DHARMASHASTRA NATIONAL LAW

UNIVERSITY, JABALPUR

2021-22

DRAFTING PLEADING AND CONVEYANCING PROJECT ON

ARTICLE 226 AND 227 OF THE INDIAN CONSTITUTION

SUBMITTED BY:- SUBMITTED TO:-

Rishabh Gupta Ms. Areena Ansari
BAL/080/18 Mr. Abhinav Gaur
Seventh Semester Assistant Professor of Law
Acknowledgment

For this work I would like to mention special gratitude to my institution Dharmashastra National
Law University and also would like to special mention and heartily thanks to my teacher Ms.
Areena Ansari and Abhinav Gaur and the Head of Department of my institution Dr. Shilpa Jain
Ma'am, who provided me with this wonderful opportunity to work on this wonderful project of
Drafting pleading and Conveyancing on the project topic “Article 226 and 227 of the
Constitution of India ", the project work helped me a lot to know the nuances of the topic very
well and also engaged me with a lot of research work, also the project helped me to understand
the concept very well and helped me to gain a piece of knowledge on this topic. I am really so
thankful to them.

Finally, on the same note, I would also like to thank my mentor in this university Mr. Gautam
Gupta Sir, my friends, teachers, and my parents who all supported me with every other aspect of
this work in a limited time frame.
Table of Content

Introduction 4

Writs and Types under Indian Constitution 5

Scope , Powers and Difference between Article 226 and Article 227 6

Writ petition on behalf of the petitioner seeking issuance of writ of prohibition. 12

References 18
What is the difference between the powers of Court under Article 226 and 227 of the
Constitution of India? Explain with at least five case laws each in not more than 500 words.
Also, draft a template of a writ petition on behalf of the petitioner seeking issuance of writ
of prohibition.

Introduction

Articles 226 and 227 are the parts of the constitution which define the powers of the High Court.
Article 226, empowers the high courts to issue, to any person or authority, including the
government (in appropriate cases), directions, orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them.

1
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.

The Article 226 empowers High Courts to issue directions, orders or writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari. Such directions, orders or writs may
be issued for the enforcement of fundamental rights or for any other purpose.2 Whereas, the
Article 227 of the Constitution confers on every High Court the power of superintendence over
all courts and tribunals throughout the territories in relation to which it exercises jurisdiction
accepting any court or tribunal constituted by or under any law relating to the armed forces. So a

1
https://www.soolegal.com/roar/article-226-and-article-227-powers-scope-and-difference#:~:text=The%20
most%20important%20and%20particular,not%20original%20but%20only%20supervisory., last assessed
08, December, 2021.
2
https://www.mondaq.com/india/court-procedure/691090/articles-226-and-227-of-the-constitution-of-india-t
heir-scope-powers-and-differences#:~:text=The%20first%20and%20foremost%20difference,not%20origin
al%20but%20only%20supervisory.
question regarding the difference between these two articles arose out of the application and
understanding of both the articles.3

Writs and Types under Indian Constitution

Article 226, empowers the high courts to issue, to any person or authority, including the
government (in appropriate cases), directions, orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them.

Habeas Corpus - A simple dictionary meaning of the writ of Habeas Corpus is "a writ requiring a
person under arrest of illegal detention to be brought before a judge or into court, especially to
secure the person's release unless lawful grounds are shown for their detention".

Mandamus - A writ issued as a command to an inferior court or ordering a person to perform a

public or statutory duty.

Prohibition - A writ of prohibition is issued primarily to prevent an inferior court or tribunal from
exceeding its jurisdiction in cases pending before it or acting contrary to the rules of natural
justice.

Quo warranto - This simply means "by what warrant?". This writ is issued to enquire into the
legality of the claim of a person or public office. It restrains the person or authority to act in an
office which he / she is not entitled to; and thus, stops usurpation of public office by anyone.
This writ is applicable to the public offices only and not to private offices.

Certiorari- Literally, Certiorari means "to be certified". The writ of certiorari can be issued by the
Supreme Court or any High Court for quashing the order already passed by an inferior court,
tribunal or quasi-judicial authority.

The High Court is conferred with this power under Article 226 of the Constitution of India for
enforcement of any of the fundamental rights conferred by part III of the Constitution or for any
other purpose.

