently backed his cab without looking where he was going and ran into a small boy on a tricycle. His mother who was in her house seventy or eighty yards away, heard him scream and looking out of the window, saw his peril. She suffered nervous shock. It was held that the shock was too remote to be ahead of damage. "The court of appeal affirming the decision of Mc. Nair J, held that the defendant was under no liability to the mother. Singleton L. J. approved of the observations of Atkin, L. J, in Hambrook y. Stokes but he thought that the case was distinguishable because there the mother was on the highway and not up a side street as in the present case. Denning L. J thought that Hambrook v. Stokes was not overruled by Hay v- Young and that the two decisions should be reconciled. The learned Lord Justice distinguished Hambrook v. Stokes on the ground that the slow backing of the taxicab was very different from the terrifying descent of the runaway lorry. The taxi cab driver could not reasonably be expected to have foreseen that his backing would terrify a mother 70 yards away whereas the lorry driver ought to have foreseen that a runaway lorry might seriously shock the mother of children in the danger area. Denning L. J., summed up the effect of care law on the subject thus: Wife or mother who suffers shock on being told of an accident to a loved one cannot recover damages from the negligent party on that account. Nor can a bystander who suffers shock by witnessing an accident from a safe distance. But if the bystander is a mother who suffers from shock by hearing or seeing with her own unaided senses that her child is in peril that she may be able to recover from the negligent party even though she was in no personal danger herself. Hodson L. J, rested his decision on the ground that in the absence of admission of negligence in Hambrook v. Stockes, Lord Thankorten, would not have approved of it in Hay v. Young (Venkoba Rao-Coundrum presented by Shock Cases).

The Indian Case-Law on the point is very sparse and sporadic. In Governor-General in Council v. Surajmal Esarka (A. I. R. 1949Nagpur 256) there was a very minor accident on the railway; a sentinel coach in which the plaintiff was travelling callided with a stationary goods train. Ail that occurred was that the cow-catcher of the coach got entangled with the couplings of the last wagon of the goods trian and was slightly broken. The plaintiff's eye and thigh were bruised and he had a slight scratch on the right foot. Bose J. observed: "Now it may be conceded that a person of normal fortitude might suffer slightly from shock in these circumstances. Now as far as the general damages go we are not able to interfere because mental pain and so forth are not matters which can be gauged in terms of money or money’s worth. We concede that the circumstances are such that a normal man might suffer from a slight temporary shock. He would be entitled for compensation for such suffering. What that should be is a matter on which men will differ widely. Accordingly following the usual practice we do not intend to interfere". Earlier after referring to Victorian Railways Commissioners v. Coultas His Lordship observed:" even if we do not apply the restricted rule laid down by Their Lordships we decline to open wide the flood gates to special and exceptional cases, many of which rest on the border line of the imaginary . The law and particularly a law of this kind must be founded on firm commonsense where ordinary reasonable men, with normal healthy constitutions and of normal fortitude and courage deal with each other".

The next noteworthy case is Mrs. Halliguav. Mohansundaram (1951, II M. L. J. 47l). The plaintiff and her husband who is a well to do merchant and landlord at Cochin and belonging to the community of Cochin Jews came on a four day visit to Madras They engaged the first defendant's taxi and the taxi driver after driving to the Caltex petrol bunk next to Messrs Lawrence and Maye, Ltd. on the Mount Road and after filling up the petrol was crossing the road to Bosoitos when a tram car proceeding towards the Mylapore side collided with the taxi and smashed up the front portion of the car. Mrs. Halligua immediately after collision was seized by what appears to have been a very severe pain in her arms and hands. It was only after a period of five months that she was able to use her arms and ringers. Even then she was unable to bend her right little finger which according to medical evidence was likely to be a permanent deformity. In an action laid by the plaintiff against the taxi owner who in his turn impleaded the Insurance Company as second defendant, for damages for bodily injury, pain and mental shock the defendants were held liable. Mack J. after referring to the view of Atkin L.J. in Hambrook v. Stokes Brothers observes: "With great respect I have no hesitation in following the view of Atkin, L.J................I fully appreciate the difficulty in estimating^; damages claimed by reason of shock............It is not possible to lay down any hard and fast rule and each case has to be dealt with on its own merits. I think the trend of English Case law having exploded the old view that damages cannot be claimed on the basis of nervous shock attributable to negligence, Indian Case Law based on old English decisions should in this domain of law have a similar orientation".

For a judicious summing up of Indian Case Law on this point we have yet to wait and see the march-past of judicial consensus for some more time.

HER HOARY MAJESTY-- THE LAW

(T. G. John, Advocate, Trichur)

Law it is said, is a very proud and jealous mistress. While she sweeps aside with a jerk and a caution those romping, roving and rapacious Don Juans and Casanovas who oggle ravenously at her, she is bountiful and nurtures with due alacrity those who approach her in the right royal way. Here is a domain not for bally ragging rapscallions but for the gentle and the bashful who woo her ardently with a song in their hearts. She is never pugnacious but always pulsates with cherubic enthusiasm scintillating an' aura of peace and goodwill wherever she goes. Her creed -- to set right wrongs done to others. And today while she ruminates over the past chiliads of years, she can only smile with some reticence even at King Solomon in all his glory attempting to solve a complicated question of disputed parentage by a 'simple and sure' child-cutting farce, as only a faddish fantasy of yesterday.

