Certiorari

3. The provisions in many modern statutes attempt to keep
away decisions of authorities — administrative or judicial — from review by the
higher courts by making these decisions ‘final’ or ‘conclusive’. The legal
import of these words was discussed by Denning L.J. in R v. Medical Appeal
Tribunal ex p.Gilmore, (1957) I.O.B. 574, 583. His Lordship observed “The
remedy by certiorari is never to be taken away by statute except by the
most clear and explicit words. The word ‘final’ is not enough. That only means
‘without appeal’. It does not mean without recourse to certiorari. It
makes the decision final on facts, but not final in law. Notwithstanding that
the decision is by a statute made ‘final’, certiorari can still issue for
excess of jurisdiction or for error of law on the face of the record”.

4. The Constitution of India in Articles 32 and 226 grants
remedy by way of certiorari. Article 32 grants right to move the Supreme
Court for enforcement of fundamental rights by authorising the court to issue
directions or orders or writs including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari. Similar
powers under Article 226 have been vested in High Courts. Powers of High Courts
are not confined to enforcement of fundamental rights, but extend to other cases
involving breach of right resulting in failure of justice.

5. Writs of certiorari are issued after review of
records of proceedings of the Tribunals or Public Authority having legal
authority to determine questions affecting the rights of subjects and having the
duty to act judicially. Writ quashes the orders which go beyond jurisdiction. It
is corrective in nature issued to the inferior tribunals dealing with civil
rights of persons as a public authority and is issued for absence of
jurisdiction, wrongly usurping the jurisdiction, acting in excess of
jurisdiction or failing to exercise jurisdiction. Certiorari is also
issued for violation of principles of natural justice. Errors apparent on the
face of the record are, for the purpose of interference by certiorari,
treated as errors of jurisdiction.

6. The Court acting in certiorari does not act in
appellate jurisdiction, but only in supervisory capacity. It, therefore, follows
that while a decision to deny certiorari lets the lower court’s ruling
stand, it does not constitute a decision by the Supreme Court/High Court on any
of the legal issues raised. The decision to grant or deny certiorari is
discretionary.

7. Determination of jurisdiction in many cases involves
decision about the existence of ‘jurisdictional fact’ which must exist before a
court, Tribunal or an Authority assumes jurisdiction over a particular matter.
By erroneously assuming existence of such jurisdictional fact, no authority can
confer upon itself jurisdiction which it otherwise does not possess. The Supreme
Court in Arun Kumar and Others v. U.O.I., (2006) 286 ITR 89 (SC) was
seized of the question of the legality of Rule 3 of I.T. Rules dealing with
house perquisite. While holding the Rule as intra vires, the Court held
that ‘concession’ under clause (ii) of Ss.(2) of S. 17 is a ‘jurisdictional
fact’. It is only when there is a concession in the matter of rent respecting
any accommodation provided by an employer to his employee that the mode, method
or manner as to how such concession can be computed can arise. In other words,
concession is a ‘jurisdictional fact’, method of fixation of amount is ‘fact in
issue’ or ‘adjudicatory fact’. It was therefore, held that in spite of the legal
position that Rule 3 is intra vires, valid and not inconsistent with the
provisions of the parent Act u/s.17(2)(ii) of the Act, it is still open to the
assessee to contend that there is no ‘concession’ in the matter of accommodation
provided by the employer to the employee and hence the case did not fall within
the mischief of S. 17(2)(ii) of the Act. The jurisdiction to invoke Rule 3
arises only when the existence of concession in the matter of rent is
established. The decision led to insertion of an explanation to S. 17(2)(ii)
nullifying the effect of the Supreme Court decision.

8. In Province of Bombay v. Kusaldas S. Advani  & Ors., 1950 AIR 222, where the order of the State Authorities requisitioning land was challenged in a writ of certiorari for want of jurisdiction, the existence of ‘Public purpose’ was a ‘jurisdictional fact’. The issue was whether determination of such fact is judicial, quasi-judicial or administrative act. Kania CJ, Fazal Ali, Patanjali Shastri and Das JJ held that on proper construction of S. 3 of the ordinance, the decision of the Bombay Government that the property was required for a public purpose was not a judicial or quasi-judicial decision, but an administrative act and the High Court of Bombay had, therefore, no jurisdiction to issue a writ of certiorari in respect of the order of requisition. In their dissenting judgment, Mahajan and Mukherjea JJ held the view that the Government of Bombay is a body of persons having legal authority to determine questions affecting the rights of subject and in deciding whether a land was required for public purpose ul s.3 of the Ordinance, it had to act judicially. The conditions necessary for the granting of a writ of certiorari were, accordingly satisfied and the High Court of Bombay had power to issue the writ.

9. The observations of Denning L. J. (supra) that the remedy by certiorari is never to be taken away by the statute, finds expression in Indian judicial decisions. Articles 323-A and 323-B provide for setting up Administrative Tribunals and other Tribunals for adjudication or trial of disputes in respect of recruitment and conditions of service of public servants and disputes with regard to other matters including levy, assessment collection and enforcement of any tax. Both these Articles exclude the jurisdiction of all courts except the jurisdiction of the Supreme Court under Article 136. The legality of ouster of jurisdiction of High Courts was considered by the Supreme Court in L. Chandrakumar v. UOI, (1997) 3 SCC 261 in a matter decided by the Central Administration Tribunal set up under Article 323-A. The Act constituting the Tribunal in S. 28 incorporated the provision of the Constitution providing for ouster of jurisdiction of courts except the Supreme Court under Article 136. The Apex Court was to decide whether the power to exclude jurisdiction of all courts runs counter to the powers of judicial review conferred on the High Courts under Article 226/227 and on the Supreme Court under Article 32 of the Constitution. It was held that such Tribunals could not be held to be substitute of the High Court for the purpose of exercising jurisdiction under Article 226/227 of the constitution. Following this judgment, the Court in RK lain v. U.O.I., 1993(4) SCC 119 held that judicial review applications lie to the High Court against judgment of CAT and only thereafter one can approach the Supreme Court. The procedure is based on the basic structure doctrine in relation to Art. 226, 227 of the Constitution which cannot be circumvented by any law which seeks to oust the jurisdiction of the High Court. National Tax Tribunal is a Tribunal set up under Article 323 B. The Act constituting the Tribunal having similar provision ousting the jurisdiction of High Courts is under challenge. With the view already taken by the Supreme Court in the matter, the sustainability of this part at least is doubtful.

10. Whether remedy of certiorari is available when remedy is prescribed in the relevant statute itself? The issue was considered by the Supreme Court in Commissioner of Wealth Tax, Hyderabad v. Trustees of H.E.H., (2003) INSC 193. As observed, it has been settled by a long catena of decisions that when a right or liability is created by a statute which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Article 226 of the Constitution.
This rule of exhaustion of statutory remedies is, no doubt, a rule of policy, convenience and discretion and the court may in exceptional cases issue a discretionary writ of certiorari. Such cases are where there is complete lack of jurisdiction for the officer or Authority or Tribunal to take the action or there has been a contravention of fundamental rights or there has been a violation of rules of natural justice or where the Tribunal acted under a provision of law, which is ultra vires.