UJJAM BAI

V.
STATE OF
UTTAR
PRADESH
BY
MAYANK MAHLA
4th Semester
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 14B182
ACKNOWLEDGEMENT
This research was supported by Mr Girish R , Assistant Professor of Law & Faculty Convener,
Moot Court Committee, Gujarat National Law University (GNLU). I thank all my colleagues from
2014 GNLU batch who provided insight and expertise that greatly assisted the research. I would
like to show my gratitude to professor for allotting be such an interesting topic for research that
gave me a broader knowledge of Judicial Review under Article 32 along with it’s present stand in
Indian Judicial System.

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 TABLE OF CONTENTS

Sr. No. Title Page No.

Introduction 6
Certiorari 8
Scope of Certiorari 9
Error of Law 10
Apparent on the
face of record
Facts of the case 12
Petitioner’s 13
Arguments
Respondent’s 13
Arguments
Question before 14
the Bench
Judgement 14
Scope of certiorari 16
as per Ujjam Bai
case
Earlier view of 17
Courts
Post-Judgement 18
Influence of Ujjam 20
Bai in subsequent
cases

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 Conclusion 25

LIST OF ABBREVATIONS

SR NO. ABBREVIATION MEANING

& And
AIR All India Reporter
cl Clause
Co. Company
COI Constitution of
India
Comm. Commissioner
Govt. Government
HC High Court
Hon’ble Honourable
10. i.e. That Is
11 ILR India Law Reports
12. ORS. Others
13. SCC Supreme Court
Cases
14. UOI Union of India
15. v. Versus

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 LIST OF CASES

SR NO. CASE
1 Hari Vishnu Kamath vs. Ahmad Ishaque, AIR
1955 S.C. 233

2 Meera Bhanja (Smt.) Vs. Nirmala Kumari

Choudhury (Smt.),1995 (1) SCC 170

3 State of Bombay v. United Motors,1953 Indlaw

SC 97
4 DM Wayanad Institute of Medical Sciences and
another v. Union of India and another, 2015
Indlaw SC 490
5 In Pioneer Traders v. Chief Controller of
Imports and Exports, 1963 AIR 734
6 Kaliash Nath v. State of UP AIR 1957 SC 79
7 Naresh Mirjakar v. State of Maharashtra, 1966
Indlaw SC 346
8 Parry & Co ltd v. Commercial Employees
Association, Madras, 1952 AIR 179
9 Poonam v.Sumit Tanwar, 2010 Indlaw SC 198
10 Radhey Shyam and another v.Chhabi Nath and
another, 2015 Indlaw SC 157
11 Shri Madanlal Arora v. The Exciseand Taxation,
1961 AIR 1565

12 State of Haryana v. Haryana Co-op Transport,

AIR 1969 P H 66

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 13 State Trading Corporation v. Mysore, 1967
AIR 585
14 Ujjam Bai v. State of UP, AIR 1962 SC 1621
INTRODUCTION

The following paper discusses on the scope and powers of the court to issue writ of Certiorari under
Article 226 and Article 32 of the Indian Constitution. Certiorari have been used by the courts as a
means of control over the administrative functions for a long period of time. In layman language it a
power of the superior court to review the decision of the lower court, but the detail of this power
has been discussed by the SC in it’s various judgements.

In the common law the King’s Bench was given power to ensure that the Common Law courts were
deciding matters within their jurisdiction and not ultra vires to their powers, hence certiorari is a
supervisory jurisdiction and a common law remedy. Even on recent judgements of the SC in which
Ujjam Bai case became one of the main basis for giving judgement. The decision given in Ujjam
Bai is still a good law.

But it is not that if the SC has not got power to adjudge the matter the petitioner’s right to go to HC
is taken away. It was also mentioned in the judgement that the petitioner can go to HC as the scope
of certiorari under Article 226 is much wider than Article 32, as it deals with both fundamental and
legal right as well.

UJJJAM BAI V. STATE OF UP, is the landmark judgement in which the SC extensively
discussed on the scope of judicial review with respect to the power of the courts with respect to
certiorari. If the court feels that the inferior court did not follow the correct procedure, decided the
case on wrongful facts or exercised power ultra vires to it’s power, the the superior court can quash
the decision of the lower court.

In this case the petitioner was carrying on a business in the manufacture of bidis in various number
of states, he was a dealer registered under the UP Sales Tax Act, he filed a petition under Article 32
of the constitution as his fundamental right to carryout bussiness was violated by the assessment of
Sales Tax made by the Officer despite him being given a clear exemption by the notification of the
State Government for tax in sale and manufacture of bidis.

