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Sh. Jogendrasinhji Vijaysinghji Vs. State of Gujarat & Ors.
1. In this batch of appeals, by special leave, the appellants call in question the legal substantiality of the judgment and order dated 26.12.2013 passed by the Special Bench of the High Court of Gujarat in a bunch of Letters Patent Appeals preferred under Clause 15 of the Letters Patent.
2. As the factual matrix would unveil, the Division Bench that referred the matter to a larger Bench, noticed conflict in Revaben Wd/o. Ambalal Motibhai and others v. Vinubhai Purshottambhai Patel and others and Dilavarsinhsinh Khodubha Jadeja v. State of Gujarat and others and at that juncture framed two questions. The Special Bench adverted to the facts necessitating the reference in detail and took note of the preliminary objections of the learned counsel for the State as regards the maintainability of the Letters Patent Appeal on many a score and thereafter thought it appropriate to frame the questions afresh and accordingly it formulated questions.
(i) In what context the phrase 'original jurisdiction' appearing in Clause 15 of the Letters Patens should be construed, that is, by taking into consideration the plain meaning of the same as the Court's power to hear and decide the matter before any other court and review the same; or should it be construed in the context with the power of the Court to issue a writ under Article 226 of the Constitution of India, which is always original.
(ii) Assuming the words "to issue to any person or authority" as contained in Article 226 of the Constitution are interpreted so as to include the tribunal or the Court, then in such circumstances, would it be the correct proposition of law to say that appellate tribunal is not amenable to a writ of certiorari and the only remedy available to the litigant to challenge the order passed by an appellate tribunal is under Article 227 of the Constitution and, ancillary one, when a petition assails an order of the tribunal, be it a tribunal of first instance or an appellate tribunal, should it be necessarily treated as a petition under Article 226 of the Constitution of India in every case or it would depend upon facts of each case, more particularly the grounds of challenge and the nature of order passed.
(iii) Whether in a petition for issue of a writ of Certiorari under Article 227 of the Constitution of India, the tribunal/Court whose order is impugned in a petition must be a party to the petition so that the writ sought from the Court can be issued against the tribunal/Court, but if the petition is for the relief under Article 227 only, then the tribunal/Court whose order is under assail need not be a party-respondent on the reasoning that by entertaining a petition under Article 227 of the Constitution, the High Court exercises its power of superintendence which is analogous to the revisional jurisdiction.
4. The special bench as is evincible from the judgment impugned, has delved into the questions framed by it, if we permit ourselves to say so, at great length and recorded its conclusions in seriatum.
"(iii) When a writ is issued under Article 226 of the Constitution, it is issued in exercise of its original jurisdiction whether against the Tribunal or inferior Court or administrative authority.
(iv) The power exercised under Article 226 of the Constitution is in exercise of original jurisdiction and not supervisory jurisdiction.
(vii) A writ of certiorari lies in appropriate cases against the order of Tribunal or Court subordinate to the High Court where such a Court, or Tribunal acts not only as an authority of first instance but even if such a Court or Tribunal acts as an appellate or revisional authority provided a case for a writ of certiorari is made out to the satisfaction of the Court concerned. Thus, if an appellate or revisional order of the Court or Tribunal, subordinate to a High Court, suffers from a patent error of law or jurisdiction, the same could be challenged before the High Court with the aid of Article 226 of the Constitution and it could not be said that such an appellate or revisional order of the Court or Tribunal could be challenged with the aid of Article 227 alone.
(ix) The term "original jurisdiction" as contained in Clause 15 of the Letters Patent should be understood in context with the power of the High Court to issue a high prerogative writ like a writ of certiorari under Article 226 of the Constitution of India. It is that original power to issue a writ under Article 226 of the Constitution of India which makes the proceedings original and the exercise of such power will always be original jurisdiction.
(x) If the Special Civil Application is described as one not only under Article 226 of the Constitution, but also under Article 227 of the Constitution of India and the Court or the Tribunal whose order is sought to be quashed, is not made a party, the application is not maintainable as one for the relief of certiorari in the absence of the concerned Tribunal or Court as party, but the same may be treated as one under Article 227 of the Constitution of India. If the Court or Tribunal is not impleaded as a party respondent in the main petition, then by merely impleading such court or tribunal for the first time in the Letters Patent Appeal will not change the nature and character of the proceedings before the learned Single Judge. By merely impleading such a Court or Tribunal for the first time in the LPA, the appeal could not be said to be maintainable, if the proceedings before the learned Single Judge remained in the nature of supervisory proceedings under Article 227 of the Constitution.
(xi) If the learned Single Judge, in exercise of a purported power under Article 227 of the Constitution sets aside the order of Tribunal or Court below and at the same time, the essential conditions for issue of writ of certiorari are absent, no appeal will be maintainable against such order in view of the specific bar created under Clause 15 of the Letters Patent itself and such an order can be challenged only by way of a Special Leave Petition before the Supreme Court.
To put it very explicitly, take a case where a petition is only under Article 227 of the Constitution of India, invoking superintending powers of the High Court and not under Article 226 of the Constitution of India. After examining the matter, if the court finds substance in the petition and sets aside the order of an authority, court or a tribunal, then against such an order, an LPA would not lie on the argument that since the court has set aside the order it has decided the matter on merits having found substance in the same.
To put it in other words, once a petition is under Article 227 of the Constitution of India, and while entertaining such a petition under Article 227 of the Constitution of India, if the court allows a petition by setting aside the order impugned, then against such an order no LPA would lie.
xii) If a learned Single Judge, in exercise of a purported power under Article 227 of the Constitution modifies the order of Tribunal/Authority or Court below and thereby partly allows a petition to a certain extent, then in such circumstances, it could not be said that the Court exercised its certiorari jurisdiction and no appeal will be maintainable against such order in view of the specific bar created under Clause 15 of the Letters Patent itself.
