Calcutta High Court (Appellete Side)
Pushpa Sharma vs The State Of West Bengal & Ors on 18 February, 2026
IN THE HIGH COURT AT CALCUTTA
(Constitutional Writ Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Krishna Rao
WPA No. 10504 of 2025
Pushpa Sharma
Versus
The State of West Bengal & Ors.
With
WPA No. 16316 of 2025
Shyam Sundar Sharma @ Bablu
Versus
The State of West Bengal & Ors.
Mr. Ranajit Chatterjee
Mr. Aniruddha Mitra
.......For the petitioner in WPA 10504 of 2025
and for the respondent no.3 in WPA 16316 of
2025.
Mr. Probal Mukherjee, Sr. Adv.
Mr. Prantik Gharai
Mr. Romendu Agarwal
Mr. Apoorva Choudhury
2
Ms. Sonia Das
..... For the petitioner in WPA 16316 of
2025 and for the respondent no. 6 in
WPA 10504 of 2025.
Mr. Wasim Ahmed
Mr. Sk. Md. Masud
.....For the State.
Mr. Gajanand Sharma
..... Respondent no. 5 in-person.
Hearing Concluded On : 06.02.2026
Judgment on : 18.02.2026
Krishna Rao, J.:
1. Smt. Pushpa Sharma filed the present writ petition being WPA No.
10504 of 2025 praying for a direction upon the respondent nos. 5 and 6
i.e. Shri Shyam Sundar Sharma and Gajanand Sharma to hand over
the possession of the immovable property belonging to her situated at
Rangamati, District- Paschim Medinipur, comprising 2 cottahs of land,
consisting of a three (3) storied building in terms of the orders passed
by the Sub-Divisional Officer dated 6th September, 2024 and 6th
December, 2024.
2. Shri Shyam Sundar Sharma @ Bablu filed another writ petition being
WPA No. 16316 of 2025 for setting aside and quashing the part of the
order passed by the Sub-Divisional Officer dated 6th September, 2024
3
wherein the Sub-Divisional Officer directed the petitioner to vacate the
property.
3. The mother, Smt. Pushpa Sharma has filed the present writ application
for implementation of the orders passed by the Sub-Divisional Officer
on the allegation that the sons have not vacated the house and have
not handed over the same to her in terms of the orders passed by the
Sub-Divisional Officer.
4. The petitioner Smt. Pushpa Sharma is the mother of Shyam Sundar
Sharma and Gajanand Sharma. Smt. Pushpa Sharma has initially filed
an application under Section 5 of the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 before the Sub-Divisional Officer,
Medinipur Sadar, against her two sons, namely, Shyam Sundar
Sharma and Gajanand Sharma praying for maintenance of Rs.
30,000/- per month and reimbursement of hospital expenses.
5. By an order dated 6th September, 2024, the Sub-Divisional Officer,
Medinipur Sadar, directed Gajanand Sharma and Shyam Sundar
Sharma to vacate the building within three (3) months from the date of
the order and during this period, Shri Gajanand Sharma will pay Rs.
10,000/- per month and Shri Shyam Sundar Sharma will pay Rs.
15,000/- per month within 7th day of every month as maintenance to
their mother.
6. Mr. Ranajit Chatterjee, Learned Advocate representing the mother
submits that the husband of the petitioner died in the month of
4
September, 2018, leaving behind the petitioner as his widow, two sons
and a married daughter. It is also the claim of the petitioner that she is
the owner of the three storied building but the sons are in occupation
of the said building. He further submits that neither of the sons of the
petitioner, is providing any maintenance for her survival nor expenses
for her medical treatment.
7. Mr. Chatterjee submits that the petitioner for her survival had to take
shelter at her elder brother’s house at Cuttack. He submits that it is
impossible for the petitioner to reside in her dwelling house because of
the threat to her safety from her sons.
8. Mr. Chatterjee submits that as the sons are not vacating the building,
thus the maintenance amount awarded by the Sub-Divisional Officer be
enhanced to Rs. 50,000/- per month.
9. Mr. Chatterjee relied upon the judgment in the case of Samtola Devi
Vs. State of Uttar Pradesh and Ors. reported in 2025 SCC OnLine
SC 669 and submits that there is no necessity for eviction of the
respondents from the house but the respondents may be directed to
pay monthly maintenance of Rs. 50,000/- and in case they fail to pay
the maintenance amount, the respondents may be evicted from the
house.
10. Mr. Probal Mukherjee, Learned Senior Advocate, representing the
petitioner Shyam Sundar Sharma in W.P.A. No. 16316 of 2025 and the
respondent no. 6 in WPA No. 10504 of 2025, submits that the writ
5
application filed by mother is not maintainable since there is statutory
remedy is available in the Act itself for enforcement of order of
maintenance under Section 11 of the Act of 2007.