There is however one solitary instance which looms large before us where Her Majesty played a double game with one of her most passionate and illustrious suitors. Himself a bad and despicable character, his very name gives a jolt to the whole of humanity even today. In a mad endeavour to save the Majesty of Law, he had to 'wash his hands' without water. The man is Pontius Pilate, Pontius Pilate was a great jurist. He was a bad character but he knew the law of the land. "Lord Shaw of Dunfermline, in a remarkable study of the Trial of Jesus Christ, has sketched how the Sanhedrin flouted the Jewish traditions of a fair trial, since embodied in the Talmud. Under that law-as in ours-an accused person could not be condemned out of his own mouth. But this salutory safeguard was ignored and Jesus was questioned by his accusers and on his answers they pronounced him guilty-when he was no. However the Sanhe­drin could not pass sentence of death and they remitted the case to Pilate, the Roman Governor. Pilate had a bad record but he knew his law. He saw that the trial was riddled with irregularities illegal arrest, trial by night and inadmissible evidence. All that was obnoxious to the Hebrew Law and jurisprudence-of Rome. A defiant mob was at his gates, clamouring for the blood of Jesus, but Pilate had no hesitations whatsoever. He quashed the proceedings. At that moment he upheld the Majesty of Law and vindicated the right of the subject to its protection" (Naga Rajan -- Norton Endowment Lecture).

The rest of the story is briefly told. Jesus Christ on the crucifix pleaded for a general amnesty for all those who were involved in his trial and crucifixion because, they 'knew not what they were doing'. In quashing the proceedings and at the same time "washing his hands" and leaving Jesus to an infuriated mob it could never be said that Pilate did not know the full implication of what he was doing. That is why pious Christians even today believe that Pilate was never a beneficiary of the general amnesty pleaded for by Jesus on the Cross. The great sequel is that Pontius Pilate lost heaven because he was a great jurist.

JUDICIAL TAXATION WHETHER JUSTIFIABLE.

(S.Sasthankutty Pillai B- A., B. L., Advocate, Nagercoi)

1. Taxation byway of Court fee is being levied from parties throughout the world. But it is a matter to be seriously considered whether such taxation is justifiable and whether it should be continued.

2. Indian Union is considered to be one of the progressive States in the world. But in no part of the world such high fees are being levied as in India and in the Madras State the highest fee is being levied than in any other part of India Though the principle is that all fiscal statutes should be strictly construed and in cases of doubts and ambiguities interpretation should be in favour of the subject, in actual practice we find the other way Some courts assume the role of a taxing officer and try to exact as much as possible from the party. To set aside an adverse order on court fee by taking it in revision it will cost the party a very large sum, which in certain cases will be more than the amount that he may have to pay as ordered by the court.

3 The idea of taxing the litigant public to deal justice is against all notions of justice and that in a democrats; State It is the primary and the foremost of the duties of a State to administer justice to the parties and that without any remuneration. Generally the aggrieved party comes to court with a complaint, that he is wronged, that injustice has been done to him and that he should get redress through court. But the State makes a bargain and says, "pay our dues, then we will hear you." The party is in difficulties and he must undergo further trouble in raising the necessary funds for payment to the State. The aggrieved party is not always in affluent circumstances. Demanding Court fee from him is nothing but exploitation of his difficulties or to put it mildly it is doing business in litigation. The State should not be doing business in the administration of justice. Dealing out justice is a sacred duty imposed on the State. Otherwise there is no "difference between the State and the trader who sells commodities to his customers for ready cash payment. The trader hands over some concrete material to his customer in exchange for the price paid. But what do the litigants get in Courts of justice? It can be said that they get declarations and decrees. By the mere payment of institution fee the party does not get justice. The entire burden of proof and the conduct of the litigation is on him. The presentation of plaint in accordance with law, production of records, examination of witnesses, engaging a pleader for the conduct of the case, to argue it and place the matter before court are all his work. He has to incur further expenses for getting copies of Court records, for battas for the issue of commissions and several other innumerable payments. If no evidence is produced or if the evidence produced is inadmissibe the party looses his case, though his claim may be true in fact. For getting a decision that the party has not proved his case or that he has not conducted the case efficiently so as to bring conviction to the court he has to pay the stipulated dues and meet all other expenses. In our courts we get only legal justice; justice according to law and legal evidence. Courts of law have no responsibility in the decision of cases according to truth. Courts of law have their own limitations, the law of Limitation, the Evidence Act and the Procedure Codes and other enactments, control the courts. With these limitations they can give only such justice. Decision in accordance with truth in many cases is a mere chance. Very often the intelligent and powerful win and the weak and the poor loose. Dr. Rajendra Prasad in his article in "Young India" has observed as follows: "litigation has come to be regarded and rightly so as a sort of gambling; however true your cause, however true your case, you cannot be sure of winning it", See Extract of the article in Justice P. N. Rama-swamy's Magisterial and Police Guide, Volume I, page 201.

4. The levy of Court fee and other charges from the litigant public is of recent origin, after the British rule began in India. Under the Hindu Kings, a suitor was not required to bring his action in a court of justice by the precious payment of a duty in the shape of stamps as court fee just as one has to do at the present day, nor was any procees fee levied from him. The King entertained all complaints and enquired them. The King's attendant performed the duties of the peon and the process server. The Hindu Sovereigns regarded it his paramount duty to administer justice without any idea of remuneration. From the texts of the ancient Hindu Law-Givers such as Manu, Naradha, Yejnvalkva and Vishnu we find that no court fee was levied, but the defeated party had to pay a sum by way of fine to the successful party and out of that a portion was paid to the sovereign. During the Mohamedan rule prior to and subsequent to the Mughal period the administration of justice by the State was free. The local authorities and the Kazies of the provinces were entrusted with the administration of justice. Appeals were provided to the Chief Kazy. The parties can also get justice direct from the Emperor in person for which the Emperor had fixed certain days in a week. But aggrieved parties were never charged with any tax for giving them justice. History tells us that during Moghal period there were other taxes illegal and improper according to modern ideas such as the poll tax. But administration of justice was free and considered to be one of the primary duties of a sovereign.