3
https://docs.google.com/document/d/17VaniqUnWVB1l97cc3bVUkSK_SLrSduQM3Y7cIhmM98/edit#,
last assessed 09, December, 2021.
Article 227 determines that every High Court shall have superintendence over all courts and
tribunals throughout the territories in relation to which it exercises jurisdiction (except a court
formed under a law related to armed forces).

The High Court, can, under Article 227 –

● Call for returns from such courts,

● Make and issue general rules and prescribe forms for regulating the practice and
proceedings of such courts.
● Prescribe forms in which books, entries and accounts be kept by the officers of any such
courts.
● Settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts.

Scope , Powers and Difference between Article 226 and Article 227

● Umaji Keshao Meshram v. Radhikabai

The difference between Article 226 and Article 227 of the Indian Constitution was very firstly
brought up in the case of Umaji Keshao4.

The Court has held that

“Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court
while proceedings under Article 227 of the Constitution are not original but only supervisory.
Article 227 substantially reproduces the provisions of Section 107 of the Government of India
Act, 1915 excepting that the power of superintendence has been extended by this article to
tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power
under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose
of keeping the subordinate courts and tribunals within the bounds of their authority and not for
correcting mere errors. The power may be exercised in cases occasioning grave injustice or
failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does
not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a

4
Umaji Keshao Meshram v. Radhikabai [1986 Supp. SCC 401]
failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which
tantamount to overstepping the limits of jurisdiction.

25. Upon a review of decided cases and a survey of the occasions, wherein the High Courts have
exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction
under Article 227 in the given facts and circumstances in a variety of cases, it seems that the
distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is
the reason why it has become customary with the lawyers labelling their petitions as one
common under Articles 226 and 227 of the Constitution, though such practice has been
deprecated in some judicial pronouncements. Without entering into niceties and technicality of
the subject, we venture to state the broad general difference between the two jurisdictions.
Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise
of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate,
revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the
proceedings having been certified and sent up by the inferior court or tribunal to the High Court,
the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings
and then do no more. In exercise of supervisory jurisdiction, the High Court may not only quash
or set aside the impugned proceedings, judgment or order but it may also make such directions as
the facts and circumstances of the case may warrant, maybe, by way of guiding the inferior court
or tribunal as to the manner in which it would now proceed further or afresh as commended to or
guided by the High Court. In appropriate cases the High Court, while exercising supervisory
jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the
inferior court or tribunal should have made. Lastly, the jurisdiction under Article 226 of the
Constitution is capable of being exercised on a prayer made by or on behalf of the party
aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well.

● Surya Devi Rai vs. Ram Chander Rai

The Hon'ble Supreme Court, in the case of Surya Devi Rai vs. Ram Chander Rai5, relied on
several constitutions Judgments of the Hon'ble Apex court, one of which was Umaji Keshao

5
Surya Devi Rai vs. Ram Chander Rai, CASE NO.:Appeal (civil) 6110 of 2003
Meshram and Ors. vs. Smt. Radhikabai and Anr, which laid down scope, power and differences
between Article 226 and Article 227.

The first and foremost difference between the two articles is that Proceedings under Article 226
are in exercise of the original jurisdiction of the High Court while proceedings under Article 227
of the Constitution are not original but only supervisory. Article 227 substantially reproduces the
provisions of Section 107 of the Government of India Act, 1915, excepting that the power of
superintendence has been extended by this Article to tribunals as well. Though the power is akin
to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used
sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and
tribunals within the bounds of their authority and not for correcting mere errors.

The court further observed that power under Article 227 shall be exercised only in cases
occasioning grave injustice or failure of justice such as when:

(i) The court or tribunal has assumed a jurisdiction which it does not have, (ii) The court or
tribunal has failed to exercise a jurisdiction which it does have, such failure occasioning a failure
of justice, and

(iii) The jurisdiction though available is being exercised in a manner which tantamount to
overstepping the limits of jurisdiction.

The Hon'ble Court in case of Surya Devi rai vs. Ram Chander Rai, further observed that there is
lack of knowledge of the distinction between the understanding of Article 226 and 227 and hence
it is a common custom with the lawyers labeling their petitions as one common under Articles
226 and 227 of the Constitution, though such practice has been deprecated in some judicial
pronouncements.

