Legal Notes by Arvind Datar: Maintainability of composite petitions under Articles 226 and 227

The practice of filing a composite petition under Articles 226 and 227 is not proper because the scope of these two articles is completely different and it is not legally permissible to combine them in one writ petition. As pointed out later in this article, the Supreme Court has also held that a petition/application under Article 227 cannot be termed as a writ petition.

In Umaji v. Radhikabai (1986), it was noted that a party can justify an application either under Article 226 or 227. But, as the party filed an application under both, fairness and justice require that the court ought to treat the application as one under Article 227 so as not to deprive them of the right of appeal before the division bench under Article 226. The fact that some ancillary directions were given under Article 227 ought not to deprive the party of the right of appeal. 

It is submitted that this view is incorrect. Articles 226 and 227 are completely different. While Article 226 is part of the original jurisdiction of the High Courts, Article 227 has been held to be in the nature of revisional jurisdiction by various High Courts. Under clause 15 of the Letters’ Patent, an order passed by a single judge exercising power under Article 226 is entitled to an appeal before the division bench. But a judgment delivered under Article 227, not being a judgment in exercise of original jurisdiction, is not subject to appeal before the division bench and the remedy is to file a special leave petition (SLP) under Article 136.

A few examples of such composite petitions are now discussed.

(i) In Pepsi Foods Ltd v. Judicial Magistrate (1998), a writ petition was filed under Article 226 and 227 to quash a complaint filed under the Prevention of Food Adulteration Act, 1954. The High Court had refused to entertain this petition on the ground that the petitioner should first approach the judicial magistrate for discharge under Section 245 of the Code of Criminal Procedure (CrPC), 1973. Reversing this view, it was held that even though the magistrate could indeed discharge the accused, it did not mean that the accused could not approach the High Court under Section 482 of the CrPC, or under Article 227. It was further observed that though the petition was filed under Article 226 and 227, it could be treated as one under Article 227.

(ii) In LIC v. Nandini J Shah (2018), a composite petition was filed against the order passed by the city civil court under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The writ was dismissed by the single judge and in the letters patent appeal (LPA), the division bench rejected the preliminary objection that the LPA was not maintainable as it amounted to exercise of jurisdiction under Article 227. The Supreme Court referred to several earlier judgments which held that any order passed by the civil courts can be subject to scrutiny only under Article 227 and not under Article 226. In the LIC case, the Supreme Court set aside the order of the division bench and the individual respondents were given liberty to issue pursue appropriate remedy. This was done 6 years after the date of the High Court order.

(iii) In Mavji Lakum v. Central Bank of India (2008), another composite petition under Articles 226 and 227 was filed challenging an order passed by an industrial tribunal. A single judge set aside the order of the tribunal, which had discharged a peon of the respondent bank. The writ appeal by the bank was allowed. Before the Supreme Court, it was urged that the intra-court appeal was not maintainable as the judge had actually exercised powers only under Article 227. The plea was rejected and the Court held that the writ petition could also fall under Article 226 as there was a prayer for an appropriate writ, order or direction to quash the tribunal’s order. Referring to an earlier case, the Supreme Court pointed out that, on the question of maintainability, the court has to consider whether the substance of the judgment is mainly or principally in exercise of jurisdiction under Article 226 or under Article 227. If it is the former, the appeal is maintainable; if it falls under Article 227, an intra-court appeal is not maintainable. 

(iv) In Columbia Sportswear v. DCIT (2012), the Supreme Court observed that an SLP would not lie against an order of the authority for advance ruling constituted under the Income Tax Act, 1961. The aggrieved party would have to move the appropriate High Courts “under Article 226 and/or 227”.

(v) In Shalini Shyam Shetty v. Rajendra Shankar Patil (2010), the High Court had dismissed a writ petition filed under Article 226 against an order of the civil court on the ground that there were concurrent findings of facts. The High Court held that a writ petition was not maintainable in a landlord-tenant dispute. Before the Supreme Court, it was pleaded that the writ petition under Article 227 would, however, be maintainable. Rejecting this plea, the Supreme Court noted Rule 2B of the Bombay High Court Appellate Side Rules, 1960, which referred to “petitions/applications under Article 226 and/or 227 of the Constitution of India”. It was held that the Rule does not indicate that a petition under Article 227 could be called a writ petition. After discussing earlier case laws, the Supreme Court held that no writ can be issued under Article 227, nor can a petition filed under Article 227 be called a writ petition. It went on to hold that no High Court could amend its rules to alter a constitutional scheme whereby Articles 226 and 227 have been dealt with separately.

It is submitted that there is a need to declare that a composite petition under Article 226 and 227 is not maintainable. The nature of reliefs that can be granted under these two constitutional provisions are entirely different and is not permissible to seek reliefs that can be granted on the original side and under revisional jurisdiction, in one writ petition. 

Further, it is the duty of the petitioner, as advised by his counsel, to decide the nature of the relief that he seeks. Given the workload before the High Courts, it is unfair to impose an additional burden on them to first determine whether relief can be granted either under Article 226 or under Article 227. To make matters worse, if the High Court is silent on the nature of relief granted, the task falls upon the Supreme Court to decide what jurisdiction was exercised by the High Court. There is no reason to place this additional burden on the Supreme Court.

Arvind Datar is a Senior Advocate of the Supreme Court of India.