11. Mr. Mukherjee submits that the petitioner, Shyam Sundar Sharma is
ready and willing to look after his mother and the mother is always
welcome to reside with the Shyam Sundar Sharma as she was residing
with him prior to 2023. He submits that the respondent no.6 is
regularly paying the amount in terms of the order passed by the
Tribunal and also continuing to bear all medical expenses of his
mother.
12. Mr. Mukherjee submits that Learned Tribunal has no jurisdiction to
pass an order for evicting and vacating Shyam Sundar Sharma from
the property on an application under Sections 4 and 5 of the Act of
2007. The Act only permits for grant of monthly maintenance and
expenses of proceeding to the maximum of Rs. 10,000/- per month
only. He submits that the direction to vacate the property is contrary to
the provisions of the Act of 2007.
13. Mr. Mukherjee submits that Shyam Sundar Sharma belongs to
Mitakshara School of Hindu Law and as per Mitakshara system once a
child is born, he/she acquires right in the said property upon its birth.
He submits that Shyam Sundar has right in the said property from
birth and he cannot be evicted from the said property under the said
Act.
6
14. Mr. Mukherjee relied upon an unreported judgment passed by the
Coordinate Bench of this Court in the case of Joya Roy and Another
Vs. The State of West Bengal & Others in WPA No. 651 of 2024
dated 30th July, 2024 and submits that the Court has held that the
appropriate remedy would be to file an eviction suit before the regular
Civil Court and invocation of the Act of 2007 is a gross abuse of the
process of the Court.
15. Mr. Mukherjee further relied upon the judgment in the case of Swati
Das Vs. State of West Bengal and Others reported in 2022 SCC
OnLine Cal 4552 wherein the Hon’ble Division Bench of this Court
held that under the Act of 2007, there is no provision to evict any
person from the property except in a case for violation of Section 23 of
the Act.
16. The mother being the senior citizen has filed a complaint before the
Sub-Divisional Officer for grant of maintenance of Rs. 30,000/- per
month and reimbursement of medical expenses. There is no dispute
that during his life time, the father, Late Rameshwar Dayal Sharma
had constructed a three storied building at Medinipur Law College
Street, Post Office- Vidyasagar University, District – Paschim
Medinipur, Pin – 721102, and all the family members resided in the
said house. Due to difference between the son Gajanand Sharma and
the father, the respondent no.5 started residing with his family
members in the first floor of the building and the father, mother and
7
the respondent no.6 started residing in the ground floor and second
floor of the three storied building.
17. As per the case of the mother, both the sons after the death of their
father, drove her out of the house and occupied the entire building and
did not provide any proper treatment, though she is suffering from
chronic diabetes and has a problem in her left kidney. The mother had
to take shelter in the house of her elder brother at Cuttack.
18. The Sub-Divisional Officer has passed an order on 6th September,
2024, directing the respondent nos. 5 and 6 to vacate the building
within three (3) months from the date of the order and during this
period, the respondent no. 5, Gajanand Sharma shall pay Rs. 10,000/-
per month within 7th day of every month and the respondent no. 6,
Shyam Sundar Sharma shall pay Rs. 15,000/- per month within 7th
day of every month as maintenance to their mother. On 6th December,
2024, the Sub-Divisional Officer directed the respondent nos. 5 and 6
to comply with the order dated 6th September, 2024 within 30 days
from the date of receipt of this order.
19. Section 9 of the Maintenance and Welfare of Parents and Senior
Citizens Act, 2007, reads as follows:
“9. Order for maintenance
1. If children or relatives, as the case may be,
neglect or refuse to maintain a senior citizen being
unable to maintain himself, the Tribunal may, on
being satisfied of such neglect or refusal, order
such children or relatives to make a monthly
8allowance at such monthly rate for the
maintenance of such senior citizen, as the Tribunal
may deem fit and to pay the same to such senior
citizen as the Tribunal may, from time to time,
direct.
2. The maximum maintenance allowance
which may be ordered by such Tribunal shall be
such as may be prescribed by the State
Government which shall not exceed ten thousand
rupees per month.”
As per sub-section 2 of Section 9 of the Act of 2007, the
maintenance allowance shall not be exceed Rs. 10,000/- per month.
The Sub-Divisional Officer has passed an order for payment of
maintenance allowance of Rs. 15,000/- by the respondent no. 6 i.e.
Shyam Sundar Sharma for three (3) months or till the vacating the
premises.
20. Though as per sub-section 2 of Section 9, the maintenance allowance
shall not exceed Rs. 10,000/- per month but the Sub-Divisional Officer
has passed an order for payment of maintenance amount of Rs.
15,000/-. The respondent no. 6 is not aggrieved with the order in
respect of the said amount but the respondent no. 6 is only aggrieved
with the direction passed by the Sub-Divisional Officer for vacating the
premises.