5. In the early period of the British supremacy in India there was no tax on litigation. But subsequently on the pretext that frivolous and vexatious litigation should be controlled, the British Government began enacting laws imposing tax on the litigant. In Madras, court fee was first levied as per Regulation III of 1782, in Bengal court fee was first levied as per Regulation XXXVIII of 1795; in Bombay it was introduced in 1802; in the Native State of Travancore it was first introduced as per Regulation I of 1010 M. E. Before that, the State was defraying all the expenses of the judicial establishment in consonance with the accepted idea that it is the duty of the State to administer justice to the subjects free of cost.

6 .Levy of court fee is sought to be justified on the ground that the expenses incurred for the establishment of law courts, its maintenance and up-keep should be realised from the litigants who seek its help. That the object of the court fee Act is to levy fees for the services rendered by courts and public officers is expressed in some of the decisions of our High Courts. See I. L.R. 32 Madras 305 at page 311. But levy of Court fee by the State in exchange for justice is strongly condemned by jurists like Bentham. According to Bentham it is the primary duty of the State which is responsible for all the litigations to decide it without taxing the party. There are contrary views also. Another ground urged for its justification is that this is one of the sources of income to the general finance of the State. The observation of justice Manu k in 49 Indian Cases 442 at page 449 is to this effect. But this view is uniformly condemned as unjust. When the Court Fee Bill was first introduced in the Indian Legislative Council, the eminent jurist Maine strongly condemned the policy of taxing litigants for the benefit of the general finance of the State. Chief Justice Leach, of the Madras High Court in his farewell address to the Madras Bar, on the eve of his retirement has observed, that making of profit by administering justice cannot be justified on any ground

7. Every State is incurring a good deal of expenditure on the judicial establishment. But that is no justification for imposing any tax on the unfortunate litigant public. Litigants who come to courts are generally in difficulties and to tax such people is cruel. For meeting the expenses of the State in connection with the administration of justice, the State must look to the general finance and not to the litigant. There are innumerable sources of income to the State and new sources are being tapped day by day Innumerable taxes unknown to ancient society are being collected today. These taxes hit each and every individual in the State including the litigant. But from whatever source the revenue is taken, the State as the sovereign body is bound to dispense justice and refrain from taxing the unfortunate section of the public who happen to be litigants.

6. There are a few provisions in the Civil Procedure Code which exempt poor parties from payment of institution fees. Order XXXTII C. P. C exempts pauper plaintiffs from payment of court fee on plaint; and Order XLIV exempts pauper appellants from payment of court fees on appeals: but pauper plaintiffs and appellants have to meet all other expenses. Order 33 and 44 C. P. C. are only a postponement of the payment of fees; it will be realised by the State from the patties.

9. It is high tine for the public to agitate and the authorities to consider the removal of all tax so litigations, by repealing the Court Fees Act, as early as possible

THRENODE ON THE INDIAN WITNESS

(T. G. John, Advocate, Trichur)

"The other evidence in this case is hardly deserving of notice -- It consists of that sort of testimony with which, in these Indian Cases, we are unfortunately too familiar -- of witnesses who swear positively to matters of which they can have no knowledge; of witnesses who swear that they have heard the alleged Testator, after the date of his Will, declare that he had never made one; that they had heard the persons who had been parties to the instrument gratuitously declare to them that it was a forgery; of witnesses who declare that they had been solicited by the party in the cause or his agents, to attest instruments, which they were told at the same time were fabricated. Witnesses of this description may be had unhappily for India, in any number in that country".

Lord Kingsdown (1862)

IX Moore's Indian Appeals 99.

"However much the want of trustworthiness in the evidence of rases from

India is to be regretted, ........ himself".

Sir John Romilly (1864)

X Moore's Indian Appeals 151.

When Lord Kingsdown and Sir John Romilly made the above observations in the two judicial pronouncements of the Privy Council, there was some murmur behind the arras Sceptics scented a tinge of nationalism in them; while our patriotic ancestors found solace in thinking that it could only be ‘the colonial shop-keeper' in their Lordships that spurted them to sing this threnodic canzonet about the Indian witness. About a century has rolled by -- a democratic republic has been formed -- India has framed its own Constitution but the Indian witness is still on the cross-roads -- a huge challenge to truth and justice. The lascivious tradesman still waddles into courts of law with his tax-evading 'junk' of account books as primary evidence; neighbours oblige neighbours by indulging in venal perjury; in short, there is a never-ending train of these scoffers of truth getting in and out of the witness-box every day, every moment in our courts of law. The millionaire who utters three truths and one falsehood to complete his case; the pauper who negotiates three falsehoods adding a grain of truth to shape his case -- all of them file out of the witness-box and join the motley crowd to syncope a symphonic epilogue to the saga of sempiternal moral depredation.

It may be that the average Englishman of today is thinking of nothing but rock'n'roll and jazz bands, but that is no reason why his Indian brother 'steeped and soaked' as he is in a rich cultural heritage of his own, shall try to boost perjury from an art to a fine art. The modern perjurer has stolen a march over his counterpart as described in the Mitakshara -- no 'visible feature of unea­siness about him or a feeling that he is in fear of some persons who have been sent to watch his evidence. He is stoic, calm and deliberate and he does his job 'heroically'. Either these multitudes have never been taught to know Truth or if once they were taught they have never been retaught or re-warned. The witness who perjures for prestige to brow-beat a cross-examining advocate -- he 'wage-earner' who is under orders to speak to cases -- the suborner who bribes people and creates evidence by putting them 'on the spot' -- they are all seams of c he same garment.

