Jharkhand High Court
Union Of India vs M/S Adani Enterprises Limited (Ael) on 3 October, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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W.P.(C) No. 5107 of 2024
------
1. Union of India, through its Secretary Ministry of Coal, Shastri Bhawan,
P.O. Shastri Bhawan, P.S. Sansad Marg, New Delhi-110001.
2. Nominated Authority, Ministry of Coal, Government of India, 120 F-
Wing, 1st Floor, Shastri Bhawan, P.O. Shastri Bhawan, P.S. Sansad
Marg, New Delhi-110001.
... ... Petitioners
Versus
M/s Adani Enterprises Limited (AEL), Adani Corporate House,
Shantigram, Near Vaishno Devi Circle, S.G. Highway, P.O. & P.S.
Khodiyar, Ahmedabad through its authorized representative namely
Afroz, aged about 53 years, s/o Mr. Sheik Zahurul Haque, Resident of
Second Floor, Above Canara Bank, Magadh Complex, Matwari, P.O.
& P.S. Matwari, Hazaribagh, Jharkhand (825301).
.... .... Respondent
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
.....
For the Petitioners : Mr. Anil Kumar, Addl. SGI
Mrs. Chandana Kumari, AC to Addl. SGI
Mr. Abhijeet Kr. Singh, CGC
For the Respondent : Mr. Ajit Kumar, Advocate
Mr. Pandey Neeraj Rai, Advocate
Mr. Rohit Ranjan Sinha, Advocate
.....
C.A.V. on 23rd September, 2024 Pronounced on 03/10/2024
Per Sujit Narayan Prasad, .J.
Prayer:
1. The instant writ petition has been filed under Article 226 of the
Constitution of India challenging the order dated 03.08.2024 passed in
C.B.C. Case no. 17 of 2024 by the learned Presiding Officer, Coal Bearing
Tribunal at Ranchi, where and whereunder, the order to maintain status quo
has been granted in favour of the respondent against the petitioner till the
disposal of the matter.
Factual Matrix:
2. The brief facts of the case as has been enumerated in the writ petition is
required to be referred herein, as under:
M/s Adani Enterprises Ltd. is a company incorporated under the
provisions of the Company Act and the respondent was allocated the
Gondulpara Coal Block, Jharkhand through auction by the Ministry of
Coal.
The Central Government issued an order dated 06.01.2020 and
14.05.2020 as amended to the Nominated Authority for auction of the coal
mine for sale of coal. Earlier on 24.06.2009, the petitioner no.1 approved
the mine plan which was cancelled by the Hon'ble Supreme Court and
thereafter, a tender was issued in 2020 inviting prospective bidders for
allotment of coal blocks in which respondent Adani Enterprises Ltd. on
28.12.2020 emerged as the successful bidder of Gondulpara Coal Mines
and letter of declaration was issued to the respondent. Thereafter, Coal
Mine Development and Production Agreement was executed between the
petitioners and the respondent company on 11.01.2021. Subsequently,
vesting order was issued in favour of the respondent company on
08.03.2021.
It is the case of the respondent that it had taken all possible steps
but during the performance of the activities required to be undertaken to
achieve Milestone-2, the company encountered certain circumstances and
events which resulted in delay in achievement of the said milestone and in
the light of the statement mentioned in the petition under Section 27(i) of
the Coal Mines (Special Provisions) Act, 2015, the prayer has been made
for declaring the recommendation of the Scrutiny Committee in its 22 nd
meeting on 08.05.2024 to appropriate the bank guarantee and to restrain the
petitioner from taking any coercive steps in furtherance of the said
recommendation.
The petition was registered as C.B. Case No. 17 of 2024 and
subsequently an injunction petition was filed by the respondent on
29.06.2024 stating therein all the facts and for grant of ex-parte/ad-interim
relief.
The Scrutiny Committee held its 22nd meeting dated 08.05.2024
and considered the case of the respondent wherein it has been observed to
have considered the show cause notice dated 30.09.2022 for delay in
approval of mining plan/project report and corresponding reply dated
27.09.2022 and upon deliberation, allottee was found responsible for delay
in obtaining mining plan approval and recommended for appropriation of
PBG.
The C.B. case No. 17 of 2024 was registered and by order dated
02.07.2024, the said case was admitted for hearing and direction was issued
to file requisites for appearance of opposite party and the matter was posted
for order in the stay application.
