WP(C) 6229/2007 BEFORE THE HON’BLE MR. JUSTICE IA ANSARI What is a writ of certiorari ? When can a High Court issue a writ of certiorari or an order or direction in the nature of a writ of certiorari ? What is the dif ference, if any, between the High Court’s power to issue a writ of certiorari or an order or direction in the nature of a Writ of certiorari under Article 226 o f the Constitution of India, on the one hand, and its power to issue a writ of c ertiorari or a direction or order in the nature of a Writ certiorari under Arti cle 227 of the Constitution of India, on the other? Whether a writ of certiorari can be issued against a decree, which has been passed by a Court, which had no civil jurisdiction? Whether a writ of certiorari can be issued, in such a case, by a High Court in exercise of its powers under Article 226 and, if so, when? Wh ether a decree passed by court, ’X’, which is subordinate to a High Court, ’Y’, can be challenged in a High Court, ’Z’, on the ground that the decree, which has been passed by the court, ’X’, is without jurisdiction, inasmuch as the court, which had passed the decree, had no civil jurisdiction and that the decree is li kely to be executed within the territorial limits of the jurisdiction of the Hig h Court, ’Z’? Can, in such circumstances, the High Court, ’Z’, quash the decree by issuing a writ of certiorari in exercise of its extra-ordinary jurisdiction u nder Article 226? What is a Fast Track Court? Whether a Fast Track Court, in the State of Arunachal Pradesh, can exercise civil jurisdiction? These are some of the important questions, which this set of writ petitions have raised. 2. All these writ petitions, which involve identical facts and raise same q uestions of law, have been heard, at the request of learned counsel for the part ies, analogously and are being disposed of by this common judgment and order. BACKGROUND FACTS: 3. Keeping in view extreme poverty of the tribal populace in the hill state s of the North-East Region, Govt of India, on the recommendation of the Agricult ural Price Commission, adopted, way back in the year 1971-72, a policy, whereund er it was decided that the food grains, covered by the Public Distribution Syste m (PDS), which are required to be released from the stocks of the Union Governme nt, should be delivered at the Principal Distribution Centres (PDCs) in the hill States. The reason for adopting the policy was that in hill States, the food g rains were required to be moved by road to the interior places, which are not co nnected with rail-heads or had limited rail-heads. It was, therefore, decided t hat the Food Corporation of India (hereinafter referred to as ’the Corporation’) , which is established under the Food Corporation Act, 1964, should open godowns at the PDCs, wherever possible in the hill States, and since food grains could not have been carried to these PDCs by rail heads, the same would be carried by road and the cost of transportation to these centres, which the State Government may incur, shall be reimbursed by the Corporation. As the transportation of ca rriage of food grains were required to be done by the State Governments with the help of private contractors, it was also decided, at some point of time, that t he allotment of carriage contract would be by the State Governments. The policy , adopted in this regard, also envisaged off-loading of the stocks of the food g rains at the fair price shops en route PDCs. The reimbursement was subject to t he condition that the reimbursement charges shall not exceed the transportation charges, which would have been payable, had the stocks been moved from the base depots to the approved PDCs. The reimbursement of the transportation charges of the food grains, as conceived under the relevant policy, stood divided, broadly speaking, into two parts, namely, (i) ROAD REIMBURSEMENT CHARGES: These charges were to be paid to the State Govt. for lifting of food grains from rail heads carrying the same to the base depots ; (ii) HILL TRANSPORT SUBSIDY: These charges covered the expenses, incurred by the State Government, for moving the stocks from the base depots, approved by the C orporation, to the approved PDCs. 4. The subsequent official circulars issued, in this regard, laid down the procedure for the State Government to obtain reimbursement from the Corporation. After this policy was adopted, Deputy Commissioners, in the State of Arunachal Pradesh, submitted bills, raised by the carriage contractors, to the Corporatio n’s offices at the District level, where the bills were checked and, then, the b ills were forwarded to the Regional Office of the Corporation, where it was rech ecked