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However it is not necessary that the court needs to be a judicial court of law an administrative body
performing judicial function ie a decision of a quasi-judicial body also comes within the scope of
judicial review. The main question that was answered by the SC in the said case was when can an
individual go directly to the SC for reviewing the decision. It was held that a mere error of law /
misconstruction of law committed by a quasi-judicial body cannot be cured by Article 32.

After the ruling was made it came for criticism as it was difficult to determine the misconstruction
of law when a fundamental right of the petitoner is involved, it became difficult for courts to
determine the same.Error apparent on the face of record must be patently illegal error which is an
obvious error and not one which comes out of long drawn out process of reasoning. Hence it is
upon the petitioner to convince the court that an error apparent on the face of record exists,
otherwise petition will be dismissed.

In a subsequent landmark judgement of the SC the same view of the SC was upheld in the case of
NARESH MIRJAKAR V. STATE OF MAHARASHTRA, in which it was held by the SC that the if
the HC has not exceeded it’s jurisdiction and has given a judgement with it’s intra vires jurisdiction
than the same order of the HC cannot be challenged on the reasonableness. Moreover it was
clarified in this case that the Higher courts although have superintendence over the lower courts but
superintendence does not mean that in case the order of the lower court not reasonable then the
Courts can ask for all documents etc of the case as was the orthodox approach of the kings bench
while exercising certiorari.

CERTIORARI
A writ of certiorari has been described as “one of the most valuable and effective remedies” derived
from common law. Certiorari was initially considered a royal command for information be provided
to King. It is a method of bringing the record of a subordinate court to correct errors of jurisdiction
or of law apparent. Where any body of persons having legal authority to determine questions
affecting the rights of subjects and having the duty to act judicially, act in excess of their legal
authority they are subject to the controlling jurisdiction of the king’s bench division exercised in
these writs1 . The bench used to demand records of the Inferior courts as a supervisory power over
the Courts by the Highest Judicial Authority

1 C. K. Takwani, Lectures on administrative law, Eastern Book Co., 1980, pp 375-77

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Certiorari may be sometimes confused with Prohibition. Certiorari and prohibition have been long
remedies for the control of admin. functions. The former had it’s origins as a royal demand for
information. The prohibition prevents the Inferior court from further proceeding with the case if the
case is not finally decided. SC defined Prohibition as
“When an inferior Court takes up for hearing a matter over which it has no jurisdiction, the person
against whom the proceedings are taken, can move the Supreme Court for a writ of prohibition and
that an order will be issued forbidding the inferior court from continuing the proceeding.2”
The exact history of the development of the writ is complex, but Rubinstein argues convincingly
that certiorari was originally developed to fill a gap left by collateral attack and the writ of error.
Collateral attack, in the form of an action for assault, trespass, etc., lay only for jurisdictional
defects, while the writ of error was restricted to some courts of record. Certiorari developed to fill
the gap that might arise3. The area left unfilled was an error within jurisdiction by an institution not
amenable to writ of error. The remedy was thus initially aimed at error within, as opposed to errors
going to jurisdiction.

SCOPE OF CERITORARI

It was in response to the development of finality clauses that certiorari began to be used more
generally for jurisdictional defects. The courts began to be used more generally for jurisdictional
defects. The courts restrictively construed such clauses to render them applicable only for non-
jurisdictional error; where the error went to jurisdiction certiorari was held to be still available. The
reach of certiorari was augmented further by the acceptance of affidavit evidence to prove that a
jurisdictional defect existed4. Whereas certiorari operated retrospectively to quash a decision
already made, prohibition was prospective in it’s impact, enjoining the addressee from continuing
with something that would be an access of jurisdiction. It was a particularly useful weapon wielded
by the King’s Bench in the struggles between it and the more ecclesiastical courts5 .

2 Hari Vishnu Kamath vs. Ahmad Ishaque, AIR 1955 S.C. 233

3 Paul Craig, Administrative Law, Sweet & Maxwell, 2012, 715

4 Ibid, p 716

5 Ibid, p 715
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It is settled in various judgements of the SC writ of certiorari can be issued if the following
conditions are fulfilled:

1. Judicial or quasi judicial body must have legal authority

2. Such authority must have power to determine questions affecting rights of subjects

3. It must have duty to act judicially

4. It must have acted in excess of such authority

There are various grounds for certiorari, one of the important ground is error apparent on the face
of the record. If there is an error of law, which is apparent on the face of the record, a decision of an
inferior court or a tribunal may be quashed by a writ of certiorari6.
But such error must be manifest or patent on the face of the proceedings and should not require to
be established by evidence. But what is an error of law apparent on the face of the record? Even
though precise, perfect and exhaustive definition is not possible, it may be stated that if an inferior
court or a tribunal takes into account irrelevant considerations or does not take into account relevant
considerations or erroneously admits inadmissible evidence or refuses to admit admissible evidence
or if the findings of fact is based on no evidence, it can be said that there is such an error7 . The
impugned conclusion must be so plainly inconsistent with the relevant statutory provision that no
difficulty is experienced by the High Court in holding that the said error of law is apparent in the
face of record.