It is time a regular cannonade is made against these fiendish poops. Let our courts of law be more vigilant in launching prosecutions and awarding deterrent sentences against perjurers and fabircators of false evidence. And as for our part, let us never be passive suborners by 'making suggestions' while interviewing witnesses (which we sometimes have to) and stand by these scalawags. For, ours is a nobler mission and in the resonant words of Justice Crampton in The Queen v. O' Connel, an advocate shall ever bear in mind 'that if he be the advocate of an individual and retained and remunerated for his valuable services, yet he has a prior and perpetual retainer on behalf of truth and justice; and there is no crown or other licence which in any case or for any party or purpose can discharge him from that primary and perpetual retainer'. And according to Lord MacMillan, nobody has expressed it in more eloquent words.

Article 226, Subordinate Courts and Radhey Shyam & Anr. v. Chhabi Nath & Ors. 
 —2015 (1) KLT 1032 (SC)

(By B.Premnath, Advocate, High Court of Kerala, Ernakulam)

1. The power of judicial review under the Constitution of India is its very heart without which the rights provided under the Constitution would be meaningless. The power conferred under Article 226 to issue the writs including certiorari, is not confined to Courts and tribunals, but to “any person or authority in its territories including the Government”. It was held by a Constitution Bench of the Hon’ble Supreme Court in Engineering Mazdoor Sabha & Anr. v. Hind Cycles Limited(AIR 1963 SC 874)  that the power conferred on the
High Courts under Article 226 to issue the writs is wider than Article 136, as it is not conditioned or limited by the requirement that the writs can be issued only against the orders of Courts or Tribunals.

2. The ancestry of Article 226 of the Constitution can be found in the writ jurisdiction granted by the Letters Patent, which established a Court of Record called “the Supreme Court of Judicature at Fort Willams”, in Bengal, in 1774. It stated inter alia: “...all and every
the said Courts and Magistrates shall be subject to the Order and Control of the said Supreme Court...in such Sort, Manner, and Form, as the inferior Courts and Magistrates of, and in...England, are by Law subject to the Order and Control of Our Court to King’s Bench; to which End the said Supreme Court...is hereby empowered and authorised to award and issue a Writ or Writs of mandamus, certiorari procedendo, or Error,to be prepared in Manner above-mentioned, and directed to such Courts or Magistrates, as the cases may require...”

3. In the year 1798 as per a Charter, the power to issue writs of the said nature came to be vested on the Recorder’s Courts which were established in Bombay and Madras. These Courts were conferred with a jurisdiction similar to that of the Court of King’s Bench “as far as circumstances would admit.” In the year 1823, by another Charter, Supreme Courts were created in place of Recorder’s Courts in Bombay and Madras with the very same powers and restrictions that applied to the Supreme Court in Fort Williams.

4. The Indian High Courts Act, 1861 established High Courts by fusing the Supreme Courts and Sadr Adalats in the three Presidencies, known as the “Chartered High Courts”. The only other Chartered High Court established under that Act was the High Court of Judicature for the North-Western Provinces at Agra in 1866 which was shifted to Allahabad in 1869. It was re named as High Court of Judicature at Allahabad, in 1919. It replaced the Sadr Diwani Adalat. The Supreme Courts were abolished by that Act and Sections 9 and 10 of the Act granted the same jurisdiction as that of the Supreme Court. Section 106 of the Government of India Act, 1915 preserved the jurisdiction, powers and authority vested in the Courts existing at the time of commencement of that Act, which was carried over by Section 233 of the Government of India Act, 1935. When Constitution of India came to being, the pre-constitutional power to issue writs was engrafted in to Article 226, but with wider dimensions. The Article was amended by the 42nd, 43rd and 44th amendments to its present form.

 5. In contrast, Article 227 of the Constitution of India evolved from Section 15 of the High Courts Act, 1861; Section 107 of the Government of India Act, 1915 and Section 224 of the Government of India Act, 1935. Clause (1) of Sections 107 & 224 empowered every High Court to have superintendence over all Courts in India for the time being subject to its appellate jurisdiction. Clause (2) of Section 224 further narrowed down the power of superintendence exempting the judgment of any inferior Court which is not otherwise subject to appeal or revision, from its purview. But when Article 227 was adopted in the Constitution, the said restrictions were absent. The Forty Second Amendment Act, 1976 brought back clause (1) and clause (2) in Section 224 of the Government of India Act, 1935. The Forty Fourth Amendment Act, 1978 transformed Article 227 to its present form.

6. The power of superintendence under Article 227 is confined to Courts and tribunals over which the High Court exercises jurisdiction. It comprises both judicial and administrative control. The power under Articles 226 and 227 may over lap but it is not the same power. Rajamannar C.J., in Gangalakurthi Pattisam, in Re(1953 SCC Online Mad.305)
observed : “But it is not difficult to conceive of cases to which Article 226 may not be applicable, but Article 227 might be applied. Take the case for instance, where the High Court feels that in the interest of justice and to avoid multiplicity of proceedings there should be a stay of proceeding pending before a tribunal till the disposal of a suit pending in a Civil Court. Article 226, according to the Supreme Court cannot be invoked for the sole purpose of obtaining an interlocutory order vide The State of Orissa v. Madan Gopal(AIR 1952 SC 12).
But under Article 227 in exercise of the power of superintendence, the High Court may well direct such a stay.”