and final payments ordered. At times, the Regional Office made advance pa yment to the State Govt. in order to enable it to disburse the amount to the car riage contractor/transporters and after such disbursement of the amount, payment vouchers, pertaining to the bills, were submitted by the State Government to th e Corporation’s office and, thereafter, the bills were finally passed and adjust ed against advance payments. In course of time, the Corporation and the Governm ent of India alleged that the State Government had received payments in excess o f what they ought to have received. The excess payments, so made, were sought t o be recovered from the amounts, which became due and payable to the State Gover nment by way of reimbursement of transportation charges. The process of recove ry led to a dispute between the State Government, on the one hand, and the Gover nment of India and the Corporation, on the other. The transportation of the foo d grains has, however, continued to be carried out, because the policy has not b een withdrawn and/or rescinded. The carriage contractors, having not received t he payments for the bills, sought to recover the same by instituting civil suits and some of them filed writ petitions. The present controversy arises out of t he money decrees, which have been passed in some of such civil suits. 5. The facts, which are material for the purpose of disposal of these writ petitions may, in a nutshell, be set out as under: - (i) The private respondents herein, who all stand impleaded as respondent no .4, instituted, as plaintiffs, Money Suit Nos.02/2007, 04/2007, 06/2007, 07/2007 , 08/2007, 09/2007, 10/2007 and 11/2007 in the Court of Deputy Commissioner, Kur ung Kumey, Deputy Commissioner, West Kameng, Deputy Commissioner, West Siang, De puty Commissioner, West Siang, Deputy Commissioner, East Kameng, Deputy Commissi oner, East Kameng, Deputy Commissioner, East Kameng, and Deputy Commissioner, Pa pumpare, seeking decree of recovery of diverse sums of money with interest, etc ., their case being, briefly stated, thus: The plaintiffs were appointed, under different orders issued by the Director of Civil Supplies, Government of Arunach al Pradesh, as State Miller-cum-Carriage Contractor of wheat for the financial y ear 2003 - 2005. Under the relevant scheme of the Public Distribution System (i n short, ’PDS’), it was envisaged that since it was difficult for the Government to distribute wheat in the difficult hilly terrains in the State of Arunachal P radesh, because, apart from distance, facilities for milling were not available in the hilly terrains of the State, the State can get the wheat, which are allot ted for the purpose of public distribution, milled, at convenient places, by eng aging private contractors, who can, on obtaining the wheat, get the same milled and, then, carry the same to their respective destination for distribution. The scheme stipulated that apart from the milling charges, the carriage contractor would be paid transportation cost, the transportation cost being payable by the State Government and the expenses, so incurred by the State Government, would be reimbursed by the Govt. of India, for, it is the responsibility of the Governme nt of India to help the State Government in public distribution of the essential commodities and this reimbursement was in the form of a subsidy known as Hill T ransport Subsidy (HTS). Separate deeds of agreement were accordingly signed by the plaintiffs, on the one hand, and Director of Supplies, Government of Arunach al Pradesh, on the other. In accordance with the terms and conditions, which ha d been agreed upon, the plaintiffs carried the wheat to their respective agreed destinations and delivered the same to the authorities concerned. After verifyi ng and upon being satisfied that the bills were correct, Director of Supplies su bmitted the bills to the Senior Regional Manager of the Corporation through Dist rict Managers/Area Managers of the Corporation at Tezpur, Dibrugarh and North La khimpur. The bills, so verified, were, then, submitted to the Senior Regional M anager/General Manager of the Corporation at Guwahati. Alleging that the bills were not being paid by the Government, though they had carried the food grains t o their agreed destinations, the plaintiffs claimed that they were entitled to p ayment of the bills and sought for decreeing the suit(s) with such relief(s) as already indicated hereinabove. (ii) Though the State Government and also the officers of the Corpora tion had filed their written statements, they chose not to challenge the validit y of the claims of the plaintiffs nor did they specifically deny that the