But an error of fact,’however grave it may appear to be cannot be corrected by a writ of certiorari.
Where 2 views are possible, if an inferior court or tribunal has taken one view, it cannot be
corrected by a writ of certiorari.’8

6 C. K. Takwani, Lectures on administrative law, Eastern Book Co., 1980, pp 376

7 Ibid, p 377

8 Ibid, p 378
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ERROR OF LAW APPARENT ON THE FACE OF RECORD
Such a principle as even discussed in the main judgement is a well established principle while
invoking certiorari and the Superior Courts have decided the same in their various judgements in
different countries, hence grounds as per their decision must exist before quashing the decision of
the judicial or quasi-judicial body9.

In case of English Courts decisions it is clearly undisputed that the the meaning of error of law
apparent on the face of record is that a tribunal cannot decide any question of law incorrectly, such
an error is likely to be quashed as ultra vires, the superior court can quash any decisive error, as all
errors of law are now jurisdictional10.

However the same is not the case with India the SC11 has said:
"An error which has to be established by a long drawn process of reasoning on points where there
may conceivably be two opinions can hardly be said to be an error apparent on the face of the
record. Where an alleged error is far from self-evident and if it can be established, it has to be
established, by lengthy and complicated arguments, such an error cannot be cured by a writ of
certiorari according to the rule governing the powers of the superior Court to issue such a writ."

Hence unlike English Courts the scope of certiorari is thin, it must be a patently illegal error, hence
the impugned conclusion must be so plainly inconsistent with the relevant statutory provisions
given in the enactment that no difficulty is experienced by the reviewing court in holding that the
error exists in the decision. Such error includes a patent mistake that is quiet obvious prima facie
and not something which comes out or is established by a long-drawn-out process of reasoning in
which there may be different opinions. Hence error must be clear, apparent, obvious and manifest
that when the superior courts look into the matter that elaborate argument is not required to support
the contention that the decision of the lower authority is erroneous12 .

9 O.P. Malhotra,THE SCOPE OF PUBLIC POLICY UNDER THE ARBITRATION AND CONCILIATION ACT,

1996, p 2

10 Ibid, p 3

11 Meera Bhanja (Smt.) Vs. Nirmala Kumari Choudhury (Smt.),1995 (1) SCC 170

12 O.P. Malhotra,THE SCOPE OF PUBLIC POLICY UNDER THE ARBITRATION AND CONCILIATION ACT,

1996, p 3
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Although the above definitions are not exhaustive and hence there being an element of
indefiniteness present hence the same must be left to the court to decide whether such an error exists
within the facts and circumstances of the case. Moreover there is a real distinction between a mere
erroneous decision and an error apparent on the face of record. For instance in a review petition if
the court finds that the error pointed out in the review petition was under mistake and the earlier
judgement would not have been passed but for erroneous assumption which in fact did not exist and
it’s perpetration ha resulted in miscarriage of justice, nothing would preclude the court from
rectifying the error.

FACTS OF UJJAM BAI V. STATE OF UP

December 14, 1957: First Notification
Govt. of UP issued a notification for exemption of sales tax or sales tax assessment by the Sales Tax
Officer for sale of particular goods as mentioned in the notification. One of the goods given
exemption was Bidi . however such an exemption was not absolute and hence for claiming such an
exemption individuals had to pay Central Excise Duty leviable thereupon.

November 25, 1958: Second Notification

Govt. of UP made another modification which was similar to the First notification but the same
provided that exemption will be provided for the sales tax against the sale of Bidis but this time
without any pre condition or obligation to be done of excise duty. Bot machine made and handde
bidis were exempted from the same with effect fro July 1st 1958.

June 30, 1958

The petitioner’s firm filed it’s return for the quarter, disclosed their turnover and net turnover
representing the sale proceeds of empty packages.