It is the case of the petitioner that the copy of the petition was
served and objection was filed on behalf of the petitioner on 09.07.2024
and on the same day hearing was done on stay application and the learned
Tribunal observed that the petition for seeking injunction against the
recommendation of the Scrutiny Committee is kept in abeyance till passing
of any order by the Nominated Authority regarding appropriation of the
bank guarantee.
It is the case of the petitioner that the learned Tribunal has
considered the petition dated 03.08.2024 and without hearing the counsel
for the petitioner, the order has been passed in favour of the respondent to
maintain status quo till the disposal of the matter even though there was a
condolence on the said date.
It is also the case of the petitioner that immediately thereafter on
03.08.2024, an application for stay of operation of the order passed by the
nominated authority has been filed enclosing the copy of the order dated
02.08.2024 even though a petition filed for injunction was kept in abeyance
and as such, there was no occasion before the respondent company to file a
fresh petition and even the order dated 02.08.2024 passed by the nominated
authority has not been challenged by the respondent company before the
learned Tribunal and in absence thereof, the interim order could not have
been passed.
Being aggrieved thereof, the same is under challenge by way of
filing the instant writ petition.
3. It is evident from the factual aspect as referred hereinabove that the
respondent preferred a case under Section 27 of the Coal Mines Act, 2015
praying therein the following reliefs:
"i. Pass an order declaring that the recommendation made by the 22nd
meeting of the Scrutiny Committee on 08.05.2024 and circulated vide
Office Memorandum dated 04.06.2024 to appropriate the bank
guarantee furnished by the Petitioner is arbitrary and illegal;
ii. Pass an order to restrain the respondents from taking any coercive
steps in furtherance of the recommendation made by the 22nd meeting
of the Scrutiny Committee on 08.05.2024 including any attempt to
issue an appropriation order;
iii. Pass an order directing the Respondent No. 2 to approve the mine
plan with external OB dump area of 103 ha as delineated in the plan
submitted by Petitioner and grant proportionate extension of time to
the Petitioner Company to achieve Milestone-2 (MS-2) for the period
of delay which is not attributable to the Petitioner Company;
..."
4. However, the learned court while passing the order has taken note of the
plea taken by the respondent who is petitioner herein wherein the ground
has been taken that the matter is being considered by the Coal Ministry and
as such, the petition seeking injunction against the recommendation of the
Scrutiny Committee being considered.
5. The learned court has expressed the opinion that the petition of the
respondent herein to grant injunction against the recommendation of the
Scrutiny Committee has been considered to be premature because no order
from Nominated Authority has been passed. Further, the reason has been
assigned that the respondent through its supplementary affidavit has
himself submitted that vide office memorandum dated 18.06.2024 issued
by the Ministry of Coal, Government of India, a 'Draft Mining Plan
Guidelines for Coal and Lignite Blocks, 2024' has been circulated inviting
the observations of the stakeholders.
The learned court further came to the finding that the competent
authorities are duly considering over the matter and the guidelines
alleviating the complication faced in the anvil.
It has further been observed based upon the information
furnished on behalf of the petitioner with respect to the consultation and as
such, the learned court has opined that since the stake holders are informed
that consultation on Draft Mining Plan Guidelines for Coal and Lignite
Blocks 2024 is scheduled to be held on 01.07.2024, as such, the petition for
seeking injunction against the recommendation of the Scrutiny Committee
has been kept in abeyance till the passing of any order by the Nominated
Authority regarding appropriation of Bank Guarantee.
6. The respondent after the order dated 09.07.2024 has moved the court for
grant of ad-interim relief for grant of status quo in favour of the respondent
till the final disposal of the matter since the nominated authority vide order
dated 02.08.2024 has passed an order for appropriation of performance
bank guarantee. Thereafter, the learned court vide order dated 03.08.2024,
the day when the petition was filed praying therein stay of the operation of
the order dated 02.08.2024, has directed to maintain status quo till the
disposal of the matter.
7. The said order is under challenge before this Court by way of writ petition
under Article 226 of the Constitution of India.
Argument on behalf of the Petitioners:
8. Mr. Anil Kumar, learned Additional Solicitor General of India appearing
for the petitioners has taken the ground that the order dated 03.08.2024 is
per se illegal reason being that on the same day, i.e., on 03.08.2024, copy
of the petition was served and the effective order to maintain status quo has
been passed without providing an opportunity of hearing to the petitioners.
9. Learned Additional Solicitor General of India, on the aforesaid premise,
has submitted that the order dated 03.08.2024 is not sustainable in the eyes
of law, as such, is fit to be interfered with.
