Brief Note on Article 226 and Article 227

 

Surya Pratap Singh Rajawat

 ADVOCATE

Submission in the matter of S.B. Civil Writ Petition No. 12831/2025 titled as Jagdish Prasad Sharma V/s Jaipur Development Authority

Notice is reproduced for ready reference -

NOTICE

 DATE: 03.09.2025

 It is notified to all concerned that the S.B. Civil Writ Petition No. 12831/2025 titled as Jagdish Prasad Sharma V/s Jaipur Development Authority was listed before Honble Mr. Justice Sameer Jain on 01.09.2025 and the Honble Court has request assistance from the Bar to address on the following issues:-

"The Court proposes to consider the issue as under what grounds and with what rationale the Registry raises objections regarding maintainability of writ petitions under Article 226 or Article 227 of the Constitution of India. The Bar at large is invited to address the Court on the said issue on 04.09.2025 at 2:00 PM?" (emphasis added)

Therefore, it is notified to the members of the bar who may be willing to address the court on the aforementioned issue may present with the supporting case laws in advance. Honble Court will hear the above case on 04.09.2025 at 2.00 PM.

 BY ORDER

 REGISTRAR (JUDICIAL)

 

Relevant part dealing with Fundamental Rights under  the Rajasthan High Court rules 1952 is reproduced for ready reference -

PART-IV ENFORCEMENT OF FUNDAMENTAL RIGHTS

CHAPTER XXII.

Direction, order or writ under Article 226 of the Constitution other than a writ in the Nature of HABEAS CORPUS.

375. Application and its contents.- (1) An application for a direction under Article 226 of the Constitution other than a writ in the nature of habeas corpus shall be presented to the Registrar who shall direct that the application be laid before a Division Bench or a Judge sitting alone, as the case may be, according to the provisions of Rule 55 for orders…

 

 

 

Rule 55   of the Rajasthan High Court rules 1952  is reproduced for ready reference -

55. Jurisdiction of a single Judge. - Except as provided by these Rules or other law, the following cases shall ordinarily be admitted, heard and disposed of by a Judge sitting alone, namely;

 

(xi) the writ petitions under Article 226 and 227 of the Constitution of India,except...(emphasis added)

 

“and” used here warrants grammatical analysis, where  “and” is a  coordinating conjunction, which means, “and” here is used to refer to two sentences, referring to the same reference .

 Without using “and” the sentence can be written  as follows –

a- the writ  petitions under Article 226 of the constitution of India.

b- the writ petitions under Article 227 of the constitution of India.

 Here sentence in “a”  mentioned herein  above is  as per the basic  jurisprudence of Constitution of India.

But  sentence  “b” mentioned herein above is in conflict with the basic jurisprudence of Constitution of  India.

That petitioners are filed under Article 226  are called writs  is no more rest Integra but petitions filed under Article 227 can not  be called writs .

Writ is acting like   an adjective in the “Rule 55” as it exist today which changes the meaning of the statement  . Literal interpretation of the “Rule 55” simply means that Writ Petition can be filed under Article 227 which is unconstitutional  . This interpretation makes an attempt to obliterate the difference between the scope of Article 226 and Article 227 .It is settled that no writ petition can be filed under Article 227. Under Article 226 HC exercises original jurisdiction whereas Under Article 227 HC exercises supervisory jurisdiction.

Hence “Rule  55” of the Rajasthan High Court Rules 1952 needs strict legal and constitution examination so that it can  be amended appropriately  as follows.

 …the writ petitions under Article 226 and petitions under Article 227 of the constitution of India.

Or Alternatively,

 …the petitions  under Article 226 and Article 227 of the constitution of India….

In support of the above mentioned   proposed amendment reliance can be made upon the well  settled principle  by the Apex court in the case Shalini Shyam Shetty versus Rajndra Shankar Patil  2010 8   SCC 329.

Para 64- ….. In some cases High Courts, in a routine manner, entertain petition under Article  227 over such disputes and such petitions are treated as writ  petitions.

