IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 6820 of 2010. Decided on: November 24, 2010. H.P.State Industrial Development Corporation Ltd. …..Petitioner. Versus Satish Kumar ….Respondent. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for reporting? Yes. For the petitioner: Mr. Varun Thakur, Advocate. ---------------------------------------------------------------------------------------------- Justice Kurian Joseph, C.J. (Oral) Whether a writ of certiorari can be issued quashing an order passed by the High Court on a review petition of an order passed by the State Administrative Tribunal, is the main question to be considered in this case. In the process, it has become necessary to consider the scope of application for ‘writ of certiorari’. 2. Writ of certiorari, popularly known as the quashing order is a prerogative writ for correcting mistakes committed by inferior courts or tribunals or authorities, on scrutiny of records in the impugned proceedings. It is known as ‘prerogative writ’ in English Common Law, since the same is distinguished from “writs of right” which are commonly termed as “writs of course”. The ‘writs of course’ / ‘writs of right’ are issued as part of public administration of justice, flowing from the charter of Magna Carta whereas ‘prerogative writs’ are issued by virtue of the Crown’s exclusive prerogative. It is hence known as extraordinary jurisdiction in contra- distinction to the ordinary writs of course. Since it is the prerogative of the Crown, the same is granted, initially and ordinarily too, as a discretionary 2 relief. But ever since Lord Raymond introduced the concept of ubi jus ibi remedium - where there is a right there is a remedy- in Ashby Vs. White (1703) 2KB 938, the scope of discretion has been considerably reduced. Presently, it is judicial discretion to be exercised on the well settled principles of exercise of such discretion. In the case of an application by a person with a particular grievance, prerogative remedies are ex debito justitiae-literally meaning ‘from what is due to justice’, and popularly known as ‘ a remedy available to the applicant as of right’. The expression ‘particular grievance’ is now being given a liberal meaning and thus the public interest litigation. 3. In Administrative Law, Tenth Edition, at page 585, the broad principles on discretion have been successfully dealt with as follows: “The prerogative remedies, being of a ‘public’ character as emphasized earlier, have always had more liberal rules about standing than the remedies of private law. Prerogative remedies are granted at the suit of the Crown; and the Crown always has standing to take action against public authorities. ……….. ‘Orders of certiorari and prohibition are concerned principally with public order, it being the duty of the High Court to see that inferior courts confine themselves to their own limited sphere.’ Consequently the court is prepared to act at the instance of a mere stranger, though it retains discretion to refuse to do so if it considers that no good would be done to the public. Every citizen has standing to invite the court to prevent some abuse of power, and in doing so he may claim to be regarded not as a meddlesome busybody but as a public benefactor. Parker LJ thus stated the law as to certiorari: Anybody can apply for it - a member of the public who has been inconvenienced, or a particular party or person who has a particular grievance of his own. If the application is made by what for convenience one may call a stranger, the remedy is purely discretionary. Where, however, it is made by a 3 person who has a particular grievance of his own, whether as a party or otherwise, then the remedy lies ex debito justitiae. [ R. v. Thames Magistrates’ Court ex p. Greenbaum (1957) 55 LGR 129] (emphasis supplied) x x x The meaning of ‘particular grievance’ being so wide, there are few examples of quashing or prohibiting orders being granted to total strangers. But the Court of Appeal supplied one by holding that a prohibiting order might issue at the instance of a private citizen, applying primarily from motives of public interest, to prevent the Greater London Council from licensing indecent films by applying an unduly indulgent test of obscenity. As Lord Denning MR said, ‘if he has not sufficient interest, no other citizen has’. Unless any citizen has standing, therefore, there is often no means of keeping public authorities within the law unless the Attorney- General will act- which frequently he will not. That private persons should be able to obtain some remedy was therefore ‘a matter of high constitutional principle’. Lord Denning added: ‘The court would not listen, of course, to a mere busy body who was interfering in things which did not concern him. But it will listen to any one whose interests are affected by what has been done’. The same tendency is illustrated by the courts’ willingness to grant a quashing order to a trade union acting on behalf of one of its members. (emphasis supplied) The broad principle which almost eliminates the requirement of standing for these remedies shows how far the law has gone in the direction of admitting an element of actio popularis on grounds of public interest, just as it has done with the mandatory order and with the relator action. By such means, therefore, a remedy may be found for the citizen who is genuinely aggrieved but who has no grievance in the eye of the law. He may, for example, object strongly to a building for which his neighbour has been granted planning permission, although legally this is no concern of his. If he can show that the permission is void, for example because the 4 decision is vitiated by bias, he may have it quashed by a quashing order even though he could not have obtained a declaratory judgment because of his lack of personal legal right. 