“Civil Writ Petitions Under Article 227”: A Misnomer Prevalent At The Bombay High Court

The rules governing applications filed under Article 227 are set out in Chapter XVII of the Bombay High Court Appellate Side Rules, 1960 (“the Appellate Side Rules”) which also lays down rules for applications filed under Article 226 and 228 of the Constitution. Chapter XVII is titled, “Petitions under Articles 226 and 227 and Applications under Article 228 of the Constitution and Rules for the issue of Writs and orders under the said Articles”. Chapter XVII has 28 rules. It would be useful to enumerate some of them.

Rule 1(i) states that “Every application for the issue of a direction, order or writ under Article 226 of the Constitution” shall be heard by a Division Bench if the matter in dispute has substantially arisen outside Greater Bombay (Mumbai). This really poses no difficulty because the High Court derives its power to issue writs under Article 226 of the Constitution which is broadly worded to include “directions, orders or writs” in sub-Article 1.

Rule 4 states that applications under Rule 1 shall be heard by a Division Bench but a single Judge may grant rule nisi, provided that the judge does not pass any final order on the application.

Rule 17 (i) is titled “Applications under Article 227 and 228”. It states that “An Application invoking the jurisdiction of the High Court under Article 227 of the Constitution or under Article 228 of the Constitution, shall be filed on the Appellate Side of the High Court and shall be heard and disposed of by a Division Bench to be appointed by the Chief Justice”.

Rule 18 on the other hand is an exception to Rule 17 and it titled, “Single Judge’s powers to finally dispose of applications under Article 226 or 227”. It starts with a non-obstante clause which reads thus: “Notwithstanding anything contained in Rules 1, 4 and 17 of this Chapter, applications under Article 226 or under Article 227 of the Constitution (or applications styled as applications under Article 227 of the Constitution read with Article 226 of the Constitution) arising out of” a list of 46 different types of orders passed under various enactments and authorities (set out in clause 1 to 46), “may be heard and finally disposed of by a Single Judge appointed in this behalf by the Chief Justice.” The explanation to Rule 18 clarifies that the expression “order” appearing in clause 1 to 46 of Rule 18 means orders passed by a judicial or quasi-judicial body who is statutorily empowered. Rule 18 has three unnumbered provisos which are detailed below:

• Proviso 1 states that if the matter in dispute relates to a challenge to the validity of a statute, rules or regulations then such an application shall be heard by a Division Bench appointed by the Chief Justice.

• Proviso 2 gives the power to the Chief Justice to assign any “petition” or category of “petitions” falling under Clauses 1 to 46 of Rule 18 to a Division Bench.

• Proviso 3 states that “all petitions/applications under Article 226 and/or Article 227 of the Constitution of India arising out of or relating to an order of penalty or confiscation or an order in the nature thereof” or of a penal character and “passed under any special statute shall be heard and decided by a Division Bench hearing Writ Petitions”.

Rule 18(A) deals with the procedure to be followed by “a petitioner” while obtaining interim orders. Sub-rule 3 of the rule clarifies that Section 148-A of the Code of Civil Procedure, 1908 pertaining to filing of Caveats shall not apply to Writ Petitions filed under Article 226.

Lastly, Rule 28 states that Rules applicable to Civil Appeals and Applications, shall except otherwise provided in Chapter XVII shall apply mutatis mutandis to Writ Petitions.

On a wholistic reading of the rules, it appears that the expression application and petition are used interchangeably and where the High Court specifically wanted, the words Writ Petition/s has been clearly used; as is the case with Rule 18-A (3) which states that the rules applicable to caveats won’t apply to Writ Petitions under Article 226. But what is most striking is that in no rule of Chapter XVII including Rule 18 has the High Court referred to applications filed under Article 227 as “Writ Petitions”. This was also noticed by the Supreme Court in Shalini Shyam Shetty and another v. Rajendra Shankar Patil (“Shalini Shetty”) in which the Court was hearing a challenge to the judgment of a Single Judge of the Bombay High Court dismissing a Writ Petition file under Article 226 arising out of a tenancy dispute. The High Court had dismissed the Writ Petition (which prayed for issuance of a writ of certiorari) in view of the concurrent findings of both the rent courts. The Bombay High Court analyzed Chapter XVII Rule 1 and 17 of the Appellate Side Rules and held,

“No writ petition can be moved under Article 227 of the Constitution nor can a writ be issued under Article 227 of the Constitution. Therefore, a petition filed under Article 227 of the Constitution cannot be called a writ petition. This is clearly the constitutional position. No rule of any High Court can amend or alter this clear Constitutional scheme. In fact the rules of Bombay High Court have not done that and proceedings under Articles 226 and 227 have been separately dealt with under the said Rules.” (emphasis and italics supplied)

The Supreme Court thereafter formulated certain principles on the exercise of the High Court’s jurisdiction under Article 227, two of which are as under:

• A petition under Article 226 is different from a petition under Article 227 and the mode of exercising powers under both these articles are different.
• A petition under Article 227 cannot be called a Writ Petition as the history of conferment of writ jurisdiction on the High Court is different from the history of conferment of the power of superintendence under Article 227.

What was before the Supreme Court in Shalini Shetty was the unamended Appellate Side Rules. However, the substance of Chapter XVII has not been altered to any significant extent even after the 2013 amendment to the Appellate Side Rules.

Shalini Shetty has been further been relied on by a three-Judges Bench decision of the Supreme Court in Radhey Shyam and another v. Chhabi Nath and others (“Radhey Shyam” ) in which the Supreme Court overruled its previous decision in Surya Dev Rai v. Ram Chander Rai to hold that an order of the civil court can be challenged under Article 227 and not under Article 226 and the jurisdiction under Article 227 is distinct from the jurisdiction under Article 226.

Notwithstanding the aforesaid decisions, filing “Writ Petitions” under Article 227 have largely been institutionalized at the Bombay High Court and even the website of the Bombay High Court contains Writ Petitions under Articles 226, 227 and 228 collectively as a category of cases pertaining to Civil Appellate Jurisdiction of the Court.

For those who don’t believe in getting saddled with technicalities, such oddities of nomenclature are not of much concern. After all, what is important is not the form of the power but the substance of the power that is exercised by the Court.

But for the contrarians, this practice seems to be at odds not only with the High Courts own Appellate Side Rules but also the decision of the Supreme Court in Shalini Shetty followed by Radhey Sham. After all, the down under Article 141 of the Constitution must be followed both in letter and spirit by one and all without exception.

Author is an Advocate practicing in the High Court of Bombay.

[The opinions expressed in this article are those of the author. Verdictum does not assume any responsibility or liability for the contents of the article.]