However, if a learned Single Judge, in purported exercise of power under Article 226 of the Constitution of India, issues a writ of certiorari, although the same is not maintainable, an appeal under Clause 15 of the Letters Patent would nevertheless be maintainable against such order. To put it in other words, take a case where a party on his own invokes supervisory jurisdiction under Article 227 of the Constitution of India, and in such a petition, the Court issues a writ of certiorari, then against such an order an LPA would be maintainable.
To put it explicitly clear, take a case where in a petition neither there is a prayer for issue of a writ of certiorari nor the Tribunal/Authority or Court whose order is impugned is impleaded as a party respondent, and despite such being the position, if the Court proceeds to issue a writ of certiorari, then against such an order an LPA would be maintainable.
(xiii) A combined application under both Articles 226 and 227 of the Constitution of India can be entertainable only when the court fees payable for invoking both the provisions have been paid in aggregate. If court fees payable for invoking only one of the Articles 226 and 227 have been affixed, the Court before dismissing the application on that ground may give option to the petitioner to choose only one of such provisions, if he does not pay the balance amount of court fees and the application should be treated accordingly. It is, however, for the Court to decide whether the facts of the case justify invocation of original jurisdiction or it is a fit case for exercising supervisory jurisdiction.
(xv) When a remedy for filing the Revision under Section 115 of the Civil Procedure Code has been expressly barred, then in such a case, a petition under Article 227 of the Constitution of India would lie and not a writ petition under Article 226 of the Constitution of India. When the Parliament has thought fit to restrict the powers under Section 115 of the Code with a definite object, then, under such circumstances an order which is not revisable under Section 115 of the Code of Civil Procedure cannot be challenged by way of filing a Writ Petition under Article 226 of the Constitution invoking extraordinary jurisdiction of the High Court and that too an interlocutory order passed by the Civil Court in a Regular Suit proceedings."
5. At this juncture, we are obligated to state that the conclusions have been recorded by the High Court to cover all kinds of possibilities, but we are of the considered opinion that it may not always be possible to do so and hence, advertence in detail to the said conclusions is neither necessitous nor warranted.
6. Having said that, presently we shall proceed to deal with the first question we have stated hereinbefore. In this regard, reference to the authority in T.C. Basappa v. T. Nagappa and Another would be fruitful. The controversy before the Constitution Bench, apart from other aspects, also pertained to scope of jurisdiction under Article 226 of the Constitution.
"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 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's Overseers v. L. & N. W.Rly. Co.
8. The supervision of the superior court exercised through writs of 'certiorari' goes on two points, as has been expressed by Lord Sumner in King v. Nat Bell Liquors Limited. 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.
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 'Veerappa Pillai v. Raman and Raman Ltd. and said: "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 decision 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."
7. In Hari Vishnu Kamath v. Ahmad Ishaque and Ors., a seven- Judge Bench, while dealing with the scope of proceeding under Article 226 of the Constitution, observed that there can be no dispute that the orders of the Election Tribunals are subject to the supervisory jurisdiction of the High Courts under Article 226 and a writ of certiorari under that Article will be competent against decisions of the Election Tribunals also.
"We are also of opinion that the Election Tribunals are subject to the superintendence of the High Courts under Article 227 of the Constitution, and that superintendence is both judicial and administrative. That was held by this Court in Waryam Singh v. Amarnath, where it was observed that in this respect Article 227 went further than Section 224 of the Government of India Act, 1935, under which the superintendence was purely administrative, and that it restored the position under Section 107 of the Government of India Act, 1915.
It may also be noted that while in a 'certiorari' under Article 226 the High Court can only annul the decision of the Tribunal, it can, under Article 227, do that, and also issue further directions in the matter. We must accordingly hold that the application of the appellant for a writ of 'certiorari' and for other reliefs was maintainable under Articles 226 and 227 of the Constitution."
In the said case, the court directed as follows:- "Under the circumstances, the proper order to pass is to quash the decision of the Tribunal and remove it out of the way by 'certiorari' under Article 225,and to set aside the election of the first respondent in exercise of the powers conferred by Article 227."
8. In Nagender Nath Bora v. The Commissioner of Hills Division and Appeals, Assam and others, while dealing with the scope of Articles 226 and 227 of the Constitution, the Constitution Bench referred to the authority in Waryam Singh (supra) and held that:- "It is, thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the powers under Article 226 of the Constitution. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article, 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority. Hence, interference by the High Court, in these cases, either under Article 226 or 227 of the Constitution, was not justified."
"9. Article 226 confers a power on a High Court to issue the writs, orders, or directions mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. This is neither an appellate nor a revisional jurisdiction of the High Court. Though the power is not confined to the prerogative writs issued by the English Courts, it is modelled on the said writs mainly to enable the High Courts to keep the subordinate tribunals within bounds."
".... It is, therefore, clear from the nature of the power conferred under Article 226 of the Constitution and the decisions on the subject that the High Court in exercise of its power under Article 226 of the Constitution exercises original jurisdiction, though the said jurisdiction shall not be confused with the ordinary civil jurisdiction of the High Court. This jurisdiction, though original in character as contrasted with its appellate and revisional jurisdictions, is exercisable throughout the territories in relation to which it exercises jurisdiction and may, for convenience, be described as extraordinary original jurisdiction. If that be so, it cannot be contended that a petition under Article 226 of the Constitution is a continuation of the proceedings under the Act."
