Art.

226 /227
Radhey Shyam and anr. Vs. Chhabi Nath and anr. SCC(Civ) 67 (2015)
Bench: H.L. Dattu, A.K. Sikri, Adarsh Kumar Goel

SUBMITTED BY- PRANJALI DIXIT

SAP ID- 81072100023
BRANCH- LLM (CONSTITUTIONAL LAW)
SUBJECT- CONSTITUTIONAL LAW - I

SUBMITTED TO - MR. SHRIKANT AITHAL

(FACULTY CONSTITUTIONAL LAW - I)
KIRIT P. MEHTA SCHOOL OF LAW, NMIMS.

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 ACKNOWLEDGEMENT

I would like to extend my special thanks to my subject teacher Mr. Shrikant Aithal as well as
our respected Dean Dr. Alok Misra who gave me this opportunity to attempt this Article on the
case study “Radhey Shyam and anr. Vs. Chhabi Nath and anr. SCC(Civ) 67 (2015)”, which
also helped me in clarifying and diversifying my knowledge on the subject. I am thankful to
all who helped me completing my project.

Pranjali Dixit
LLM (Constitutional Law)
SAP ID- 81072100023

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 Table of Contents

Sr. No. Content Page No.

1. Cover Page & Topic Name 1
2. Acknowledgment 2
3. Table of Contents 3
4. Chapters (4-9)
5. 1. Introduction 4
6. 2. Facts and Issues 5
7. 3. Issues & Analysis 6-7
8. 4. Judgment 8
9. 5. Conclusion 9
10. Bibliography 10

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 CHAPTER 1
INTRODUCTION

RESEARCH HIGHLIGHTS

1. An overview of the facts and circumstances of the case study under consideration.

2. The issues framed and an at length analysis of the same, alongside the study of
contentions upheld and dismissed.

3. The analysis of High Court’s supervisory power pertaining to issue of writ of certiorari
under Article 226 and 227 of the Constitution of India.

RESEARCH OBJECTIVE

To determine whether the High Court pursuant to issue of writ of certiorari under Art 226 of
the Constitution of India has power to quash orders of the inferior courts.

RESEARCH METHODOLOGY

The methodology adopted by the researcher is descriptive and analytical. The

methodology will not include empirical research.

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 CHAPTER 2
FACTS & ISSUES

The facts of the case were that, the defendant- respondent assailed an interim order of civil
court in a pending suit and filed a writ petition under Article 226, before the Allahabad High
Court and the High Court vacated the said interim order which was granted by the civil court
in favour of the plaintiff-appellant.

Consequently, the appellant moved this the Supreme Court by way of a Special Leave Petition
(SLP), inter alia, contending that the writ petition filed by the defendant-respondent under
Article 226 against the order of the civil court was not maintainable in the High Court of
Allahabad in the first place and, thus, the High Court, had no authority to pass the impugned
order in favour of the defendant-respondent.

Here, the respondent, placed reliance on the decision of the Supreme Court in Surya Dev Rai
laying down that a writ petition under Article 226 was maintainable before the High Court
against an order of the civil court and thus it was submitted drawing relevance to the case at
hand that the High Court had complete authority to pass the impugned order in the matter.

It is noteworthy that, the Bench of two Hon'ble Judges who heard the matter, did not find ut
appropriate to go ahead and follow the precedent that was laid down in Surya Dev Rai case.

The Bench provided the rationale by stating the observation that the judgment made in the
Surya Dev Rai case, did not correctly appreciate the ratio that was laid down in an earlier
‘Nine Judge judgment’ of this Supreme Court in the “Naresh Shridhar Mirajkar and others
vs. State of Maharashtra, 1967 AIR(SC) 1” case.

In the abovementioned case the Apex Court came to the conclusion that the writ of
"Certiorari” was not meant to be issued in a manner so as quash the judgments of inferior
courts of civil jurisdiction (para 63 of the judgment).

Giving further reference to the observations that were made in the Surya Dev Rai matter so
as for not following the conclusion in the landmark Mirajkar case, the referring Bench inter
alia observed as follows:

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 Further, the two-Judge Bench of the Surya Dev Rai case did not disagree with it, since it
obviously could not overrule the ratio in the landmark Mirajkar case, which was laid down
by a Constitution Bench decision of a nine- Judge Bench.

However in Surya Dev Rai case, the view point was justified on the ground that the law
relating to the writ of “certiorari” had undergone changes both in England and in India.

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 CHAPTER 3
ANALYSIS

As per the evolution of law pertaining to writs, ‘prohibition’ was considered a writ by virtue of
which the royal courts of common law prohibited other inferior courts from entertaining
matters that would otherwise fall within the exclusive jurisdiction of the common law courts;

It is to be noted that the writ of ‘certiorari’ could be issued so as to bring the record of an
inferior court into the ‘King's Bench’ for review and/or to remove any indictments for trial in
that court;

Further, the writ of ‘mandamus’ was directed to inferior courts & tribunals, and to respective
public officers and/or bodies, so as to order the performance of a public duty.