7. The words “any person or authority” in Article 226 was interpreted by the Supreme Court in Andi Mukta Sadguru Sree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust & Ors. v. V.R.Rudani & Ors.(1989 (2) KLT OnLine 1002 (SC) = (1989) 2 SCC 691)
where it was held : “The words” any person or authority”, used in Article 226 are, therefore, not to be confined only to statutory authorities and instumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists, mandamus cannot be denied”. Drawing the ratio from this case, Supreme Court in K.K.Saksena v. International Commission on Irrigation and Drainage & Ors.
((2015 (2) KLT Suppl.112 (SC) = (2015) 4 SCC 670) held: “The guiding factor, therefore, is the nature of duty imposed on such a body, namely, public duty to make it exigible to Article 226”.
It was further held: “If a person or authority is “State” within the meaning of Article 12 of the Constitution, admittedly a writ petition under Article 226 would lie against such a person or body. However we may add that even in such cases writ would not lie to enforce private law rights.................A private law is that part of a legal system which is a part of common law that involves relationships between individuals, such as law of contract and torts. Therefore even if Writ Petition would be maintainable against an authority, which is “State” under Article 12 of the Constitution, before issuing any writ, particulary writ of mandamus, the Court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as distinguished from private law”.

8. A three Judge Bench inDwaraka Prasad Agarwal (D) by Lrs & Anr. v. B.D.Agarwal & Ors.(2003) 6 SCC 230) opined: “A Writ Petition is filed in public law remedy. The High Court while exercising power of judicial review is concerned with illegality, irrationality and procedural impropriety of an order passed by the State or a statutory authority. Remedy under Article 226 of the Constitution of India cannot be invoked for resolution of a private law dispute as contra distinguished from a dispute involving public law character.”

9. In Binny Limited & Anr. v. V.Sadasivan & Ors. (2005 (4) KLT 315 (SC) = (2005) 6 SCC 657)
it was held: “However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, neverthless, there must be the public law element in such action”. The Court quoted from Halsbury’s Laws of England,3rd Edition, Volume 30, Page 682: “1317. A public authority is a body, not necessarily a county council, municipal council or other local authority, which has public or statutory duties to perform and which perform those duties and carries out its transactions for the benefit of the public and not for private profit”. However, a very wide interpretation was given by the Supreme Court in Board of Control for Cricket in India v. Cricket Association of Bihar & Ors. (2015 (2) KLT SN 98 (C.No.114) SC = (2015) 3 SCC 251)
that as BCCI, though not a “State” under Article 12, is a private body which discharges public functions, writ petition is maintainable against it under Article 226 of the Constitution of India. In that judgment, the ratio in Zee Telefilms Ltd v. Union of India((2005) 4 SCC 649) that the duties of BCCI like the selection of Indian Cricket Team, controlling the activities of the players and others involved in the game of cricket are akin to public duties, was followed and it was held that as BCCI is having a pervasive control over the game and its affairs and such powers as can make dreams end up in smoke or come true cannot be said to be undertaking any private activity. It is submitted that the said finding is far fetched in view of the fact that BCCI is not discharging any duty it owes to the public. The activities of BCCI can only be said to be in the realm of private law and therefore the public law remedy under Article 226 cannot be invoked against it.

10. In Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil (2010 (3) KLT SN 86
(C.No.90) SC = (2010) 8 SCC 329) it was held that: “All the respondents in a Writ Petition cannot be private parties. But private parties acting in collusion with State can be respondents in a Writ Petition. Under the phraseology of Article 226, High Court can issue writ to any person but the person against whom writ will be issued must have some statutory or public duty to perform”. Relying on Mohd. Ikram Hussain v. State of U.P.(AIR 1964 SC 1625), the Apex Court in Shalini Shyam Shetty(2010 (3) KLT SN 86 (C.No.90) SC = (2010) 8 SCC 329) opined that it is only a writ of Habeas Corpus which can be directed not only against the State but also against a private person.    

11. The question whether the writs can be issued against a private person under Article 32 of the Constitution for enforcement of the fundamental rights, arose in People’s Union For Democratic rights & Ors. v. Union of India & Ors. (1982) 3 SCC 235) in the issue regarding forced labour, prohibited under Article 23 of the Constitution of India. Supreme Court held that Article 23 is clearly designed to protect the individual not only against the State but also against other citizens. It is further held that the fundamental rights under Articles 17, 23 and 24 are enforceable against the whole world. That was a case where directions were issued to ensure that there are no violations of the provisions of Labour Laws and the workmen are not denied the rights and benefits to which they are entitled under such provisions. Indubitably the said ratio can be imported to the jurisdiction under Article 226 as it is similarly worded or rather more extensively worded than Article 32. In Rohtas Industries Ltd. & Anr. v. Rohtas Industries Staff Union & Ors. ((1976) 2 SCC 82) a three Judge Bench of the Supreme Court held that the Arbitrator’s award under Section 10-A
of the Industrial Disputes Act, 1947 can be set aside under Article 226 if there is error of law on the face of the award, though the Arbitrator is not a Tribunal under Article 136, being a quasi statutory authority. In T.Gattiah v. Commissioner of Labour(1981 (1) AP LJ 280)
and Sarvaraya Sugar Ltd & Ors.v. A.P. Civil Supplies Corporation Ltd & Ors.(AIR 1981 A.P. 402)
the ratio in Rohtas Industries Ltd.((1976) 2 SCC 82) was wrongly interpreted as a writ can be issued against a private person also. T.Gattiah(1981 (1) AP LJ 280)  was emphatically dissented in Pritam Singh Gill v.State of Punjab & Ors. (AIR 1982 P.&H. 228 (F.B.). The Full Bench of Punjab and Haryana High Court after exhaustive deliberation, held that “public capacity and a duty to act judicially is still the paramount consideration for the issuance of a writ of certiorari”.

12. The writ of certiorari, originated in England, was one of the writs in the armory of the King, issued in his prerogative power of superintendence over officials and Tribunals for duly obeying the law. The history of the writ was traced by the Privy Council in Ryots of Garabandho v. Zamindar of Parlakimedu (AIR 1943 PC 164) “The writ is so named because, in its original Latin form, it required that the King 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 exercise of the jurisdiction of the inferior tribunal should be properly exercised. The 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 a judicial act, as distinguished from a ministerial act, certiorari will lie”.

