Difference Between Article 226 & Article 227 Of Constitution: Gujarat High Court Explains

Justice Ashok Kumar C. Joshi also discussed the difference in the exercise of jurisdiction under Articles 226 and 227 in detail. Justice Joshi termed the exercise of power under Article 227 as 'discretionary' while the jurisdiction under Article 226 as 'a matter of right.'

The Petitioner-Plaintiff ('Petitioner') while recounting the facts of the case stated that they were tenants of the suit property and were in lawful possession of the same. Further, an agreement to sell was executed between the Petitioner and the Defendant for the suit property and part payment worth INR 1, 000 was made in 1985. However, due to the death of the President of the Mandali, the sale deed could not be executed.

The Petitioner claimed that the lower Courts have disregarded these facts and documents. Accordingly, the First Appellate Court also directed an auction of the suit property while disregarding the possession of the suit property by the Petitioner for several years.

Therefore, the Petitioner sought the exercise of the High Court's jurisdiction under Article 227 to remedy the aforesaid errors in law and fact by the subordinate Courts.

The Respondent-Defendant ('Respondent') opposed the interference of the High Court on the ground that the suit property was in the possession of the Respondent who had spent a huge amount on developing the property. Further, the House Tax, water, electricity and other bills were being borne by the Respondent. The City Survey Superintendent, Lathi also observed that the Respondent was the rightful owner of the suit property.

As regards to the agreement of sell was concerned, the Bench concluded that the father of the Petitioner had not taken any step towards the execution of the sale deed. Further, the Petitioners have not furnished any evidence to establish their possession of the property, nor have they affirmed the same on oath. The Petitioners have also not produced any rent receipts to establish that they are the lawful tenants while the property belongs to a Mandali. The interim relief sought by the Petitioner was in the nature of final relief which could not be granted by the lower Courts. The Bench also refused that the ingredients of interim injunction were satisfied.

The Bench while relying on the Shalini Shyam Shetty and Another vs. Rajendra Shankar Patil [(2010) 8 SCC 329] judgement of the Supreme Court concluded that the frequent exercise of the High Court's jurisdiction under Article 227 is counterproductive. Justice Joshi opined:

Using this judgement, the Bench also drew a distinction between the powers of the Court under Articles 226 and 227.

Jurisdiction under Article 226 is exercised in favour of citizens in vindication of their fundamental or statutory rights. Meanwhile, under Article 227, the High Court is the custodian of justice, and the power is exercised suo moto by the Court.

The jurisdiction under Article 227 is entirely discretionary and no person can claim it as a right while the exercise of power under Article 226 is claimed as ex-debito justicia, or as a matter of right.

Further, relying on the case of Shalini Shyam Shetty (supra) it was reiterated that under Article 226, High Court normally annuls or quashes an order or proceeding but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made.

It however cautioned that the exercise of power under Article 227 must be done to ensure that the Courts and Tribunals function within the bounds of authority and the law, but the High Court must not interfere to correct mere errors in law or fact, or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view.

Furthermore, from an order of a Single Judge passed under Article 226, a Letters Patent Appeal or an intra Court Appeal is maintainable. But no such appeal is maintainable from an order passed by a Single Judge of a High Court in exercise of power under Article 227. 

Article 227, per Justice Joshi, is a mechanism which is both administrative and judicial in nature and is aimed at maintaining "efficiency, smooth and orderly functioning of the entire machinery of justice in such a way that it does bring any disrepute."

Succinctly put:

"The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court."

Article 227 is used to address a 'patent perversity' or 'a gross and manifest failure of justice' or where 'the basic principles of natural justice are flouted.'

Accordingly, the Bench dismissed the Petition and permitted the Trial Court to proceed with the suit without being influenced by the order of the High Court.

Case Title: Mukeshbhai Jayantilal Jayswal vs Alarakhbhai Yusufbhai Juneja
Case No.: 2022 LiveLaw (Guj) 6