Argument on behalf of the Respondent:
10. Mr. Ajit Kumar, learned senior counsel has submitted that the order dated
03.08.2024 is not fit to be interfered with reason being that it is incorrect on
the part of the petitioner to take the plea that no opportunity of hearing was
given to the petitioners rather the petition dated 03.08.2024 appending
therein the order dated 02.08.2024 was served to the learned counsel for the
petitioner-Union of India and thereafter, the order was passed on
03.08.2024.
11. It has been submitted that the learned court has passed the order on the
premise that if the order of maintaining status quo will not be passed then
the performance bank guarantee will be appropriated and as such,
considering the nature of relief sought for, the order has been passed on
03.08.2024 which cannot be said to suffer from error.
12. The issue of maintainability has also been raised since the writ petition has
been filed under Article 226 of the Constitution of India challenging the
order passed by the Judicial Officer at the rank of the Additional Judicial
Commissioner-I, Ranchi.
According to the learned senior counsel, the order impugned
ought to have been challenged under Article 227 of the Constitution of
India.
13. Learned senior counsel has further submitted, in course of argument, that
even accepting the argument advanced on behalf of the learned ASGI that
serious error has been committed by not providing an opportunity of
hearing on the same day when the order was passed, then the order needs to
be passed of remand which may be done but simultaneously the interest of
the respondent may also be protected.
Response to the argument made on behalf of the Respondent:
14. Mr. Anil Kumar, learned Additional Solicitor General of India has
advanced his argument that so far as the maintainability of the writ petition
is concerned, by referring to the pleading made in the writ petition, that
even if the wrong provision has been mentioned in the provision of law, the
same will be immaterial reason being that the pleading is to be seen not the
provision of law, therefore, even accepting the contention of the learned
counsel for the respondent that the petition ought to have been filed under
Article 227 of the Constitution of India depending upon the pleading made
in the writ petition, the same may be considered to be filed under Article
227 of the Constitution of India.
Analysis:
15. This Court has heard the learned counsel for the parties and gone across the
finding recorded by the learned court in the impugned order.
16. The first issue regarding the maintainability of the writ petition needs to be
considered in view of the objection raised on behalf of the learned senior
counsel appearing for the respondent.
17. It is the admitted fact that the present petition has been filed under Article
226 of the Constitution of India. The petition under Article 226 of the
Constitution of India cannot be held to be maintainable in view of the fact
that the order which is impugned has been passed by the Judicial Officer at
the rank of Additional Judicial Commissioner-I, Ranchi, as such, the order
since is under challenge having been passed by the Judicial Officer, the
writ petition cannot be entertained as has been filed under Article 226 of
the Constitution of India but the question herein is that while deciding the
said issue only the provision of law is to be seen or the pleading or
substance of the petition is to be seen.
18. Law is well settled that the nomenclature of an application is really not
material and the substance is to be seen but at the same time, duty is cast on
the parties to properly frame their applications and indicate the provisions
of law applicable for making the application. Nomenclature may not be
normally material but there is a purpose in indicating the nomenclature in a
clear and precise manner. Reference in this regard be made to the judgment
rendered by the Hon'ble Apex Court in the case of Mohinder Singh v.
Harminder Singh, (2004) 6 SCC 26. Relevant paragraph of the same is
quoted as under:
"6. Though the nomenclature of an application is really not material
and the substance is to be seen, yet it cannot be said that a party shall
be permitted to indicate any provision and thereafter contend that the
nomenclature should be ignored. Duty is cast on the parties to
properly frame their applications and indicate the provisions of law
applicable for making the application. Nomenclature may not be
normally material."
19. The Hon'ble Apex Court in the case of Jogendrasinhji Vijaysinghji v.
State of Gujarat, (2015) 9 SCC 1 while deciding the maintainability of the
Letters Patent Appeal has categorically held that maintainability of a letters
patent appeal would depend upon the pleadings in the writ petition, the
nature and character of the order passed by the learned Single Judge, the
type of directions issued regard being had to the jurisdictional perspectives
in the constitutional context.
20. This Court, in view of the ratio laid down by the Hon'ble Apex Court and
further taking into consideration the settled position of law that a petition
should not be dismissed due to wrong nomenclature and also taking into
consideration the nature of pleading made in the writ petition, is of the
view that the instant petition will be said to be filed under Article 227 of
the Constitution of India.
21. This Court is now proceeding to examine the propriety of the order passed
by the learned court wherein the order has been passed to maintain status
quo with respect to the decision taken by the authority for appropriation of
the performance bank guarantee by passing order on 02.08.2024.