21. The Statement of Objects and Reasons reveals that the Act of 2007 was
promulgated to give more attention to the care and protection of the
older persons. It clearly spells out that though parents can claim
maintenance under the Code of Criminal Procedure, 1973, but the
9
same is time-consuming and expensive. Hence, in order to provide a
simple, inexpensive, and speedy provision to claim maintenance for
parents and senior citizens, the Act has been enacted.
22. In the backdrop of the Statement of Objects and Reasons and the
principles, if the scheme of the Act of 2007, is to be deciphered, this
Court strongly feels that the provisions including the provisions under
Sections 4 and 5 of the Act of 2007 are meant to ensure that the senior
citizens or parents be provided with sufficient means to live with
dignity. The progenies or persons are liable to maintain their parents,
can be directed by the Tribunal constituted under the Act of 2007 to
pay a sum not exceeding Rs. 10,000/- per month to the parents.
23. Upon perusal of the Act of 2007 shows that Chapter II of the Act of
2007 deals with maintenance of parents and senior citizens. Section 4
of the Act of 2007 is the substantive provision like a charging Section of
a statute. It confers right upon a senior citizen including parent to
claim maintenance while simultaneously casting a duty of obligation
upon the children to maintain their parents. Whereas Section 5 of the
Act is the machinery provision which prescribes the manner and
authority who shall pass an order of maintenance. A reading of
Sections 4 and 5 of the Act of 2007, it is clear that Tribunal constituted
under the Act can only pass an order of maintenance in favour of senior
citizens or parents. Neither there is any direct or indirect reference of
eviction nor do these provisions contemplate any such order to be
passed by the Tribunal.
10
24. Section 4 of the Act of 2007, stipulates that a senior citizen including
parent who is unable to maintain himself from his own earning or out
of the property owned by him, shall be entitled to make an application
under Section 5 of the said Act. The Act of 2007 provides for an
adjudication of such an application by the Tribunal by holding
summarily enquiry for determining the amount of the maintenance.
Sections 4 and 5 cannot be used by the senior citizen to recover
property from any person, whether it is a child or relative of such a
senior citizen. So, therefore, the Tribunal cannot pass an order of
eviction on an application filed by the senior citizen under Sections 4
and 5 of the Act of 2007. In view of the above, the impugned order
passed by the Learned Tribunal dated 6th September, 2024 and 6th
December, 2024, is modified by setting aside the portion of the order
wherein the Tribunal has directed the respondent no. 6 to vacate the
building within three (3) months from the date of the order.
25. The mother has filed the writ application for implementation of the
orders passed by the Sub-Divisional Officer under the Maintenance and
Welfare of Parents and Senior Citizens Act, 2007, dated 6th September,
2024 and 6th December, 2024. Section 11 of the Maintenance and
Welfare of Parents and Senior Citizens Act, 2007, reads as follows:
“11. Enforcement of order of maintenance
1. A copy of the order of maintenance and
including the order regarding expenses of
proceedings, as the case may be, shall be given
without payment of any fee to the senior citizen or
to parent, as the case may be, in whose favour it is
made and such order may be enforced by any
11to parent, as the case may be, in whose favour it is
made and such order may be enforced by any
Tribunal in any place where the person against
whom it is made, such Tribunal on being satisfied
as to the identity of the parties and the non-
payment of the allowance, or as the case may be,
expenses, due.
2. A maintenance order made under this Act
shall have the same force and effect as an order
passed under Chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974) and shall be executed
in the manner prescribed for the execution of such
order by that Code.”
26. The respondent no. 6 is regularly paying the amount of Rs. 15,000/-
per month to the mother in terms of the order passed by the Tribunal.
The mother has not filed any application before the Tribunal under
Section 11 of the Act of 2007. Section 23 of the Maintenance and
Welfare of Parents and Senior Citizens Act, 2007, reads as follows :
“23. Transfer of property to be void in certain
circumstances
1. Where any senior citizen who, after the
commencement of this Act, has transferred by way
of gift or otherwise, his property, subject to the
condition that the transferee shall provide the basic
amenities and basic physical needs to the
transferor and such transferee refuses or fails to
provide such amenities and physical needs, the
said transfer of the property shall be deemed to
have been made by fraud or coercion or under
undue influence and shall at the option of the
transferor be declared void by the Tribunal.
2. Where any senior citizen has a right to
receive maintenance out of an estate and such
estate or part , thereof is transferred, the right to
receive maintenance may be enforced against the
transferee if the transferee has notice of the right,
or if the transfer is gratuitous; but not against the
12transferee for consideration and without notice of
right.
3. If any senior citizen is incapable of
enforcing the rights under sub-sections (1) and (2),
action may be taken on his behalf by any of the
organisation referred to in Explanation to sub-
section (1) of section 5.”
