AFR

HIGH COURT OF CHHAT TISGARH AT BIL ASPUR

DIVISION BENCH
------------------------------------------------------------------------------------------------COR AM:
HONBLE SHRI YATINDR A SINGH, C. J.
HONBLE SHRI PRITINKER DIWAKER, J
------------------------------------------------------------------------------------------------1. Writ Appeal No. 428 of 2013
Appellants

Respondent

National Council for Teachers Education

and another.
VERSUS
Shri Rawatpura Sarkar Sansthan

2. Writ Appeal No. 427 of 2013

Appellants

Respondent

National Council for Teachers Education

and another.
VERSUS
Shri Rawatpura Sarkar Sansthan

3. Writ Appeal No. 466 of 2013

Appellant

Respondents

Shri Rawatpura Sarkar Sansthan

VERSUS
National Council for Teachers Education
and another.

4. Writ Appeal No. 467 of 2013

Appellant

Respondents

Shri Rawatpura Sarkar Sansthan

VERSUS
National Council for Teachers Education
and another.

Writ Appeal s under Secti o n 2 (1) of the Chhattisgarh High

Court (Appeal to Division Bench) Act, 200 6
------------------------------------------------------------------------------------------------Appearance :
Shri Bhaskar Payashi, counsel for the Appellant in
Writ Appeal-428 and 427 of 2013 and Respondents
in Writ Appeal-466 and 467 of 2013.
Shri Manoj Paranjpe, Shri Rahul Tamaskar and
Ms. Sangeeta Mishra, counsel for the Respondents
in Writ Appeal-428 and 427 of 2013 and
Appellants in Writ Appeal-466 and 467 of 2013.
------------------------------------------------------------------------------------------------JUDGEMENT
(08 th August, 2013)
1. The main point involved in these cases is,
'Whether the withdrawal of recognition of the BEd course to Shri
Rawatpura Sarkar Sansthan (the Institute) is illegal.'
It arises in these writ appeals against the order of the single judge dated
02.05.2013 disposing of Writ Petitions (C)-2874 and 2875 of 2011 filed by
the Institute.

THE FACTS
2. There is a trust known as Rawatpura Sarkar Lok Kalyan Trust (the
Trust). It started a university in the name of Rawatpura Sarkar
International University (the Rawatpura-University) at Raipur. It was a
private university and was granted recognition of a deemed university by
the University Grants Commission (the UGC). The Institute was affiliated
to the Rawatpura-University.
3. Subsequently, the Institute got affiliated to Ravishanker Shukla
University (the Ravishanker-University).
4. The Institute decided to start a BEd course. The Western Regional
Committee (the WRC) constituted under the National Council of Teachers
Education Act (the Act) granted recognition to it.

Thereafter, the

Institute applied for grant of recognition to start MEd course.

5. The WRC not only cancelled the recognition to BEd course, but
dismissed the application for grant of recognition for the MEd course.
The appeals of the Institute against these orders were also dismissed.
6. These orders were challenged by the Institute in the two writ petitions
that were disposed of by the single judge by issuing a direction to
conduct spot inspection and then take a decision. This order of the single
judge is challenged in these appeals: The WRC challenges the direction;
whereas, the Institute challenges non-quashing of the impugned orders.
Facts Regarding BEd Course
7. The Institute had filed an application on 07.10.2003 before the WRC
for grant of recognition to start BEd course under NCTE (Form of
application for recognition, the time limit of submission of application,
determination of norms and standards for recognition of teacher
education programmes and permission to start new course or training)
Regulations, 2002 (the 2002-Regulations).
8. In the application, it was mentioned that BEd course was to start at
rented premises at C-1, Sector-1, Devendra Nagar, Raipur, Chhattisgarh