22. The ground has been taken on behalf of the petitioner-Union of India that
no opportunity of hearing has been provided rather on the same day, i.e., on
03.08.2024, only after serving copy of the same and without calling upon
the learned counsel for the petitioners, the learned court has passed the
order.
23. The aforesaid fact has not been dispute by the learned senior counsel
appearing for the respondent since the same is apparent from the face of the
order that there is no reference of any argument advanced on behalf of the
petitioners rather the learned court has taken note of the order dated
02.08.2024 as also the order dated 09.07.2024 and based upon that the
learned court has come to the opinion that there is urgent need of passing
order of status quo till the disposal of the matter.
24. It is, thus, evident that the learned court has not bothered to call upon the
petitioner-Union of India and in absentia the order has been passed even
there is no reference in the said order as to whether the copy of the petition
dated 03.08.2024 along with the order dated 02.08.2024 has been served
upon the learned counsel for the petitioner or not.
25. The position of law is well settled that when the order is being passed
either by the quasi-judicial authority or in the judicial side, it is incumbent
to take into consideration each and every aspect of the matter, at least in
brief, particularly with respect to the plea if taken by the parties and the
reference of the notice issued even if after issuance of the notice, the party
has not appeared, the same is to be incorporated in the order passed by the
judicial officer in the judicial side or by the quasi-judicial authority or by
the administrative authority.
26. The law is also settled that the consideration and reason is the soul of the
order and in absence thereof, order cannot be said to be justified one.
Reference in this regard may be taken from the judgment rendered by the
Hon'ble Apex Court in the case of Raj Kishore Jha v. State of
Bihar, (2003) 11 SCC 519, wherein, it has been held at paragraph-19 as
under:
"... ... ...Reason is the heartbeat of every conclusion. Without the
same, it becomes lifeless. ... ..."
27. Likewise, the Hon'ble Apex Court in the case of Kranti Associates (P)
Ltd. v. Masood Ahmed Khan, (2010) 9 SCC 496, wherein, at paragraph-
47, it has been held as under:
"47. Summarising the above discussion, this Court holds:
(a) In India the judicial trend has always been to record reasons, even
in administrative decisions, if such decisions affect anyone
prejudicially.
(b) A quasi-judicial authority must record reasons in support of its
conclusions.
(c) Insistence on recording of reasons is meant to serve the wider
principle of justice that justice must not only be done it must also
appear to be done as well.
(d) Recording of reasons also operates as a valid restraint on any
possible arbitrary exercise of judicial and quasi-judicial or even
administrative power.
(e) Reasons reassure that discretion has been exercised by the
decision-maker on relevant grounds and by disregarding extraneous
considerations.
(f) Reasons have virtually become as indispensable a component of a
decision-making process as observing principles of natural justice by
judicial, quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by superior
courts.
(h) The ongoing judicial trend in all countries committed to rule of
law and constitutional governance is in favour of reasoned decisions
based on relevant facts. This is virtually the lifeblood of judicial
decision-making justifying the principle that reason is the soul of
justice..... ...... ....."
28. The fact about providing no opportunity of hearing to the petitioner-Union
of India since is admitted, as such, this Court is of the view that the order
dated 03.08.2024 needs to be interfered with.
29. Accordingly, the order dated 03.08.2024 passed in C.B.C. Case No. 17 of
2024 is hereby, quashed and set aside.
30. Learned senior counsel appearing for the respondent has submitted that
there is no difficulty in quashing of the order but the interest may be
protected otherwise the performance bank guarantee will be appropriated.
31. Serious objection has been made on behalf of the learned counsel for the
petitioners that no such order may be passed otherwise the wrong
committed by the learned court will be allowed to be perpetuated.
32. This Court, considering the rival submissions of the parties and in order to
consider this aspect of the matter, is first of the view that as to whether
while exercising the power conferred under Article 227 of the Constitution
of India can any order be passed, interim in nature, if the order is passed by
the Judicial Officer and; as to whether in the facts and circumstances of the
instant case, if the order interim in nature will be passed, whether it will not
lead to perpetuating the illegality already committed causing prejudice to
the parties.
33. So far as the first issue is concerned, Article 227 of the Constitution of
India is to be exercised under the supervisory power. The issue of
applicability of Article 227 of the Constitution of India has been dealt with
by the Hon'ble Apex Court in the case of Surya Dev Rai vs. Ram Chander
Rai and Ors., (2003) 6 SCC 675 but the applicability of Article 227 of the
Constitution of India has again been re-considered by the Full Bench of the
Hon'ble Apex Court comprising of three Hon'ble Judges in the case of
Radhey Shyam and Anr. Vs. Chhabi Nath and Ors., (2015) 5 SCC 423.
