SHALINI SHYAM SHETIY & Anr. v. RAJENDRA SHANKAR PATIL

3.1 Before the coming of the Constitution on 26th January, 1950, no Court in India except three High Courts of Calcutta, Bombay and Madras could issue the writs, that too within their original jurisdiction. Prior to Article 226 of the Constitution, under Section 45 of the Specific Relief Act, the power to issue an order in the nature of mandamus was there. The power to issue writs underwent a sea-change with the coming of the C Constitution from 26th January, 1950. Now writs can be issued by High Courts only under Article 226 of the Constitution and by the Supreme Court only under Article 32 of the Constitution. No writ petition can be moved under Article 227 of the Constitution nor can a writ be D issued under Article 227 of the Constitution. Therefore, a petition filed under Article 227 of the Constitution cannot be called a writ petition. This is clearly the Constitutional position. No Rule of any High Court can amend or alter this clear Constitutional scheme. In fact E the Rules of Bombay High Court have not done that and proceedings under Articles 226 and 227 have been separately dealt with under the said Rules. [Paras 30, 31 and 32] [858-0-H; 859-A-C] F Law of Writs by V. G. Ramchandran, Eastern Book Company Volume 1 - referred to.

3.2 Articles 226 and 227 stand on substantially different footing. Prior to the Constitution, the Chartered High Courts as also the Judicial Committee of the Privy G Council could issue prerogative writs in exercise of their original jurisdiction. However, after the Constitution every High Court has been conferred with the power to issue writs under Article 226 and these are original proceeding. The jurisdiction under Article 227 on the other hand is not H original nor is it appellate. This jurisdiction of SHALINI SHYAM SHETTY AND ANR. v. RAJENDRA 841 SHANKAR PATIL is for both A superintendence under Article 227 administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields. Under Article 226, the High Court normally annuls or quashes an order or proceeding but in exercise of its jurisdiction B under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. [Paras 57, 58, 59 and 60] [868-F-H; 869-A-C] Jahnabi Prasad Banerjee and Anr. vs. Basudeb Paul C and Ors. AIR 1950 Calcutta 536; Sukhdeo Baiswar vs. Brij Bhushan Misra and Ors. AIR 1951 Allahabad 667; Dalmia Jain Airways Limited vs. Sukumar Mukherjee AIR 1951 Calcutta 193; Manmatha Nath Biswas vs. Emperor AIR 1933 Calcutta 132; Jodhey and Ors. vs. State through Ram Sahai D AIR 1952 Allahabad 788; Nagendra Nath Bora and Anr. vs. Commissioner of Hills Division and Appeals, Assam and Ors. AIR 1958 SC 398; State of Gujarat etc. vs. Vakhatsinghji Vajesinghji Vaghela (dead) Thr LRs and Ors. AIR 1968 SC 1481; Mani Nariman Daruwala @ Bharucha (deceased) E through Lrs. and Ors. vs. Phiroz N. Bhatena and Ors, etc. (1991) 3 SCC 141; Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram (1986) 4 SCC 447; Laxmikant Revchand Bhojwani and Anr. vs. Pratapsingh Mohansingh Pardeshi (1995) 6 SCC 576; Sarpanch, Lonand Grampanchayat vs. F Ramgiri Gosavi and Anr. AIR 1968 SC 222; Jijabai Vithalrao Gajre vs. Pathankhan and Ors. (1970) 2 SCC 717; Ahmedabad Manufacturing and Calico Ptg. Co. Ltd. vs. Ram Tahel Ramnand and Ors. (1972) 1 SCC 898; Surya Dev Rai vs. Ram Chander Rai and Ors. (2003) 6 SCC 675; Radhey G Shyam and Anr. vs. Chhabi Nath and Ors. (2009) 5 SCC 616 - referred to.