"38. ..... It is singularly inappropriate to assume that a judicial decision pronounced by a Judge of competent jurisdiction in or in relation to a matter brought before him for adjudication can affect the fundamental rights of the citizens under Article 19(1). What the judicial decision purports to do is to decide the controversy between the parties brought before the court and nothing more. If this basic and essential aspect of the judicial process is borne in mind, it would be plain that the judicial verdict pronounced by court in or in relation to a matter brought before it for its decision cannot be said to affect the fundamental rights of citizens under Article 19(1)."
"39. ..... Just as an order passed by the court on the merits of the dispute before it can be challenged only in appeal and cannot be said to contravene the fundamental rights of the litigants before the Court, so could the impugned order be challenged in appeal under Article 136 of the Constitution, but it cannot be said to affect the fundamental rights of the petitioners. The character of the judicial order remains the same whether it is passed in a matter directly in issue between the parties, or is passed incidentally to make the adjudication of the dispute between the parties fair and effective. On this view of the matter, it seems to us that the whole attack against the impugned order based on the assumption that it infringes the petitioners' fundamental rights under Article 19(1), must fail."
12. It is apt to note here that the nine-Judge Bench referred to Budan Choudhry v. State of Bihar, Parbhani Transport Cooperative Society Ltd. v. Regional Transport Authority, Aurangabad and Prem Chand Garg v. Excise Commissioner, U.P. Allahabad and explained the same and eventually held:- "If the decision of a superior court on a question of its jurisdiction is erroneous, it can, of course, be corrected by appeal or revision as may be permissible under the law; but until the adjudication by a superior court on such a point is set aside by adopting the appropriate course, it would not be open to be corrected by the exercise of the writ jurisdiction of this Court."
"It is well settled now that a judgment of court can never be challenged under Articles 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to challenge as violating Article 14 or Article 21 as has been laid down by this Court in Naresh Shridhar Mirajkar v. State of Maharashtra (supra) and also in A.R. Antulay v. R.S. Nayak , the only jurisdiction which could be sought to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final judicial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this Court and that is what has consistently been held by this Court.
But it will not be open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be just and proper."
"6. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (see National Insurance Co. Ltd. v. Nicolletta Rohtagi).
This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure.
Where remedy for filing a revision before the High Court under Section 115 CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of illustration, where a trial court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115 CPC, in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution.
Thus, where the State Legislature has barred a remedy of filing a revision petition before the High Court under Section 115 CPC, no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of the High Court under Article 226 of the Constitution."
"23. 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. 24. 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 and Salem Advocate Bar Assn 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, 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 Bar Assn. in para 40, reference to Surya Dev Rai is for the same purpose. We are, thus, unable to accept the submission of learned counsel for the respondent.
(ii) Jurisdiction under Article 227 is distinct from jurisdiction from jurisdiction under Article 226. Contrary view in Surya Dev Rai is overruled."
16. The aforesaid authoritative pronouncement makes it clear as day that an order passed by a civil court can only be assailed under Article 227 of the Constitution of India and the parameters of challenge have been clearly laid down by this Court in series of decisions which have been referred to by a three-Judge Bench in Radhey Shyam (supra), which is a binding precedent. Needless to emphasise that once it is exclusively assailable under Article 227 of the Constitution of India, no intra-court appeal is maintainable.
17. The next aspect that has to be adverted to is under what situation, a Letters Patent Appeal is maintainable before a Division Bench. We repeat at the cost of repetition, we have referred to series of judgments of this Court which have drawn the distinction between Article 226 and 227 of the Constitution of India and the three-Judge Bench in Radhey Shyam (supra) has clearly stated that jurisdiction under Article 227 is distinct from jurisdiction under Article 226 of the Constitution and, therefore, a letters patent appeal or an intra-court appeal in respect of an order passed by the learned Single Judge dealing with an order arising out of a proceeding from a Civil Court would not lie before the Division Bench.
Thus, the question next arises under what circumstances a letters patent appeal or an intra-court appeal would be maintainable before the Division Bench.
18. In Umaji Keshao Meshram and Others v. Radhikabai and Another, this Court has held thus:- "106. The non obstante clause in Rule 18, namely, "Notwithstanding anything contained in Rules 1, 4 and 17 of this chapter", makes it abundantly clear why that rule uses the words "finally disposed of". As seen above, under Rules 1 and 17, applications under Articles 226 and 227 are required to be heard and disposed of by a Division Bench. Rule 4, however, gives power to a Single Judge to issue rule nisi on an application under Article 226 but precludes him from passing any final order on such application.
It is because a Single Judge has no power under Rules 1, 4 and 17 to hear and dispose of a petition under Article 226 or 227 that the non obstante clause has been introduced in Rule 18. The use of the words "be heard and finally disposed of by a Single Judge" in Rule 18 merely clarifies the position that in such cases the power of the Single Judge is not confined merely to issuing a rule nisi. These words were not intended to bar a right of appeal. To say that the words "finally disposed of" mean finally disposed of so far as the High Court is concerned is illogical because Rules 1, 4 and 7 use the words "be heard and disposed of by a Divisional Bench" and [pic]were the reasoning of the Full Bench correct, it would mean that so far as the High Court is concerned, when a Single Judge hears a matter and disposes it of, it is finally disposed of and when a Division Bench disposes it of, it is not finally disposed of.
The right of appeal against the judgment of a Single Judge is given by the Letters Patent which have been continued in force by Article 225 of the Constitution. If under the Rules of the High Court, a matter is heard and disposed of by a Single Judge, an appeal lies against his judgment unless it is barred either under the Letters Patent or some other enactment. The word "finally" used in Rule 18 of Chapter XVII of the Appellate Side Rules does not and cannot possibly have the effect of barring a right of appeal conferred by the Letters Patent. As we have seen above, an intra-court appeal against the judgment of a Single Judge in a petition under Article 226 is not barred while clause 15 itself bars an intra-court appeal against the judgment of a Single Judge in a petition under Article 227.
