JURISDICTION OF HIGH COURTS UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION AGAINST INTERLOCUTORY ORDERS PASSED BY THE TDSAT

 

BY

Maninder Singh

Advocate

 

 

Recently one of the High Courts in the country entertained a writ petition under Articles 226 and 227 of the Constitution of India challenging the correctness and legality of an interim order passed by the Telecom Disputes Settlement Appellate Tribunal (TDSAT).  The TDSAT had passed an interim order in a petition filed before it under Section 14A of the Telecom Regulatory Authority of India Act, 1997.

 

The passing of such an order by the High Court immediately generated a curiosity to find out and examine whether it would be permissible for a High Court to entertain a challenge to any interim or final order passed by the TDSAT constituted under the provisions of the TRAI Act, 1997 (hereinafter referred to as the Act).  The specific reason which compels to have a close look at the abovementioned proposition is the provision of Section 18 of the Act laying down as under:-

 

“18.     Appeal to Supreme Court – (1) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in any other law, an appeal shall lie against any order, not being an interlocutory order, of the Appellate Tribunal to the Supreme Court on one or more of the grounds specified in section 100 of that Code.

 

(2)                No appeal shall lie against any decision or order made by the Appellate Tribunal with the consent of the parties.

 

(3)                Every appeal under this section shall be preferred within a period of ninety days from the date of the decision or order appealed against;

 

Provided that the Supreme Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was  prevented by sufficient cause from preferring the appeal in time”.

 

The Parliament while constituting the TDSAT by introducing a specific amendment in the year 2000 in the 1997 Act also provided that there shall be an appeal available to the Supreme Court against any order passed by the TDSAT not being an interlocutory order.   Section 15 of the Act creates a bar on the jurisdiction of any civil courts by laying down that no civil courts shall have the jurisdiction to entertain any suit or proceedings in respect of any matter which the TDSAT is empowered by or under the Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuant of any powers conferred by or under this Act.

 

It would also be useful to refer to Sections 14B and 14C of this 1997 Act providing for the composition of the TDSAT and further that the Chairperson of the TDSAT should either be a Judge of the Supreme Court or the Chief Justice of the High Court.   At present, it is one of the Hon’ble Judges of the Supreme Court who is acting as the Chairperson of the TDSAT. 

 

Tribunalisation of judicial system as an alternative dispute resolution mechanism has always remained a matter of debate in this country.  It had gained legitimacy on the principle of necessity on account of ever-increasing burden of adjudicatory work on the High Courts.  The Tribunals were sought to be created in this country as a substitute to the High Courts providing for a parallel adjudicatory mechanism. 

 

By the 42nd Amendment of the Constitution, provisions of Article 323A for constitution of the Administrative Tribunal and Article 323B for constitution of Tribunal for other matters such as Tax Tribunal, Foreign Exchange Tribunal, Industrial and Labour Tribunal, Land Reforms Tribunal etc. were introduced and incorporated in the constitution.  Clause 2 (d) of Article 323-A and Clause 3(d) of Article 323-B provided for the exclusion of jurisdiction of all courts except the jurisdiction of the Supreme Court under Article 136 of the Constitution of India with respect to all or any of the matters falling within the jurisdiction of the Tribunal to be constituted under the provisions of Article 323-A and 323-B of the Constitution.

 

One of such Tribunals, namely, Central Administrative Tribunal was constituted in accordance with the provisions of Administrative Tribunals Act, 1985. As per Section 28 of the Administrative Tribunals Act, 1985 the jurisdiction of the High Courts under Article 226 and 227 of the Constitution of India was excluded.  This became the subject matter of challenge before the Supreme Court.

 

A Constitution Bench of the Supreme Court finally decided the issue of challenge to the said Act and the judgement of the Supreme Court is reported as S.P. Sampath Kumar Vs. Union of India[1].