(the Raipur-premises). But, it was also mentioned in the application that

the Institute will construct its own building and shift there.
9. Along with the application, a sale-deed of the land was also annexed
that showed that the Institute had purchased 5 acres of land in village
Chouraha, Ahirwar, tehsil Dhamdha (now tehsil Kumhari) district Durg
(the Durg-premises), over which, the building was to be constructed.
10. A team of the WRC conducted inspection of the proposed Institute
on 17.05.2004. After considering its report, the WRC granted temporary
recognition to the Institute on 08.07.2004 to run the BEd course for the
academic session 2004-05 at the Raipur-premises on the condition that
the Institute will submit the list of the staff/ faculty duly approved by the
Registrar of the affiliating university.
11. The WRC granted recognition on 23.11.2005 for the academic session
2005-06 on the condition that the Institute should shift to its own
premises within a period of three years from the date of recognition.
12. According to the Institute, it shifted to its own building at Durgpremises in the month of December, 2005. This fact is not specifically
denied by the WRC but it is said that it was informed about this fact on
28.04.2009.
13. The WRC issued show-cause notice dated 28.04.2010 to the Institute
to show-cause why the recognition for the BEd course be not cancelled
as it had shifted the premises without obtaining permission of the WRC
under sub-clause (9) of clause 8 {clause 8(9)} of the National Council for
Teacher Education (Recognition Norms & Procedure) Regulations, 2005
(the 2005-Regulations).
14. The Institute filed its reply on 20.05.2010. However, a decision was
taken to withdraw the recognition on 14.06.2010 on the ground that the
recognition was granted to run the BEd course at Raipur-premises, but it
was shifted to the Durg-premises, without obtaining permission of the
WRC. Thereafter, the order withdrawing the recognition was also passed
on 06.07.2010.

15. Aggrieved by the aforesaid order, the Institute filed an appeal before
the appellate authority. It was dismissed on 26.04.2011, affirming the
finding of the WRC.
16. Aggrieved by the aforesaid orders, the Institute filed Writ Petition
(C)- 2875 of 2011.
Facts Regarding MEd Course
17.

The Institute submitted another application on 31.10.2008 for

running MEd course at the Durg-premises. It is at the same place where

the Institute was running its BEd course after shifting.
18. Initially, the aforesaid application was rejected on 05.08.2009.
However, the case was remanded back to the WRC by the Appellate
Authority on 11.09.2009.
19. Later on, a team of the WRC inspected the Durg-premises, then the
WRC issued a show-cause notice on 12.03.2010 to the Institute to showcause, why the recognition for MEd course be refused on the ground that
the Institute was not running any BEd course at the Durg-premises.
20. The Institute filed its reply on 10.04.2010. The WRC refused to grant
recognition for MEd course at the Durg-premises on 05.05.2010 on the
ground that the Institute was not running BEd course at the
Durg-premises.
21. Aggrieved by the aforesaid order, the Institute filed an appeal before
the appellate authority. It was also dismissed on 26.04.2011, affirming
the finding of the WRC.
22. Against the aforesaid orders, the Institute filed Writ Petition (C)-2874
of 2011.
Orders on the WPs
23. Writ Petition (C)-2874 of 2011 and Writ Petition (C)-2875 of 2011
were taken up together. The court did not quash the orders passed by

the WRC and the appellate authority. However, considering the future of
the students, the single judge,

Granted liberty to the WRC to impose penalty in respect of

violation of provisions of the regulations, if any; but

Directed that the case of the Institute may be reconsidered after

making fresh spot inspection of the building at the Durg-premises.

24. The WRC has filed Writ Appeals- 427 and 428 of 2013 against the
direction issued by the single judge. The Institute has filed Writ Appeals466 and 467 of 2013 against the order of the single judge for not
quashing the impugned orders. The writ appeals are now being taken up
for decision.
POINTS FOR DETERMINATION
25. We have heard counsel for the parties. There is delay in filing the writ
appeals. The counsel for the parties have no objection in condoning the
delay in filing the writ appeals. The delay in filing the writ appeals is
condoned and with the consent of the parties, the writ appeals are being
finally decided.
26. The following points arise for determination:
(i)

Whether the writ appeals are maintainable;

(ii) Whether the order withdrawing the recognition for BEd

course is illegal;
(iii) Whether the refusal to grant recognition for MEd course is
illegal;
(iv) In case answers to the aforesaid points are affirmative,
then what relief should be granted to the Institute.
1 st POINT: WRIT APPE ALS ARE MAINTAINABLE
(For some general observations and suggestions regarding this point, see
Appendix-1)
27. An appeal lies to a division bench against the order of the single
judge under the Chhattisgarh High Court (Appeal to Division Bench) Act,
2006 (the 2006-Act).