107. Petitions are at times filed both under Articles 226 and 227 of the Constitution. The case of Hari Vishnu Kamath v. Syed Ahmad Ishaque before this Court was of such a type. Rule 18 provides that where such petitions are filed against orders of the Tribunals or authorities specified in Rule 18 of Chapter XVII of the Appellate Side Rules or against decrees or orders of courts specified in that rule, they shall be heard and finally disposed of by a Single Judge. The question is whether an appeal would lie from the decision of the Single Judge in such a case.
In our opinion, where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution, and the party chooses to file his application under both these articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal the court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order the court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226. Such was the view taken by the Allahabad High Court in Aidal Singh v. Karan Singh and by the Punjab High Court in Raj Kishan Jain v. Tulsi Dass and Barham Dutt v. Peoples' Cooperative Transport Society Ltd., New Delhi and we are in agreement with it."
19. Similar view was reiterated in Sushilabai Laxminarayan Mudliyar and others v. Nihalchand Waghajibhai Shaha and others, which arose from the High Court of Bombay.
"6. Applying the correct ratio laid down in Umaji Keshao Meshram case (supra) and perusing the writ petition filed in the present case as well as the order passed by the learned Single Judge we are clearly of the view that the present case clearly falls within the ambit of Article 226 of the Constitution. In Umaji Keshao Meshram case (supra) it was clearly held that: [pic]"Where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution, and the party chooses to file his application under both these Articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal the court ought to treat the application as being made under Article 226 ...."
7. The learned Single Judge in his impugned judgment dated December 11, 1987 nowhere mentioned that he was exercising the powers under Article 227 of the Constitution. The learned Single Judge examined the matter on merit and set aside the orders of the Rent Controller as well as the Resident Deputy Collector on the ground that the aforesaid judgments were perverse. The findings of the Rent Controller and Resident Deputy Collector were set aside on the question of habitual defaulter as well as on the ground of bona fide need. Thus in the totality of the facts and circumstances of the case, the pleadings of the parties in the writ petition and the judgment of the learned Single Judge leaves no manner of doubt that it was an order passed under Article 226 of the Constitution and in that view of the matter the Letters Patent Appeal was maintainable before the High Court."
21. In Lokmat Newspapers Pvt. Ltd. v. Shankarprasad, the controversy arose from the order passed by the Labour Court which had secured affirmation from the Industrial Tribunal. The said orders were challenged by the respondent therein by filing a writ petition under Articles 226 and 227 of the Constitution of India before the High Court.
"As seen earlier, he was considering the aforesaid writ petition moved under Article 226 as well as Article 227 of the Constitution of India. Under these circumstances, it is not possible to agree with the contention of learned counsel for the appellant that the learned Single Judge had refused to interfere only under Article 227 of the Constitution of India when he dismissed the writ petition of the respondent."
"The aforesaid decision squarely gets attracted on the facts of the present case. It was open to the respondent to invoke the jurisdiction of the High Court both under Articles 226 and 227 of the Constitution of India. Once such a jurisdiction was invoked and when his writ petition was dismissed on merits, it cannot be said that the learned Single Judge had exercised his jurisdiction only under Article 226 (sic 227) of the Constitution of India. This conclusion directly flows from the relevant averments made in the writ petition and the nature of jurisdiction invoked by the respondent as noted by the learned Single Judge in his judgment, as seen earlier. Consequently, it could not be said that clause 15 of the Letters Patent was not attracted for preferring appeal against the judgment of the learned Single Judge."
22. In Kishorilal v. Sales Officer, District Land Development Bank and Others, a recovery proceeding was initiated by the respondent-Bank therein and the land mortgaged to the Bank were sold. An appeal preferred before the Joint Registrar, Cooperative Societies was dismissed and a further appeal was preferred before the Board of Revenue which interfered with the order passed by the Joint Registrar. The order passed by the Board of Revenue was called in question by the District Land Development Bank, which was allowed by the learned Single Judge.
A letters patent appeal was preferred challenging the order of the learned Single Judge which opined that the order passed by the learned Single Judge was not maintainable as he had exercised the jurisdiction under Article 227 of the Constitution of India. Dealing with the maintainability of the appeal, the two-Judge Bench held that:- "The learned Single Judge of the High Court, in our opinion, committed an error in interfering with the findings of fact arrived at by the Board of Revenue. The Division Bench of the High Court also wrongly dismissed the LPA without noticing that an appeal would be maintainable if the writ petition was filed under Articles 226 and 227 of the Constitution of India as was held by this Court in Sushilabai Laxminarayan Mudliyar v. Nihalchand Waghajibhai Shaha."
23. In Ashok K. Jha and others v. Garden Silk Mills Ltd. and Another, as the factual matrix would reveal, the employees had approached the Labour Court for certain reliefs.
The Labour Court on consideration of the facts and law, declined to grant the relief. Being dissatisfied, the employees and the Union preferred a joint appeal before the Industrial Court, Surat which set aside the order of the Labour Court and issued certain directions against the employer.
The employer called in question the defensibility of the order of the Industrial Court by filing a Special Civil Application under Article 226 and 227 of the Constitution of India before the High Court of Gujarat.
"36. If the judgment under appeal falls squarely within four corners of Article 227, it goes without saying that intra-court appeal from such judgment would not be maintainable. On the other hand, if the petitioner has invoked the jurisdiction of the High Court for issuance of certain writ under [pic]Article 226, although Article 227 is also mentioned, and principally the judgment appealed against falls under Article 226, the appeal would be maintainable. What is important to be ascertained is the true nature of order passed by the Single Judge and not what provision he mentions while exercising such powers.
