Sunday, May 2, 2010

Articles 226 and 227: How are they different?

In an earlier post, I had discussed the scope of revisionary powers of the High Court under section 115 of the CPC. I concluded the post raising the issue of a remedy against the rejection a revision application by the High Court wondering which of the two Articles (226 and 227) would suit the purpose. The relevant portion of the post reads thus:

“Can the decision of a High Court in a revision application be challenged? If yes, how? A decision or order of the High Court in a revision application is not an appealable order under Order 43 of the CPC nor can it be appealed as a decree (under Sections 96 or 100) because the order of the High Court in the revision application is not a decree. Therefore, for a remedy against the order of a Court under Section 115, one has to look beyond the CPC. This would mean the Constitution, but would it be Article 226 or 227?

Article 227 vests the Court with supervisory jurisdiction which it can exercise over subordinate Courts. Since we have already concluded that the High Court is not subordinate to itself, I am assuming Article 226 would be the right provision to invoke in such situations. Of course, I am not very sure of this conclusion, but it seems plausible.”

The question itself has a flaw because instead of seeking a remedy from the rejection of the revision application, one must look for an alternative to the revision application, which may be used despite the rejection of the revision application. To rephrase the question accurately now, one must ask if a writ under Articles 226 or 227 may lie from the order of a subordinate Court after the rejection of a revision petition under Section 115 of the CPC?

The answer is in the affirmative, but which of these is technically the correct provision to be invoked needs to looked into carefully since Courts have often used them interchangeably, and have blurred subtle yet definite distinctions between the two. A 2003 judgment of the Supreme Court compares the two Articles to explain the powers vested in a High Court under each of them.

I am still not clear in my own head, which explains all the more why one needs to think it aloud. The Court in this case has drawn from several sources, commentaries and judgments, to understand the scope of Art.226. The Court observed that a writ of certiorari is but one of the writs that may be issued under Art.226. This writ is employed to keep authorities and Courts subordinate to a High Court within their limits.

This writ may lie from the order of any authority where the authority in question has acted in a judicial or quasi-judicial manner. Further, the Court plays a supervisory role and not an appellate role, therefore it cannot embark on reviewing findings of fact unless there’s a patent error i.e. error which is grossly against the provisions of law. The Court’s primary function is to set right jurisdictional wrongs and to verify if principles of natural justice have been observed where the Court has rightly seized itself of the matter.

In contrast, Art.227 is wider in scope in that it is not bound by technicalities which limit the working of Art.226. Art.227 vests the Court with the power of superintendence which exists independent of its revisional powers under any other law (i.e. CPC). While Art.226, which is the Original jurisdiction of the High Court, may be set into motion only by a party, Art.227 gives a High Court power to call for records suo motu. It can be invoked regardless of a possible alternative to the High Court in the form of an appeal or revision.

Under Art.226, the Court may merely quash the order of the sub-ordinate Court, whereas under Art.227, the Court may direct the sub-ordinate Court as to its proper course of action or may pass an order which replaces the subordinate Court’s order. This explains why a High Court, under Art.227, exercises powers which are similar to appellate powers and hence uses it in parsimony. Only if an appeal is proved to be less efficacious than a writ under Art.227, may the Court entertain such a petition.

That said the situations where Art.227 may be validly raised are similar to the specific situations where a revision may lie before a High Court under section 115(1). This answers our question- when a revision petition is rejected by a High Court, a party may choose to file a writ under Art.226 or a petition under Art.227 depending upon the kind of relief he seeks to elicit from the Court. If he wants the Court to merely set aside the order of the subordinate Court, he may file for a writ of certiorari under Art.226, however if he wants the Court to re-appreciate the case on merits, legal not factual, and chart a course for the sub-ordinate Court, he may file a petition under Art.227. 

9 comments:

  1. In continuation of my comment to the related post.. You have correctly pointed out that depending on the nature of relief, the course has to be taken but we tend to forget again and again that in the exercise of its discretionary jurisdiction under Article 226, the High Court cannot act as courts of appeal or revision. The power therein is that of judicial review, where it can examine only procedural correctness and not the merits of the controversy (This has been laid down in several leading case laws). Hence, we should remember that though the jurisdiction of High Courts is not confined to issuing Writs, the Court cannot permit this extraordinary jurisdiction to be converted into a suit (Leading case law for this position being Sohan Lal v. Union of India AIR 1957 SC 529)

    But at the same time, I would say that this is completely a mooting argument as depending on the case, and Art 226 being a 'discretionary power' anything can be termed as 'gross error of law' and the HC MAY take up the case on merits too.. (Provided you have the lawyer, who makes the Court take it up :)

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  2. Thnx for the comments Prashant. I agree with you largely, but on the last point of taking up a case on merits too is something I wish to disagree. Even if the HC takes up the case on merits, since it is not acting in appellate capacity under Art. 226, its mandate is limited to setting aside the lower Court's order, and remanding the case back to the lower Court with observations on the law.

    I dont think this rule, which has been held sacrosanct for centuries, is capable of being circumvented regardless of the horse you bring to ventilate your matter before the Court.

    Bests,
    Sai.

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  3. Btw Prashant Thnx for the Sohanlal Judgment, will go through it and post on it.

    Bests,
    Sai.

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  4. Hi

    I am not an advocate. hence i need to know whether we can file a writ petition against the order of a tehsildar directly in High Court by-passing the lower courts ? Pl advise

    Vishwadeep Verma

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    1. Dear Vishwadeep,
      Typically appeals against the orders of a tehsildar lie before the District collector. Unless you are able to explain the reason for approaching the High Court in a writ directly, a HC may not be enthused to intervene. It is not possible to comment further without knowing the nature of the issue here and the contents of the Tehsildar's order.

      Bests,
      Sai.

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  5. Can the petitioner use Article 227 for the purpose of challenging the Order of the Sessions court being the revisional Court?

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    1. This question has supposedly been asked in the context of Sections 399 of the Criminal Procedure Code which prohibit a second revision to the High Court against decision in first revision rendered by the Sessions Judge. This question was dealt with by SC in the case of Chandrasekhar Singh & Ors. Vs. Siva Ram Singh & Ors., (1979) wherein the court held that the powers of supervisory jurisdiction of HC under S. 226 are plenary and cannot be said to be restricted in any sense in view of the bar of S. 439.

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  6. Sir.
    Give me or pls.tell me that if any state authority terminate the service of employee what are the latest judgement regarding back wedges or ordering to authority to pay all dues

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  7. can a completely new party who was nowhere in picturre in the litigation in lower courts directly come under article 227 before the high court

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