 

Through the abovementined judgement in the year 1987 in Sampath Kumar’s case the Constitution Bench of the Supreme Court negatived the challenge to the constitutionality of the provisions of Section 28 of the Administrative Tribunals Act, 1985 by holding that since the judicial review power of the Supreme Court under Article 32 and 136 has not been excluded and the Tribunal has been created and set up as a parallel forum to the High Court, the provisions of Section 28 was held to be valid.  The provisions of Section 28 excluding the judicial review jurisdiction of the High Court in relation to service matters was held to be not violative of the basic features of the Constitution.

 

Subsequently, a doubt had arisen on the correctness of the conclusions in the judgement of the Supreme Court in Sampath Kumar’s case and whereafter it stood referred to a larger Bench of 7 Judges of the Supreme Court in the case of L. Chandra Kumar Vs. Union of India[2].  The main question which had fallen for consideration before the larger Bench of the Supreme Court was:-

 

“Whether the power conferred upon Parliament or the State Legislatures, as the case may be, by sub-clause (d) of clause (2) of Article 323-A or by sub-clause (d) of clause (3) of Article 323-B of the Constitution, to totally exclude the jurisdiction of  `all courts’, except that of the Supreme Court under Article 136, in respect of disputes and complaints referred to in clause (1) of Article 323-A or with regard to all or any of the matters specified in clause (2) of Article 323-B, runs counter to the power of judicial review conferred on the High Courts under Articles 226/227 and on the Supreme Court under Article 32 of the Constitution?”

 

Through its elaborate judgement in L. Chandra Kumar’s case, the Supreme Court examined the background in which these amendments were made in the Constitution, various Law Commission Reports, the report by Justice Malimath Committee and also the experience in relation to the working of the Tribunals set up under the Parliamentary enactment or State legislation, was also considered.  The Supreme Court also referred to a number of judgements relating to various faced of the Tribunals and their jurisdiction which need not be referred to in details for the present purpose. 

 

It would be suffice to refer to the judgement of the Supreme Court in the case of R.K. Jain Vs. Union of India[3] wherein the functioning of the Central Excise, Customs and Gold Control (Appellate) Tribunal  (commonly known as CEGAT) had fallen for consideration by the Supreme Court.  This Tribunal was set up by exercising powers conferred under Article 323-B of the Constitution of India.  There were large number of complaints which had surfaced concerning the functioning of this Tribunal.  Deep anguish was expressed over the ineffective functioning of this Tribunal and it was also observed that its performance has left much to be desired.   The Supreme Court had noted that the only remedy provided against the orders of the CEGAT was filing of SLP under Article 136 of the Constitution of India being prohibitively costly and inconvenient on account of the distance involved.   The Supreme Court had made a suggestion that the expert body (Law Commission) should study the feasibility of providing for an appeal to a Bench of 2- Judges of the High Courts.

 

The challenge to the constitutional validity of Article 323-A  2(d) was set up before a Full Bench of the Andhra Pradesh High Court in CA No.169/94 – Sakinal Hari Nath Vs. State of A.P[4].  By an elaborate  judgement Justice M.N. Rao (as his Lordship then was) of the Andhra Pradesh High Court had delivered the judgement by analyzing in detail the American, Australian and British jurisprudence and also various judgements of the Constitution Benches of the Supreme Court.  An effort was made in this judgement to ascertain the true import of the concept of “judicial power”, “judicial review” etc.  It was held by the Andhra Pradesh High Court that the Supreme Court and High Courts are the sole repositories of the power of judicial review.  After making observation that the judgement of the Supreme Court in Sampath Kumar’s case was per incuriam, it held that the power of judicial review of the High Court under Article 226 could not be excluded even by a constitutional amendment.