● Radhey Shyam & Anr vs Chhabi Nath & Ors

6
It was in the year 2015 that the Constitution Bench of the Hon'ble Supreme Court comprising
H.L Dattu. CJI, Sikri.J, and A.K. Goel. J, where to look into the matter of correctness of the law
which was promulgated in another case.

6
Umaji Keshao Meshram v. Radhikabai, CIVIL APPEAL NO.2548 OF 2009
The Hon'ble Court observed that:

"This Court unfortunately discerns (with Surya Devi Rai vs. Ram Chander Rai) that of late there
is a growing trend amongst several High Courts to entertain writ petitions in cases of pure
property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in
cases of dispute between landlord and tenant and also, in a case of money decree and in various
other cases where disputed questions of property are involved, writ courts are entertaining such
disputes. In some cases, the High Courts, in a routine manner, entertain petitions under Article
227 over such disputes and such petitions are treated as writ petitions. We would like to make it
clear that in view of the law referred to above in cases of property rights and in disputes between
private individuals, writ court should not interfere unless there is any infraction of statute or it
can be shown that a private individual is acting in collusion with a statutory authority.

We may also observe that in some High Courts there is a tendency of entertaining petitions under
Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on
an erroneous appreciation of the ratio in Surya Dev and in view of the recent amendment to
Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999. It
is urged that as a result of the amendment, scope of Section 115 CPC has been curtailed. In our
view, even if the scope of Section 115 CPC is curtailed, it has not resulted in expanding the High
Court's power of superintendence. It is too well known to be reiterated that in exercising its
jurisdiction, the High Court must follow the regime of law.

Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of
certiorari under Article 226. We are also in agreement with the view of the referring Bench that a
writ of mandamus does not lie against a private person not discharging any public duty. Scope of
Article 227 is different from Article 226."

Hence, the Supreme Court noted the difference between Article 226 and Article 227. It also
condensed some powers to the High Courts under Article 226. They have to attend petitions
which do not touch, in any way, the Fundamental Rights of any person.

The scope of Article 226 and Article 227 is quite vast. The High Court has the power to correct
errors of jurisdiction. But it cannot disturb the true findings of the facts because they are within
the appellate Court’s jurisdiction only.
Another power of the High Court is the power of revision. It enables the revision Court to be
sure of the following of a finding

1. Correctness

2. Legality

3. Propriety

4. Sentence or order recorded/passed

Under Article 226, High Court can’t be regarded as a Revision or Appellate Court because when
any subordinate Court rejects the order, the legal remedy of appeal is available to the aggrieved
party to get an answer of the question of violation of fundamental right.

● MT. PANPATI DEVI & ANR. V/s RAM BARAT RAM & ORS., W.P. (C) NO. 2617
OF 2018, HIGH COURT OF JHARKHAND (RANCHI), DATE OF DECISION:
07.03.2019, CORAM: SUJIT NARAYAN PRASAD, J

“Under Article 226 of the Constitution of India, 1950 the High Court normally annuals or
quashes an order or proceedings, but, in exercise of its jurisdiction under Article 227 of the
Constitution of India, 1950, the High Court, apart from annulling the proceeding, can also
substitute the impugned order by the order which the inferior court or tribunal should have
passed.”

It was held that:

1. There is no dispute about the proposition of law that the provision under Article 227 of the
Constitution of India, 1950 is to be exercised by the High Court if there is error apparent on the
face of record. However, Article 227 of the Constitution of India, 1950 does not vest the High
Court with limitless power; power of superintendence conferred upon the High Court by virtue
of Article 227 of the Constitution of India, 1950 is not to be exercised unless there has been: a.
An unwarranted assumption of jurisdiction, not vested in the inferior court or tribunal; or, b.
Gross abuse of jurisdiction by an inferior court or tribunal; or, c. An unjustifiable refusal to
exercise jurisdiction vested in the inferior court or tribunal.

2. The High Court can set aside or reverse findings of an inferior court or tribunal only in cases
where the findings of the inferior court or tribunal are either based on ‘no evidence’ or where no
reasonable person could possibly have come to the conclusion which the inferior court or
tribunal came to.

