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Composite Petitions Under Articles 226 and 227 Not Maintainable, Says
The practice of filing a single petition under both Articles 226 and 227 of the has come under sharp scrutiny. , in a recent legal commentary, argues that such composite petitions are fundamentally improper because the two articles confer entirely distinct jurisdictions—original and revisional—and their combination not only confuses the but also imposes an unnecessary burden on already overburdened . Drawing on a line of precedents, Datar contends that the time has come for a clear declaration that composite petitions under Articles 226 and 227 are not maintainable.
The Distinct Nature of Articles 226 and 227
vests with the power to issue writs for the enforcement of fundamental rights and for any other purpose, forming part of their . In contrast, confers supervisory or over all courts and tribunals within the 's territorial limits. This distinction is not merely academic: it has significant procedural consequences. Orders passed under are appealable before a division bench under , whereas orders under are not subject to an ; the only remedy is a under before the . By filing a , a litigant blurs this boundary, leaving it to the court to determine which jurisdiction was actually exercised—a task that Datar calls “unfair” given the existing workload.
The Umaji Precedent and Its Limitations
The foundation of the practice lies in the ’s decision in Umaji v. Radhikabai (). In that case, the Court noted that while a party could justify an application under either or 227, fairness required that a be treated as one under to preserve the right of appeal. Datar respectfully submits that this view is incorrect. He argues that the two provisions are “completely different” and that the Umaji approach has led to persistent confusion. Subsequent cases have attempted to refine the test, but the underlying uncertainty remains.
Key Rulings on Composite Petitions
Datar examines several important decisions that illustrate the difficulties arising from composite petitions.
In Pepsi Foods Ltd v. Judicial Magistrate (), the treated a as one under , even though the petition also invoked . The Court held that an accused could approach the under or under without first seeking discharge before the magistrate. While the outcome favoured the petitioner, the classification of the petition as one under was made without rigorous analysis.
The case of v. Nandini J Shah () highlighted the practical consequences of jurisdictional ambiguity. There, a challenged an order passed by a under the . The single judge dismissed the writ, and the division bench in a appeal rejected a that the appeal was not maintainable. The , however, set aside the division bench’s order, holding that orders of civil courts can be challenged only under . The result was that the individual respondents had to pursue an six years after the order—a clear illustration of the waste of judicial time.
In Mavji Lakum v. (), the clarified the test for . The Court held that the substance of the judgment must be examined: if the order was principally in exercise of jurisdiction, an lies; if it falls under , no such appeal is maintainable. This case involved a challenging an ’s order. The upheld the of the appeal because the petition had sought a —a hallmark of .
The Columbia Sportswear v. DCIT () decision added another layer. The observed that an order of the under the could be challenged only before the appropriate “under and/or 227.” The ambiguous phrasing, Datar notes, does not resolve the underlying issue.
Finally, in Shalini Shyam Shetty v. Rajendra Shankar Patil (), the unequivocally held that a petition under cannot be termed a . The Court examined Rule 2B of the Appellate Side Rules, which referred to “petitions/applications under and/or 227,” and concluded that no could amend its rules to alter the that separates the two articles.
The Burden on and the
Datar’s central criticism is that composite petitions shift the responsibility of characterising the jurisdiction from the litigant to the court. When a receives a , it must first determine whether relief can be granted under or —a task that should have been decided by the petitioner’s counsel. If the is silent on the nature of jurisdiction exercised, the is then forced to decide the issue on appeal, adding to its own docket.
“It is unfair to impose an additional burden on to first determine whether relief can be granted either under or under ,” Datar writes. “Given the workload before the , this additional burden is unwarranted.”
A Call for Clarity
The author argues that the should declare, once and for all, that a under both articles is not maintainable. The nature of reliefs available under original and are entirely different, and it is not permissible to combine them in a single . It is the duty of the petitioner, properly advised, to decide which remedy to pursue. Such a declaration would not only reduce confusion but also save judicial time at both the and levels.
Impact on Legal Practice
For legal practitioners, the message is clear: careful consideration must be given to the jurisdictional basis of any petition filed in a . Filing a as a “safety net” may backfire, leading to protracted litigation over and potential loss of appellate rights. The cases discussed by Datar demonstrate that even the has struggled to apply a consistent test, leaving litigants in a state of uncertainty. A definitive ruling against composite petitions would bring much-needed clarity and align practice with the .
Conclusion
Arvind Datar’s analysis underscores a long-standing procedural anomaly that has persisted despite numerous decisions. The practice of filing composite petitions under Articles 226 and 227 may have originated from a desire to preserve remedies, but it has evolved into a source of confusion and inefficiency. As Datar persuasively argues, the time is ripe for the to step in and declare that such petitions are not maintainable. Until then, litigants and courts alike will continue to grapple with the .