 

The 7 Judges Bench of the Supreme Court in L. Chandra Kumar’s case finally came to the conclusion in the following words:

 

“90.            We may first address the issue of exclusion of the power of judicial review of the High Courts.  We have already held that in respect of the power of judicial power of judicial review, the jurisdiction of the High Courts under Articles 226/227 cannot wholly be excluded.  It has been contended before us that the Tribunals should not be allowed to adjudicate upon matters where the vires of legislations is questioned, and that they should restrict themselves to handling matters where constitutional issues are not raised.  We cannot bring ourselves to agree to his proposition as that may result in splitting up proceedings and may cause avoidable delay.  If such a view were to be adopted, it would be open for litigants to raise constitutional issues, many of which may be quite frivolous, to directly approach the High Courts and thus subvert the jurisdiction of the Tribunals.  Moreover, even in these special branches of law, some areas do involve the consideration of constitutional questions on a regular basis; for instance; in service law matters, a large majority of cases involve an interpretation of Articles 14, 15 and 16 of the Constitution.  To hold that the Tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted.  On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Court under Articles 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes.  While saving the power of judicial review of legislative action vested in the High Courts under Articles 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal.  The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter.

 

91.     It has also been contended before us that even in dealing with cases which are properly before the Tribunals, the manner in which justice is dispensed by them leaves much to be desired.  Moreover, the remedy provided in the parent statutes, by way of an appeal by special leave under Article 136 of the Constitution, is too costly and inaccessible for it to be real and effective.  Furthermore, the result of providing such a remedy is that the docket of the Supreme Court is crowded with decisions of Tribunals that are challenged on relatively trivial grounds and it is forced to perform the role of a first appellate court.  We have already emphasised the necessity for ensuring that the High Courts are able to exercise judicial superintendence over the decisions of the Tribunals under Article 227 of the Constitution.  In R.K. Jain case, after taking note of these facts, it was suggested that the possibility of an appeal from the Tribunal on questions of law to a Division Bench of a High Court within whose territorial jurisdiction the Tribunal falls, be pursued.  It appears that no follow-up action has been taken pursuant to the suggestion.  Such a measure would have improved matters considerably.  Having regard to both the aforestated contentions, we hold that all decisions of Tribunals, whether created pursuant to Article 323-A or Article 323-B of the Constitution, will be subject to the High Court’s writ jurisdiction under Articles 226/227 of the Constitution, before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls.

 

After this authoritative pronouncement of the Supreme Court that the provisions of Article 323-A 2(d) and 323-B 3(d) seeking to exclude the jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India are unconstitutional, no statutory provisions either in any Parliamentary enactment or in any State Legislation would be permissible or would be constitutionally valid.   It is, therefore, seen that there is no provision in the 1997 TRAI Act which specifically prohibits/bars the judicial review jurisdiction of the High Courts under Articles 226 and 227 of the Constitution of India.  On the other hand, an appeal against any of the orders of the TDSAT (not being interlocutory order) has been provided before the Supreme Court under Section 18 of the Act.

 

Does it, therefore, mean that Section 18 of the Act bars the jurisdiction of the High Courts under Articles 226 and 227 of the Constitution of India?

 

The obvious answer would be – “NO”.  In other words, the High Courts would be empowered to exercise its jurisdiction to judicial review under Article 226 of the Constitution and the jurisdiction of superintendence  of Courts and Tribunals within its territorial jurisdiction under Article 227 of the Constitution of India.

 

In a recent judgement of the Supreme Court in the matter of Sadhana Lodh Vs. National Insurance Company Ltd.[5] it has been observed that where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution.  Even if where a remedy by way of an appeal has not been provided for against the order and judgement of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure.  Where remedy for filing a revision before the High Court under Section 115 CPC has been expressly barred by a State enactment, only in such cases a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution.  Finally, the Supreme Court in para 8 of the said judgement has held as under:

 

“7.  The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law.  In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal.  It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision……"

 