37. We agree with the view of this Court in Ramesh Chandra Sankla (supra) that a statement by a learned Single Judge that he has exercised power under Article 227, cannot take away right of appeal against such judgment if power is otherwise found to have been exercised under Article 226. The vital factor for determination of maintainability of the intra-court appeal is the nature of jurisdiction invoked by the party and the true nature of principal order passed by the Single Judge."
"47. In our judgment, the learned counsel for the appellant is right in submitting that nomenclature of the proceeding or reference to a particular article of the Constitution is not final or conclusive. He is also right in submitting that an observation by a Single Judge as to how he had dealt with the matter is also not decisive. If it were so, a petition strictly falling under Article 226 simpliciter can be disposed of by a Single Judge observing that he is exercising power of superintendence under Article 227 of the Constitution. Can such statement by a Single Judge take away from the party aggrieved a right of appeal against the judgment if otherwise the petition is under Article 226 of the Constitution and subject to an intra- court/letters patent appeal? The reply unquestionably is in the negative...."
25. From the aforesaid pronouncements, it is graphically clear that maintainability of a letters patent appeal would depend upon the pleadings in the writ petition, the nature and character of the order passed by the learned Single Judge, the type of directions issued regard being had to the jurisdictional perspectives in the constitutional context. Barring the civil court, from which order as held by the three-Judge Bench in Radhey Shyam (supra) that a writ petition can lie only under Article 227 of the Constitution, orders from tribunals cannot always be regarded for all purposes to be under Article 227 of the Constitution.
Whether the learned Single Judge has exercised the jurisdiction under Article 226 or under Article 227 or both, needless to emphasise, would depend upon various aspects that have been emphasised in the aforestated authorities of this Court. There can be orders passed by the learned Single Judge which can be construed as an order under both the articles in a composite manner, for they can co-exist, coincide and imbricate. We reiterate it would depend upon the nature, contour and character of the order and it will be the obligation of the Division Bench hearing the letters patent appeal to discern and decide whether the order has been passed by the learned Single Judge in exercise of jurisdiction under Article 226 or 227 of the Constitution or both.
The Division Bench would also be required to scrutinize whether the facts of the case justify the assertions made in the petition to invoke the jurisdiction under both the articles and the relief prayed on that foundation. Be it stated, one of the conclusions recorded by the High Court in the impugned judgment pertains to demand and payment of court fees. We do not intend to comment on the same as that would depend upon the rules framed by the High Court.
26. The next facet pertains to the impleadment of the Court or tribunal as a party. The special Bench has held that even if application is described as one not only under article 226 of the Constitution, but also under article 227, the Court or tribunal whose order is sought to be quashed, if not arrayed as a party, the application would not be maintainable as one of the relief of certiorari, in the absence of the concerned tribunal or Court as a party, cannot be granted. It has also been held that if the Court or tribunal has not been impleaded as party- respondent in the main writ petition, then by merely impleading such Court or tribunal for the first time in letters patent appeal would not change the nature and character of the proceeding before the learned Single Judge and, therefore, intra-court appeal would not be maintainable.
To arrive at the said conclusion, the High Court has referred to Messrs. Ghaio Mal & Sons v. State of Delhi and others, Hari Vishnu Kamath (supra) and relied upon a four-Judge Bench judgment in Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue.
"11. The writ for quashing is thus directed against a record, and as a record can be brought up only through human agency, it is issued to the person or authority whose decision is to be reviewed. If it is the record of the decision that has to be removed by 'certiorari', then the fact that the tribunal has become 'functus officio' subsequent to the decision could have no effect on the jurisdiction of the court to remove the record. If it is a question of issuing directions, it is conceivable that there should be in existence a person or authority to whom they could be issued, and when a 'certiorari' other than one to quash the decision is proposed to be issued, the fact that the tribunal has ceased to exist might operate as a bar to its issue. But if the true scope of 'certiorari' to quash is that it merely demolishes the offending order, the presence of the offender before the court, though proper, is not necessary for the exercise of the jurisdiction or to render its determination effective.
12. Learned counsel for the first respondent invites our attention to the form of the 'order nisi' in a writ of 'certiorari', and contends that as it requires the court or tribunal whose proceedings are to be reviewed, to transmit the records to the superior court, there is, if the tribunal has ceased to exist, none to whom the writ could be issued and none who could be compelled to produce the record. But then, if the writ is in reality directed against the record, there is no reason why it should not be issued to whosoever has the custody thereof. The following statement of the law in Ferris on the Law of Extraordinary Legal Remedies is apposite: "The writ is directed to the body or officer whose determination is to be reviewed, or to any other person having the custody of the record or other papers to be certified."
"... It is needless to say that the adoption of such dubious devices is not calculated to produce a favourable impression on the mind of the court as to the good faith of the authorities concerned in the matter. We must also point out that when a superior court issues a rule on an application for certiorari it is incumbent on the inferior court or the quasi-judicial body, to whom the rule is addressed, to produce the entire records before the court along with its return. The whole object of a writ of certiorari is to bring up the records of the inferior court or other quasi-judicial body for examination by the Superior Court so that the latter may be satisfied that the inferior court or the quasi-judicial body has not gone beyond its jurisdiction and has exercised its jurisdiction within the limits fixed by the law. Non-production of the records completely defeats the purpose for which such writs are issued, as it did in the present case before the High Court. We strongly deprecate this attempt on the part of the official respondents to bypass the court."