28. Under section 2 of the 2006-Act, an appeal lies against the order
passed by the single judge in exercise of original jurisdiction under article
226 of the Constitution.

However, no appeal lies against the order

passed in exercise of supervisory jurisdiction under article 227 of the

Constitution.
29. The counsel for the parties agree that the WRC as well as the
appellate authority exercise powers under a statutory provision and also
exercise quasi-judicial power. However, according to them, the single
judge had exercised the power under article 226 of the Constitution and
not under article 227 of the Constitution.
30. There is no dispute between the parties on the point that the single
judge has exercised power under article 226 and not under article 227 of
the Constitution. Nevertheless, if the single judge has exercised power
under article 227 then the writ appeals are not maintainabile: a
concession of the parties will not confer jurisdiction, if the writ appeals
are not maintainable.
31. In Dr. Bhagwant Singh vs Pt. Ravi Shankar Shukla University and
another (Writ Appeal-190 of 2007, decided on 25.06.2013) and M/s Sony
India Private Limited and Another vs. State of Chhattisgarh and Others
(Writ Appeal No.214 of 2013 decided on 18.06.2013), it has been held
that a statutory authority exercising quasi-judicial power is a Tribunal
within the meaning of article 227 of the Constitution.
32. In SKS Ispat Limited Vs Union of India and others (Writ Appeal-1006
of 2012, decided on 12.12.2012), it has been held that it is not the
heading of the writ petition, but substance of the order passed by the
single judge is material.

It is substance of the order passed that

determines, whether the order was passed under Article 226 or 227 of
the Constitution.
33. The question is, considering the substance of the order passed by the
single judge here, whether the order is passed under article 226 or under
article 227 of the Constitution.

34. The WPs were filed under article 226/ 227 of the Constitution. The
reliefs prayed for, were for quashing of the impugned orders and a
direction was prayed that the respondents- authorities may not withdraw
the recognition granted earlier for running BEd course or to grant
recogntion for running MEd after satisfying the compliance of the
conditions laid down under the Act on inspecting the Durg-premises.
35. The second relief prayed for in the WPs is not clear. However, it
appears that the Institute prayed that irrespective of the past conduct, a
fresh spot inspection may be conducted to consider continuance of the
BEd course or grant of recognition to the MEd course.
36. The single judge did not quash the impugned orders. However,
directed that:
'The respondents shall consider the case of the petitioner
afresh after having spot inspection of the building in
question having regard to the future of the students and
pass an appropriate order in accordance with law, if
necessary by imposing penal compensation for violation of
provisions of regulations, if any, within a period of two
months.'
The question is, is this order in substance under article 226 or 227 of the
Constitution.
37. It has been held that the power of 'superintendence' conferred upon
the High Court under article 227 of the Constitution is not confined to
administrative (for rulings, see below)1 superintendence only, but
includes the judicial superintendence, akin to revisional or corrective
jurisdiction, as well (for rulings, see below) 2 and can be exercised suo
motu (for rulings, see below)3.
1 Waryam Singh v Amar Nath, AIR 1954 SC 215; Surya Dev Rai v Ram Chander
Rai, (2003) 6 SCC 675 : AIR 2003 SC 3044; Jasbir Singh v State of Punjab,
(2006) 8 SCC 294 : (2006) 9 JT 35.
2 Banerjee, DN v PR Mukherjee: AIR 1953 SC 58; Achutananda Baidya v
Prafullya Kumar Gayen, (1997) 5 SCC 76 : AIR 1997 SC 2077; Surya Dev Rai v
Ram Chander Rai, (2003) 6 SCC 675 : AIR 2003 SC 3044; Jasbir Singh v State
of Punjab, (2006) 8 SCC 294 : (2006) 9 JT 35.
3 Hari Vishnu Kamath v Ahmad Ishaque, Syed, AIR 1955 SC 233; Jain JD v
State Bank of India Management, AIR 1982 SC 673 : (1982) 1 SCC 143; Jasbir
Singh v State of Punjab (2006) 8 SCC 294 : (2006) 9 JT 35.