3. The High Court under Article 227 of the Constitution of India, 1950 cannot assume unlimited
prerogative to correct all species of hardship or wrong decisions; its exercise must be restricted
to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice.

4. The jurisdiction which the High Court exercises under Article 227 of the Constitution of India,
1950 is neither original, nor appealable; it is administrative and supervisory in nature.

5. The powers conferred upon the High Court under Article 226 and Article 227 of the
Constitution of India, 1950 are separate and distinct, and operate in different fields. Under
Article 226 of the Constitution of India, 1950 the High Court normally annuals or quashes an
order or proceedings, but, in exercise of its jurisdiction under Article 227 of the Constitution of
India, 1950, the High Court, apart from annulling the proceeding, can also substitute the
impugned order by the order which the inferior court or tribunal should have passed.

6. High Court, in exercise of its jurisdiction of superintendence under Article 227 of the
Constitution of India, 1950, can interfere in order only to keep the tribunals and courts
subordinate to it within the confines of their respective authority/jurisdiction, in order to ensure
that law is followed by such tribunals and courts by exercising jurisdiction which is vested with
them and there is no exercise of jurisdiction which is not so vested in them.

7. The High Court under Article 227 of the Constitution of India, 1950 can interfere in exercise
of its power of superintendence when there is patent perversity in the orders of the tribunals and
courts subordinate to it or where there has been a gross and manifest failure of justice or the
basic principles of natural justice have been flouted.

8. In exercise of its power of superintendence, the High Court under Article 227 of the
Constitution of India, 1950 cannot interfere to correct mere errors of law or fact or just because
another view than the one taken by the tribunals or courts subordinate to it, is a possible view.
The jurisdiction of the High Court under Article 227 of the Constitution of India has to be
exercised very sparingly.7

7
MT. PANPATI DEVI & ANR. V/s RAM BARAT RAM & ORS., W.P. (C) NO. 2617 OF 2018
Writ petition on behalf of the petitioner seeking issuance of writ of
prohibition.

The term 'prohibition' generally means 'to forbid'. This writ is also called 'stay order'. It is issued
by a superior court to stop an inferior court or a quasi-judicial body from ongoing its
proceedings. It is issued in situations such as:

1. When the inferior court or the quasi-judicial body does not have jurisdiction to hear the case.
2. When the inferior court or quasi-judicial body infringe the principles of natural justice.
3. When the inferior court or quasi-judicial body is not acting as per the provisions of the law.

To comprehend this writ, one can mention to the case law East India Company Ltd. vs. the
Collector of Customs8. In this case, the Supreme Court of India declared the writ of prohibition
to reject the respondent to begin the inquiry in an inferior tribunal on the basis that the
proceedings were outside the tribunal's jurisdiction.

8
East India Company Ltd. vs. the Collector of Customs, 1962 AIR, 1893
 IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR

CIVIL ORIGINAL (EXTRA-ORDINARY) JURISDICTION

WRIT PETITION (CIVIL) NO. OF 20__

(UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA)

IN THE MATTER OF:

RISHABH GUPTA S/o Dinesh Kumar Gupta, aged about 21 years R/o Room no. 114, Raman
Bhawan, Dharmashastra National Law University, Jabalpur, Bharat Ratan BR Ambedkar BSNL
Training Institute, Ridge Road, South Civil lines, Jabalpur, Madhya Pradesh 482001.

PETITIONER

VERSUS

1. CHEL Company Ltd

Jabalpur,

RESPONDENT NO. 1

2. Manager Accounts

Accounts Department
CHEL Company Ltd

Jabalpur,

RESPONDENT NO. 2

3. The Chief Executive Officer

CHEL Company Ltd

Jabalpur

RESPONDENT NO. 3

WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING

FOR DIRECTION OR ORDER IN THE NATURE OF PROHIBITION TO THE
RESPONDENTS, PROHIBITING THEM FROM PROCEEDING FURTHER WITH THE
DISCIPLINARY PROCEEDING ON THE BASIS OF THE ENQUIRY REPORT OF
RESPONDENT NO. 2.

To,

The Hon'ble Chief Justice of High Court,

And His Companion Judges of the

Hon'ble High Court of Madhya Pradesh.

