A B SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF GUJARAT & Ors.

in the strictest sense of the term. Neither the court nor the Presiding Officer defends the order before the superior court it does not contest. If the High Court, in exercise of its writ jurisdiction or revisional jurisdiction, as the case may be, calls for the records, the same can B always be called for by the High court without the Court or the Presiding Officer being impleaded as a party. Similarly, with the passage of time there have been many a tribunal which only adjudicate and they have nothing to do with the lis. For example; the tribunals constituted C under the Administrative Tribunals Act, 1985, the Custom, Excise & Service Tax Appellate Tribunal, the Income Tax Appellate Tribunals, the Sales Tax Tribunal and such others. Every adjudicating authority may be nomenclatured as a tribunal but the said authority(ies) are different and pure and simple adjudicating authorities and that is why they are called the authorities. An Income Tax Commissioner, whatever rank he may be holding, when he adjudicates, he has to be made a E party, for he can defend his order. He is entitled to contest. There are many authorities under many a statute. Therefore, the proposition that can safely be culled out is that the authorities or the tribunals, who in law are entitled to defend the orders passed by them, F are necessary parties and if they are not arrayed as parties, the writ petition can be treated to be not maintainable or the court may grant liberty to implead them as parties in exercise of its discretion. There are tribunals which are not at.all required to defend their G own order, and in that case such tribunals need not be arrayed as parties. [Para 34] [548-D-H; 549-A-C] King v. Electricity Commissioners 19241 KB; Ahmeda/li v. M.D. Lalkaka AIR 1954 Bom 33, 34; Kanglu Bau/a v. Chief Executi11e Officer AIR 1955 Nag. 49 - referred to. H SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF GUJARAT & ORS. 509 Case Law Reference referred to 2013 (1) GLH 440 referred to 1995 (1) GLH 58 relied on. 1955 SCR 250 relied on. 1955 SCR 1104 relied on. 1958 SCR 1240 relied on. 1963 SCR 1 relied on . . AIR 1947 PC 90 relied on. 1966 SCR 744 relied on. 1955 SCR 1045 relied on. 1960 SCR 177 1963 Suppl. SCR 885 relied on. relied on. 2002 (2) SCR 1006 relied on. .1989 (1) $CR 509 2015 (3) SCALE 88 Followed. 2003 (2) Suppl. SCR 290relied on relied on 2003 (1) SCR 567 1986 SCR 731 relied on 1993 Supp. (1) sec 11 relied on 1992 (3) SCR 537 relied on relied on 1999 (3) SCR 907 2006 (5) Suppl. SCR 274relied on relied on 2009 (13) SCR 886 (1993) Supp (1) sec 9 relied on relied on 2008 (10) SCR 243 relied on 1959 SCR 1424 relied on 1963 Suppl. SCR 676 referred to. 19241 KB referred to. AIR 1954 Born 33, 34 AIR 1955 Nag. 49 referred to. Para 2 Para 2 Para 6 Para 7 Para 8 Para 9 Para 10 Para 11 Para 12 Para 12 Para 12 Para 13 Para 13 Para 14 Para 14 Para 14 Para 18 Para 19 Para 20 Para 21 Para 22 Para 23 Para 23 Para 23 Para 26 Para 26 Para 29 Para 30 Para 30 A B c D E F G H 510 SUPREME COURT REPORTS [2015] 6 S.C.R. A CIVILAPPELLATE JURISDICTION: Civil Appeal No. 2374 of 2015 From the Judgment and Order dated 22.01.2014 in LPA No. 603 of 2007 of the High Court of Gujarat B c WITH CIVIL APPEAL N0.8 2375-2376, 2378-2385, 2386, 2387- 2388, 2389-2390, 2665, 2669-2716, 2717, 2391-2392, 2662- 2663, 2141-2144, 2664 OF 2015 Dayan Krishnan, Percy Kavina, Kirtiman Singh, Gautam Narayan. Asmita Singh, Nachiketa Joshi, Sudhakar Joshi, Chaitanya Joshi, Bhushan M. Oza, 0. P. Bhadani, Ashok Anand, Rakesh Kumar 3ingn, Sanjay Kapur, D.G. D Chauhan, Anmol Chandan, Priyanka Das, Daisy Hannah, Jatin Zaveri, Mohit D. Ram, Manisha T. Karia, Purvish Jitendra Malkan, Sunil Fernandes, Astha Sharma, Raghav Chad ha, Mithu Jain, Preetesh Kapur, Hemantika Wahi, Jesal, Preeti Bhardwaj, Gaurav Goel, Sanjoy Ghose, Kaustubh E Anshuraj, Abhijeet Sinha, J. Prabhakar, Vikash Singh, Yogen N. Pandya, Padhyaru, Rameshwar Prasad Goyal for the appearing parties. The Judgment of the Court was delivered by F DIPAK MISRA, J. - In this batch of appeals, by special leave, the appellants call in question the legal substantiality of the judgment and order dated 26.12.2013 passed by the Special Bench of the High Court of Gujarat in a bunch of G Letters Patent Appeals preferred under Clause 15 of the Letters Patent.