38. Had the single judge quashed the impugned orders; and thereafter
issued any directions, then it could be said that the single judge has
exercised power under article 227 of the Constitution as it may be done
under this article. But in this case, the impugned orders are not set aside
but a direction has been issued.

Such a direction is in nature of

mandamus to the WRC and can be passed under article 226 of the
Constitution and not under article 227 of the Constitution. The writ
appeals are maintainable.

2 nd POINT: ORDER WITHDR AWING BEd RECOGNITION

ILLEGAL
39.

The WRC and the appellate authority have withdrawn the

recognition on the ground that the BEd course was illegally shifted from
the Raipur-premises to the Durg-premises, as no approval of the WRC
was obtained. Is this reasoning correct?
40. The counsel for the Institute challenges the reasoning and finding.
He submits that:

The BEd course was shifted from the Raipur-premises to the Durgpremises in December, 2005, when the building was completed at
Durg;

There was no necessity to take permission from the WRC as

shifting was done in view of the condition for granting
recognition; and

The recognition for the BEd cannot be withdrawn for not

following a condition that was not applicable.

Whereas, the counsel for the WRC supports the reasoning and finding.
He submits that:

The Institute should have taken permission from the WRC before
shifting its BEd course as mandated under clause 8(9) of the 2005Regulations;

The Institute had not taken such a permission; and

The shifting of the Institute to Durg-premises was illegal.

Let us consider, who is correct, but first, as to when the BEd course was
shifted to the Durg-premises.

Shifted in December, 2005

41. The Institute had filed an application under the 2002-Regulations for
grant of recognition to run BEd course on 07.10.2003. In the application,
it was also mentioned that the course would ultimately be conducted in
its own building for which the land was purchased at Durg (ie at the
Durg-premises) but for time being, the permission was sought to start
BEd course temporary, from the tenanted Raipur-premises. Along with
the application, a sale-deed of the land was also annexed to show that
the Institute had purchased 5 acres of land in Durg.
42. A team of the WRC had also conducted inspection on 17.05.2004 and
has also found the aforesaid facts to be correct.

The temporary

recognition was granted to the Institute on 08.07.2004 to run the BEd

course for the academic session 2004-05 from the tenanted Raipurpremises.
43. Subsequently, the recognition was granted for the academic session
2005-06 on 23.11.2005 on the condition that the Institute should shift
BEd course in its own premises, within a period of three years from the
date of recognition.
44. According to the Institute,

It completed its building and thereafter shifted the BEd course in

the month of December, 2005;

Initially, the administrative office continued at the Raipur-premises

but it also shifted to the Durg-premises in the year 2009.

This assertion of the Institute is not specifically denied by the WRC.

However, it has been said that the information regarding shifting was
supplied to the WRC for the first time on 28.04.2009.
45. The Institute was initially affiliated to the Rawatpura-University. The
recognition of many private universities including that of the RawatpuraUniversity was cancelled by the Supreme Court in Prof. Yashpal and
another vs State of Chhattisgarh and others {(2005) 5 SCC-420}.

46. Thereafter, the Institute filed an application for affiliation to the

Ravishankar-University.

The Executive Council of the Ravishankar-

University granted temporary affiliation for the academic session 200506 and the order to this effect was also issued on 20.04.2006. Since then,
it has been extended from time to time.
47. In the order granting affiliation by the Ravishankar-University, it is
mentioned that the Institute is at the Durg-premises. A copy of the order
was also sent to the WRC. This supports the assertion of the Institute
that it had shifted its BEd course earlier. As there is nothing to deny the
assertion of the Institute that it shifted BEd course to the Durg-premises
in December, 2005, we accept it.
48. In our opinion, the Institute shifted its BEd classes to the Durgpremises in December, 2005 though, the administrative office was
shifted later on.
2005-Regulations Not Applicable
49. The Institute had filed an application for grant of recognition of the
BEd course under the 2002-Regulations.

Admittedly, in the 2002-

Regulations, there was no such condition of taking approval for shifting.