November 28, 1958

The Sales Tax Officer sent a notice to petitioner and his firm for assessment of Bidi between the
period of April 1, 1958 to June 30, 1958

December 10, 1958

Petition filed by the petitioner contending that as he had a clear exemption granted under the first
notification, he should not have been assessed by the Sales Tax Officer. However Sales Tax Officer
observed and contended:
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"The exemption envisaged in this notification applied to dealers in respect of Biris, provided that
the additional Central Excise duties leviable thereon from the closing of business on December 13,
1957, have been paid on such goods. The assessee paid no such Excise duties. Sales of Biris by the
assessee are, therefore, liable to sales tax.”

May 1, 1959
Court of Appeal rejected the contentions of the petitioner and the petition was dismissed on the
ground that as he had not paid the Additional Central Excise duty, the order of assessment of the
sales tax officer was valid
December 20, 1958
Petitioner under Article 226 of the Constitution went to AHC for a writ of certiorari to quash the
decision of the Sales Tax Officer. However the same was dismissed by the HC on the ground that
there was no ground for the court to invoke extraordinary jurisdiction under Article 226. Hence
matter went to SC under Article 32.

PETITIONERS ARGUMENTS:
1. The whole of the assessment order is unconstitutional as it infringes the fundamental right to
carry out his business without interference under Article 19(1)(g) of the Indian Constitution.

2. Sales Tax Officer has misconstrued the notification dated December 14, 1957, in holding that
exemption of tax thereunder is limited to bidis on which additional excise duty had been levied,
that as a result of such misconstruction tax has been imposed which is unauthorised, and that
constitutes an interference with the fundamental right to carry on business guaranteed by Art.
19(1)(g).

3. As fundamental right is violated hence the case is justified to be adjudged by the SC directly
under Article 32.

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RESPONDANT’S ARGUMENTS:
1. The first notification exempts the petitioners from the sales tax or assessment by the officer only
of the additional excise duty has been paid.

2. Taxation are protected under Article 265 of the Indian Constitution and hence fall outside the
scope of Article 19(1)(g), hence the petition under Article 32 is not maintainable.

3. Although there are restrictions imposed, an order of assessment made by a tribunal acting
judicially under a statute which is intra vires such as the impugned order dated December 20
1958, does not infringe Art. 19(1)(g), hence petition is not maintainable.

QUESTION BEFORE THE CONSTITUTIONAL BENCH

1. Is an order of assessment made by an authority under ataxing statute which is intra vires open
to challenge asrepugnant to Art. 19 (1) (g), on the sole ground that it isbased on a
misconstruction of a provision of the Act or of anotification issued thereunder ?

2. Can the validity of such an order be questioned inapetition under Art. 32 of the Constitution ?”

SC HELD
The court stated that under article 32 it would quash an order of a quasi judicial body affecting a
fundamental right if:

1. It acts under an ultra vires law or without jurisdiction

2. If wrongly assumes jurisdiction by committing an error n a collateral fact

2. If it fails to follow the principal of natural justice, or

4. To observe the mandatory procedural provisions prescribed in the relevant statute.

The court stated that under article 32 it would quash an order of a quasi judicial body affecting a
fundamental right if it acts:

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1. under an ultra vires law or without jurisdiction, or

2. of wrongly assumes jurisdiction by committing an error n a collateral fact, or

3. if it fails to follow the principal of natural justice, or

4. to observe the mandatory procedural provisions prescribed in the relevant statute.

5. But a mere error of law committed by a quasi judicial body cannot be cured under article 32.

Hence in this case an order of assessment made by an authority under a taxingstatutewhich is intra
vires shall not be open to challenge as repugnant to Art. 19 (1) (g), on the sole ground that it is
based on a misconstruction of a provision of the Act or of a notification issued thereunder.

As the tribunal took a decision intra vires to it’s jurisdiction and law there is not question of
quashing the order of the same, hence the petition under Article 32 is liable to be dismissed.

Minority View:
Justice Subha Rao, applied the doctrine of jurisdiction as also applied in English court and said:

“A person, who has within the narrow confines of the doctrine of no authority to function under an
Act, if he purports to act under that Act, his order will be no doubt without jurisdiction. If an
authority by a wrong construction of a section purports to exercise jurisdiction under an Act which
it does not possess at all, it may again be described as inherent want of jurisdiction. But there may
be a many cases on the border line between inherent went of jurisdiction and exercise of undoubted
jurisdiction. The authority may have jurisdiction, to decide certain disputes under an Act, but by a
wrong construction of the provisions of the Act, it may make an order affecting a particular
subjecting-matter, which, on a correct interpretation, it cannot reach”13.

