Full Bench of the Bombay High Court Clarifies
Important Aspects of Writ of Certiorari under
Article 226
Introduction
On 21 November 2019, a full bench of the Nagpur Bench of the Bombay High
Court (Court) in its judgement in Motilal s/o Khamdeo Rokde & Ors v
Balkrushna Baliram Lokhande & Ors (Letters Patent Appeal No 177 of 2012),
clarified two crucial aspects regarding the maintainability of petitions
seeking a writ of certiorari, under Article 226 of the Constitution of India
(Article 226), namely: (a) the maintainability of such writ petitions against
orders of lower civil/judicial courts; and (b) whether the lower civil court / the
judges passing the said orders are required to be made parties to the writ
petitions under Article 226 or Article 227 of the Constitution (Article 227).
Factual Matrix
The aforesaid questions of law came up through a reference made by the
division bench to the full bench of the Court, regarding the judgment of the
full bench of the Court in Ramachandra Dagoji Rangari v Vishwanath
Champat Naik (2011 (5) Mh.L.J. 193) (Ramachandra). The Court in
Ramachandra held that in a writ petition filed under Article 226, for the
quashing of an order of an inferior court (including any tribunal/authority),
the court / judge /authority passing the order is a necessary party to the writ
petition.
The Court enlisted the aid of amicus curiae and posed (and answered) two
primary questions:
➢Is a writ petition for the quashing of an order passed by a lower court
maintainable (writ of certiorari) under Article 226? If the answer to the same
is negative, then the question of impleadment (making a person/body a
party to the litigation) of the court / its judges does not arise.
➢ Is the impleadment of the judge / lower court necessary in a petition
seeking the quashing of the order of a lower court is filed under Article 227?
Question 1: Is a Certiorari writ petition under Article 226
maintainable?
A Certiorari Writ is one of the high prerogative writs which High Courts and
the Supreme Court are empowered to issue under the Constitution. The
Supreme Court’s power with respect to such writ is under Article 32 in the
case of a breach of a fundamental right whereas the power of the High Court
, is derived principally under Article 226 and also Article 227. The scope of
remedy of certiorari writ can be invoked under patently erroneous or without
jurisdictional order of tribunal or authorities or inferior courts. By issuing a
writ of certiorari, the Court issuing the certiorari writ technically calls for the
record of the case before the subordinate jurisdictional authority and after
considering the same quashes or set aside the order passed by the
subordinate authority.
In the present case, the Court was of the opinion that Article 226 does not
contemplate the quashing of an order passed by a subordinate civil court. As
stated above, certiorari pertains to the orders of an “inferior court or tribunal
or authority”. The court held after considering various judgments of the
Supreme Court that it is well accepted position that though the Civil Courts
are subordinate to the High Courts, they are not “inferior courts” and
therefore not amenable to a writ of certiorari under Article 226. The Court
held that the expression “inferior Court” applies only to tribunals or quasi
judicial authorities whose orders can be quashed or set aside by the High
Court in exercise of its power under Article 226. However, the Court made it
clear that High Courts in exercise of its supervisory jurisdiction conferred on
them under Article 227 may quash the orders of subordinate civil courts. The
Court relied on larger bench judgment of the Supreme Court in Radhey
Shyam & Anr v Chhabi Nath & Ors ((2015) 5 SCC 423) as well as Shri
Jogendrasinhji Vijaysinghji v State of Gujarat & Ors (AIR 2015 SC 3623)
(Jogendrasinhji).
Accordingly, the Court held that the underlying assumption in Ramachandra,
i.e., that a petition seeking a writ of certiorari against the order of a lower
civil court is maintainable, is erroneous. Therefore, the question of
impleading the court or judge passing the order does not arise in a writ
petition filed under Article 226. However, the Court still examined the
possibility of impleadment of a court or judge in a petition maintainable
under Article 227, that seeks relief through the constitutional supervisory
jurisdiction of a High Court. Ramachandra, regardless of its underlying
assumption, states that a petition assailing the order of a lower court must
necessarily have the court / judge responsible impleaded in order to be
maintainable.
Question 2: Is the judge a necessary party to a petition seeking the
quashing of the order of a lower court is filed under Article 227?