29. In Udit Narain Singh Malpaharia (supra), as the facts would demonstrate the counsel for the respondent therein raised a preliminary objection that the persons in whose favour the Board decided the petition had not been made parties before the High Court. Be it noted, in the said case a country liquor shop was settled in favour of the appellant therein. After expiry of the said licence, it was renewed in his favour in 1962 which was called in question by one Phudan Manjhi before the Deputy Commissioner for substituting his name in place of his father on the basis of the lot drawn in favour of his father.
The Deputy Commissioner rejected the same which was assailed by Phudan Manjhi before the Commissioner of Excise who remanded the case to the Deputy Commissioner to consider the fitness of Phudan Manjhi to get the license and to consider his claim on certain parameters. One Bhagwan Rajak, who was not an applicant before the Deputy Commissioner, filed an application before the Commissioner alleging that there should have been fresh advertisement for the settlement of the shop. The Commissioner allowed his application and directed the Deputy Commissioner to take steps for fresh settlement of the shop in accordance with the rules.
The said order was assailed before the Board of Revenue which dismissed the petition and directed that unless the Deputy Commissioner came to a definite conclusion that Phudan Manjhi was unfit to hold licence, he should be selected as a licensee in accordance with rules. As a result of the said proceedings, the appellant's licence stood cancelled and the Deputy Commissioner was directed to hold a fresh settlement giving preferential treatment to Phudan Manjhi.
A writ petition was filed under Article 226 of the Constitution before the High Court for quashment of the said orders and before the writ court neither Phudan Manjhi nor Bhagwan Rajak in whose favour the Board of Revenue had decided was made a party. During the pendency of an appeal before this Court, the Deputy Commissioner had conducted an enquiry and come to the conclusion that Phudan Manjhi was not fit to be selected for grant of licence and he was waiting for making a fresh settlement.
a writ of certiorari may issue."
It will be seen from the ingredients of judicial act that there must be a duty to act judicially. A tribunal, therefore, exercising a judicial or quasi-judicial act cannot decide against the rights of a party without giving him a hearing or an opportunity to represent his case in the manner known to law. If the provisions of a particular statute or rules made thereunder do not provide for it, principles of natural justice demand it. Any such order made without hearing the affected parties would be void. As a writ of certiorari will be granted to remove the record of proceedings of an inferior tribunal or authority exercising judicial or quasi-judicial acts, ex hypothhesi it follows that the High Court in exercising its jurisdiction shall also act judicially in disposing of the proceedings before it.
It is implicit in such a proceeding that a tribunal or authority which is directed to transmit the records must be a party in the writ proceedings, for, without giving notice to it, the record of proceedings cannot be brought to the High Court. It is said that in an appeal against the decree of a subordinate court, the court that passed the decree need not be made a party and on the same parity of reasoning it is contended that a tribunal need not also be made a party in a writ proceeding.
But there is an essential distinction between an appeal against a decree of a subordinate court and a writ of certiorari to quash the order of a tribunal or authority: in the former, the proceedings are regulated by the Code of Civil Procedure and the court making the order is directly subordinate to the appellate court and ordinarily acts within its bounds, though sometimes wrongly or even illegally, but in the case of the latter, a writ of certiorari is issued to quash the order of a tribunal which is ordinarily outside the appellate or revisional jurisdiction of the court and the order is set aside on the ground that the tribunal or authority acted without or in excess of jurisdiction.
"9. The next question is whether the parties whose rights are directly affected are the necessary parties to a writ petition to quash the order of a tribunal. As we have seen, a tribunal or authority performs a judicial or quasi-judicial act after hearing parties. Its order affects the right or rights of one or the other of the parties before it. In a writ of certiorari the defeated party seeks for the quashing of the order issued by the tribunal in favour of the successful party. How can the High Court vacate the said order without the successful party being before it?
Without the presence of the successful party the High Court cannot issue a substantial order affecting his right. Any order that may be issued behind the back of such a party can be ignored by the said party, with the result that the tribunal's order would be quashed but the right vested in that party by the wrong order of the tribunal would continue to be effective. Such a party, therefore, is a necessary party and a petition filed for the issue of a writ of certiorari without making him a party or without impleading him subsequently, if allowed by the court, would certainly be incompetent. A party whose interests are directly affected is, therefore, a necessary party.
"To summarise: in a writ of certiorari not only the tribunal or authority whose order is sought to be quashed but also parties in whose favour the said order is issued are necessary parties. But it is in the discretion of the court to add or implead proper parties for completely settling all the questions that may be involved in the controversy either suo motu or on the application of a party to the writ or an application filed at the instance of such proper party."
30. The High Court, as we find, relied on the aforesaid decision to form the foundation that unless a Court or a tribunal is made a party, the proceeding is not maintainable. What has been stated in Hari Vishnu Kamath (supra), which we have reproduced hereinbefore is that where plain question on issuing directions arises, it is conceivable that there should be in existence a person or authority to whom such directions could be issued. The suggestion that non-existence of a tribunal might operate as a bar to issue such directions is not correct as the true scope of certiorari is that it merely demolishes the offending order and hence, the presence of the offender before the Court, though proper is not necessary for the exercise of the jurisdiction or to render its determination effective.
31. In Udit Narain Singh (supra), the fulcrum of the controversy was non- impleadment of the persons in whose favour the Board of Revenue had passed a favourable order. There was violation of fundamental principles of natural justice. A party cannot be visited with any kind of adverse order in a proceeding without he being arrayed as a party. As we understand in Hari Vishnu Kamath (supra), the seven-Judge Bench opined that for issuance of writ of certiorari, a tribunal, for issue of purpose of calling of record, is a proper party, and even if the tribunal has ceased to exist, there would be some one incharge of the tribunal from whom the records can be requisitioned and who is bound in law to send the records.