13 1961 Indlaw SC 465, para 131

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SCOPE OF CERTIORARI AS PER UJJAM BAI CASE
The air jurisdiction conferred on the HC by article 226 can be invoked to enforce not only a
fundamental right but a non-fundamental right as well. The jurisdiction conferred on the HC under
article 226 is broader in range than that conferred on the SC under article 32, for while the SC acts
only when there is an infraction of Fundamental Right, a HC may act when a Fundamental Right or
any other legal right is violated14 . For example when a tax levied without authority of law infringes,
a fundamental right, action against it can be taken both under article 32 as well as under article 226,
but when it does not infringe a fundamental right, only article 226 can be taken recourse to15 .
Similarly, in the fact-situation similar to Ujjam Bai while a petition under article 32 was held to be
non-maintainable, a petition under article 226 could be validly maintained if the error of law were
characterised as a patent error of law. For the enforcement of Fundamental Rights, therefore a
parallel writ jurisdiction has been conferred on the HC and the SC. As regards the interrelation of
Article 32 and Article 226, it is to be noted that the jurisdiction of the Supreme Court is independent
of, and is in no way curtailed or qualified by, the HC jurisdiction. Therefore a person complaining
of an infraction of his fundamental right may go straight to the SC for relief and he is not obligated
to go to the HC first. But if a person first approaches a HC for relief against an infringement of a
Fundamental Right, and his petition is dismissed there on merits, he can go to the SC only by way
of appeal and cannot seek to move that court under article 32, because of the principle of res
judicata16.

Because of this broad ambit, article 226 serves as a big reservoir of judicial power to control
administrative action and hundreds of writ petitions are moved in the HC every year challenging
this or that action of the administration. Being a constitutional provision, the ambit of article 226
cannot be curtailed or whittled down by legislation, and even if a statute were to declare an
administrative action as final. Article 226 could still be invoked to challenge the same17. This is an
aspect of some significance. For while in the modern administrative age, the legislature is rather
easily persuaded to make powers of the administration immune from being questioned in the courts,
article 226 would still be invoked to challenge the same18 . This is an aspect of some significance.

14 Mahabir Prashad Jain, Srimandir Nath Jain, Principles of Administrative Law,Wadhwa and Company, 1986, p 732

15 State of Bombay v. United Motors,1953 Indlaw SC 97

16 Mahabir Prashad Jain, Srimandir Nath Jain, Principles of Administrative Law,Wadhwa and Company, 1986, p 733

17 Ibid, p 733

18 State of Haryana v. Haryana Co-op Transport, AIR 1969 P H 66

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For while in the modern administrative age, the legislature is rather easily persuaded to make
powers of the administration immune from being questioned in the courts, article 226 would still
provide a means to resort to courts against any action of the administration19. From this point of
view, it may be worthwhile to point out that judicial review stands on a much firmer ground in India
than in Britain, for while in India the constitutional provisions guaranteeing judicial review are
immune from any legislative action, in Britain it is not so and the jurisdiction of the courts to issue
writs can always be regulated or controlled by legislation.

EARLIER VIEW OF COURTS

In Kaliash Nath v. State of UP, it was held by the Bench that even if a quasi-judicial tribunal gives
a decision on misconstruction of provision of law the same is clearly an infringement of the rights
guaranteed under Article 19(1)(g) because such a misconstruction leads to injustice and illegal
activities of State. In the said case the facts and circumstances are more or less the same, even in
this case the like Ujjam Bai the State Govt. had given exemption of sales tax, under Section 4 of UP
Sales Tax Act. It was declared by a notification by the Govt that in the sales of cotton yarn or cloth
which is manufactured in UP and sold outside the country or exported shall be exempted from tax
provided proof of such transaction is shown. However the Assistant Sales Tax officer assessed the
petitioner in 3 different years, even after the date of force of exemption and recipes and licence
showing proof of export. It was contended by the respondent that what was exported was not such
cloth because after purchase by the clients of the petitioner, the cloth had been prepared and
processed so that the resulting article was not the same as that sold by the petitioners. That being the
case, in the opinion of the Sales Tax Appellate Judge exemption clause would not apply, as it would
be applicable only if the cloth in the exact condition and manner without any kind of change,
transformation or alternation, had been exported.

However the same contention of respondent was rejected by the SC20 and it was held:
“If a tax is levied without due legal authority on any trade or business, then it is open to the citizen
aggrieved to approach this court for a writ under Article 32 since his right to carry on trade is
violated or infringed by the imposition and such being the case, Article 19(1)(g) comes into play “.

