3mi§imwx§$ a IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR t: Writ Petition (C) No. QUMB /201o. ( Petitioner: Mahajan Mukti Swa-Sahayata Samooh, Singchora, Block Rajpur District Sarguja, through its Secretary Shri Gopal Sahu, S/o Shri Tulsi Sahu, aged about 45 years, resident of Village Singchora, Tahsil Rajpur District Sarguja (CG) Versus Resgondents: l. State of Chhattisgarh, through its Principal Secretary, Food 85 Civil Supplies Department, Mantralaya Raipur (CG) Collector, Sarguja. ‘ 3. The Sub Divisional Officer (Revenue), Rajpur, District Sarguja (CG) Gram Panchayat, Singchora, Tahsil Rajpur District Sarguja through its Secretary. WRIT PETITOIN UNDER ARTICLE 226(227 OF THE CONSTITUTION OF INDIA. wick o , A 7% WRIT PETITION (C) No. 6448 of 2010 Mahajan Mukti Swa-Sahayata Samooh, Singchora. VERSUS ONDENTS : State of Chhattisgarh & Others. ETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon’ble Shri Sa‘tish K. Agnihotri, J. Shri Mrigendra Singh, Advocate for the petitioner. Shri M.P.S.Bhatia, Deputy Government Advocate for the State/respondent No. 1 to 3. Present: ORDER ORAL (Passed on 11 day of November, 2010) The petitioner seeks a writ of certiorari to quash the order dated 25.10.2010, passed by the respondent N0. 3 i.e. Sub Divisional Officer (Revenue) Rajpur, District Surguja. The facts, in brief, as projected by the petitioner is that by order dated 0704.2010, the petitioner-Society was allotted a fair price shop strictly in accordance with the terms and conditions of the agreement and provisions of the Chhattisgarh Public Distribution System (Control) Order, 2004 (hereinafter referred to as the ‘Order, 2004 ’). The impugned order has been passed, it appears on the basis of a letter dated 29.09.010 issued from the office of the Collector, Surguja, without affording an opportunity of hearing as required under the provisions of sub clause 3 0f clause 16 of the Order, 2004. z On query, asto how a writ of certiorari is maintainable, learned counsel appearing for the petitioner, despite opportunity, neither HIGH COURT OF CHHATTISGARH AT BILASPUR 1r RESP WRIT P W submitted for amendment in the relief clause nor pleaded for moulding ofthe relief, and proceeds on merits. Before deciding asto whether a writ of certiorari is maintainable to quash the administrative order, it is needless to mention that under the provisions of clause 18 of the Order, 2004, if a person is aggrieved by an order of cancellation of the fair price shop, he may approach to the Collector/Additional Collector. However, contention of learned counsel that the impugned order was passed at the instance of the Collector/Additional Collector, the appellate provision was not available, does not merit acceptance as sub clause (2) of clause 18 of the Order, 2004 further provides that if a person is aggrieved by an order passed by the Collector, may be in appeal or otherwise, he may further appeal to the State Government, which has not been done in the instant case. 5. A Constitution Bench of the Supreme Court, in Province. of Bombay v. v. Khushaldas S.Advam' (Since Deceasea? and after him his legal representatives (a) Govindram Khushaldas and (b) Ramchand Khushaldas & Others], observed as under: "11...Inconvenience or want of adequate remedy does not create a right to a writ of certiorari. It is clear that such writ can be asked for if two conditions are fulfilled. Firstly, the decision of the authority must be judicial or quasi judicial and, secondly, the challenge must be in respect of the excess or want of, jurisdiction of the deciding authority. Unless both those conditions are hilfilled, no application for a writ of certiorari can succeed. l5. . .It is well settled that a writ of certiorari can be issued only against inferior courts or persons or authorities who are required by law to act judicially or quasi judicially, in those cases /i' IAIR(37) 1950 sc 222 Where they act in excess of their legal authority. Such a writ is not available to remove or correct executive or administrative acts.” 6. Further, a Constitution Bench of the Supreme Court, on the question of writ of certiorari, in T.C.Basappa v. T.Nagappa & Another}, observed as under: “7. One of the Iimdamental principles in regard to the issuing of a writ of ‘certiorari’ is, that the writ can be availed of only to remove or adjudicate on the validity of judicial acts. The expression “judicial acts” includes the exercise of quasi-judicial functions by administrative bodies or other authorities or persons obliged to exercise such hmctions and is used in contrast with what are purely ministerial acts. Atkin L.J. thus summed up the law on this point in — ‘Rex v. Electricity Commissioners’, 1924-1KB 171 at p. 205 (C): “Whenever any body or person 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 exercised in these writs” The second essential feature of a writ of ‘certiorari’ is that the control which is exercised through it over judicial or quasi-judicial tribunals or bodies is not in an appellate but supervisory capacity. In granting a writ of ‘certiorari’ the superior court dos not exercise the powers of an appellate tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. 9. ‘Certiorari’ may and is generally granted when a court has acted without or in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject matter of the proceeding 6r from the absence of some preliminary proceeding or the court itself may not be legally constituted or suffer from certain ‘7. Nex£n 1954 sc 440 (3d disability by reason of extraneous circumstances, vide ‘Halsbury, 2nd Edition, Vol. IX, Page 880. When the jurisdiction ofthe court depends upon the existence of some collateral fact, it is well settled that the court cannot by a wrong decision of the fact give it jurisdiction which it would not otherwise possess, vide — ‘Bunbury v. Fuller’, (1854) 9 EX 111 (F): - R. v. Income Tax Special Purposes Commissioners’, (1989) 21 QBD 3 13 (G).” 