27. Section 23 of the Act of 2007, can, therefore, be invoked only in three
contingencies:
(i) The transfer by way of gift or otherwise has
been made after the commencement of this
Act.
(ii) The transfer of property by way of gift or
otherwise stipulates a condition that the
transferee will provide basic amenities and
physical needs of the transferor.
(iii) It is established that the transferee has
refused or failed to provide such amenities
and physical needs.
28. In the present case none of the ingredients have been pleaded or are
otherwise present. The applicability of Section 23 is out of question.
Considering the above, this Court did not find any merit in the writ
application filed by mother being WPA No. 10504 of 2025.
29. While deciding the present writ applications, two issues came for
consideration:
(i) Whether the children or relatives can maintain
a writ petition against the order passed by the
Tribunal under the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007?
13
(ii) If a writ petition filed by the children or
relatives is maintainable, whether it will be
under Article 226 or 227 of the Constitution of
India?
30. As regard to the maintainability of writ application against the order
passed by the Tribunal under the Act of 2007, the Hon’ble Division
Bench of this Court in the case of Smt. Mamata Sarki and Another
Vs. The State of West Bengal & Ors. passed in MAT No. 61 of 2019
dated 19th March, 2020, held that:
“15. We are forfeited in taking the above view
by the Maintenance and Welfare of Parents and
Senior Citizens (Amendment) Bill, 2019, which is
pending for consideration before the Parliament. By
the said Bill, certain provisions of the said Act are
proposed to be amended. One of the amendments
proposed is to make the right of appeal under
Section 16 of the Act available to the children and
relatives. This would indicate that the said Act, as
its stands presently, does not confer such right of
appeal on the children or relatives.”
31. In the view of the judgment passed by the Hon’ble Division Bench of
this Court, there is no doubt that writ petition is maintainable if the
children or relatives are aggrieved with the order passed by the
Tribunal under the Act of 2007.
32. In the said judgment, the Hon’ble Division Bench have not expressed
any opinion with regard to whether an application under Article 226 of
the Constitution of India or an application under Article 227 of the
Constitution of India, is maintainable by challenging the order passed
14
by the Tribunal under the Act of 2007 and the said issue is kept open
for this Court to decide the same.
33. Similar matter came up before the Hon’ble Division Bench of the Delhi
High Court in the case of Kirti vs. Renu Anand & Ors. reported in
2024 SCC OnLine Del 2089 and the Hon’ble Division Bench of the
Delhi High Court has held that :
“9. The scope of jurisdiction of the High Court
under Article 226 of the Constitution in dealing
with the ‘writ of certiorari’ against the order of the
Election Tribunal was the question, which arose for
consideration before the Constitutional Bench of the
Supreme Court in T.C. Basappa v. T. Nagappa. In
the said decision, the Supreme Court held at
paragraph 7 that judicial acts are amenable to the
‘writ of certiorari’, which reads as under:
“7. One of the fundamental principles
in regard to the issuing of a writ of
certiorari, is, that the writ can be availed
of only to remove or adjudicate on the
validity of judicial acts. The expression
“judicial acts” includes the exercise of
quasi-judicial functions by administrative
bodies or other authorities or persons
obliged to exercise such functions and is
used in contrast with what are purely
ministerial acts. Atkin, L.J. thus summed up
the law on this point in R. v. Electricity
Commissioners, exp London Electricity Joint
Committee Co. (1920) Ltd. [R. v. Electricity
Commissioners, exp London Electricity Joint
Committee Co. (1920) Ltd., [1924] 1 K.B.
171 at p. 205 (CA)] : (KB p. 205)“… Whenever anybody or 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
15controlling jurisdiction of the King’s Bench
Division exercised in these writs.””
9.1. The Supreme Court in Radhey
Shyam v. Chhabinath (decided on 26th February,
2015), while referring to the aforesaid judgment
in T.C. Basappa (Supra) clarified that the
expression ‘judicial acts’ at paragraph 7 in the
aforesaid judgment is not meant to refer to judicial
orders of Civil Courts. The Supreme Court held that
judicial orders of the Civil Courts can be challenged
by a party in a petition filed under Article 227 of
the Constitution alone and not under Article 226 of
the Constitution.
9.2. In view of the aforesaid judgments, with
the exception of the judicial orders of the civil
courts, it is well settled that the orders passed by
tribunals as well as the judicial acts by
administrative bodies or authorities or persons
exercising quasi-judicial functions are all amenable
to challenge under Article 226 of the Constitution.
Therefore, the order dated 12th December, 2015
passed by the Maintenance Tribunal was certainly
amenable to the jurisdiction of the Court under
Article 226 of the Constitution.
9.3. The orders passed by tribunals are,
however, separately also amenable to challenge
under Article 227 of the Constitution.