13. Referring to Halsbury, learned author Sri.H.M.Seervai, in his seminal work on the Constitutional Law of India, opines that whereas mandamus is not restricted to persons charged with a judicial or quasi judicial duty, prohibition and certiorari can be issued only if the person, body or tribunal is charged with judicial or quasi-judicial duties. Therefore it will not be issued against a private person. Prof.De Smith opines: “Certiorari will not issue to persons or bodies who claims to exercise a jurisdiction without any colour of legal authority, for the actions of usurpers are a nullity and do not require to be set aside”.

14. The power of the High Courts under Articles 226 & 227 was considered by the Hon’ble Supreme Court in Surya Dev Rai v. Ram Chander Rai & Ors. (2003 (3) KLT 490 (SC) =(2003) 6 SCC 675) which posed the question as to what is the impact of the amendment in Section 115 of the Code of Civil Procedure, 1908 brought in by Act 46 of 1999 with effect from 1.7.2002 on the power and jurisdiction of the High Court to entertain petitions seeking a writ of certiorari under Article 226 of the Constitution or invoking the power of superintendence under Article 227 of the Constitution as against similar orders, acts or proceedings of the Courts Subordinate to the High Courts, against which earlier the remedy of filing Civil Revision under Section 115 CPC was available to the persons aggrieved. The Bench expressed a doubt that whether an aggrieved person is completely deprived of the remedy of judicial review, if he has lost at the hands of the original Court and the Appellate Court though a case of gross failure of justice having been occasioned, can be made out. After a survey of case law and the historical background of the writ of certiorari, it was held that certiorari is issued for correcting gross errors of jurisdiction; when a subordinate Court has acted without jurisdiction-by assuming jurisdiction where there exists none, or in excess of its jurisdiction-by over stepping or crossing the limits of jurisdiction, or acting in flagrant disregard of law or rules of procedure or acting in violation of principles of natural justice where there is no procedure specified and thereby occasioning failure of justice. The Court cautioned that the power to issue writ has to be exercised sparingly, only in appropriate cases. It was also held that mere errors of fact or of law cannot be corrected by the writ of certiorari. It was also held that supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the Subordinate Courts within the bounds of their jurisdiction.

15. Radhey Shyam & Anr. v. Chhabi Nath & Ors.(2009 (2) KLT Suppl.1200 (SC) =
(2009) 5 SCC 616) another Bench of equal strength doubted the proposition that judicial orders passed by a Civil Court can be examined and then corrected/reversed by the Writ Court under Article 226 in exercise of its power under a writ of certiorari and referred the matter for consideration by a larger Bench. It was opined that Surya Dev Rai((2003) 3 KLT 490 (SC)
= (2003) 6 SCC 675) is contrary to the ratio of a nine Judge Constitution Bench decision Naresh Shridhar Mirajkar v. State of Maharashtra (1966 KLT OnLine 1204 (SC) = AIR 1967 SC 1).
Reference order in Radhey Shyam((2009 (2) KLT Suppl.1200 (SC) = (2009) 5 SCC 616) refers to cases where it was held that private rights of parties cannot be declared in writ jurisdiction. Surya Dev Rai((2003 (3) KLT 490 (SC) = (2003) 6 SCC 675) also equally sounded a note of caution in usurping the jurisdiction under Article 226 for that purpose.

16. The conclusion in Mirajkar ((1966 KLT OnLine 1204 (SC) = AIR 1967 SC 1) was culled out by the reference order ((2009 (2) KLT Suppl.1200 (SC) = (2009) 5 SCC 616) as “certiorari does not lie to quash the judgments of inferior Courts of Civil Jurisdiction”. But in Mirajkar ((1966 KLT OnLine 1204 (SC) = AIR 1967 SC 1), that sentence was quoted from Halsbury’s Laws of England, observing that the history of that writ is being incidentally referred to. Actually, in a later edition of Halsbury’s Laws of England, (4th Edition (Re issue), Volume ((1), Para 103), as quoted in the Constitution Bench decision Rupa Ashok Hurra v. Ashok Hurra & Anr.(2002 (2) KLT SN 76 (C.No.91) SC = (2002) 4 SCC 388), it is stated : “109. Certiorari lies to bring decisions of an inferior Court, tribunal, public authority or any other body of persons before the High Court for review so that the Court may determine whether they should be quashed or to quash such decisions.” The Constitution Bench in T.C.Basappa v. T.Nagappa & Anr. (1954 KLT OnLine 1001 (SC) = AIR 1954 SC 440) cautioned that “in view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English Law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English Law.”

17. The Constitution Bench in Mirajkar ((1966 KLT OnLine 1204 (SC) = AIR 1967 SC 1)
was not deciding the question whether certiorari lies to quash the judgments of inferior Courts of Civil jurisdiction. In Mirajkar((1966 KLT OnLine 1204 (SC) = AIR 1967 SC 1) the questions posed were, “whether a judicial order passed by the High Court prohibiting the publication in newspapers of evidence given by a witness pending the hearing of the suit, is amenable to be corrected by a writ of certiorari issued by this Court under Article 32(2)”. The question was further broadened to: “Does the impugned order violate the fundamental rights of the petitioners under Article 19(1)(a),(d) and (g); and if it does, is it amenable to
the writ jurisdiction of the Supreme Court under Article 32(2)”. Regarding the question whether the impugned order in Mirajkar((1966 KLT OnLine 1204 (SC) = AIR 1967 SC 1) violates the fundamental rights, it was held : “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 the citizens under Article 19(1)”.
On the issue of directing a writ of certiorari to the High Court, P.B.Gajendragadkar, C.J., speaking for the majority, held that: “having regard to the fact that the impugned order has been passed by a superior Court of record in the exercise of inherent powers, the question about the existence of said jurisdiction as well as the validity or proprietory of the order cannot be raised in writ proceedings taken out by the petitioners for the issue of a writ of certiorari under Article 32.” A.K.Sarkar, J, concurred and held that “I find great difficulty in thinking of the High Courts as Courts of inferior jurisdiction........” “when a Court has the power to issue writ, it is not, according to the fundamental principles of certiorari, an inferior Court or a Courts of limited jurisdiction”. It was concluded that the Supreme Court has no power to issue a writ of certiorari to a High Court.