34. The view taken by the Hon'ble Apex Court in the case of Surya Dev Rai vs.
Ram Chander Rai and Ors. (supra) regarding the exercise of power under
Articles 226 and 227 of the Constitution of India, in order to look into the
propriety of the judicial order, has been over-ruled and it has been laid
down that if the order has been passed by the Judicial Officer, the same is
to be looked into so far as its propriety is concerned under Article 227 of
the Constitution of India. Relevant paragraph of the judgment rendered in
Radhey Shyam and Anr. Vs. Chhabi Nath and Ors.,(supra) is being
reproduced as under:
"27. Thus, we are of the view that judicial orders of civil courts are
not amenable to a writ of certiorari under Article 226. We are also in
agreement with the view [Radhey Shyam v. Chhabi Nath, (2009) 5
SCC 616] of the referring Bench that a writ of mandamus does not lie
against a private person not discharging any public duty. Scope of
Article 227 is different from Article 226.
29. Accordingly, we answer the question referred as follows:
29.1. Judicial orders of the civil court are not amenable to writ
jurisdiction under Article 226 of the Constitution.
29.2. Jurisdiction under Article 227 is distinct from jurisdiction
under Article 226.
29.3. Contrary view in Surya Dev Rai [Surya Dev Rai v. Ram
Chander Rai, (2003) 6 SCC 675] is overruled."
35. Further the question which requires consideration is the prayer made by the
learned senior counsel for the respondent for passing interim order till
passing the fresh order by the learned court on remand.
36. The law is well settled that so far as the issue of Article 227 of the
Constitution of India is concerned wherein the power which is to be
exercised by the High Court under Article 227 of the Constitution of India
is very limited. Reference in this regard be made to the judgment rendered
by the Hon'ble Apex Court in Shalini Shyam Shetty v. Rajendra Shankar
Patil, (2010) 8 SCC 329 wherein the Hon'ble Apex Court while tracing the
evolution of Article 227 of the constitution of India has observed which is
being reproduced as under:
32. In AIR para 14 at p. 217 of Waryam Singh [AIR 1954 SC 215] this
Court neatly formulated the ambit of High Courts' power under
Article 227 in the following words:
"14. This power of superintendence conferred by Article 227 is, as
pointed out by Harries, C.J., in Dalmia Jain Airways
Ltd. v. Sukumar Mukherjee [AIR 1951 Cal 193] , to be exercised
most sparingly and only in appropriate cases in order to keep the
subordinate courts within the bounds of their authority and not for
correcting mere errors."
33. Harries, C.J. in the Full Bench decision in Dalmia [AIR 1951 Cal
193] stated the principles on which the High Court can exercise its
power under Article 227 very succinctly which we would better quote:
(AIR pp. 193-94, para 6)
"6. Though this Court has a right to interfere with decisions of
courts and tribunals under its power of superintendence, it appears
to me that that right must be exercised most sparingly and only in
appropriate cases. The matter was considered by a Bench of this
Court in Manmatha Nath Biswas v. Emperor [AIR 1933 Cal 132] .
In that case a Bench over which Sir George Rankin, C.J. presided
held that Section 107, Government of India Act (which roughly
corresponds to Article 227 of the Constitution), does not vest the
High Court with limitless power which may be exercised at the
Court's discretion to remove the hardship of particular decisions.
The power of superintendence it confers is a power of a known and
well-recognised character and should be exercised on those
judicial principles which give it its character. In general words, the
High Court's power of superintendence is a power to keep
subordinate courts within the bounds of their authority, to see that
they do what their duty requires and that they do it in a legal
manner."
34. In stating the aforesaid principles, Harries, C.J. relied on what
was said by George Rankin, C.J. in Manmatha Nath
Biswas v. Emperor [AIR 1933 Cal 132] . At AIR p. 134, the learned
Chief Justice in Manmatha Nath case [AIR 1933 Cal 132] held:
"... superintendence is not a legal fiction whereby a High Court
Judge is vested with omnipotence but is as Norman, J., had said a
term having a legal force and signification. The general
superintendence which this Court has over all jurisdiction subject
to appeal is a duty to keep them within the bounds of their
authority, to see that they do what their duty requires and that they
do it in a legal manner. It does not involve responsibility for the
correctness of their decisions, either in fact or law."