#2. As the factual matrix would unveil, the Division Bench that referred the matter to a larger Bench, noticed H conflict in Revaben Wdlo. Ambalal Motibhai and oth,.rs SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF GUJARAT & ORS. [DIPAK MISRA, J.] 511 v. Vinubhai Purshottambhai Patel and others' and A Dilavarsinhsinh Khodubha Jadeja v. State of Gujarat and others2 and at that juncture framed two questions. The Special Bench adverted to the facts necessitating the reference in detail and took note of the preliminary objections of the learned counsel for the State as regards the B maintainability of the Letters Patent Appeal on many a score and thereafter thought it appropriate to frame the questions afresh and accordingly it formulated questions.

#3. At the outset, we may state that though eight C questions have been drawn up by the special Bench yet we are disposed to think that they can really be put into three basic compartments, namely: (i) In what context the phrase 'original jurisdiction' D appearing in Clause 15 of the Letters Patens should be construed, that is, by taking into consideration the plain meaning of the same as the Court's power to hear and decide the matter before any other court and review the same; or should it be construed in the context with the power of the E Court to issue a writ under Article 226 of the Constitution of India, which is always original. (ii) Assuming the words "to issue to any person or authority" as contained in Article 226 of the Constitution are F interpreted so as to include the tribunal or the Court, then in such circumstances, would it be the correct propositiun of law to say that appellate tribunal is not amenable to a writ of certiorari and the only remedy available to the litigant to challenge the order passed by an appellate tribunal is under G Article 227 of the Constitution and, ancillary one, when a petition assails an order of the tribunal, be it a tribunal of first instance or an appellate tribunal, should it be necessarily 1 2013 (1) GLH 440 2 1995 (1) GLH 58 H 512 SUPREME COURT REPORTS [2015] 6 S.C.R. A B C D treated as a petition under Article 226 of the Constitution of India in every case or it would depend upon facts of each case, more particularly the grounds of challenge and the nature of order passed. (iii) Whether in a petition for issue of a writ of Certiorari under Article 227 of the Constitution of India, the tribunal/ Court whose order is impugned in a petition must be a party to the petition so that the writ sought from the Court can be issued against the tribunal/Court, but if the petition is for the relief under Article 227 only, then the tribunal/Court whose order is under assail need not be a party-respondent on the reasoning that by entertaining a petition under Article 227 of the Constitution, the High Court exercises its power of superintendence which is analogous to the revisional jurisdiction.

