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Scope of Article 226 and Article 227: That the same result can be achieved by 2 different processes, does not mean the processes are the same

It is the paradox that there is no difference between Article 226 and 227.  Rather this is no more res-integra that both Articles 226, as well as 227, operate under different situations and different areas.

The writ jurisdiction is a very potent and important tool given to the High Courts under the Constitution of India. The purpose of writ jurisdiction is to ensure that necessary directions in the form of writs can be issued both as administrative orders as well as on the judicial side. In this article, I will not go in detail as to the nature of the writs. As known, Constitution of India has given powers to the High Courts under Article 226 to issue directions or orders or writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari as per the respective requirement and the necessity. Under Article 227, the High Courts are vested with the powers of General Superintendence over all Courts and Tribunals. The powers vested to the High Courts under Article 227 are wider than the one conferred on the High Court by Article 226. This is because the power of Superintendence under Article 227 is not subject to the technicalities of the procedure or traditional fetters which are found in writ jurisdiction.

Difference between Article 226 and Article 227

The Hon’ble Supreme Court in a decision reported in (2017) 5 SCC 533 titled Ram Kishan Fauji vs State of Haryana has explained that under Article 226, the High Courts have the power to issue directions, orders and writs to any person or authority including any Government.  Under Article 227, every High Court has the power of Superintendence over all Courts and Tribunals throughout the territory in relation to which it exercises jurisdiction. However, the power to issue writs is not the same as the power of superintendence. There is a fine line of distinction between the two. Sometimes there has been confusion that while challenging a decision passed by an administrative authority, whether the petition is to be filed under Article 226 or under Article 227. There have been instances where a lawyer to avoid this objection from the Court, labels the petition both under Article 226 and 227 of the Constitution.

The said situation was comprehensively explained by the Hon’ble Supreme Court in the matter titled “Umaji Keshao Meshram vs Radhika Bai” reported in 1986 (Supp) SCC 401. The Hon’ble Supreme Court held that these two Articles stand on an entirely different foundation. It was explained that the fact that the same result can at times be achieved by two different processes does not mean that these two processes are the same. Their source and origin are different and models upon which they are patterned are also different. It was also held that the power to issue writs under Article 226 is not the same as the power of Superintendence under Article 227. The power of superintendence conferred upon every High Court by Article 227 is a supervisory jurisdiction and is in addition to that conferred upon the High Court by Article 226.

The basic difference which was drawn was that in Article 226, the person, authority or state against whom the direction, order or writ is sought is a necessary party. However, under Article 227, what comes up before the High Court is the order or judgment of a subordinate Court or Tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate Court or Tribunal has acted within its authority and according to law. Further, under Article 227, the High Court in addition to setting aside of the judgment or order of the Tribunal can further issue directions to such subordinate Court or Tribunal to act in a particular manner whereas no such power is conferred to the High Court under Article 226.

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The proceeding under Article 226 is an original proceeding when it concerns civil rights of a person whereas a proceeding under Article 227 is not an original proceeding.

Therefore, if an order passed by a subordinate Court or a Tribunal is being challenged before the High Court where there is no remedy of filing an appeal, it has to be judged that whether it is seeking a simpliciter setting aside an order or that in addition to the setting aside / quashment of the order, certain directions are also prayed for. If along with the prayer of setting aside/quashment certain directions are prayed, a petition can only be filed under Article 227 of Constitution of India.

In the aforesaid circumstances, even if the petition is labelled under Article 226, then it is the duty of the High Court to consider the same under Article 227 and not under Article 226. Similar shall be the result if a petition is labelled both under Article 226 as well as 227 of the Constitution.  However, if any civil rights of a person have been infringed by any Government authority or state then the remedy lies only under Article 226 and certainly not under Article 227.

Provision of Writ Appeal

The High Courts by virtue of their own rules have provided a right of appeal against the order passed under Article 226. It has also been a matter of debate that whether an order passed by the High Court while deciding a petition under Article 227 can be challenged by way of appeal before the Division Bench of the concerned High Court.  The said situation was dealt with by the Hon’ble Supreme Court in (2008) 15 SCC 233 titled “State of Madhya Pradesh vs Visan Kumar Shiv Charan Lal”.  The Hon’ble Supreme Court while deciding the said issue held that the nomenclature is of no consequence and it is the nature of the relief sought for and the controversy involved which determines the Article which is applicable, i.e. whether a Petition is to be treated under Article 226 or Article 227.  As stated by above, if the nature of the prayer relates only to quashing or issuance of a specific writ against the state, the same shall be considered under Article 226 irrespective of its nomenclature.  Therefore, even if a petition was filed and labelled as Article 227 but the same after examining its contents comes out to be that of a petition under Article 226 certainly the litigant has a right for filing the appeal as provided under the rules of a respective High Court.

Conclusion

Therefore, it is the paradox that there is no difference between Article 226 and 227.  Rather this is no more res-integra that both Articles 226, as well as 227, operate under different situations and different areas. The jurisdiction of a Court under Article 226 as well as 227 are also different and the powers under both the Articles vary.  At the risk of repetition, it is stated that under Article 226, High Courts have powers to issue directions, orders and writs to any person or authority including any Govt whereas under Article 227, every High Court has a power of Superintendence offered to Courts and Tribunals throughout the territory in relation to which it exercises jurisdiction.

The power of superintendence conferred upon every High Court by Article 227 is a supervisory jurisdiction intended to ensure that subordinate Courts and Tribunals act within the limits of their authority and according to law.  The orders, directions and writs under Article 226 are not intended for the purpose and power of superintendence conferred upon the High Court by Article 227. Rather the powers given under Article 227 are in addition to the power conferred upon the High Court by Article 226. The fact that the same result can at times be achieved by two different processes does not mean that these two processes are the same.

(This article has been written by Sameer Vashisht who is a B.Com, LLB (Hons), LLM and Additional Standing Counsel (Civil), GNCTD) 

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Sameer Vashisht
B.Com, LLB (Hons), LLM Additional Standing Counsel (Civil), GNCTD Enrolled with Bar Council of Delhi in 2002.

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