37. The Constitution Bench in Nagendra Nath [AIR 1958 SC 398] ,
unanimously speaking through B.P. Sinha, J. (as His Lordship then
was) pointed out that High Court's power of interference under Article
227 is not greater than its power under Article 226 and the power of
interference under Article 227 of the Constitution is limited to ensure
that the tribunals function within the limits of its authority.
(emphasis supplied)
38. The subsequent Constitution Bench decision of this Court on
Article 227 of the Constitution, rendered in State of
Gujarat v. Vakhatsinghji Vajesinghji Vaghela [AIR 1968 SC 1481]
also expressed identical views. Bachawat, J. speaking for the
unanimous Constitution Bench opined that the power under Article
227 cannot be fettered by the State Legislature but this supervisory
jurisdiction is meant to keep the subordinate tribunal within the limits
of their authority and to ensure that they obey law.
39. So the same expression, namely, to keep the courts and tribunals
subordinate to the High Court "within the bounds of their authority"
used in Manmatha Nath Biswas [AIR 1933 Cal 132] , to indicate the
ambit of High Court's power of superintendence has been repeated
over again and again by this Court in its Constitution Bench
decisions.
40. Same principles have been followed by this Court in Mani
Nariman Daruwala v. Phiroz N. Bhatena [(1991) 3 SCC 141] ,
wherein it has been held that in exercise of its jurisdiction under
Article 227, the High Court can set aside or reverse finding of an
inferior court or tribunal only in a case where there is no evidence or
where no reasonable person could possibly have come to the
conclusion which the court or tribunal has come to. This Court made
it clear that except to this "limited extent" the High Court has no
jurisdiction to interfere with the findings of fact (see SCC pp. 149-50,
para 18). In coming to the above finding, this Court relied on its
previous decision rendered in Chandavarkar Sita Ratna
Rao v. Ashalata S. Guram [(1986) 4 SCC 447] . The decision
in Chandavarkar [(1986) 4 SCC 447] is based on the principle of the
Constitution Bench judgments in Waryam Singh [AIR 1954 SC 215]
and Nagendra Nath [AIR 1958 SC 398] discussed above.
41. To the same effect is the judgment rendered in Laxmikant
Revchand Bhojwani v. Pratapsing Mohansingh Pardeshi [(1995) 6
SCC 576] . In SCC para 9 at pp. 579-80 of the Report, this Court
clearly reminded the High Court that under Article 227 that it cannot
assume unlimited prerogative to correct all species of hardship or
wrong decisions. Its exercise must be restricted to grave dereliction of
duty and flagrant abuse of fundamental principles of law and justice.
42. Same views have been taken by this Court in respect of the ambit
of High Court's power under Article 227 in Lonand
Grampanchayat v. Ramgiri Gosavi [AIR 1968 SC 222] (see AIR pp.
222-34, para 5 of the Report) and the decision of this Court in Jijabai
Vithalrao Gajre v. Pathankhan [(1970) 2 SCC 717] . The Constitution
Bench ratio in Waryam Singh [AIR 1954 SC 215] about the scope of
Article 227 was again followed in Ahmedabad Mfg. & Calico Ptg. Co.
Ltd. v. Ram Tahel Ramnand [(1972) 1 SCC 898] .
48. The jurisdiction under Article 226 normally is exercised where a
party is affected but power under Article 227 can be exercised by the
High Court suo motu as a custodian of justice. In fact, the power
under Article 226 is exercised in favour of persons or citizens for
vindication of their fundamental rights or other statutory rights. The
jurisdiction under Article 227 is exercised by the High Court for
vindication of its position as the highest judicial authority in the State.
In certain cases where there is infringement of fundamental right, the
relief under Article 226 of the Constitution can be claimed ex debito
justitiae or as a matter of right. But in cases where the High Court
exercises its jurisdiction under Article 227, such exercise is entirely
discretionary and no person can claim it as a matter of right. -"
37. In the preceding paragraphs we have considered the judgment passed by
the Hon'ble Apex Court in the case of Radhey Shyam and Anr. Vs. Chhabi
Nath and Ors. (supra) but we have not found, as has been placed by the
learned senior counsel for the respondent, that even under Article 227 of
the Constitution of India, the order can be passed interim in nature rather it
has been laid down under paragraph 29.2 that the jurisdiction under Article
227 of the Constitution is distinct from the jurisdiction under Article 226 of
the Constitution of India and thereby, to that effect the view taken by the
Hon'ble Apex Court in the case of Surya Dev Rai vs. Ram Chander Rai
and Ors. (supra) has been over-ruled.