#4. The special bench as is evincible from the judgment impugned, has delved into the questions framed by it, if we permit ourselves to say so, at great length and recorded its It is necessary to reproduce the E conclusions in seriatum. relevant conclusions, which are as follows:- "(iii) When a writ is issued under Article 226 of the Constitution, it is issued in exercise of its original jurisdiction whether against the Tribunal or inferior Court or administrative authority. (iv) The power exercised under Article 226 of the Constitution is in exercise of original jurisdiction and not supervisory jurisdiction. (vii) A writ of certiorari lies in appropriate cases against the order of Tribunal or_ Court subordinate to the High Court where s~ch a Court, or Tribunal acts not only as an authority of first instance but even if such a Court or F G H SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF GUJARAT & ORS. [DIPAK MISRA, J.] 513 Tribunal acts as an appellate or revisional authority provided a case for a writ of certiorari is made out to the satisfaction of the Court concerned. Thus, if an appellate or revisional order of the Court or Tribunal, subordinate to a High Court, suffers from a patent error of law or jurisdiction, the same could be challenged before the High Court with the aid of Article 226 of the Constitution and it could not be said that such an appellate or revisional order of the Court or Tribunal could be challenged with the aid of Article 227 alone. (ix) The term "original jurisdiction" as contained in Clause 15 of the Letters Patent should be understood in context with the power of the High Court to issue a high prerogative writ like a writ of certiorari under Article 226 of the Constitution of India. It is that original power to issue a writ under Article 226 of the Constitution of India which makes the proceedings original and the exercise of such power will always be original jurisdiction. (x) If the Special Civil Application is described as one not only under Article 226 of the Constitution, but also under Article 227 of the Constitution of India and the Court or the Tribunal whose order is sought to be quashed, is not made a party, the application is not maintainable as one for the relief of certiorari in the absence of the concerned Tribunal or Court as party, but the same may be treated as one under Article 227 of the Constitution of India. If the Court or Tribunal is not impleaded as a party respondent in the main petition, then by merely impleading such court or tribunal for the first time in the Letters Patent Appeal will not change the nature and character of the proceedings before the learned Single Judge. By A B c D E F G H 514 SUPREME COURT REPORTS [2015] 6 S.C.R. A 8 C D E F G H merely imp leading such a Court or Tribunal for the first time in the LPA, the appeal could not be said to be maintainable, if the proceedings before the learned Single Judge remained in the nature of supervisory proceedings under Article 227 of the Constitution. (xi) If the learned Single Judge, in exercise of a purported power under Article 227 of the Constitution sets aside the order of Tribunal or Court below and at the same time, the essential conditions for issue of writ of certiorari are absent, no appeal will be maintainable against such order in view of the specific bar created under Clause 15 of the Letters Patent itself and such an order can be challenged 011ly by way of a Special Leave Petition before the Supreme Court. To put it very explicitly, take a case where a petition is only under Article 227 of the Constitution of India, invoking superintending powers of the High Court and not under Article 226 of the Constitution of India. After examining the matter, if the court finds substance in the petition and sets aside the order of an authority, court or a tribunal, then against such an order, an LPA would not lie on the argument that since the court has set aside the order it has decided the matter on merits having found substance in the same. To put it in other words, once a petition is under Article 227 of the Constitution of India, and while entertaining such a petition under Article 227 of the Constitution of India, if the court allows a petition by setting aside the order impugned, then against such an order no LPA would lie. xii) If a learned Single Judge, in exercise of a purported power under Article 227 of the Constitution modifies SH JOGENDRASINHJI VIJAYSINGHJi v. STATE OF GUJARAT & ORS. [DIPAK MISRA, J.) 515 the order of Tribunal/Authority or Court below and thereby partly allows a petition to a certain extent, then in such circumstances, it could not be said that the Court exercised its certiorari jurisdiction and no appeal will be maintainable against such order in view of the specific bar created under Clause 15 of the Letters Patent itself. A • B However, if a learned Single Judge, in purported exercise of power under Article 226 of the Constitution of India, issues a writ of certiorari, although the same is not maintainable, an appeal under Clause 15 of the Letters Patent would nevertheless be maintainable against such order. To put it in other words, take a case where a party on his own invokes supervisory jurisdiction under Article 227 of the Constitution of India, and in such a petition, the Court issues a writ of certiorari, then against such an order an LPA would be maintainable. To put it explicitly clear, take a case where in a petition neither there is a prayer for issue of a writ of certiorari nor the Tribunal/Authority or Court whose order is impugned is impleaded as a party respondent, and despite such being the position, if the Court proceeds to issue a writ of certiorari, then against such an order an LPA would be maintainable. (xiii) A combined application under both Articles 226 and 227 of the Constitution of India can be entertainable only when the court fees payable for invoking both the provisions have been paid in aggregate. If court fees payable for invoking only one of the Articles 226 and 227 have been affixed, the Court before dismissing the application on that ground may give option to the c D E F G H 516 SUPREME COURT REPORTS (2015) 6 S.C.R. A ·a petitioner to choose only one of such provisions, if he does not pay the balance amount of court fees and the application should be treated accordingly. It is, however, for the Court to decide whether the facts of the case justify invocation of original jurisdiction or it is a fit case for exercising supervisory jurisdiction. (xv) When a remedy for filing the Revision under Section 115 of the Civil Procedure Code has been expressly barred, then in such a case, a petition under Article 227 of the Constitution of India would lie and not a writ petition under Article 226 of the Constitution of India. When the Parliament has thought fit to restrict the powers under Section 115 of the Code with a definite object, then, under such circumstances an order which is not revisable under Section 115 of the Code of Civil Procedure cannot be challenged by way of filing a Writ Petition under Article 226 of the Constitution invoking extraordinary jurisdiction of the High Court and that too an interlocutory order passed by the Civil Court in a Regular Suit proceedings." c D E