18. The three Judge Bench in Radhey Shyam & Anr. v. Chhabi Nath & Ors.
(2015 (1) KLT 1032 (SC) = (2015) 5 SCC 423) answered the question raised in the reference order ((2009 (2) KLT Suppl. 1200 (SC) = (2009) 5 SCC 616) and held that the judicial orders of the Civil Court are not amenable to writ jurisdiction under Article 226 of the Constitution and that jurisdiction under Article 227 is distinct from Article 226. Thus the contrary view in Surya Dev Rai (2003 (3) KLT 490 (SC) = (2003) 6 SCC 675) was overruled. It held: (a) Broad principles of writ jurisdiction followed in England are applicable in India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of Tribunals or authorities or Courts other than judicial Courts. (b) There are no precedents in India for the High Courts to issue writs to the Subordinate Courts. (c) Control of working of the Subordinate Courts in dealing with their judicial orders is exercised by way of appellate or revisional powers or power of superintendence under Article 227. (d) Orders of the Civil Court stand on different footing from the orders of authorities or Tribunals or Courts other than judicial Courts. (e) Where appellate or revisional jurisdiction is regulated by the statutes, power of superintendence under Article 227 is constitutional. (f) The expression “inferior court” is not referable to the judicial Courts. (g) Judicial orders of the Civil Court are not amenable to writ jurisdiction under Article 226 of the Constitution. (h) Jurisdiction under Article 227 is distinct from jurisdiction under Article 226.

19. In order to ascertain its meaning of the term “Court”, the definition of “Court” in Section 3 of the Indian Evidence Act, 1872 will be of help but it is not exhaustive as it is so defined for the purpose of that Act. “Court” originally meant the Palace of the King. In Stephen’s Commentaries on the Laws of England, it is stated that, “in every Court, there must be at least three constituent parts : the actor, reus and judex; the actor, who complains of an injury done; the reus or defendant, who is called upon to make satisfaction; and the judex or judicial power, which is to examine the truth of the fact and to determine the law arising upon the fact and if any injury appears to have been done, to ascertain, and by its officers to apply, the remedy.” It can only be concluded therefore that the Subordinate Courts contemplated under our Constitution are “Courts”, as there is exercise of judicial power which examines the truth of facts involved and the law to be applied and a decision is reached thereafter.

20.  What is a judicial decision and what is a “Court” was answered by the Constitution Bench of the Hon’be Supreme Court in Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi and Bharat Bank Employees’ Union, Delhi(AIR 1950 SC 188) while deciding
the question whether Article  136 of the Constitution contemplates a determination by the Industrial Tribunal, the Bench quoted with approval the passage from Cooper v. Wilson(1937(2) KB 309) : “A true judicial decision pre-supposes an existing dispute between two or more parties, and then involves four requisites : (1) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal argument by the parties; and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law. A quasi-judicial decision equally pre-supposes an existing dispute between two or more parties and involves (1) and (2) but does not necessarily involve (3) and never involves (4). The place of (4) is in fact taken by the administrative action, the character of which is determined by the Minister’s free choice.”

21. With great respect, lack of precedents should not have strained the Court in deciding the issue. The scheme of the Constitution of India should have been adverted to. Article 226 of the Constitution of India grants power to the High Courts to issue to any person or authority in its territories including the Government, orders or writs including the writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. The words “orders or writs including writs in the nature of “ expands the power of the High Court to issue writs other than those specified therein. Thus the Constitution of India has conferred on the High Courts powers greater than the Courts in England. In that sense the jurisdiction of the High Courts under Article 226 is new. Going by the language and the expanse of Article 226, it applies to each and every authority including the Courts in the territories within which the High Court exercises its jurisdiction.

22. Article 214 of the Constitution declares that “there shall be a High Court for each State” and then the other Courts in a State are described as “Subordinate Courts”, dealt with under Chapter VI of Part VI. Our Constitution does not make a distinction between Civil Court and other Courts in Chapter VI titled “Subordinate Courts.” Civil Courts are not treated as a class apart from other Courts. Articles 233 to 237 show that the control of the Subordinate Courts in the State in which it exercises its jurisdiction, is vested in the High Court of the State and it is complete. Articles 233 and 234 prescribe that the appointments of Judges to the judicial service of the State shall be made after consultation with the High Court. Article 236(b) defines “judicial service” as a service consisting exclusively of persons intended to fill the post of District Judge and other Civil judicial posts inferior to the post of District Judge. The expression “District Judge”, as per Article 236(a), includes Judge of a City Civil Court, Additional District Judge, Joint District Judge, Assistant District Judge, Chief Judge of a Small Cause Court, Chief Presidency Magistrate, Additional Chief Presidency Magistrate, Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge.