4. In Halsbury’s Laws of England, fourth edition, Volume I, in para 80, the scope of the prerogative writs of prohibition, certiorari and mandamus have been considered. To quote: “ Historically, prohibition was a writ whereby the royal courts of common law prohibited other courts from entertaining matters falling within the jurisdiction of the common law courts; certiorari was issued to bring the record of an inferior court into the King’s Bench for review or to remove indictments for trial in that Court; mandamus was directed to inferior courts and tribunals, and to public officers and bodies, to order the performance of a public duty. All three were called prerogative writs. … During the seventeenth century certiorari evolved as a general remedy to quash the proceedings of inferior tribunals and was used largely to supervise justices of the peace in the performance of their criminal and administrative functions under various statutes. In 1700 [ in R. v. Glamorganshire ( Inhabitants) and Groenvelt v. Burnell] ( 1700) 1. Ld. Raym 454) it was held that the Court of King’s Bench would examine the proceedings of all jurisdictions erected by Act of parliament, and that, if under pretence of such an Act they proceeded to arrogate jurisdiction to themselves greater than the Act warranted, the Court would send a certiorari to them to have their proceedings returned to the Court, so that the Court might restrain them from exceeding that jurisdiction. If bodies exercising such jurisdiction did not perform their duty, the King’s Bench would grant a mandamus. Prohibition would issue if anything remained to prohibit. The ambit of certiorari and prohibition was not limited to the supervision of functions that would ordinarily be regarded as strictly judicial, and in the nineteenth century the writs came to be 5 used to control to exercise of certain administrative functions by local and central government authorities which did not necessarily act under judicial forms.” 5. ‘Certiorari’ is derived from the latin word ‘certiorare’ and the literal meaning is ‘demand for information’. In Administrative Law, Tenth Edition, in para 7 dealing with remedies and liability, at page 510, the history of the ‘writ of certiorari’ has been dealt with as extracted below: “ THE QUASHING ORDER The quashing order is used to bring up into the High Court the decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed-that is to say, it is declared completely invalid, so that no one need respect it. The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds. This is the concern of the Crown, for the sake of orderly administration of justice, but it is a private complaint which sets the Crown in motion. The Crown is the nominal plaintiff but is expressed to act on behalf of the applicant, so that an application by Smith to quash an order of (for instance) a rent tribunal would be entitled R. (Smith) v. The Rent Tribunal. The court will then decide whether the tribunal’s order was within its powers. There are normal rights of appeal both for the applicant and the tribunal. (emphasis supplied) The form of the old writ was that of a royal demand to be informed (certiorari) of some matter, and in early times it was used for many different purposes. It became a general remedy to bring up for review in the Court of King’s Bench any decision or order of an inferior tribunal or administrative body. Its great period of development as a means of controlling administrative authorities and tribunals began in the later half of the seventeenth century, and its wide modern application was promoted particularly by Holt CJ. Something was needed to fill the vacuum left by the Star Chamber, which had exerted a considerable degree of central control 6 over justices of the peace, both in their judicial and their administrative functions, but was abolished in 1640. There was also the problem of controlling special statutory bodies, which had begun to make their appearance. The Court of King’s Bench addressed itself to these tasks, and became almost the only coordinating authority until the modern system of local government was devised in the nineteenth century. The most useful instruments which the Court found ready to hand were the prerogative writs. But not unnaturally the control exercised was strictly legal, and no longer political. Certiorari (or quashing order) would issue to call up the records of justices of the peace and commissioners for examination in the King’s Bench and for quashing if any legal defect was found. At first there was much quashing for defects of form on the record, i.e. for error on the face. Later, as the doctrine of ultra vires developed, that became the dominant principle of control.” (emphasis supplied) 6. It is not necessary that the expression court be understood as a court of law, while analyzing the scope of certiorari. Acting judicially is what is required. Judicial does not necessarily mean act of a Judge or a Tribunal sitting for determination of matters of law; it is an act done by competent authority upon consideration of facts and circumstances, imposing liability or affecting the rights of others. To quote the words of Lord Atkin in the King v. Electricity Commissioners, reported in (1924) 1 KB 171: “ Wherever any body of persons having legal authority to determine 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…………..” 7. In one of the early Constitution Bench decisions of the Supreme Court in Province of Bombay vs. Khushal das S. Advani, 7 reported in AIR (37) 1950 Supreme Court 222, the scope of the writ has been considered in the following words: “When the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a certain power conferred on it, the determination of the objective fact and the exercise of the power based thereon are alike matters of an administrative character and are not amenable to the writ of certiorari. When the law under which the authority is making a decision, itself requires a judicial approach, decision will be quasi-judicial. Prescribed forms of procedure are not necessary to make an inquiry judicial, provided in coming to the decision the well- recognized principles of approach are required to be followed. Therefore, wherever any body of persons having legal authority to determine questions affecting rights of subjects and having the duty to act judicially, act in excess of their legal authority a writ of certiorari may issue.” (emphasis supplied) 8. Though, it may not be strictly necessary to go into further aspects of certiorari for the purpose of deciding the question involved in this case, since the scope of certiorari is also discussed, it would be profitable to refer also to the limits of ‘writ of certiorari’. As already noted above, ‘writ of certiorari’ is issued for correcting errors of jurisdiction committed by inferior courts or tribunals. But in the process, the Court does not act as the appellate authority. Therefore, the finding of fact reached by the inferior court or tribunal on