9.4. As against the order of a tribunal such as
the Maintenance Tribunal, the aggrieved party,
therefore, has the option to either invoke
Article 226 or Article 227 of the Constitution
depending upon the nature of relief sought in the
petition.”
34. In the case of Anirban Chakraborty vs. State of West Bengal & Ors.
reported in 2019 SCC OnLine Cal 733, the Coordinate Bench of this
Court held that :
16
“9. I have heard the learned advocates
appearing on behalf of the respective parties at
length. With regard to the point of maintainability of
the writ petition, I am of the view that the power of
judicial review of the High Court is a basic feature
of the constitution and cannot be taken away by
creation of statutory Tribunals. Reference is made
to the decision of the Hon’ble Supreme Court
in State of Karnataka v. Vishwabarathi House
Building Coop. Society, reported in (2003) 2 SCC
412. The relevant portions of the above decision is
quoted below:–
39. The District Forum, the State
Commission and the National Commission are
not manned by lay persons. The President
would be a person having judicial background
and other members are required to have the
expertise in the subjects such as economics,
law, commerce, accountancy, industry, public
affairs, administration etc. It may be true that
by reason of sub-section (2-A) of Section 14 of
the Act, in a case of difference of opinion
between two members, the matter has to be
referred to a third member and, in rare cases,
the majority opinion of the members may
prevail over the President. But, such
eventuality alone is insufficient for striking
down the Act as unconstitutional, particularly,
when provisions have been made therein for
appeal there against to a higher forum.
40. By reason of the provisions of the
said Act, the power of judicial review of the
High Court, which is a basic feature of the
Constitution, has not been nor could be taken
away.
41. We may in this connection also notice
that in Laxmi Engineering Works v. P.S.G.
Industrial Institute, (1995) 3 SCC 583, this
Court held:
“A review of the provisions of the Act
discloses that the quasi-judicial
bodies/authorities/agencies created by the
Act known as District Forums, State
Commissions and the National Commission
are not Courts though invested with some of
17the powers of a Civil Court. They are quasi-
judicial Tribunals brought into existence to
render inexpensive and speedy remedies to
consumers. It is equally clear that these
Forums/Commissions were not supposed to
supplant but supplement the existing judicial
system. The idea was to provide an additional
Forum providing inexpensive and speedy
resolution of disputes arising between
consumers and suppliers of goods and
services. The Forum so created is uninhibited
by the requirement of Court fee or the formal
procedures of a Court. Any consumer can go
and file a complaint. Complaint need not
necessarily be filed by the complainant
himself; any recognized consumers’
association can espouse his cause. Where a
large number of consumers have a similar
complaint, one or more can file a complaint on
behalf of all. Even the Central Government
and State Governments can act on his/their
behalf. The idea was to help the consumers
get justice and fair treatment in the matter of
goods and services purchased and availed by
them in a market dominated by large trading
and manufacturing bodies. Indeed, the entire
Act revolves round the consumer and is
designed to protect his interest. The Act
provides for “business-to-consumer” disputes
and not for “business-to-business” disputes.
This scheme of the Act, in our opinion, is
relevant to and helps in interpreting the words
that fall for consideration in this appeal”
10. The Maintenance Tribunal and the
Appellate Tribunal being quasi-judicial bodies are
inferior to the High Court and as such this Court
will have the power of judicial review under Article
226 of the Constitution of India over the orders
impugned. The High Court and the Supreme Court
are the sole repositories of the power of judicial
review. The Tribunals are also not civil courts and
the orders impugned herein are not judicial orders.
Moreover, no other efficacious, alternative statutory
or legal remedy was available to the petitioner,
inasmuch as, the petitioner was not a party to the
proceeding before the Tribunal. Reference is also
made to the unreported judgment of a Division
Bench of this Court in Universal Consortium of
18
Engineers (P) Ltd. v. State of West Bengal, decided
on February 18, 2019 (In re : W.P. No. 23027 of
2017). The relevant portion of the above unreported
decision is quoted below:–
“114. On a cumulative assessment of the
decisions of the Supreme Court, we find it
difficult to persuade ourselves to agree with
the proposition of law that if in a writ petition
under Article 226 of the Constitution the order
of the National Commission is under
challenge, the High Court must dismiss the
petition irrespective of the ground(s) on which
such order is challenged. Indeed,
notwithstanding the availability of an
appellate remedy before the Supreme Court,
such remedy would be illusory for many and if
such a reason were assigned to dismiss a writ
petition, it is justice that could be the casualty.
In a given case where a party attempts to
bypass a statutory redressal mechanism
without any of the exceptional situations being
shown to exist, most certainly the dicta
in Cicilly Kallarackal (supra) would apply but
such decision may not be relied upon by a
respondent at the admission stage of every
case to have his opponent’s case dismissed as
if the High Courts have no jurisdiction to
receive writ petitions against any order that
the National Commission is empowered to
pass under the CP Act.”