The humble petition of the

Petitioner above named.

THE PETITIONER MOST RESPECTFULLY SHOWETH:

1. That the Petitioner is filing the present writ petition under article 226 of the constitution of
India Praying for direction or order in the nature of prohibition to the respondents , prohibiting
them from proceeding further with the disciplinary proceeding on the basis of the enquiry report
of respondent No. 2.

2. That, the Petitioner was appointed as the Accounts Executive of Respondent No.1, a
Government Company, having its registered office at Jabalpur in September 2021. .

3. That Respondent No. 1 Company is discharging public functions and financed by the State of
Madhya Pradesh, and is a "State" under Article 12 of the Indian Constitution. Therefore, this
petition against the Company is amenable before this Hon'ble Court.

4. The Petitioner has served the Company as Accountant for the period of 2 years before being
promoted as the Accounts Executive. The Petitioner has been a diligent employee of the
Company since the date of his appointment.

5. That, on December 2021, while serving as Accounts Executive, he was served with a
disciplinary notice stating his inefficiency in performance. Copy of the disciplinary Notice is
Annexed herewith and Attached as Annexure P1.

6. The enquiry into the said charges was made by the Accounts Manager of the Company. On the
basis of the report of Respondent No. 2 which was sent to the Respondent 3 a show cause notice
dated 05 December 2021 was sent to the Petitioner, stating why he should not be dismissed from
service. A copy of the said show cause notice is Annexed herewith and attached as
Annexure-P2.

7. That according to the Company Rules, the enquiry into the disciplinary charges is to be only
made by the third party enquiry officer. The enquiry was made by a person not duly authorized to
do so, i.e. Respondent No.2.

Issue raised was neither dealt with nor decided:

It is submitted that this issue has never been raised nor dealt with nor has been decided by any
other Court of law to the best of the knowledge of the petitioner.

Any representation etc. made :

It is submitted that the petitioner has not made any representation until now.

GROUNDS

8. That the present Writ Petition is being filed on the following, amongst other, grounds without
prejudice to each other;

i. Because the procedure adopted by the Company in initiating disciplinary proceedings is

against the Company's rules i.e. Rule 7 and regulations.

ii. Because the enquiry report of the Respondent No. 2 is not valid as he is the Reporting
Manager of the Petitioner. The Petitioner had filed Complaint to the Management of the
Company against Respondent No. 2 on 07 December 2021 with corruption allegation and
siphoning of funds. So Respondent No. 2 has personal enmity to the Petitioner due to reporting
of his corruption case to the management.

iii. Because the Respondent No. 2 does not have the jurisdiction to prepare an enquiry report as
per the Company's Rules and Regulations.

Details of remedies exhausted:

Petitioner declares that he has availed all the remedies available to him.

Delay, if any, in filing the petition and explanation

Therefore: The petitioner declares that there is no delay in filing the

petition.
PRAYERS

In view of the facts & circumstances stated above, it is most respectfully prayed that this Hon'ble
Court may be pleased to:-

a) Issue a Writ in the nature of Prohibition to the Respondents Prohibiting them from proceeding
further with the disciplinary proceeding on the basis of the enquiry report of Respondent No.2;

b) Any other relief, order or direction this court may deem fit and proper under the facts and
circumstances of this case.

Caveat :

The petitioner submits that no notice of lodging caveat by

the opposite party is received.

AND FOR THIS ACT OF KINDNESS THE APPLICANT AS IN DUTY BOUND SHALL
EVER PRAY.

FILED BY:

(Rajkumar Rao)

ADVOCATE FOR THE PETITIONER

Jabalpur

Date: 11 December 2021

References

1. Constitution of India, 1950.

2. MR Mallick, Writs Law and Practice, Eastern Low House, Kolkata, Second Edition, 2009.

3. G. Ramachandran, Law of Writs, Eastern Book Company, Volume 1, Sixth Edition, 2002.

14

4. MP Jain, Indian Constitutional Law, LexisNexis Butterworths Wadhwa, Nagpur, Sixth Edition,

2012.

5. D. Basu Constitutional, Remedy and Writs, Kamal Law House, Kolkata, Third Edition, 2009. a
Justice P.S. Narayana, Law of Writs Asia Law House, Fifth Edition, 2008.