38. It has also been observed taking reference of the judgment rendered in the
case of Umaji Keshao Meshram and Ors. vs. Radhikabai and Anr., 1986
Supp SCC 401 that proceedings under Article 226 of the Constitution of
India are in exercise of the original jurisdiction of the High Court while
proceedings under Article 227 of the Constitution of India are not original
but only supervisory.
It has also been observed that the power is akin to that of an
ordinary court of appeal, yet the power under Article 227 is intended to be
used sparingly and only in appropriate cases for the purpose of keeping the
subordinate courts and tribunals within the bounds of their authority and
not for correcting mere errors. 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 a
failure of justice, and (iii) the jurisdiction though available is being
exercised in a manner which tantamounts to overstepping the limits of
jurisdiction. For ready reference, paragraph-23 of the said judgment is
being referred as under:
"23. The Bench then referred to the history of writ of certiorari and its
scope and concluded thus: (Surya Dev Rai case [Surya Dev
Rai v. Ram Chander Rai, (2003) 6 SCC 675] , SCC pp. 687-90, paras
18-19 & 24-25)
"18. Naresh Shridhar Mirajkar case [Naresh Shridhar
Mirajkar v. State of Maharashtra, AIR 1967 SC 1 : (1966) 3 SCR
744] was cited before the Constitution Bench in Rupa Ashok Hurra
case [Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388] and
considered. It has been clearly held: (i) that it is a well-settled
principle that the technicalities associated with the prerogative
writs in English law have no role to play under our constitutional
scheme; (ii) that a writ of certiorari to call for records and examine
the same for passing appropriate orders, is issued by a superior
court to an inferior court which certifies its records for
examination; and (iii) that a High Court cannot issue a writ to
another High Court, nor can one Bench of a High Court issue a
writ to a different Bench of the High Court; much less can the writ
jurisdiction of a High Court be invoked to seek issuance of a writ of
certiorari to the Supreme Court. The High Courts are not
constituted as inferior courts in our constitutional scheme.
19. Thus, there is no manner of doubt that the orders and
proceedings of a judicial court subordinate to the High Court are
amenable to writ jurisdiction of the High Court under Article 226
of the Constitution.
***
24. The difference between Articles 226 and 227 of the Constitution
was well brought out in Umaji Keshao
Meshram v. Radhikabai [Ganga Saran v. Civil Judge, Hapur, 1986
Supp SCC 401] . Proceedings under Article 226 are in exercise of
the original jurisdiction of the High Court while proceedings under
Article 227 of the Constitution are not original but only
supervisory. Article 227 substantially reproduces the provisions of
Section 107 of the Government of India Act, 1915 excepting that
the power of superintendence has been extended by this article to
tribunals as well. Though the power is akin to that of an ordinary
court of appeal, yet the power under Article 227 is intended to be
used sparingly and only in appropriate cases for the purpose of
keeping the subordinate courts and tribunals within the bounds of
their authority and not for correcting mere errors. 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 a failure
of justice, and (iii) the jurisdiction though available is being
exercised in a manner which tantamounts to overstepping the limits
of jurisdiction.
25. Upon a review of decided cases and a survey of the occasions,
wherein the High Courts have exercised jurisdiction to command a
writ of certiorari or to exercise supervisory jurisdiction under
Article 227 in the given facts and circumstances in a variety of
cases, it seems that the distinction between the two jurisdictions
stands almost obliterated in practice. Probably, this is the reason
why it has become customary with the lawyers labelling their
petitions as one common under Articles 226 and 227 of the
Constitution, though such practice has been deprecated in some
judicial pronouncement. Without entering into niceties and
technicality of the subject, we venture to state the broad general
difference between the two jurisdictions. Firstly, the writ of
certiorari is an exercise of its original jurisdiction by the High
Court; exercise of supervisory jurisdiction is not an original
jurisdiction and in this sense it is akin to appellate, revisional or
corrective jurisdiction. Secondly, in a writ of certiorari, the record
of the proceedings having been certified and sent up by the inferior
court or tribunal to the High Court, the High Court if inclined to
exercise its jurisdiction, may simply annul or quash the
proceedings and then do no more. In exercise of supervisory
jurisdiction, the High Court may not only quash or set aside the
impugned proceedings, judgment or order but it may also make
such directions as the facts and circumstances of the case may
warrant, maybe, by way of guiding the inferior court or tribunal as
to the manner in which it would now proceed further or afresh as
commended to or guided by the High Court. In appropriate cases
the High Court, while exercising supervisory jurisdiction, may
substitute such a decision of its own in place of the impugned
decision, as the inferior court or tribunal should have made. Lastly,
the jurisdiction under Article 226 of the Constitution is capable of
being exercised on a prayer made by or on behalf of the party
aggrieved; the supervisory jurisdiction is capable of being
exercised suo motu as well.""