11. The Tribunals constituted under the said
Act are an alternative dispute redressal mechanism
but, adjudication by the Tribunal does not infringe
the power of this Court to issue writs under the
Constitution by way of judicial review. Arriving at
the conclusion that the writ petition is
maintainable, this Court now proceeds to deal with
the other questions which have arisen in this writ
petition.”
35. In the case of T.C. Basappa vs. T. Nagappa reported in AIR 1954 SC
440, the question before the Hon’ble Court was as to the scope of
jurisdiction under Article 226 is dealing with a writ of certiorari against
19
the order of the Election Tribunal? The Hon’ble Supreme Court
considered the question in the background of the principles followed by
the superior courts in England which generally formed the basis of the
decisions of the Indian courts. The Hon’ble Supreme Court held that
while broad and fundamental norms regulating exercise of writ
jurisdiction had to be kept in mind, it was not necessary for Indian
courts to look back to the early history or procedural technicalities of
the writ jurisdiction in England in view of express constitutional
provisions. Certiorari was meant to “judicial acts” which included
quasi-judicial functions of administrative bodies. The Hon’ble Supreme
Court issuing such writ quashed patently erroneous and without
jurisdiction order but the Hon’ble Court did not review the evidence as
an appellate court nor substituted its own finding for that of the inferior
Tribunal. In the said case, the Hon’ble Supreme Court further held
that:
“5. The principles upon which the superior
courts in England interfere by issuing writs of
‘certiorari’ are fairly well known and they have
generally formed the basis of decisions in our
Indian courts. It is true that there is lack of
uniformity even in the pronouncements of English
Judges, with regard to the grounds upon which a
writ, or, as it is now said, an order of ‘certiorari’,
could issue, but such differences of opinion are
unavoidable in Judge-made law which has
developed through a long course of years.
As is well known, the issue of the prerogative
writs, within which ‘certiorari’ is included, had
their origin in England in the King’s prerogative
power of superintendence over the due observance
of law by his officials and tribunals. The writ of
‘certiorari’ is so named because in its original form
20it required that the King should be ‘certified of’ the
proceedings to be investigated and the object was
to secure by the authority of a superior court, that
the jurisdiction of the inferior tribunal should be
properly exercised, vide Ryots of
Garabandho v. Zemindar of Parlakimedi. These
principles were transplanted to other parts of the
King’s dominions.
In India, during the British days, the three
chartered High Courts of Calcutta, Bombay and
Madras were alone competent to issue writs and
that too within specified limits and the power was
not exercisable by the other High Courts at all. ‘In
that situation’ as this Court observed in Election
Commission v. Saka Venkata Subba Rao : (AIR p.
212, para 6)‘6. … the makers of the Constitution
having decided to provide for certain basic
safeguards for the people in the new set up,
which they called fundamental rights,
evidently thought it necessary to provide also
a quick and inexpensive remedy for the
enforcement of such rights and, finding that
the prerogative writs, which the courts in
England had developed and used whenever
urgent necessity demanded immediate and
decisive interposition, were peculiarly suited
for the purpose, they conferred, in the States’
sphere, new and wide powers on the High
Courts of issuing directions, orders, or writs
primarily for the enforcement of fundamental
rights, the power to issue such directions, etc.
‘for any other purpose’ being also included
with a view apparently to place all the High
Courts in this country in somewhat the same
position as the Court of King’s Bench in
England.’
6. The language used in Articles 32 and 226
of our Constitution is very wide and the powers of
the Supreme Court as well as of all the High Courts
in India extend to issuing of orders, writs or
directions including writs in the nature of ‘habeas
corpus, mandamus, quo warranto, prohibition and
certiorari’ as may be considered necessary for
enforcement of the fundamental rights and in the
21case of the High Courts, for other purposes as well.
In view of the express provisions in our Constitution
we need not now look back to the early history or
the procedural technicalities of these writs in
English law, nor feel oppressed by any difference
or change of opinion expressed in particular cases
by English Judges. We can make an order or issue
a writ in the nature of ‘certiorari’ in all appropriate
cases and in appropriate manner, so long as we
keep to the broad and fundamental principles that
regulate the exercise of jurisdiction in the matter of
granting such writs in English law.