claims , which the plaintiffs had made with regard to their non-payment of dues, were n ot sustainable. The State Government’s pleaded case, in their written statement s, was that it was due to paucity of funds and non-release of Hill Transport Sub sidy by the Corporation since the year 2004 that the State Government had not be en able to make the payments, though the State Government was willing to make th e payments as soon as the funds became available. (iii) It may be noted that though the Corporation was not made a party to the suits, the various officers responsible for verifying the bills and also for mak ing payments were made parties to the suit and these officers are amongst the pe titioners in this set of writ petitions. (iv) The pleaded case of the officers, who had represented the Corporation, a nd participated, in the suits, was that the Corporation was responsible to relea se the food grains to the State Government as per allocation orders of the Gover nment of India as well as the Corporation’s Headquarters and sub-allocation was, thereafter, required to be made by the State Government. In terms of the relev ant scheme, whereunder the bills, in question, were raised, had been checked and according to the prescribed procedure, the bills, upon being re-checked by the Corporation, had already been forwarded to the concerned district officers for r eleasing payment to the State Authorities after observing all official formaliti es and that upon making requisite payments to the contractors, the State Governm ent would be entitled to receive Hill Transport Subsidy in the form of reimburse ment of the amounts, which may be paid by the State Government to the carriage c ontractors/transporters. The further pleaded case of the officers of the Corpo ration, who had participated in the suits, was that since it was the State Gover nment, which had engaged the plaintiffs for transportation of the commodities co vered by the PDS, it was the duty of the State Government to make the payments f or the work done by the plaintiffs and that the Corporation’s liability is to re imburse the State Government for the expenses, which the State Government may in cur in making payments to the carriage contractors and, thus, no case had been m ade out against the Corporation, making it liable to make payment to the plainti ffs directly, and, hence, as far as the Corporation is concerned, the suits may be dismissed. (iv) In course of time, the suits, in question, were transferred by the Deput y Commissioner, Yupia, to the Fast Track Court at Yupia. Having held to the eff ect that the money decrees, sought for in the suits, were in respect of admitted bills and that non-availability of funds, as pleaded by the State Government, w as not a valid ground for non-payment of the bills, the learned trial Court decr eed the suits. PETITIONERS’ CASE : 6. By making these writ petitions under Article 226 of the Constitution of India, the Corporation have sought for issuance of writ(s) setting aside the dec rees aforementioned on the ground that the Court, which has passed the decrees, is not a Court, which is vested with the power to exercise civil jurisdiction, t he case of the writ petitioners being, in brief, thus: (i) By notification, dated 04.06.2002, the State Government, in exercise of its powers, conferred by Section 9 of the Code of Criminal Procedure, establishe d, in consultation with the High Court, Ad-hoc Additional Sessions Court (Fast T rack Court) at Namsai, Yupia and Basar with their respective jurisdiction as spe cified in the said notification. By a subsequent letter, dated 27.06.2002, the State Government directed all the Deputy Commissioners of the State to transfer the sessions cases with relevant records, which had been pending for more than t wo years, to the Fast Track Courts (hereinafter referred to as ’the FTC’). Ther eafter, vide order, dated 28.08.2003, the Secretary (Law & Judicial), Government of Arunachal Pradesh, issued a WT message to the Deputy Commissioners, in the S tate of Arunachal Pradesh, requesting them to urgently transfer all civil cases with relevant records, which had been pending for more than two years, to the FT Cs in terms of the scheme as approved by the Apex Court in the case of Brij Moha n Lal Vs. Union of India, reported in (2002) 5 SCC 1. (ii) The writ petitioners contend that since the FTCs have been constituted f or trial of sessions cases, the transfer of the civil cases to them was wholly i llegal and the FTCs had, therefore, derived no jurisdiction to deal with civil c ases and pass decrees binding the parties concerned. The writ petitioners also contend that the tribal areas of the