The larger Bench has clearly stated that while issuing a writ of certiorari, the Court merely demolishes the defending order, the presence of the offender before the Court though proper but is not necessary for exercise of jurisdiction. The said finding was recorded in the context of a tribunal.
"Before parting with this case, it is necessary for us to point out one aspect of the matter which is rather disturbing. In the writ petition filed in the High Court as well as the special leave petition filed in this Court, the District Judge, Gorakhpur and the 4th Additional Civil Judge (Junior Division), Gorakhpur are shown as respondents and in the special leave petition, they are shown as contesting respondents.
There was no necessity [pic]for impleading the judicial officers who disposed of the matter in a civil proceeding when the writ petition was filed in the High Court; nor is there any justification for impleading them as parties in the special leave petition and describing them as contesting respondents. We do not approve of the course adopted by the petitioner which would cause unnecessary disturbance to the functions of the judicial officers concerned. They cannot be in any way equated to the officials of the Government. It is high time that the practice of impleading judicial officers disposing of civil proceedings as parties to writ petitions under Article 226 of the Constitution of India or special leave petitions under Article 136 of the Constitution of India was stopped. We are strongly deprecating such a practice."
33. The High Court after referring to the controversy involved in Savitri Devi (supra) has opined thus:- "In our opinion, the observations of the Supreme Court pertained to the judicial officers being made parties in the proceedings as against a person, authority or a State being made a party in a petition under Article 226 and a Court or a Tribunal not being so required in a petition under Article 227 of the Constitution of India."
After so stating, the High Court has proceeded to express the view that it is not a binding precedent and thereafter opined:- "We are of the opinion that although in Hari Vishnu Kamath (supra), the Supreme Court may have observed that the presence of the Tribunal would be proper yet may not be necessary for the exercise of the jurisdiction or to render its determination effective, but the said principle has been more elaborately explained and made clear by the Supreme Court in Udit Narain (supra) laying down as an absolute proposition of law that no writ could be issued under Article 226 of the Constitution without the Tribunal, whose order is sought to be impugned, is made a party respondent."
34. As we notice, the decisions rendered in Hari Vishnu Kamath (supra), Udit Narain Singh (supra) and Savitri Devi (supra) have to be properly understood. In Hari Vishnu Kamath (supra), the larger Bench was dealing with a case that arose from Election Tribunal which had ceased to exist and expressed the view how it is a proper party. In Udit Narain Singh (supra), the Court was really dwelling upon the controversy with regard to the impleadment of parties in whose favour orders had been passed and in that context observed that tribunal is a necessary party. In Savitri Devi (supra), the Court took exception to courts and tribunals being made parties.
It is apposite to note here that propositions laid down in each case has to be understood in proper perspective. Civil courts, which decide matters, are courts in the strictest sense of the term. Neither the court nor the Presiding Officer defends the order before the superior court it does not contest. If the High Court, in exercise of its writ jurisdiction or revisional jurisdiction, as the case may be, calls for the records, the same can always be called for by the High court without the Court or the Presiding Officer being impleaded as a party. Similarly, with the passage of time there have been many a tribunal which only adjudicate and they have nothing to do with the lis.
We may cite few examples; the tribunals constituted under the Administrative Tribunals Act, 1985, the Custom, Excise & Service Tax Appellate Tribunal, the Income Tax Appellate Tribunals, the Sales Tax Tribunal and such others. Every adjudicating authority may be nomenclatured as a tribunal but the said authority(ies) are different that pure and simple adjudicating authorities and that is why they are called the authorities. An Income Tax Commissioner, whatever rank he may be holding, when he adjudicates, he has to be made a party, for he can defend his order. He is entitled to contest. There are many authorities under many a statute.
Therefore, the proposition that can safely be culled out is that the authorities or the tribunals, who in law are entitled to defend the orders passed by them, are necessary parties and if they are not arrayed as parties, the writ petition can be treated to be not maintainable or the court may grant liberty to implead them as parties in exercise of its discretion. There are tribunals which are not at all required to defend their own order, and in that case such tribunals need not be arrayed as parties. To give another example:- in certain enactments, the District Judges function as Election Tribunals from whose orders a revision or a writ may lie depending upon the provisions in the Act.
In such a situation, the superior court, that is the High Court, even if required to call for the records, the District Judge need not be a party. Thus, in essence, when a tribunal or authority is required to defend its own order, it is to be made a party failing which the proceeding before the High Court would be regarded as not maintainable.
35. We have stated in the beginning that three issues arise despite the High Court framing number of issues and answering it at various levels. It is to be borne in mind how the jurisdiction under the letters patent appeal is to be exercised cannot exhaustively be stated. It will depend upon the Bench adjudicating the lis how it understands and appreciates the order passed by the learned Single Judge. There cannot be a straight-jacket formula for the same. Needless to say, the High Court while exercising jurisdiction under Article 227 of the Constitution has to be guided by the parameters laid down by this Court and some of the judgments that have been referred to in Radhey Shyam (supra).
(A) Whether a letters patent appeal would lie against the order passed by the learned Single Judge that has travelled to him from the other tribunals or authorities, would depend upon many a facet. The Court fee payable on a petition to make it under Article 226 or Article 227 or both, would depend upon the rules framed by the High Court.
(B) The order passed by the civil court is only amenable to be scrutinized by the High Court in exercise of jurisdiction under Article 227 of the Constitution of India which is different from Article 226 of the Constitution and as per the pronouncement in Radhey Shyam (supra), no writ can be issued against the order passed by the civil court and, therefore, no letters patent appeal would be maintainable.
(C) The writ petition can be held to be not maintainable if a tribunal or authority that is required to defend the impugned order has not been arrayed as a party, as it is a necessary party.