50. The 2005-Regulations were published in the official gazette on
13.01.2006 and they were enforced from that date. The Institute had
already shifted its BEd course to the Durg-premises before enforcement
of the 2005-Regulations. Clause 8(9) of the 2005-Regulations was not
applicable; and no permission for shifting was required: the recognition
for the BEd course could not be withdrawn on the ground that no
permission was obtained.
51. Nevertheless, even if the 2005-Regulations were applicable, the
impugned orders cannot be supported.

They are neither legal nor

proper.
Even If 2005-Regulations ApplicableWithdrawal Illegal
52. The Institute had filed an application for grant of recognition to run

BEd course on 07.10.2003. A reading of this application along with the

annexures, indicates that the Institute wanted to start the BEd course in
a temporary tenanted premises at Raipur and thereafter shift to its own
building for which it had already purchased the land at Durg.
53. The WRC itself granted recognition to the Institute on 23.11.2005,
on the condition that it will shift to its own premises within three years.
In case, the Institute shifted to its own premises then no fault can be
found in it, as this was the condition for granting recognition.
54. It does not lie in the mouth of the WRC to grant recognition for BEd
course on the condition that the Institute shall shift the BEd course to its
own building and when shifting is done to fulfill the condition of the
WRC, then to withdraw it on the ground that no permission was taken: it
cannot blow hot and cold at the same time.
Withdrawal Improper
55. It is relevant to point out that the recognition for BEd course is not
withdrawn on the ground of lack of infrastructure or faculty strength or
any other deficiency, but on the alleged technical ground that no
permission was taken to shift the premises.
56. The future of our country depends on the advancement of education.
It is necessary that we open more educational institutions; provide better
educational facilities rather than to act in a manner to close the
educational institutions on technical grounds.
57. The matter would have been different, had the Institute did not have
proper infrastructure or the staff or was lacking in any other facilities as
required under the law. But this is not the case here. The impugned
orders were not passed on this ground but on the assumed alleged
technical flaw that was not there. This was improper.
58. In view of above, the order of the WRC dated 06.07.2010 and the
order of the appellate authority dated 26.04.2011 are set aside.

3 rd POINT: THE ORDER REFUSING PERMISSION

FOR MEd COURSEILLEGAL
59. The WRC issued a notice to the Institute to show cause as to why the
recognition for MEd course be not refused on the ground that no BEd
course was going on at the Durg-premises.
60. Thereafter, an order was passed by the WRC refusing to grant
permission for MEd course on the ground that the Institute was not
running any BEd course at the Durg-premises. This finding was upheld by
the appellate authority.
61. In our opinion, the notice issued by the WRC as well as the orders
passed by the WRC and the appellate authority are contrary to the stand
taken by the WRC, while withdrawing the recognition for BEd course;
perhaps this confusion arose as the separate orders were passed.
62. It is admitted case of the WRC that on the date of the application to
grant permission for MEd course, BEd course was running at the
Durg-premises, but according to the WRC, the Institute had illegally
shifted. This is different than to say that no BEd course was not running.
The notice as well as the order by the WRC and the appellate authority
are illegal.
63. Apart from above, we have already held that there was no illegality in
shifting the BEd course to the Durg-premises and withdrawal of
recognition of BEd course is illegal.
64. In view of above, the orders of the WRC dated 05.05.2010 and the
order of the appellate authority dated 26.04.2011 are illegal and are set
aside.

4 th POINT: RELIEF GR ANTED

65. The order to withdraw recognition for BEd course was passed on
06.07.2010. It was mentioned in the order that this recognition was
withdrawn from the end of the academic session next to the following
date of this withdrawal order.