Thus, on the analysis of the above, the position which emerges, appears to be that there is an apparent distinction between vestige of jurisdiction and exercise of jurisdiction.  A court may possess a jurisdiction which is discretionary and it may chose to decline to exercise that discretionary jurisdiction vested in it.  As such, against the orders of the tribunals, the High Courts do possess jurisdiction of judicial review under Article 226 and supervisory jurisdiction under Article 227 of the Constitution.  The High Courts would be empowered to entertain a writ petition under Article 227 of the Constitution against an order passed by a tribunal but the same would be in accordance with the principles of law laid down by the Supreme Court in this regard.  Normally, the High Courts would be expected to decline to entertain a writ petition under Article 227 preferred against an order passed by a tribunal if an appeal is provided, yet it does not amount to ouster of the supervisory jurisdiction of the High Court under Article 227 of the Constitution.  The High Courts would generally decline to invoke its supervisory jurisdiction against an order passed by a tribunal, primarily as a matter of judicial discipline and judicial principles governing exercise of its jurisdiction, when an appeal is provided by the statute. 

 

There are certain reported precedents available on this issue.  In two incidents pertaining to excise disputes where an appeal to the Supreme Court against an order passed the Central Excise & Gold Control Appellate Tribunal (CEGAT) u/s 35(L) of the Excise and Salt Act, 1944, has been provided, in both the cases High Courts of Delhi and Karnataka declined to exercise supervisory jurisdiction under Article 227 of the Constitution of India.

 

In M/s Premium Irrigation Equipment Ltd. Vs. Union of India[6] the arguments raised before the Karnataka High Court were three fold in nature (a) in view of the judgement of Supreme Court in the matter of L. Chandra Kumar Vs. Union of India[7], no appeal could be preferred to Supreme Court under Section 35 (L) unless the person exhausts his remedy before High Court under Article 226/ 227 of the Constitution and; (b) the cost of litigation before the Supreme Court preferring an appeal compared to the relief that might be sought for is so high that insistence for filing an appeal before the Supreme Court will virtually amount to negation of right to appeal itself; (c) the power of judicial review under Article 226/ 227 have not been specifically barred by the Act and therefore even without the decision in the case of L. Chandra Kumar the High Court will always possess power of judicial review under Article 226 / 227 of the Constitution  assailing the correctness of order passed by the Tribunal falling under its jurisdiction.

 

However, the Karnataka High Court, after considering the law laid down by the Supreme Court in L. Chandra Kumar Vs. Union of India[8], agreed with the order passed by Delhi High Court in Shalimar Rubber Industries Vs. Union of India[9], where it was held as under :-

 

            “In view of these alternative remedies we do not think that it is a fit case where we should exercise our jurisdiction under Article 226 of the Constitution. Mr. Chandrasekharan, learned Counsel for the petitioner relies upon a recent decision of the Supreme Court in case of L. Chandra Kumar v. Union of India, 1997 (92) E.L.T. 318 (SC) = (1997) 3 S.C.C. 261 and in particular paragraphs 91 and 92 of the said decision in support of the contention that now appeal under Section 35L does not lie and only a writ petition under Art. 226 of the Constitution can be filed.  We do not agree.  In our opinion there is a substance in the submission of Mr. Misra, learned Counsel appearing for the Government that the ratio of Chandra Kumar’s decision is not to take away right of appeal provided under Section 351 of the Act.  In this view we decline to entertain the writ petition and the same is dismissed.”

 

It will be not out of place to mention here that in both the cases before the Delhi and Karnataka High Court there was a remedy available by way an of appeal. But in case of TRAI Act, 1997 under section 18 no appeal has been provided against an interlocutory order and there is no alternate remedy available to a person aggrieved by such order. In such circumstances there rises an occasion for the person aggrieved to approach High Courts praying for exercise of its jurisdiction under Article 227 though the same may be done under limited scope of Article 227.  The other remedy against an interlocutory order of the TDSAT which becomes available is to file a Special Leave Petition under Article 136 of the Constitution of India before the Supreme Court.  Once again the jurisdiction under Article 136 of the Constitution is discretionary and in a very narrow compass. 