 

Para 66- We may also observe that in some High Courts there is  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  (supra) and in view of the recent amendment to Section 115 of the  Civil Procedure Code by Civil Procedure Code (Amendment) Act,  1999. It is urged that as a result of the amendment, scope of Section 115 of CPC has been curtailed. In our view, even if the  scope of Section 115 CPC is curtailed that has not resulted in  expanding High Court's power of superintendence. It is too well  known to be reiterated that in exercising its jurisdiction, High Court  must follow the regime of law.

 

The Rule  55 (xi) as it exist today, lends interpretation as if there is no difference between the scope of the Article 226 and the Article 227 of the constitution of India. Such interpretation is in clear  conflict of the constitutional scheme, which has been over the decade dealt by the Honorable Supreme Court. Any attempt to obliterate the difference between Article 226 and 227 will limit the scope of Article 227, which is wider in scope and is part of the basic structure  doctrine  of the constitution of India as held in reported case  L Chandra Kumar vs Union of India  1997 3 SCC 261 

The following table demonstrates, for ready reference, the crystallized difference between the Article 226 and Article 227

	Article 226	Article 227	Case Law
1	writ of Certiorari -Original Jurisdiction	supervisory Jurisdiction	Umaji Keshao Meshram  vs smt Radhikabai 1986 Supp SCC 401
1A	Judicial order is not amenable to Writ of Certiorari	judicial order is amenable to Article 227	9 Judges Bench Naresh Shridhar Mirajkar And Ors vs State Of Maharashtra  1967 AIR, 1
2	HC can not convert into Court of Appeal  under Article 226	HC can not convert into Court of Appeal  under Article 227	Surya Dev Rai v Ram Chander Rai 2003 6 Scc675 (Para 37.8)
3	Article 226 is part of the basic structure of the constitution of India	Article 227 is part of the basic structure of the constitution of India	4 Judges Bench L Chandra Kumar vs Union of India  1997 3 SCC 261
4	in a certiorari under Article 226 the High Court can only annul the decision of the Tribunal, (destructive bulldozer )	under Article 227, HC can annul the decision and also issue  further directions in the matter. ( bulldozer with power of destruction and construction )	7 judges Bench Hari Vishnu Kamath, Vs Ahmad Ishaque and others 1955 AIR(SC) 233
5		"the exercise of jurisdiction must be within the well-recognized constraints It cannot be exercised like a "bull in a china shop", to correct all errors judgment of a Court or  Tribunal, acting within the limits of its jurisdiction  .	Jai Singh & Ors. v. Municipal Corporation of Delhi & Anr., reported in (2010) 9 SCC 385 in
6		the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority'.	5 Judges Bench Waryam Singh and another vs. Amarnath and another [AIR 1954 SC 215]

 

The above discussion would be incomplete without referring to Ratna @ Ratan Lal Son Of Late Shri Nathu Mina  vs Borad of Revenue  D B CIVIL SPCIAL APPEAL (WRIT) NO 756/202 order dated 25/10/2024 because  on plain reading of the Rules of  High Court of Rajasthan Special Appeal can be filed from the order passed in the  petition under Article 226 but Special Appeal option in not available for the petition under Article 227.But it requires more comprehensive constitutional jurisprudence which has been dealt by Apex Court where Nomenclature as well the substantial part of the decision of the Ld Single Judge to be examined.

Ratna @ Ratan Lal Son Of Late Shri Nathu Mina  vs Borad of Revenue  D B CIVIL SPCIAL APPEAL (WRIT) NO 756/202    2024(6)WLC 678 order dated 25/10/2024-  (refer PARA  37)

 Hence it is humbly submitted that   registry has no power to question the maintainability of the writ petition  , the same has been upheld by the Honble  Apex Court  in P. SURENDRAN VERSUS STATE BY INSPECTOR OF POLICE 2019 9 SCC 154   “ that the High Court Registry could not have exercised such judicial power to answer the maintainability of the petition, when the same was in the realm of the Court.”