It is admitted that by this order

recognition of BEd course was withdrawn after the end of academic

session 2011-12 ie from the academic session 2012-13.
66. The Institute filed writ petitions and obtained an interim order.
In view of the said interim order, it has admitted the students in the
academic session 2012-13 and 2013-14. In view of the same and the fact
that we have already set aside the orders withdrawing the recognition
for BEd course, we direct that:
(i) The WRC may conduct a fresh inspection of the premises and
thereafter take appropriate decision in accordance with law with
regard to BEd course as well as for granting recognition for MEd
course. This may be done by a consolidated order so that
confusion, which took place in the impugned orders, may not
occur again;
(ii) The recognition for the BEd course will continue till the fresh
order is passed by the WRC and will be subject to it.
A Clarification
67. Nevertheless, we clarify that:

The WRC will neither be entitled to reject the recognition for BEd
course on the ground that the Institute had illegally shifted its
premises to Durg, nor impose any penalty on the Institute for
making alleged violation that does not exist;

It will be open to the WRC to consider the question of

withdrawing recognition for BEd course or granting recognition
for MEd course on the ground that the infrastructure or the other
facilities are not in accordance with the regulations.

CONCLUSIONS
68. Our conclusions are as follows:
(a) The writ appeals are maintainable;
(b) The orders withdrawing recognition for BEd course and refusing
to grant permission for MEd course are illegal.
69. In view of our conclusions, the Writ Appeals- 427 and 428 of 2013
filed by the WRC are dismissed and Writ Appeals- 466 and 467 of 2013
filed by the Institute are allowed:

(a) The following reliefs are granted:

(i)

The orders, passed by the WRC dated 06.07.2010

withdrawing recognition to the BEd course and the
order of the appellate authority dated 26.04.2011
affirming it, are set aside;

(ii)

The orders, passed by the WRC dated 05.05.2010

refusing to grant recognition to the MEd course and the
order of the appellate authority dated 26.04.2011
affirming it, are set aside.

(b)

The following directions are issued with the restrictions and

liberty mentioned under the sub-heading 'A Clarification'
under heading '4TH POINT: RELIEF GRANTED':
(i)

The WRC may conduct a fresh inspection of the

premises and thereafter take appropriate decision in
accordance with law with regard to BEd course as well
as for granting recognition for MEd course. This may
be done by a consolidated order so that confusion,
which took place in the impugned orders may not
occur again;

(ii)

The recognition for the BEd course will continue till

the fresh order is passed by the WRC and will be
subject to it.

CHIEF JUSTICE
subbu

JUDGE

Appendix-1
Some observations and suggestions regarding maintainability of appeal
against the order of the single judge passed under Article 226 and 227 of
the Constitution.
1. While deciding the first point, we have pointed out that the courts
have held that article 227 of the Constitution not only confers
administrative superintendence but judicial superintendenceakin to
revisional or corrective jurisdictionas well on the High Courts.
2. It is for the aforesaid reason that the law often provides an appeal
against the order of the single judge passed in exercise of original
jurisdiction but not in exercise of jurisdiction under article 227 of the
Constitution.

Shorter Constitution of India by Durga Das Basu (14 th

edition 2009) at page- 1565 correctly sums up the law as follows:

'The Madras,a Allahabad,b Calcuttac and Punjabd High Court
have held that the jurisdiction vested in the High Court under
article 227 is a revisional jurisdiction and, accordingly, no
Letters Patent Appeal is competent from an order passed by a
single judge in exercise of such jurisdiction.
This view has been adopted by the Supreme Court.e'
Some Observations
3. The courts have also taken a view that the supervisory jurisdiction
under article 227 may be exercised suo motu but writ of certiorari under
article 226 may not be issued suo motu and can be issued only at the
instance of the aggrieved party; though this definition of the words
'aggrieved party' has been broadened and rigour of standing has been
somewhat relaxed. Though, there is no difficulty in this distinction, but
there is some difficulty in the other distinction pointed out in some
judgements.
a
b
c
d

In re. Tirupuliswamy Naidu V, AIR 1955 Mad. 287 : (1954) 2 MLJ 473.
Aidal Singh v Karan Singh, AIR 1957 All 414 : 1957 All. LJ 389.
Sukendra Bikash Barua v Harekrishna De., AIR 1953 Cal. 636 : 57 Cwn 692.
Braham Dutt v People's Co-operative Society, AIR 1961 Punj 24 : 62 Punj. LR
916.
e Umaji Keshav Meshram v Radikabai, AIR 1986 SC 1272 : 1986 Supp. SCC 401;
Sushilabai Laxminarayan Mudliyar v Nihalchand Waghajibhai Shaha (1993)
Supp. (1) SCC 11 : AIR 1992 SC 185; Kishorilal v Sales Officer, District Land
Development Bank, (2006) 7 SCC 496 : (2006) 8 JT 200; Ratnagiri District
Central Co-operative Bank Limited v Dinar Kashinath Walve (1993) Supp. (1)
SCC 9

