Petition under 226 or 227?
In common practice of law, it is sheer ignorance of lawyers even the best of advocates or senior advocates to use remedies or Article 226 and Article 227 together. It is not uncommon to see petitions filed under Article 226/227 as one petition. However, in reality these two articles are very different in their scope and application.
The difference was well explained in the case of Surya Dev Rai v. Ram Chander Rai
Article 226 gives the power to the High Courts to issue certain writs for enforcement of fundamental rights or for any other purpose. This means that the jurisdiction of the High Court under Article 226 is limited to the cases primarily of violation of fundamental rights of individuals. A writ maybe issued against the State or in some cases private individuals as well.
Before coming to Article 227, one needs to understand the revisional jurisdiction under Section 115 of the Civil Procedure Code, 1908 (CPC). Revision is a power under which the higher courts keep the authority of the subordinate courts under check in cases of errors of jurisdiction. Errors of jurisdiction can be of three types:
1. over-stepping the jurisdiction;
2. exercising jurisdiction where not provided;
3. refusing to exercise jurisdiction where present
Now, under Sec 115 of the CPC a revision petition maybe presented to the revisional court (not necessarily the High Court), generally it is the court next in hierarchy, to seek modification of the orders by the aggrieved party. When the court is sitting in revision then the revisional can only correct the errors of jurisdiction and cannot substitute its own understanding of facts and evidence and pass a completely new order. The jurisdiction is limited to the extent of modification of orders so as to bring the subordinate courts within their proper jurisdiction.
Once revision power is clear then we shall proceed to Article 227, which talks about the general superintendence over subordinate courts. It includes administrative powers as well as judicial powers in Article 227 (2) (a). Powers under article 227 are of very wide nature and are wider than those provided under Section 115 CPC. While sitting in revision the High Court can only modify the order of the subordinate court so as to correct the errors of jurisdiction. However, powers under Article 227 are wider than those and shall be discussed below.
Difference between Article 226 and 227. The confusion between Article 226 and 227 will arise only in respect of writ of certiorari. Writ of certiorari can be issued under both the articles and therefore, the question of differentiation is important.
On technical aspects, the difference is that while the proceedings under Article 226 are of original nature the proceedings under Article 227 are of revisional nature i.e., not original. Therefore, there is difference in the manner how the high court can exercise its jurisdiction and powers under both articles. While passing an order or writ of certiorari the High Court can only quash or set aside the order of the inferior court and do no more, but in exercise of supervisory jurisdiction under Article 227, 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, may be 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.
V.P. Singh, Managing Partner
The Chambers®: Advocates & Legal Consultants