23. The Constitution Bench in Chandra Mohan v. State of Uttar Pradesh & Ors.
(AIR 1966 SC 1987) construed the expression “service” in Clause (2) of Article 233 as the judicial service. While interpreting the term ‘judicial office”, in Article 217(2) (a), the Supreme Court
in Shri Kumar Padma Prasad v. Union of India(1992 (1) KLT OnLine 905 (SC) = (1992) 2 SCC 428) held that it “means an office as a part of the judicial service, as defined under Article 236(b) of the Constitution of India”. It was further held that “holder of “judicial office” under Article 217(2) (a)
 means the person who exercises only judicial functions, determines causes inter parties and renders decisions in a judicial capacity”.

24. When the control of the Subordinate judiciary was vested in the High Courts, it was with the intention of creating a independent subordinate judiciary. Article 50 of the Constitution is a pointer : “The State shall take steps to separate the judiciary from the executive in the public services of the State”. Article 235 starts with the words “the control over district courts and courts subordinate thereto”. It is described as the “pivot around which the entire scheme of the Chapter VI revolves”, by the Constitution Bench in Chief Justice of Andhra Pradesh & Ors. v. L.V.A.Dixitulu & Ors.(1978 KLT OnLine 1012 (SC) = (1979) 2 SCC 34).
The term “control”, used in Article 235 was explained as “Administrative, judicial and disciplinary control” in State of Haryana v. Inder Prakash Anand  ((1976) 2 SCC 977) and quoted in Tejpal Singh v. State of U.P. & Anr.((1986) 3 SCC 604). The word “control” in Article 235 was held to be including something in addition to mere superintendence. The Constitution Bench in State of West Bengal v. Nripendra Nath (AIR 1966 SC 447) held: “The word “control” as we have seen, was used for the first time in the Constitution and it is accompanied by the word “vest” which is strong word. It shows that the High Court is made the sole custodian of the control over the judiciary”. It was held further that the expression “vested” means as including disciplinary jurisdiction and control is useless if it is not accompanied by disciplinary powers.

25. That under our Constitution High Courts have superintendence over Subordinate Courts is beyond any pale of doubt. Article 227 declares the power of superintendence of High Courts over all the Courts and Tribunals in their respective territories. Constitution of India does not define the word “inferior”. But are “inferior” Courts similar to that of the “subordinate” Courts under our Constitution? In Rex v. Chancellor of St.Edmundsburry and Ipswich Diocese Exparte White ((1945) 1 KBD 195) - Wrottesly L.J., opined: “the more
this matter was investigated, the clearer it became that the word “inferior” as applied to Courts of Law in England had been used with at least two very different meanings. If, as some assert, the question of inferiority is determined by ascertaining whether the Court in question can be stopped from exceeding its jurisdiction by a writ of prohibition issuing from the King’s Bench, then not only the Ecclesiastical Courts, but also palatine Courts and admiralty Courts are inferior Courts. But there is another test, well recognised by lawyers, by which to distinguish a superior from an inferior Court, namely, whether in its proceedings, and in particular in its judgments, it must appear that the Court was acting within its jurisdiction. This is the characteristic of an inferior Court, whereas in the proceedings of a Superior Court it will be presumed that it acted within its jurisdiction unless the contrary should appear either on the face of the proceedings or aliunde.”

26. A survey of Articles 233 to 236 show that what is contemplated therein is judicial Courts and what is created there is subordinate judiciary, below the High Court in a State. The decisions rendered by all such Courts are judicial acts. Sri.H.M.Seervai refers to Prof. De Smith in his monumental treatise “Constitutional Law of India”: “Judicial acts may be identified by inference to their formal, procedural or substantive characteristics, or by a combination of any of them”. It can be seen that the jurisdiction of the High Courts is prescribed and limited by the Constitution only and the jurisdiction of other Courts is to be found in the Statutes by which they are set up. As distinguished from the High Courts, the Subordinate Courts have limited jurisdiction.

27. As regards the nature and applicability of the writ of certiorari to judicial acts, the Constitution Bench in T.C.Basappa(1954 KLT OnLine 1001 (SC) = AIR 1954 SC 440) referred to Rex v. Electricity Commissioners((1924) 1 KB 171) and Walshall’s Overseers v. London and North Western Railway Co.(1879) 4 AC 30) and opined: “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 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. 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.”

28. That the writ of certiorari can be issued to the subordinate courts is beyond doubt. But the question whether certiorari lies to quash every decision of a Subordinate authority can only be answered by an emphatic No. The following propositions are settled and approved by the Constitution Bench (7 Judges) in Hari Vishnu Kamath v. Syed Ahmad Ishague & Ors.
(AIR 1955 SC 233) :- “(1) Certiorari will be issued for correcting errors of jurisdiction, as and when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it (2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as and when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous. This is on the principle that a Court which has the jurisdiction over a subject matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a Superior Court were to rehear the case on the evidence, and substitute its on findings in certiorari.”

29. The Constitution Bench in Nagendra Nath Bora & Anr. v. The Commissioner of Hills Divisional Appeals, Assam & Ors.(1958 KLT OnLine 1301 (SC) = AIR 1958 SC 398) held 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.”

The irresistible conclusion, therefore, is that Radhey Shyam(2015 (1) KLT 1032 (SC) = (2015) 5 SCC 423) has overlooked the powers of the High Court under the Constitution of India and the binding Constitutional Bench decisions in Basappa(1954 KLT OnLine 1001 (SC)
= AIR 1954 SC 440) Hari Vishnu Kamath(AIR 1955 SC 233) and Nagendra Nath Bora(1958 KLT OnLine 1301 (SC) = AIR 1958 SC 398). If Civil Courts are kept aloof from the purview of the judicial review under the Constitution of India, it will be rewriting the constitutional scheme and will be demolishing the very basic structure, the “ heart and soul“ of the Constitution of India. Surya Dev Rai(2003 (3) KLT 490 (SC) = (2003) 6 SCC 675) must resurrect.