4. In some judgements, it has been opined that:

In a writ of certiorari under article 226 of the Constitution, the

proceedings have to be certified and sent up by the inferior court
or tribunal to the High Court;

Under Article 226 of the Constitution, the High Court may annul or
quash the proceedings and then do no more, but in exercise of
supervisory jurisdiction, the High Court may not only quash or set
aside the impugned proceedings, judgement or order, but it may
make such directions as the facts and circumstances of the case
may warrant or it may also substitute a decision of its own in place
of the impugned decision;

The jurisdiction under article 227 is wider than under article 226 of
the Constitution.

Perhaps, this may not be correct.

5. Under Article 226 of the Constitution, the High Court is not confined
to issue prerogative writs of habeas corpus, mandamus, prohibition,
quo warranto, and certiorari as exercised in England but it provides that
the High Court could issue writs in the nature of these prerogative writs.
This is to say that it is not confined to the procedural technicalities of
those writs developed in England.
6. Apart from above, the High Court also has a jurisdiction to issue
directions or writs for enforcement of any of the rights conferred under
Part-III or for any other purpose. To confine it, merely to the prerogative
writs in England, is to omit not only the importance of the words used
and make them redundant but also to defeat the purpose of the Article
itself.
7. While issuing a prerogative writ of certiorari in England, proceedings
may have to be certified and sent up by the inferior court or tribunal to
the High Court. But in India, while exercising jurisdiction in the nature of
writ of certiorari under article 226 of the Constitution, it is not in practice.
This is clear from the exercise of power under article 226 for quashing
the orders of the court martial.

8. Under the article 227 of the Constitution, the High Court has no
power of superintendence over any court or tribunal constituted by or
under any law relating to the armed forces. This is provided under subarticle (4) of article 227 {227(4)} of the Constitution. However, there is no
such limitation under article 226 of the Constitution and the High Courts
have been exercising power under article 226 of the Constitution for
quashing the orders by such tribunals.
9. In a writ petition under article 226 of the Constitution against the
orders of the tribunals constituted by or under any law relating to armed
forces namely, the court martial, the proceedings are sent up by the
tribunal; the record is substituted by means of affidavit while exercising
jurisdiction under article 226 of the Constitution.
10. Nevertheless, in a suitable case, the High Court may summon the
record of the tribunal and in that event, the record may be certified as
well. But generally, record is produced by the counsel.
11. The jurisdiction under article 226 may be wider than 227 of the
Constitution and may not be confined to quashing of the order. Under
article 226, the High Court can issue any other order or direction, as the
circumstances of the case may require.
12. Shorter Constitution of India by Durga Das Basu (14 th edition 2009) at
page- 1232 rightly sums up the law in this regard as follows:
'2. The powers of the High Court under article 226, like those of the
Supreme Court under article 32 are not confined to the 'prerogative
writs' and the High Court, in issuing directions, orders and writs
under article 226 can travel beyond the contents of the writs which
are normally issued as writs of habeas corpus, mandamus,
prohibition, quo-warranto and certiorari.f
3. Article 226 speaks not of the English writs but of writs in the
nature of those writs; consequently, there is no reason why the
High Courts in India should feel oppressed by the procedural

Irani PJ v State of Madras AIR 1961 SC 1731 : 1962 (2) SCR 169; Dwarka Nath
v ITO, AIR 1966 SC 81 : 1965 (3) SCR 536.

technicalities of the English writs.g ...