appreciation of evidence cannot be reopened. In other words, the error of law can be corrected by certiorari but not error of fact. In the words of Gajendragadkar, J. the Constitution Bench decision in Syed Yakoob vs. K.S. Radhakrishnan and others, reported in A.I.R. (51) 1964 Supreme Court 477. To quote: “ A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or 8 tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdiction. A writ can, similarly, be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. The jurisdiction of High court to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fat reached by the inferior court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot, however, be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding being within the exclusive jurisdiction of the Tribunal, the points cannot be agitated before a writ Court.” (emphasis supplied) 9 9. Writ of certiorari will not also lie for quashing a legislation. As already held above, ‘certiorari’ is for correcting mistakes committed by inferior courts or tribunals or authorities, on scrutiny of records. The legislature is not an inferior court or tribunal; it is a co-ordinate branch in the constitutional scheme. But at the same time, the superior court is certainly entitled to look into the constitutionality of the legislation. That is an exercise to be done on perusal of the legislation and not by calling for the records leading to the legislation. If a piece of legislation does not conform to the constitutional mandate for the legislation or if a piece of legislation is offensive of part III of the Constitution, certainly the superior courts will be entitled to declare the said legislation ultra-vires and the Court would be justified in issuing a writ of mandamus to the Government not to enforce the said legislation. In this context, it also needs to be stated that the courts do not issue a writ of mandamus to the legislature since legislature owes no duty to the suitor to legislate and hence, there is no corresponding right to be enforced to compel the legislature to legislate. 10. Having thus analysed the scope of the writ of certiorari, we may refer to the facts in the instant case. The erstwhile H.P. Administrative Tribunal, as per Annexure P-6, order dated 8.3.2006 in O.A.(M) No. 322 of 2004, directed the petitioner herein to grant work charged status to the applicant w.e.f. 1.1.2004 alongwith arrears. The Writ Petitioner, who is the respondent in the O.A. filed Annexure P-7 Review Petition. During the pendency of the Review Petition, the Tribunal was wound up. Act No. 14 of 2008 – The Himachal Pradesh Administrative Tribunal (Transfer of Decided and Pending Cases and Applications) Act, 2008, was enacted to provide for the transfer of the cases/applications pending and decided. Section 3 (2) to Section 3 (5) of the Act are relevant for deciding the issue in this case, which read as follows: 10 3. (2). Every proceeding which was transferred by the High Court to the Tribunal and decided by the Tribunal or is pending on the date of commencement of this Act, before the Tribunal shall stand transferred back to the High Court. (3) Every proceeding of a case which was filed as an original application in the Tribunal and decided by the Tribunal or is pending on the date of commencement of this Act, before the said Tribunal shall stand transferred to the High Court. (4) Where any case or proceeding stands transferred from the Tribunal to the High Court or civil court under sub- section (1), (2) or (3),-- (a) the records of such cases or proceedings shall be forwarded to the High court or the concerned civil court, as the case may be; and (b) the High Court or the civil court, as the case may be, on receipt of such record, proceed to deal with the case from the stage which was reached before such transfer or from any earlier stage as the High court or the civil court may deem fit. (5) Every proceeding relating to contempt, execution or review of final order or interim order pending before the Tribunal on the date of commencement of this Act, shall stand transferred to the High Court or the civil court, as the case may be.” 11. Thus a case or other matter, an application, once transferred to the High Court, shall have to be decided by the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India. The learned Single Judge passed Annexure P-8 order, declining to interfere in the matter and Review Petition was dismissed. It has to be specifically noted that a Review Petition is not disposed of by a judgment; the same is done by an order only, as otherwise, there will be many judgments in a case. Judgment is in the main case, main petition, the rest are only orders whether they be review, clarification or modification. 11 12. The question remaining to be decided is whether a writ of certiorari will lie for quashing Annexure P-8, order passed by the learned Single Judge in the Review Petition. As we have already discussed above, the writ of certiorari is issued to the inferior courts or tribunals. The cases/petitions are transferred from the erstwhile Administrative Tribunal to the High Court of Himachal Pradesh. The jurisdiction exercised by the learned Single Judge is that of the High Court. The Single Bench of the High Court is not inferior to the Division Bench or for that matter to the Larger Bench. A decision, be it by the Single Bench, Division Bench or the other Benches, is that of the High Court. Therefore, a writ of certiorari will not lie for quashing the order passed by the High Court on the judicial side. 13. The remedy open to the petitioner, if aggrieved by the order passed by the learned Single Judge is to pursue the grievance under Clause 10 of the Letters Patent of the Lahore High Court, as applicable to the State of Himachal Pradesh. We make it clear that in the event of the petitioner pursuing the matter as above, the period taken from the date of filing of the Writ Petition to the date of return of the certified copy of Annexure P-8, order in the Review Petition, shall stand excluded while computing the period of limitation. Subject to the above, the Writ Petition is dismissed, so also the pending application(s), if any. The Registry shall return the original of Annexure P-8, order to the petitioner on retaining a photo-copy of the same for records. Copy Dasti. (Justice Kurian Joseph), Chief Justice. November 24, 2010. ( Justice V.K.Ahuja ), (karan) Judge.