 

The Delhi High Court has now considered this issue in Music Broadcast Private Limited and Ors.Vs. Union of India (UOI) and Ors.-117 (2005) DLT 315 and has held that interlocutory orders of the TDSAT will be subject to the jurisdiction of the High Courts under Article 226-227 of the constitution, however the High Court would only interfere with interlocutory orders of the TDSAT in exercise its jurisdiction under Article 226-227 only where the error is manifest and apparent on the face of the order such as when it is based on clear ignorance or utter disregard of the provisions of law, and a grave injustice or gross failure of justice has occasioned. The Delhi High Court (Ravindra Bhat J.) has observed as under:

 

“……….21. On the second limb, namely the power of the court under Article 226/227 in relation to the orders of TDSAT, it is necessary to recapitulate the law. Authorities abound on the point. While exercising the power of judicial review or superintendence over tribunals/subordinate Courts, under Articles 226 or under Article 227 of the Constitution, the Court has a limited jurisdiction. After considering all major decisions outlining the powers of High Courts, under Articles 226 and 227 of the Constitution of India, (including judgments such as L. Chandra Kumar v. Union of India (1997) 3 SCC 261; Chandrasekhar Singh v. Siya Ram Singh (1979) 3 SCC 118, Hari Vishnu Kamath v. Ahmad Ishaque AIR 1955 SC 233 and T.C. Basappa v. T. Nagappa, AIR 1954 SC 440 the Supreme Court restated the law, inter alia, as follows, in Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675:

 

"(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

 

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

 

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

 

(6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.

 

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.

 

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in re appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character."

 

22. It is therefore clear, that a tribunal's orders or determinations ought to be interdicted where the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and a grave injustice or gross failure of justice has occasioned. …….

 

……..30. The powers of the Court under Articles 226 & 227 are undoubtedly plenary. In view of various the authorities, this power extends to the exercise of powers, and examination of orders of TDSAT. However, the issue here is whether its impugned orders are contrary to law, or would lead to manifest failure of justice. The petitioners have stated that both the orders do not contain reasons. It has been urged that the TDSAT at least ought to have given a detailed consideration to their grievance, in view of the changed situation arising after the final recommendations of TRAI, which admittedly were given on 19th November, 2004, after the first impugned order. I am not persuaded to take that view. The TDSAT is seized of the issue with regard to the licensing, and the propriety of the impugned demands. In the line of authorities under the Act, it is tribunal empowered to decide on facts and law. When it passed the first order, permitting deposit of only one-third of the license fee, it had the benefit of the interim recommendations of TRAI. When it passed the first impugned order, it had the benefit of the final recommendations dated 11.8.2004. That recommendation is not substantially different from the final recommendation made by the TRAI, on 19th November, 2004. Besides, the first order passed in May, 2004 is a detailed speaking order. I cannot therefore conclude that the impugned orders are vitiated or call for interference. Similarly, the contention that the TDSAT was bound to give directions regarding relief, having regard to the fifth proviso to Section 11, and therefore its orders require interference, is devoid of merit, in these proceedings……..”

 

It would, therefore, be appropriate to conclude and to say that the High Courts would possess jurisdiction of judicial review under Article 226 and supervisory jurisdiction under Article 227 of the Constitution against an interlocutory order passed by the TDSAT.  The jurisdiction of the High Court is not completely ousted or barred but would deserve to be exercised not as an appellate jurisdiction but in a limited way to see whether the tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law.

 

* * * *



[1] (1997) 1 SCC 124

[2] (1997) 3 SCC 261

[3] (1993) 4 SCC 119

[4] (1994) 1 APLJ 1 (FB)

[5] (2003) 3 SCC 524

[6] ILR 1998 KAR 1235

[7] Supra Note 2

[8] Supra Note 2

[9] (1998) 103 ELT 217 (DEL).