7. Subsequently, in Udit Narain Singh Malpaharia v. Additional Member, Board ofRevenue, Bihar & Another3, the Supreme Coult further considered and held as under: “8. Certiorari lies to remove for the purpose of quashing the proceedings of inferior courts of record or other persons or functions. It is not necessary for the purpose of this appeal to notice the distinction between a writ of certiorari and a writ in the nature of certiorari; in either case the High Court directs an inferior tribunal or authority to transmit to itself the record of proceedings pending therein for scrutiny and, if necessary, for quashing the same. It is well settled law that a certiorari lies only in respect of a judicial or quasi judicial act as distinguished h‘om an administrative act.” 8. The Supreme Court in Praéadh Verma & Others v. State of Uttar Pradesh & Others", considered the scope of a writ of certiorari or in the nature of certiorari, observed as under: “31. A writ of certiorari can never be issued t0 call for the record or papers and proceedings of an Act or Ordinance and for quashing such Act or Ordinance. The writ of certiorari and the writs of habeas corpus, mandamus,prohibition and quo warranto were known in English common law as “prerogative writs”. “Prerogative writs” are to be distinguished from “writs of right” also known as “writs of course”. Writs issued as part of the public administration ofjustice are called “writs of right” or “writs of course” because the Crown is bound by Magna Carta of 1215 to issue them, as for instance, a writ to commence an action at common law. 3 AIR 1963 sc 786 \f-\\g _ j\4(1984) 4 scc 251 \\ Prerogative writs are (or rather, were) so called because they are issued by Virtue of the Crown’s prerogative, not as a matter of right but only on some probable cause being shown to the satisfaction of the court Why the extraordinary power of the Crown should be invoked to render assistance to the party. The common law regards the Sovereign as the source or fountain ofjustice, and certain ancient remedial processes of an extraordinary nature, known as prerogative writs, have from the earliest times issued from the Court of King’s Bench in which the Sovereign was always present in contemplation of law. (See Jowitt’s Dictionary of Law, Vol. 2, p. 1885, and Halsbury’s Laws of England, Fourth Edn., Vol. 11, para 1451, f.n. 3). 32. We are concemed here with the writ of certiorari. “Certiorari” is a late Latin word being the passive form of the word “certiorare” meaning “inform” and occurred in the original Latin words of the writ which translated read £4we, being desirous for certain reasons, that the said record should by you be certified to us”. Certiorari was essentially a royal demand for information; the King, wishing toibe certified of some matter, orders that the necessary information be provided for him. We find in De Smith’s Judicial Review of Administrative Action, Fourth Edn., p. 587, some interesting instances where writs of certiorari were so issued. Thus, these writs were addressed to the escheator or the sheriff to make inquisitions; the earliest being for the year 1260. Similarly, when Parliament granted Edward II one foot—soldier for every township, the writ addressed to the sheriffs to send in returns of their townships to the Exchequer was a writ of certiorari. Very soon aher its first appearance this writ was used to remove to the King’s Court at Westminster the proceedings of inferior courts of record; for instance, in 127 1 the proceedings in an assize of darrein presentment were transferred to Westminster because of their dilatoriness. This power was also assumed by the Court of Chancery and in the Tudor and early Stuart periods a writ 6f certiorari was frequently issued to bring the proceedings of inferior courts of common law before the Chancellor. Later, however, the Chancery confined its supervisory functions to inferior courts of equity. 1n A New Abridgement of the Law, Seventh Edition, Vol. II at pp. 9 and 10, Matthew Bacon ’has described a writ of certiorari in these words: “A certiorari is an original writ issuing out of Chancery, or the King’s Bench, directed in the Kings name, to the judges or officers of inferior courts, commanding themto return the records of a cause pending before them, to the end the party may have the more sure and speedy justice before him, or such other justices as he shall assign to determine the cause.” LIL 9. In Municzpal Council, Sujanpur v. Surinder Kumarj, the Supreme Court observed as under: “11. The High Court’s jurisdiction to issue a writ of certiorari though is limited, a writ of certiorari can be issued if there is an error of law apparent on the face of the record. What would constitute an error of law is well known. In Judicial Review of Administrative Action, IVth Edn., pp. '136-37, S.A. de Smith has summed up the position: “(5) The concept of error of law includes the giving of reasons that are bad in law or (if there is a duty to give reasons) inconsistent, unintelligible or, it would seem, substantially inadequate. It includes also the application of a wrong legal test to the facts found, taking irrelevant considerations into account and failing to take relevant considerations into account, exercising a discretion on the basis of any other incorrect legal principles, misdirection as to the burden of proof, and wrongful admission or exclusion of evidence, as well as arriving at a conclusion without any supporting evidence ” (See also S.N. Chandrashekar v. State of Karnataka and Bombay Dyeing & Mfg. Co. Ltd. (3) V. Bombay Environmental Action Group)” [t agwcc 173 m 10. Recently, in Sam Lal Gupta v. Modern Co-operative Group Housing Society Ltd. & 0thers6, the Supreme Court observed under: “29. The High Court ought to have considered that it was a writ of certiorari and it was not dealing with an appeal. The writ of certiorari under Article 226 of the Constitution can be issued only when there is a failure ofjustice and it cannot be issued merely because it may be legally permissible to do so.” 11. In view of the foregoing, and applying the well settled principle of law on the issue of a writ of certiorari or in the nature of a writ of certiorari, to the facts of the case, where no element of any adjudication by way of quasi-judicial proceeding was involved but the same was a purely administrative order and as such, I am of the considered opinion that no writ in the nature of certiorari can be issued in the instant case. 12. Accordingly, the writ petition is dismissed. No order asto costs. Amit Sd/— l i Satish K. Agnihotrii 3! Judge l J i a JT 2010 (1 1) SC 273