State of Arunachal Pradesh stand excluded f rom the operation of Section 1 (3) of the Code of Civil Procedure and no Distric t/Additional District Judge, having been appointed in terms of the provisions of Article 233 and/or Article 236 of the Constitution of India, and the State Gove rnment having also not issued any notification extending the provisions of the C ode of Civil Procedure to any of the areas of the State concerned, the civil pro ceedings and civil trials, in the State, are governed by the provisions of Secti on 4 of the Assam Frontier (Administration of Justice) Regulations, 1945 (in sho rt, ’the Regulations’) in force. The Corporation has not been impleaded as a pa rty in the suit. There was no specific admission by the Corporation with regard to the claims of the plaintiffs. Mere appearance, in the suits by the Corporat ion’s officers, did not give the FTC the power to try the suit and pass binding decrees on the Corporation. The suits have been decreed without framing any iss ue. The Deputy Commissioner, Yupia, has no jurisdiction to transfer a civil cas e to the FTC inasmuch as there is no specific provision, made in the Regulations , for transfer of a civil case by the Deputy Commissioner. (iii) It is the further case of the writ petitioners that the audit, carried out in respect of the payments of various bills, relating to Hill Transport subsidy (in short, ’the HTS’), had revealed excess payments having been made by the Cor poration. Hence, the excess payments, so made, were ordered by the Union Governm ent to be adjusted against further payments, which would be required to be made to the State Government by way of reimbursement in terms of the relevant policy. In the meanwhile, a Public Interest Litigation, bearing PIL NO.50/2004, allegi ng various anomalies with regard to HTS was filed and the matter is, now, being investigated by the CBI. The State Government, being aware of the said PIL, ou ght not to have admitted the disputed/doubtful claims of the plaintiffs. The Co rporation, having not been made a party, could not contest the suits effectively . Without constituting any of the FTCs as a Court having civil jurisdiction, th e State Government could not have issued any direction to the Deputy Commissione rs to transfer civil cases or suits to the FTCs. The scheme, stipulated in Brij Mohan Lal’s (supra), cannot be applied to the Tribal States. This apart, requi site notification is required to be issued extending the provisions of the Code of Criminal Procedure or Civil Procedure to the Tribal areas. The FTC, in quest ion, could not have, without framing any issue, decided and decreed the suits in volving huge sums of money. STATE GOVERNMENT’S CASE : 7. The State Government has resisted the writ petitions by filing their aff idavit, the State Government’s case being as under: - (i) The FTC is competent to try civil suits inasmuch as the trial Judge, h aving been appointed as Additional Deputy Commissioner, is competent to try civi l cases under the Regulations. The writ petition is not maintainable inasmuch a s an application under Article 226 is not maintainable against a judicial order passed by a competent civil court. The present writ petition having been made u nder Article 226 of the Constitution and there being no prayer to convert the sa me into a petition under Article 227, the present writ petitions must fail. The writ petitions have been filed at the principal seat of Gauhati High Court agai nst a decree passed by a Court in the State of Arunachal Pradesh, though there i s a permanent bench at Itanagar and when there is no order passed by the Chief J ustice of the High Court, in terms of the Gauhati High Court Rules, the present writ proceedings could not have been initiated and continued at the principal se at and the same shall either be dismissed or transmitted to the Permanent Bench, at Itanagar, in terms of the standing orders in force. (ii) The petitioners are guilty of having intentionally suppressed material facts from this court. The records reveal that in respect of Money Suit No. 2 o f 2007, which was pending in the Court of Deputy Commissioner, West Siang Distri ct, the plaintiff had field a petition, at Itanagar Bench of the High Court, see king transfer of the said suit to the Court of Additional District & Sessions Ju dge (FTC), Yupia, for trial and disposal. Notices were issued to all the respon dents including the Corporation. The petitioners in the writ petition appeared in the said transfer application, but did not contest the same and after hearing the learned counsel for the parties, an order was passed, on 23.3.2007, by the High Court transferring the money