19 Mahabir Prashad Jain, Srimandir Nath Jain, Principles of Administrative Law,Wadhwa and Company, 1986, p 733

20 AIR 1957 SC 790, para 7

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In Shri Madanlal Arora v. The Exciseand Taxation21 where a best judgement assessment was made
after the period of limitation was over a petition under Article 32 was competent because,”the
question was one of lack of jurisdiction and it made no difference that the sales tax officer had
misconstrued the provisions”. Even in T.R. Goal & Co. vs Assistant Collector of Sales Tax, in
which a petition under Article 32 the court upheld the contentions of the petitioner that the sales in
question were not liable to sales tax as much as they took place in the course of import of goods
into India. This was categorised as a “case of lack of legislative authority band jurisdiction to
impose sales tax”.

Judgements in the SC of India show the strange phenomena of a doctrine purporting to be based on
the english law of certiorari, which nevertheless departs widely from it. In Parry & Co ltd v.
Commercial Employees Association, Madras22 ; Held that certiorari was not available to quash the
decision of an inferior tribunal passed with jurisdiction even if it was erroneous. But this view was
soon abandoned in Verrappa Pillai v. Raman & Raman Ltd & ors(1952)23 .

POST JUDGEMENT
This ruling has come in for a good deal of criticism as it dilutes the efficacy of article 32 and is
rather difficult to justify. It is difficult to comprehend as to why the court should refuse to give relief
in a case of misconstruction of law when a fundamental right is involved. The ruling becomes all
the more incomprehensible when it is remembered that while the SC would issue a writ under
article 32 if a quasi judicial body does not follow principles of natural justice, it refuses to give
relief in the case of misconstruction of law by it.

Further, the court probably would have quashed the order if the authority was administrative and
not quasi judicial. This indulgence towards quasi judicial bodies can be explained on the basis of
the judicial view that an order made by the courts does not infringe the fundamental rights, but the
analogy between a court and a quasi judicial body is misleading for such a body , unlike the court
consists of administrators rather than judges.

211961 AIR 1565

221952 AIR 179

23 Mahabir Prashad Jain, Srimandir Nath Jain, Principles of Administrative Law,Wadhwa and Company, 1986, p 734
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In Many cases it becomes difficult to determine whether an error made by an authority goes to the
root of the jurisdiction merely misinterpreted the law than the court would not intervene. The court
observed: “where the quasi judicial authority has jurisdiction to decide a matter, it does not lose it’s
jurisdiction by coming to a wrong conclusion, whether it is wrong in law or fact”. But in many later
decisions, the question of applying the principle laid down in Ujjam Bai case created difficulties. In
State Trading Corporation v. Mysore24, when the state taxed the inter-state sale, which it had no
power to do, the court held that the state could not give jurisdiction to itself by deciding a collateral
fact wrongly. The contentions of the authority that it had jurisdiction to decide whether a particular
sale was intra-state or inter-state and any error committed by it within it’s jurisdiction could not be
challenged, was rejected by the court. In Pioneer Traders v. Chief Controller of Imports and
Exports25, the SC relying on Ujjam Bai case refused to intervene on the ground that when the
authorities were discharging a quasi-judicial function, they might either take a wrong view of the
facts or misconstrue the law in question, but still be acting within jurisdiction26.

INFLUENCE OF UJJAM BAI CASE IN SUBSEQUENT CASES

1. DM Wayanad Institute of Medical Sciences and another v. Union of India and another27
The petitioner institute was said to have been granted permission for admitting 150 students in the
MBBS course for the academic year 2013-14 and permission was renewed for the academic year
2014-15. The petitioner as a continuing practise applied for renewal of permission for admitting
students for the academic year 2015-16, the same required inspection by the assessor of the MCI,
pursuant to which the assessors from the MCI conducted an inspection on 12th and 13th December,
2014 and submitted a report thereon in which no deficiencies were alleged to have been pointed out.
The Institute was permitted admission of students for the year 2015-16.

24 1967 AIR 585

25 1963 AIR 734

26 N. K. Jayakumar, Administrative Law, PHI Learning Pvt. Ltd., 01-Aug-2005, p 111

27 2015 Indlaw SC 490

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However, the assessors from MCI made another inspection by surprise on 6th February, 2015 at
3.00 PM and directed the Dean to call for a faculty meeting at 3.30 PM. Many teachers were not
able to attend the meeting as they had left the college for lunch or had gone for Friday prayers or
went home for the weekend whereasthose who came after 3.30 PM from different parts of the
campus were not allowed to attend the meeting. Many of the Resident Doctors were stated to have
been absent as they were on leave due tothe scheduled imminent State Level PG Entrance Test.
Another inspection was conducted on 7th February, 2015. It was alleged that the inspection were to
have been inaccurate and signed in protest by the Dean.