7. One of the fundamental principles in regard
to the issuing of a writ of ‘certiorari’, is, that the
writ can be availed of only to remove or adjudicate
on the validity of judicial acts. The expression
‘judicial acts’ includes the exercise of quasi-judicial
functions by administrative bodies or other
authorities or persons obliged to exercise such
functions and is used in contrast with what are
purely ministerial acts. Atkin, L.J. thus summed up
the law on this point in R. v. Electricity
Commissioners : (KB p. 205)‘… Whenever anybody 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 writs.’The second essential feature of a writ of ‘certiorari’
is that the control which is exercised through it over
judicial or quasi-judicial tribunals or bodies is not
in an appellate but supervisory capacity. In
granting a writ of ‘certiorari’ the superior court does
not exercise the powers of an appellate tribunal. It
does not review or reweigh the evidence upon
which the determination of the inferior tribunal
purports to be based. It demolishes the order which
it considers to be without jurisdiction or palpably
erroneous but does not substitute its own views for
those of the inferior tribunal. The offending order or
proceeding so to say is put out of the way as one
which should not be used to the detriment of any
person, vide per Lord Cairns in Walsall
22Overseers v. London and North Western Railway
Co., AC at p. 39.
8. The supervision of the superior court
exercised through writs of ‘certiorari’ goes on two
points, as has been expressed by Lord Summer
in R. v. Nat Bell Liquors Ltd., AC at p. 156. One is
the area of inferior jurisdiction and the
qualifications and conditions of its exercise; the
other is the observance of law in the course of its
exercise. These two heads normally cover all the
grounds on which a writ of ‘certiorari’ could be
demanded. In fact there is little difficulty in the
enunciation of the principles; the difficulty really
arises in applying the principles to the facts of a
particular case.
9. ‘Certiorari’ may lie and is generally granted
when a court has acted without or in excess of its
jurisdiction. The want of jurisdiction may arise from
the nature of the subject-matter of the proceeding or
from the absence of some preliminary proceeding or
the court itself may not be legally constituted or
suffer from certain disability by reason of
extraneous circumstances, vide Halsbury, 2 Edn.,
Vol IX, p. 880. When the jurisdiction of the court
depends upon the existence of some collateral fact,
it is well settled that the court cannot by a wrong
decision of the fact give it jurisdiction which it
would not otherwise possess,
vide Bunbury v. Fuller; R. v. Income Tax Special
Purposes Commissioners.
10. A tribunal may be competent to enter upon
an enquiry but in making the enquiry it may act in
flagrant disregard of the rules of procedure or
where no particular procedure is prescribed, it may
violate the principles of natural justice. A writ of
‘certiorari’ may be available in such cases. An error
in the decision or determination itself may also be
amenable to a writ of ‘certiorari’ but it must be a
manifest error apparent on the face of the
proceedings, e.g. when it is based on clear
ignorance or disregard of the provisions of law. In
other words, it is a patent error which can be
corrected by ‘certiorari’ but not a mere wrong
decision.
23
The essential features of the remedy by way
of ‘certiorari’ have been stated with remarkable
brevity and clearness by Morris, L.J. in the recent
case of R. v. Northumberland Compensation Appeal
Tribunal, ex p Shaw. The Lord Justice says : (KB p.
357)
‘It is plain that certiorari will not issue as
the cloak of an appeal in disguise. It does not
lie in order to bring up an order or decision for
re-hearing of the issue raised in the
proceedings. It exists to correct error of law
where revealed on the face of an order or
decision, or irregularity, or absence of, or
excess of, jurisdiction when shown.’
11. In dealing with the powers of the High
Court under Article 226 of the Constitution, this
Court has expressed itself in almost similar terms,
vide G. Veerappa Pillai v. Raman & Raman Ltd.
and said: (AIR pp. 195-96, para 20)
’20. Such writs as are referred to in
Article 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
decisions impugned and decide what is the
proper view to be taken or the order to be
made.’
These passages indicate with sufficient
fullness the general principles that govern the
exercise of jurisdiction in the matter of granting
writs of ‘certiorari’ under Article 226 of the
Constitution.”
24
36. In the case of Umaji Keshao Meshram vs. Radhika Bai & Anr.
reported in 1986 Supp SCC 401, the Hon’ble Supreme Court held that
proceedings under Article 226 are in exercise of the original jurisdiction
of the High Court while proceedings under Article 227 of the
Constitution of India are not original but only supervisory. Article 227
substantially reproduces the provisions of Section 107 of the
Government of India Act, 1915 excepting that the power of
superintendence has been extended by this article to tribunals as well.