39. The Hon'ble Apex Court since has laid down that the power to be exercised
under Article 227 of the Constitution of India is not having original
jurisdiction but only supervisory and once the power is supervisory then it
is to be used sparingly and only for in appropriate cases for the purpose of
keeping the subordinate courts and tribunals within the bounds of their
authority and not for correcting mere errors. 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 a failure of justice, and (iii) the jurisdiction though available is
being exercised in a manner which tantamounts to overstepping the limits
of jurisdiction.
40. Herein, in the instant case, the admitted case of the parties, particularly the
petitioner herein, is that the order impugned has been passed without
providing an opportunity of hearing and as such the miscarriage has been
caused to the petitioner herein while passing the effective order to maintain
status quo against the order assed by the authority dated 02.08.2024.
41. Therefore, this Court is of the view that it is a fit case where the power is to
be exercised under Article 227 of the Constitution of India by interfering
with the order dated 03.08.2024, as such, we have interfered with the order,
but the argument which has been advanced for passing interim order, this
Court is of the view that no such direction can be passed by this Court
under Article 227 of the Constitution of India reason being that if such
indulgence will be granted then the scope of Article 227 will be questioned
and that will be in conflict with the power which is to be exercised under
Article 226 of the Constitution since when the law has been laid down that
the power under Article 227 of the Constitution is to be used sparingly and
only for in appropriate cases for the purpose of keeping the subordinate
courts and tribunals within the bounds of their authority and not for
correcting mere errors then passing of the interim order will lead to
accelerating the error committed even though this Court has interfered with
the impugned order by quashing it so that the learned court may remain
within the bounds of their authority and not by correcting errors.
If that is the imposition of law then once the error has been
corrected by quashing the order dated 03.08.2024 and if in such
circumstances, any indulgence will be passed by this Court by protecting
the interest of the respondent in continuation of the order dated 03.08.2024,
the same will lead to exceeding the jurisdiction by this Court in exercising
the power under Article 227 of the Constitution.
42. This Court, therefore, is of the view that no such indulgence can be granted
in order to further the illegality which has been committed by the learned
court to be perpetuated.
43. Law in this regard is well settled that illegality cannot be allowed to be
perpetuated. Reference in this regard be made to the judgment rendered by
the Hon'ble Apex Court in State of Orissa and Anr. vs. Mamata Mohanty,
(2011) 3 SCC 436, wherein at paragraphs-56 and 57 it has been observed
which reads as under:
"56. It is a settled legal proposition that Article 14 is not meant to
perpetuate illegality and it does not envisage negative equality. Thus,
even if some other similarly situated persons have been granted some
benefit inadvertently or by mistake, such order does not confer any
legal right on the petitioner to get the same relief.)
57. This principle also applies to judicial pronouncements. Once the
court comes to the conclusion that a wrong order has been passed, it
becomes the solemn duty of the court to rectify the mistake rather than
perpetuate the same. While dealing with a similar issue, this Court
in Hotel Balaji v. State of A.P. [1993 Supp (4) SCC 536 : AIR 1993 SC
1048] observed as under : (SCC p. 551, para 12)
"12. ... '2. ... To perpetuate an error is no heroism. To rectify it
is the compulsion of judicial conscience. In this, we derive
comfort and strength from the wise and inspiring words of Justice
Bronson in Pierce v. Delameter [1 NY 3 (1847) : A.M.Y. p. 18] at
p. 18:
"a Judge ought to be wise enough to know that he is fallible and,
therefore, ever ready to learn : great and honest enough to
discard all mere pride of opinion and follow truth wherever it
may lead : and courageous enough to acknowledge his errors.""
44. This Court, in view of the above, is of the view that no indulgence can be
granted to the respondent by allowing to further continue the order dated
03.08.2024.
45. Accordingly, the instant writ petition stands allowed, as such, disposed of.
46. The matter is remitted to the learned court to pass afresh order, after
providing adequate and sufficient opportunity of hearing to the parties,
preferably within a period of three weeks from the date of
receipt/production of copy of this order.
47. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.)
I Agree,
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
Saurabh / A.F.R.