4. The Court can also mould the reliefs to meet the peculiar and
complicated requirements of this country.h ...
Any technical construction of this power would defeat the purpose
of the Article itself.i
5. For the same reason
(a) Under Article 226, the High Court has the power to set side an
ultra vires executive order, whether or not the writ of certiorari is
attracted to it.j The same principle has been applied to
prohibition.k
(b) The Court, under Article 226, has also the power to give
consequential relief, such as ordering repayment of money
realised without the authority of law or under an invalid law. l
(c) In proper cases, declaratory relief may be granted in a petition
under Article 226, eg, declaring some act of a statutory body to
be ultra vires and like,m even though such relief was not available
in proceeding for a prerogative writ under the English law.
6. The Court can, under Article 32 or 226, give any direction
requiring affirmative action or positive activity where, under the
corresponding prerogative writ, the Court could only set aside the
order complained of.n'
13. In exercising the jurisdiction under article 226 as well as 227 of the
Constitution, often a difficulty arises in deciding, when the power is
exercised under article 226 and when under article 227. This is expressed
by the Supreme Court in Surya Dev Rai vs Ram Chander Rai and others
{(2003) 6 SCC 675} (the Surya-Dev case), in different words as follows :
g
h
i
j
k
l
m

Basappa TC v Nagappa T, AIR 1954 SC 440 : 1955 (1) SCR 250

Dwarka Nath v ITO, AIR 1966 SC 81 : 1965 (3) SCR 536.
Dwarka Nath v ITO, AIR 1966 SC 81 : 1965 (3) SCR 536.
Calcutta Discount Co. Ltd. V ITO AIR 1961 SC 372 : 1961 (2) SCR 241.
Calcutta Discount Co. Ltd. V ITO AIR 1961 SC 372 : 1961 (2) SCR 241.
State of MP v Bhailal Bhai, AIR 1964 SC 1006 : 1964 (6) SCR 261.
Bidi, Bidi Leaves and Tobacco Merchants' Assocn. V State of Bombay, AIR
1962 SC 486 : 1962 Supp. (1) SCR 381; Abdul Kadir, AB V State of Kerala, AIR
1962 SC922 : 1962 Supp. (2) SCR 741, Tewari SR v Dt. Board, Agra, AIR 1964
SC 1680 : 1964 (3) SCR 55, Menon VS v Union of India, AIR 1963 SC 1160 :
1963 Supp. (2) SCR 404.
n State of Kerala v Roshana TP, AIR 1979 SC 765 : (1979) 1 SCC 572.

'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 article 226 and 227 of the Constitution,
though such practice has been deprecated in some judicial
pronouncements.'
14. We would also like to point out that the legal propositionJudicial
orders passed by a Civil Court can be examined and then corrected/
reversed by the writ court under article 226 in exercise of its power
under a writ of certiorarilaid down in the Surya-Dev case has been
referred to the larger bench in Radhey Shyam and another v Chhani Nath
and others {2009 AIR SCW 4006 = (2009) 5 SCC 616}.
Some Suggestions
15. An intra court appeal lies, if the power is exercised under article 226
but not if the power is exercised under article 227 of the Constitution. In
case, there is difficulty in deciding whether the single judge has exercised
jurisdiction under article 226 or article 227 of the Constitution (as was in
the present case) then there would be uncertainty regarding intra court
appeal and this increases litigation. This should be avoided.
16. Perhaps, it would be a good idea to expressly provide in the statutory
law as to when a jurisdiction can be deemed to be under article 227 or do
away with this distinction and specifically provide against what kind of
orders of a single judge no intra court appeal can be filed as has been
done in UP, though some difficulty still remains there.
17. The other thing that may be done, is to confine the article 227 only so
far as administrative superintendence is concerned as whatever may be
done under article 227 of the Constitution by means of judicial

superintendence, can very well be done under article 226 of the

Constitution.
18. So far question of exercise of suo motu powers are concerned, the
rules regarding person aggrieved have been relaxed. In a case of public
importance, the courts have been taking cognizance suo motu and in any
case there is no necessity of reading such limitation under article 226 of
the Constitution; after all there is no such limitation under article 226 of
the Constitution and we are not bound by the technicalities of the
prerogative writs as in England.
19. This is in the realm of the legislature. We leave it here.

HE ADLINES
Order of quasi-judicial authority not quashed, only mandamus issued.
Order is u/A 226. Writ Appeal maintainable.