The primary answer of the Court to this question, basis the Supreme Court’s
decision in Jogendrasinhji, was in the negative. The Court was firmly of the
opinion that the court / authority that passed the order in question is not a
necessary party to the litigation. On the contrary, repeatedly impleading of
judges and tribunal members will impair both the functioning of such courts
and authorities, and the independence of the judiciary. Instead, keeping in
mind that in terms of the Constitution, lower courts are courts of record,
even if their orders are to be quashed, there is no need for those that pass
Important Aspects of Writ of Certiorari under
Article 226
Introduction
On 21 November 2019, a full bench of the Nagpur Bench of the Bombay High
Court (Court) in its judgement in Motilal s/o Khamdeo Rokde & Ors v
Balkrushna Baliram Lokhande & Ors (Letters Patent Appeal No 177 of 2012),
clarified two crucial aspects regarding the maintainability of petitions
seeking a writ of certiorari, under Article 226 of the Constitution of India
(Article 226), namely: (a) the maintainability of such writ petitions against
orders of lower civil/judicial courts; and (b) whether the lower civil court / the
judges passing the said orders are required to be made parties to the writ
petitions under Article 226 or Article 227 of the Constitution (Article 227).
Factual Matrix
The aforesaid questions of law came up through a reference made by the
division bench to the full bench of the Court, regarding the judgment of the
full bench of the Court in Ramachandra Dagoji Rangari v Vishwanath
Champat Naik (2011 (5) Mh.L.J. 193) (Ramachandra). The Court in
Ramachandra held that in a writ petition filed under Article 226, for the
quashing of an order of an inferior court (including any tribunal/authority),
the court / judge /authority passing the order is a necessary party to the writ
petition.
The Court enlisted the aid of amicus curiae and posed (and answered) two
primary questions:
➢Is a writ petition for the quashing of an order passed by a lower court
maintainable (writ of certiorari) under Article 226? If the answer to the same
is negative, then the question of impleadment (making a person/body a
party to the litigation) of the court / its judges does not arise.
➢ Is the impleadment of the judge / lower court necessary in a petition
seeking the quashing of the order of a lower court is filed under Article 227?
Question 1: Is a Certiorari writ petition under Article 226
maintainable?
A Certiorari Writ is one of the high prerogative writs which High Courts and
the Supreme Court are empowered to issue under the Constitution. The
Supreme Court’s power with respect to such writ is under Article 32 in the
case of a breach of a fundamental right whereas the power of the High Court
, is derived principally under Article 226 and also Article 227. The scope of
remedy of certiorari writ can be invoked under patently erroneous or without
jurisdictional order of tribunal or authorities or inferior courts. By issuing a
writ of certiorari, the Court issuing the certiorari writ technically calls for the
record of the case before the subordinate jurisdictional authority and after
considering the same quashes or set aside the order passed by the
subordinate authority.
In the present case, the Court was of the opinion that Article 226 does not
contemplate the quashing of an order passed by a subordinate civil court. As
stated above, certiorari pertains to the orders of an “inferior court or tribunal
or authority”. The court held after considering various judgments of the
Supreme Court that it is well accepted position that though the Civil Courts
are subordinate to the High Courts, they are not “inferior courts” and
therefore not amenable to a writ of certiorari under Article 226. The Court
held that the expression “inferior Court” applies only to tribunals or quasi
judicial authorities whose orders can be quashed or set aside by the High
Court in exercise of its power under Article 226. However, the Court made it
clear that High Courts in exercise of its supervisory jurisdiction conferred on
them under Article 227 may quash the orders of subordinate civil courts. The
Court relied on larger bench judgment of the Supreme Court in Radhey
Shyam & Anr v Chhabi Nath & Ors ((2015) 5 SCC 423) as well as Shri
Jogendrasinhji Vijaysinghji v State of Gujarat & Ors (AIR 2015 SC 3623)
(Jogendrasinhji).
Accordingly, the Court held that the underlying assumption in Ramachandra,
i.e., that a petition seeking a writ of certiorari against the order of a lower
civil court is maintainable, is erroneous. Therefore, the question of
impleading the court or judge passing the order does not arise in a writ
petition filed under Article 226. However, the Court still examined the
possibility of impleadment of a court or judge in a petition maintainable
under Article 227, that seeks relief through the constitutional supervisory
jurisdiction of a High Court. Ramachandra, regardless of its underlying
assumption, states that a petition assailing the order of a lower court must
necessarily have the court / judge responsible impleaded in order to be
maintainable.
Question 2: Is the judge a necessary party to a petition seeking the
quashing of the order of a lower court is filed under Article 227?
The primary answer of the Court to this question, basis the Supreme Court’s
decision in Jogendrasinhji, was in the negative. The Court was firmly of the
opinion that the court / authority that passed the order in question is not a
necessary party to the litigation. On the contrary, repeatedly impleading of
judges and tribunal members will impair both the functioning of such courts
and authorities, and the independence of the judiciary. Instead, keeping in
mind that in terms of the Constitution, lower courts are courts of record,
even if their orders are to be quashed, there is no need for those that pass