suit as had been prayed for. The said order o f transfer was never assailed by any of the parties including the Corporation an d has, therefore, attained finality and cannot be reopened collaterally in the p resent proceedings; but these facts have been deliberately suppressed by the Cor poration. Exercise of power under Article 226 is not available for judicial rev iew of an order, passed, on the judicial side, by a co-ordinate Bench of the sam e High Court. The present proceedings would require a judicial review of an or der passed by Itanagar Bench of the High Court transferring a civil suit in exer cise of the High Court’s power of transfer. Such a course is not permissible in an application under Article 226. The writ petition, therefore, deserves dismiss al. (iii) Upon transfer of the money suits aforementioned, the Corporation had appea red in the trial court and submitted its written statements. At no stage of the trial, any objection with regard to jurisdiction of the trial Court was raised. In any case, no consequent failure of justice has been pleaded, in the writ pe tition, as a result of transfer of the suits to the FTC. The writ petitions do not disclose that the transfer of the suits or the decrees passed therein have i nfringed any fundamental or legal rights of the petitioners. The petitioners hav e also not shown as to what prejudice has been caused to the petitioners, becaus e of the exercise of civil jurisdiction by the FTC. Altogether three FTCs have been established in the State of Arunachal Pradesh having both civil as well as criminal jurisdiction. The FTCs are manned by Additional Deputy Commissioners, who are empowered to try civil cases under the Regulation. Under the Notificati on, dated 04.06.2002, the FTCs have also been constituted as Additional Sessions Judge’s courts. The territorial jurisdiction, vested in the FTC, by notificati on, dated 04.06.2002, is wider than that of Additional Deputy Commissioners of t he districts concerned. In terms of the 11th Finance Commission’s recommendation s, advertisement, dated 13.07.2001, was issued for recruitment to the post of Ad ditional Deputy Commissioner with the power of adhoc Addl. Sessions Judge on con tact basis. The Selection Committee was headed by a sitting Judge of the High C ourt and this Committee recommended names, on 06.10.2001, against the three post s of the Presiding Officers of the FTCs. Vide order, dated 04.06.2002, three Add itional Deputy Commissioners were appointed with the power of adhoc Additional S essions Judge in Additional Sessions Court (FTC). Subsequently, the designation of FTCs was changed by the High Court and they are presently known as Additiona l District & Sessions Judge, FTC. Since the constitution of the FTCs, civil cas es are being regularly transferred from the courts of the Deputy Commissioners e ither on their own or on the orders passed by the High Court. The appointments of the Presiding Officers of the FTCs were in consonance with not only the provi sions of Articles 233 and 236 of the Constitution of India, but also in keeping with the mandates of the Apex Court’s in Brij Mohan Lal (supra). (iv) The Central Government/Corporation made payments for three years during the year 2001 - 2003 in accordance with the 2001 relevant policy; but they, sudd enly, stopped payments of all claims from January, 2004, and started making arbi trary and unilateral adjustments of recovery against purported excess payments. This issue is, now, being examined by a High Powered Committee, which has been c onstituted by the Government of India, wherein representatives of both the State Government and the Corporation have been included and this High Powered Committ ee is also engaged in sorting out the issues pertaining to the non-payment of pe nding bills for the period 2004 - 2007. Denial of payment of dues has resulted i nto immense resentment amongst the genuine transporters, who had carried out the works of transportation in terms of the agreements. The transfer of the civil suits, in question, and the trial held by the FTC was in terms of the Regulation read with the spirit of the provisions of the Code of Civil Procedure, as appli cable to the State of Arunachal Pradesh. PRIVATE RESPONDENT’S CASE : 8. The private respondents, who are plaintiffs in the suits, have also resi sted the writ petitions by filing their affidavits, their case, in brief, is: (i) The writ petitions suffer from suppression of material facts. As many as eight money suits, involving similar issues and common defendants, were tried and decreed by the trial Court i.e. FTC, Yupia. Out of these eight suits , two suits, namely, Money Suit No.06/2007 and