All these three writs were commonly known as ‘prerogative writs’;

It is pertinent to understand the nature of the writs of ‘certiorari’ and ‘prohibition’.

While the writ of ‘Certiorari’ typically lies to bring decisions of an inferior court and/or tribunal
and/or public authority and/or any other body of persons within the scope of jurisdiction of the
High Court for review and so as to permit the court to determine whether they should be
quashed, or for the purpose of directly quashing any such decisions.

It is key to note that, by exercise of right of ‘prohibition’ the High Court issues an order so
directing an inferior court and/or tribunal and/or public authority so as to forbid that particular
court and/or tribunal and/or authority to go ahead and act in excess of its jurisdiction and/or to
act in a way that is contrary to law.

Thus it can be said that both the writ of ‘certiorari’ and the writ of ‘prohibition’ are so employed
mainly for the control of inferior courts, tribunals and/or public authorities by the respective
High Courts.

To be noted that the aforementioned principles nowhere indicate that judgments of an inferior
civil court of plenary jurisdiction are amenable to ‘correction’ by a way of issue of a writ of
‘certiorari’.

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The important thing to remember here is that in any event, any change of law in England cannot
automatically dilute the very binding nature of the ratio laid down in the important Mirajkar
case which pertinently has not been overruled and is holding the field since decades and
continues to do so.

Therefore it is absolutely clear from the precedent laid down in the judgement of the famous
‘Mirajkar’ accessible in para 63 of the judgment text, that a stark distinction indicated between
‘judicial orders’ of ‘inferior courts of civil jurisdiction’ and ‘orders of inferior tribunals or court
which are not civil courts and which are unable to pass judicial orders’.

This which distinction needs to be borne in mind at all times, while deciding the scope of the
High Court’s powers under the writ of certiorari.

It is therefore declared that any ‘judicial orders passed by civil courts of plenary jurisdiction’
would most certainly stand on a very different footing considering the reference is made to the
law pronounced in the ‘Mirajkar’ judgment in para 63.

The passage in the subsequent edition of Halsbury (4th Edn.) which was quoted in Surya Dev
Rai judgement does not show that there has been any significant change in law in England
and/or in India on the points in issue pointed out above.

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 CHAPTER 4
JUDGEMENT

ADARSH KUMAR GOEL J. Held:

The famous ‘Mirajkar’ case, was based on the facts that a judicial order of High Court
was challenged on the grounds of being violative of a fundamental right.

Here the nine Judge Bench of the supreme court by majority pronounced that a “judicial
order of a competent court could not violate a fundamental right”. Suppose there was
an incidental violation, it nonetheless could not be held to be ‘violative’ of fundamental
right of any individual.

The court in this matter further pointed out that it is constrained to indicate again that
in the matter of “Rupa Ashok Hurra” case, the Constitution Bench did not take any
contradictory view point than that which was expressed in ‘Mirajkar’ case.

It is further clarified that the court is of the opinion that judicial orders of civil courts
are not at all amenable to a writ of certiorari under Article 226.

Further, the court is also agreement with the view of the referring Bench that a writ of
‘mandamus’ cannot lie against any private individual so not discharging any public
duty.

Further stating that it is pertinent to note that the very scope of Article 227 is different
than that of Article 226 of the Constitution of India.

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 CHAPTER 5
CONCLUSION

It is clear that ratio laid down in the ‘Mirajkar’ case was referred to and relied upon in
“Rupa Ashok Hurra” case as well.

It is important to understand that the aforesaid notes are made basis ‘general principles’
which are more ancient than the time when the famous ‘Mirajkar’ case was decided by
the Nine-judge constitutional bench and still hold good and accurate.

What is pertinent here that not even a whisper anywhere has been made of any
divergence whatsoever from the ratio that was laid down in the ‘Mirajkar’ case was
expressed at all. On the contrary various passages from ‘Mirajkar’ judgment text have
been quoted repeated with approval.

Hence, the Supreme Court in the matter before hand in Radhe Shyam vs. Chhabi Nath,
stated absolute disagreement with the view which put forth in the ‘Surya Dev Rai’ case
insofar as ‘correction of’ and/or any ‘interference’ with judicial orders of civil court by
a writ of certiorari is so concerned.";

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 BIBLIOGRAPHY

1. LIST OF LEGISLATIONS

- Constitution of India

- The Code of Civil Procedure, 1908

2. ONLINE DATABASE

- Eastern Book Company - Practical Lawyer (ebc-india.com)

- Daily Order | SUPREME COURT OF INDIA (sci.gov.in)
- Indian Kanoon - Search engine for Indian Law
- www.scconline.com
- www.advance.lexis.com

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