The said report was considered by the Executive Committee of the MCI and it was finally decided
by the executive committee as to not recommend the renewal of the permission of the petitioner and
the same was communicated to the Union Government, which sent letter to the petitioner to appear
for a hearing. After the hearing where the petitioner was said to have justified the deficiencies that
were pointed out, the Central Government sent letter dated 22.05.2015 directing the MCI to conduct
a reassessment. However, the MCI was alleged to have not done any re-inspection as clearly
directed by the Union Government on the ground that a decision had already been made not to
recommend the renewal by invoking Regulation 8 (3) (1) (a) of the Establishment of Medical
College Regulations, 1999. The said case is before the bench of the SC.
In this case the issue before the SC was whether:
The petitioner in this case can knock on the Doors of the Court in the first instance under the grab of
a petition under Article 32 of the Constitution, instead of approaching the High Court, for the
enforcement of right claimed in the writ petitions.

Petitoners Contended:
Petitioners breach of Fundamental right under Article 19 (1) (g) took place;
“Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far
as it imposes, or prevent the State from making any law imposing, in the interests of the general
public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in
particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it
relates to, or prevent the State from making any law relating to,
(i) the professional or technical qualifications necessary for practising any profession or carrying on
any occupation, trade or business, or

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(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade,
business, industry or service, whether to the exclusion, complete or partial, of citizens or
otherwise.28 ”

In this case the petitioners fundamental right was violated due to an invalid order of assessment by
Executive Committee of the Medical Council of India to revoke renewal of of permission to grant
admission to certain number of students in the academic year 2015-16.

SC HELD:
1. The Fundamental Rights guaranteed in the Constitution are not absolute.
2. In this case the petitioner fundamental right was not violated as an order made by an authority
under a statute which is intra vires and in undoubted exercise of it’s jurisdiction cannot be
challenged on the sole ground that it is passed on a misconstruction of a provision of the act of
of a notification issued thereunder. The proper remedy for correcting an error apparent on the
face of record if to proceed by way of article 226 of the constitution. Court has come to the
conclusion that no question of the enforcement of fundamental right arise in this case and the
writ petition is not maintainable.
The said court passed the judgement mainly on the basis of the judgement given in Ujjam Bai v.
State of UP, which had also put emphasis on misconstruction of a provision as a sole ground for
challenging the said order under Article 32. Hence the petitioner can proceed and get remedy under
article 226.

2. Radhey Shyam and another v.Chhabi Nath and another29

FACTS: Assailing an interim order of civil court in a pending suit, the defendant-respondent filed a
writ petition before the Allahabad High Court and the High Court having vacated the said interim
order granted in favour of the plaintiff-appellant, the appellant moved this Court by way of a special
leave petition, inter alia, contending that the writ petition u/art. 226 was not maintainable against
the order of the civil court and, thus, the impugned order could not be passed by the High Court. On
behalf of the respondent, reliance was placed on the decision of this Court in Surya Dev Rai laying

28 2015 Indlaw SC 490, para 13

29 2015 Indlaw SC 157

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down that a writ petition u/art. 226 was maintainable against the order of the civil court and thus it
was submitted that the High Court was justified in passing the impugned order.

ISSUES BEFORE THE SC:

Whether judicial order of civil court are amenable to writ jurisdiction under article 226 of the Indian
Constitution.

Petitioner:
The Bench of two Hon'ble Judges who heard the matter was not persuaded to follow the law laid
down in Surya Dev Rai. It was contended that judgment in Surya Dev Rai did not correctly
appreciate the ratio in the earlier Nine Judge judgment of this Court in Naresh Shridhar Mirajkar
and others vs. State of Maharashtra, wherein this Court came to the conclusion that "Certiorari does
not lie to quash the judgments of inferior courts of civil jurisdiction”. Reference was made to the
observations in Surya Dev Rai for not following the conclusion in Mirajkar.

SC HELD:
1. Court with reference to Ujjam Bai case and Veerappa Pillai case observes:
Such writs as are referred to in Art. 226 are obviously intended to enable the High Court to issue
them in grave cases where the subordinate tribunals or bodies or officers act wholly without
jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise
a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act,
omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may
be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a
court of appeal and examine for itself the correctness of the decision impugned and decide what is
the proper view to be taken or the order to be made.