Though the power is akin to that of an ordinary court of appeal, yet the
power under Article 227 is intended to be used sparingly and only in
appropriate cases for the purpose of keeping the subordinate courts
and tribunals within the bounds of their authority and not for
correcting mere errors. The power may be exercised in cases of
occasioning grave injustice or failure of justice such as when (i) the
Court or Tribunal has assumed a jurisdiction which it does not have,
(ii) has failed to exercise a jurisdiction which it does have, such failure
occasioning a failure of justice, and (iii) the jurisdiction though
available is being exercised in a manner which tantamounts to
overstepping the limits of jurisdiction. The Hon’ble Supreme Court
further held that:
“25. Upon a review of decided cases and a
survey of the occasions, wherein the High Courts
have exercised jurisdiction to command a writ of
certiorari or to exercise supervisory jurisdiction
under Article 227 in the given facts and
circumstances in a variety of cases, it seems that
the distinction between the two jurisdictions stands
almost obliterated in practice. Probably, this is the
25reason why it has become customary with the
lawyers labelling their petitions as one common
under Articles 226 and 227 of the Constitution,
though such practice has been deprecated in some
judicial pronouncement. Without entering into
niceties and technicality of the subject, we venture
to state the broad general difference between the
two jurisdictions. Firstly, the writ of certiorari is an
exercise of its original jurisdiction by the High
Court; exercise of supervisory jurisdiction is not an
original jurisdiction and in this sense it is akin to
appellate, revisional or corrective jurisdiction.
Secondly, in a writ of certiorari, the record of the
proceedings having been certified and sent up by
the inferior court or tribunal to the High Court, the
High Court if inclined to exercise its jurisdiction,
may simply annul or quash the proceedings and
then do no more. In exercise of supervisory
jurisdiction, the High Court may not only quash or
set aside the impugned proceedings, judgment or
order but it may also make such directions as the
facts and circumstances of the case may warrant,
maybe, by way of guiding the inferior court or
tribunal as to the manner in which it would now
proceed further or afresh as commended to or
guided by the High Court. In appropriate cases the
High Court, while exercising supervisory
jurisdiction, may substitute such a decision of its
own in place of the impugned decision, as the
inferior court or tribunal should have made. Lastly,
the jurisdiction under Article 226 of the Constitution
is capable of being exercised on a prayer made by
or on behalf of the party aggrieved; the supervisory
jurisdiction is capable of being exercised suo motu
as well.”
37. In the case of Radhey Shyam & Anr. vs. Chhabi Nath & Ors.
reported in (2015) 5 SCC 423, the Hon’ble Supreme Court held that :
“27. Thus, we are of the view that judicial
orders of civil courts are not amenable to a writ of
certiorari under Article 226. We are also in
agreement with the view of the referring Bench that
a writ of mandamus does not lie against a private
person not discharging any public duty. Scope of
Article 227 is different from Article 226.
26
28. We may also deal with the submission
made on behalf of the respondent that the view
in Surya Dev Rai stands approved by larger
Benches in Shail, Mahendra Saree Emporium
(2) and Salem Advocate Bar Assn. (2) and on that
ground correctness of the said view cannot be gone
into by this Bench. In Shail , though reference has
been made to Surya Dev Rai, the same is only for
the purpose of scope of power under Article 227 as
is clear from para 3 of the said judgment. There is
no discussion on the issue of maintainability of a
petition under Article 226. In Mahendra Saree
Emporium (2), reference to Surya Dev Rai is made
in para 9 of the judgment only for the proposition
that no subordinate legislation can whittle down
the jurisdiction conferred by the Constitution.
Similarly, in Salem Advocate Bar Assn. (2) in para
40, reference to Surya Dev Rai is for the same
purpose. We are, thus, unable to accept the
submission of the learned counsel for the
respondent.
29. Accordingly, we answer the question
referred as follows:
29.1. Judicial orders of the civil court are not
amenable to writ jurisdiction under Article 226 of
the Constitution.
29.2. Jurisdiction under Article 227 is distinct
from jurisdiction under Article 226.
29.3. Contrary view in Surya Dev Rai is
overruled.”
38. In the present case, the petitioner in WPA No. 16316 of 2025, has
challenged the order passed by the Sub-Divisional Officer, Medinipur
Sadar, passed under Sections 4 and 5 of the Maintenance and Welfare
of Parents and Senior Citizens Act, 2007. The Tribunal and the
Appellate Tribunal constituted under the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 being the quasi-judicial bodies
27are inferior to the High Court and as such the High Court will have the
power of judicial review under Article 226 of the Constitution of India
against the order passed by the Tribunal or the Appellate Tribunal. The
Tribunal and the Appellate Tribunals are not civil courts and the orders
cannot be treated as judicial orders.
39. In view of the above, this Court held that the order passed by the
Tribunal is amenable to writ jurisdiction under Article 226 of the
Constitution of the India.
40. In view of the above, WPA No. 10504 of 2025 is dismissed. However,
the dismissal of the writ petition will not prevent the petitioner to take
appropriate steps before the Tribunal if the respondents failed to
comply with the order passed by the Tribunal for payment of the
maintenance amount as directed by the Tribunal.
41. WPA No. 16316 of 2025 is thus disposed of.
Parties shall be entitled to act on the basis of a server copy of the
Judgment placed on the official website of the Court.
Urgent Xerox certified photocopies of this judgment, if applied for,
be given to the parties upon compliance of the requisite formalities.
(Krishna Rao, J.)