#5. At this juncture, we are obligated to state that the conclusions have been recorded by the High Court to cover F all kinds of possibilities, but we are of the considered opinion that it may not always be possible to do so and hence, advertence in detail to the said conclusions is neither necessitous nor warranted. G

#6. Having said that, presently we shall proceed to deal with the first question we have stated hereinbefore. In this regard, reference to the authority in T.C. Basappa v. T. Nagappa and Another" would be fruitful. The controversy before the Constitution Bench, apart from other aspects, also H 3 AIR 1954 SC 440 SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF GUJARAT & ORS. [DIPAK MISRA, J.] 517 pertained to scope of jurisdiction under Article 226 of the A Constitution. Dealing with the said facet, the larger Bench opined that:- "7. 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 remove or 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 useci in contrast with what are purely ministerial acts. Atkin, L.J. thus summed up the law on this point in Rex v. Electricity Commissioners•: "Whenever anybody or persons having legal authority to deter· 11ine questions affecting the rights of subjects and having the duty to act judicially act in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs." 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 superv"isory 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. The offending order or proceeding so to say is put out of the way as one which should not be used to the detriment of any person, 4 1924-1 KB 171 at p.205 (C) B C D E F G H 518 SUPREME COURT REPORTS [2015] 6 S.C.R. A B C D E F G vide per Lord Cairns in - 'Walsall's Overseers v. L. & N. W.Rly. Co5.

#8. The supervision of the superior court exercised through writs of 'certiorari' goes on two points, as has been expressed by Lord Sumner in King v. Nat Bell Liquors Limited6. One is the area of inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of law in the course of its exercise. These two heads normally cover all the grounds on which a writ of 'certiorari' could be demanded. In fact there is little difficulty in the enunciation of the principles; the difficulty really arises in applying the principles to the facts of a particular case.

#9. 'Certiorari' may lie and is generally granted when a court has acted without or in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceeding or from the absence of some preliminary proceeding or the court itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances, vide 'Halsbury, znd edition, Vol. IX, page 880. When the jurisdiction of the court depends upon the existence of some collateral fact, it is well settled that the court cannot by a wrong decision of the fact give it jurisdiction Which it would not otherwise possess, vide Bunbury v. Fuller7 & R. v. Income Tax Special Purposes Commissioners'8 5 (1879) 4 AC 30 at p. 39 (D) 6 (1922) 2 AC 128 at p. 156 (E) 7 (1854) 9 EX 111 (F) '(1889) 21 QBD 313 (G) H SH JOGENDRASINHJI VIJAYSINGHJI v. STATE OF GUJARAT & ORS. [DIPAK MISRA, J.] 519

#11. In dealing with the powers of the High Court under Article A 226 of the Constitution, this Court has expressed itself in almost similar terms, vide 'Veerappa Pillai v. Raman and Raman Ltd. 9 and said: "Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned ·and decide what is the proper view to be taken or the order to be made." B C D These passages indicate with sufficient fullness the general E principles that govern the exercise of jurisdiction in the matter of granting writs of 'certiorari' under Article 226 of the Constitution."

#7. In Harl Vishnu Karnath v. Ahmad /shaque and F Ors. 10, a seven- Judge Bench, while dealing with the scope of proceeding under Article 226 of the Constitution, observed that there can be no dispute that the orders of the Election Tribunals are subject to the supervisory jurisdiction of the High Courts under Article 226 and a writ of certiorari under G that Article will be competent against decisions of the Election Tribunals also. The Court referred to the decision in T.C. Basappa (supra) and other authorities and ruled thus:-