2. Judicial Order of the Civil Court is not amenable to writ jurisdiction under article 226 of the
Constitution, hence overruled Surya Dev Rai.

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3. Poonam v.Sumit Tanwar30
FACTS:
The petitioner and the respondent got married on 30.11.2008 according to Hindu rites in Delhi.
They separated just after two days of their marriage. A petition for dissolution of marriage by
consent was filed under Section 13-B(1) of The Act, 1955. The Family Court of Delhi, vide order
dated 25.11.2009 accepted the said :

“In view of Section 13(B)(2) of the Hindu Marriage Act, the marriage between the parties cannot be
dissolved straightaway in the present case. As per the statutory requirement, parties are advised to
make further efforts for reconciliation in order to save their marriage, the same is clearly prescribed.
In case the parties are unable to do so, then only the parties may come up with the petition of
second motion after 6 months under Section 13-B(2) of the Hindu Marriage Act which is clearly
prescribed. Hence the present petition under Section 13-B(1) of the Hindu Marriage Act for divorce
of the parties is hereby allowed and stands disposed of31 ".
Being aggrieved by the order of the Family Court, the present Writ Petition under Article 32 has
been filed.
ISSUE BEFORE THE SC:
1. Whether order passed by the Family Court is valid
2. Whether the order of the Family Court violate the Fundamental Right under the Constitution.

SC HELD:
1. The Family Court of Delhi has passed an order strictly in accordance with law asking the
parties to wait for statutory period of six months to file the second motion in the case for
reconciliation so that there is a chance for making compromises and the marriage can be saved.
Hence there should be no ambiguity that in such a fact-situation, it would not permissible to
suggest that the aforesaid order has violated or infringed any of the fundamental rights or any
legal right of the parties. The same was not proved/established by the petitioners council as to
why any fundamental right has been violated.

30 2010 Indlaw SC 198

31 2010 Indlaw SC 198, para 7

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2. Therefore, the bench is not able to understand as under what circumstances, the writ is
maintainable. The learned counsel appearing on behalf of the petitioner is not able to explain
under what circumstances, the petition has been filed or as to whether such a petition is
maintainable in the the Supreme Court or whether the relief of dissolution of marriage with
consent could be sought by the parties directly from this Court in this case without waiting for
six months, wherein the marriage had taken place only a year and three months. The counsel
was not able even to explain that even if the Court considers to issue the writ, to whom it would
be issued as the only parties in the case are wife and husband, who are seeking the divorce by
consent. The learned counsel was not able to satisfy the Court as to how the Family Court could
be impleaded in this petition. He expressed his inability to answer any question for issuing writ
under article 32 of the Indian Constitution.

3. The said order as is in accordance with law hence does not violated the Fundamental Rights of
the petitioner. Hence petition dismissed

CONCLUSION
Ujjam Bai gives a liberty and discretion to the judges of the Higher Courts to decide whether a
petition lies in the court and if prima facie the said case would merely waste the time of the court
the same can be disposed off easily by the Court, so that judges can focus on important cases which
require more attention of the court. Such a discretion has been exercised many times as mentioned
in the above cases so that important matters can be discussed. However superintendence of the
Higher Courts and their power to review does not take away the power of the lower authorities to
decide matters.

Before the Ujjam Bai judgement there was a confusion in earlier cases as to when can the certiorari
be exercised by the SC under Article 32, some courts accepted petition merely on patent error while
other did not, hence in Ujjam Bai case a clear principle of “error apparent on the face of record”
was laid down by the honourable bench which became a landmark principle for deciding the writ of
certiorari in subsequent cases. Though no exhaustive definition was not given by the Court of the
said principle but it means an error which leads to injustice and cases prejudice to the party. It is
upon the petitioner to convince the court that such an error exists then only the SC will decide the
matter, otherwise he can go to HC for remedy under Article 226. However the doctrine of
jurisdiction cannot be applied in the Indian Scenario as if the same principle if applied than the SC
would be burdened with a lot of irrelevant cases which do not require special attention of the courts.
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Moreover the SC also clarified that the principle of res judicata also applies on enforcement of the
fundamental right as held by court in Daryo case, hence an appeal can like from the judgement of
the HC to SC but one cannot go to SC under Article 32 if he has already invoked Article 226. One
can seek remedy under Article 32 only if a Fundamental Right is violated, however the same
fundamental rights are not exhaustive, the same view was upheld in the subsequent judgements. For
instance the imposition of tax does not infringe one’s fundamental right to trade, business or
occupation under Article 19, and hence a petitioner cannot seek remedy in such cases as was the
petitioner in Ujjam Bai by the SC.

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