(D) Tribunal being or not being party in a writ petition is not determinative of the maintainability of a letters patent appeal.
37. Having recorded our conclusions in seriatim, we think it appropriate that the matters should be remanded to the High Court to be heard by the Division Bench in accordance with the principles laid down in this judgment and accordingly we so direct. Resultantly, with the modifications in the order of the High Court, the appeals stand disposed of. There shall be no order as to costs.

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An actionable qui tam lawsuit may arise out of noncompliance with federal law (Davis-Bacon Act and Service Contract Act) and state law.
The Davis-Bacon and Related Acts, apply to contractors and subcontractors performing on federally funded or assisted contracts in excess of $2,000 for the construction, alteration, or repair (including painting and decorating) of public buildings or public works. 40 U.S.C. § 3142(a). Davis-Bacon Act and Related Act contractors and subcontractors must pay their laborers and mechanics employed under the contract no less than the locally prevailing wages and fringe benefits for corresponding work on similar projects in the area. 40 U.S.C. § 3142(b). The Davis-Bacon Act directs the Department of Labor to determine such locally prevailing wage rates. 40 U.S.C. § 3142(b). The Davis-Bacon Act applies to contractors and subcontractors performing work on federal or District of Columbia contracts. 40 U.S.C. § 3142(a). The Davis-Bacon Act prevailing wage provisions apply to the “Related Acts,” under which federal agencies assist construction projects through grants, loans, loan guarantees, and insurance. See 29 CFR § 5.
The McNamara-O’Hara Service Contract Act requires contractors and subcontractors performing services on prime contracts in excess of $2,500 to pay service employees in various classes no less than the wage rates and fringe benefits found prevailing in the locality, or the rates (including prospective increases) contained in a predecessor contractor’s collective bargaining agreement. 41 U.S.C. § 351(a). The Department of Labor issues wage determinations on a contract-by-contract basis in response to specific requests from contracting agencies and these determinations are incorporated into the contract. 41 U.S.C. § 351(a).
For contracts equal to or less than $2,500, contractors are required to pay the federal minimum wage as provided in Section 6(a)(1) of the Fair Labor Standards Act. 41 U.S.C. § 351(b)(1).
Most States have Prevailing Wage Act claims.


Those fortunate enough to be acquainted with the work of Southern Catholic novelist Walker Percy might be surprised to learn that it was not for his novels that Percy thought he would be most remembered. It was rather for his “semiotics”: his philosophical and scientific work on man’s language and use of symbols, not only in mundane communication, but also in the most profound intellectual acts of comprehension that have as their object the deepest realities of the universe. At its most radical, Percy’s work on language and symbolism deals with the essential nature of the created human intellect’s ability to penetrate – in however limited a way – to the depths of metaphysical reality. It is due to the profound significance of this question for all of reality as man confronts it that Catholics recognize the second person of the Trinity as the Word of God, by Whom all things were made.
How much of the discussion of the Church’s attitude to “capitalism” depends upon what this “ism” means among those discussing it may be gathered from the radically different assessments made of it by many who, at bottom, actually seem to agree, notwithstanding their varying mode of expressing themselves. His Excellency signaled the problem, if tangentially, by saying, “In all discussions of ‘capitalism,’ it is crucial to define what one means by the word.” Contrary to these, however, who beneath apparent disagreement do in fact agree, are others who disagree not only about the words used to signify the reality, but also about the reality itself. It is therefore that third element of Percy’s triad – the reality that the sign used must signify – that we must discover vis-à-vis “capitalism,” in order to have in our possession both a yardstick with which to measure orthodoxy, and a scalpel with which to excise heterodoxy, so as to rectify our ideas about modern economic life. A rectification of thought that is an essential prerequisite, then, to doing what we ought.
In his characteristic way, Chesterton hit on both the problem of definition in general, and the definition of capitalism itself. The great English wit is worth quoting in full, for the light he sheds on the meaning of the vexing term and for the lightheartedness he brings to Percy’s not unimportant observations in the field of language study.
When I say “Capitalism,” I commonly mean something that may be stated thus: “That economic condition in which there is a class of capitalists, roughly recognizable and relatively small, in whose possession so much of the capital is concentrated as to necessitate a very large majority of the citizens serving those capitalists for a wage”. This particular state of things can and does exist, and we must have some word for it, and some way of discussing it. But this is undoubtedly a very bad word, because it is used by other people to mean quite other things. Some people seem to mean merely private property. Others suppose that Capitalism must mean anything involving the use of capital. But if that use is too literal, it is also too loose and even too large. If the use of capital is Capitalism, then everything is Capitalism. Bolshevism is Capitalism and anarchist communism is Capitalism; and every revolutionary scheme, however wild, is still Capitalism. Lenin and Trotsky believe as much as Lloyd George and Thomas that the economic operations of today must leave something over for the economic operations of tomorrow. And that is all that capital means in its economic sense. In that case, the word is useless. My use of it may be arbitrary, but it is not useless. If Capitalism means private property, I am capitalist. If Capitalism means capital, everybody is capitalist. But if Capitalism means this particular condition of capital, only paid out to the mass in the form of wages, then it does mean something, even if it ought to mean something else.
Nevertheless, how many commentators, looking at both QA and Leo XIII’s Rerum Novarum (RN), envision the Church to have in fact condemned “capitalism” by her pronouncements in both these encyclicals? Which means that these reliable thinkers certainly, and with good reason, believe that some thing signified by the term “capitalism” was indeed condemned, notwithstanding the “neutrality” of the system that Pius XI characterized as “not vicious of its very nature.” Msgr. Luigi Civardi, author of so many books on the Church’s social teaching and its salutary effect on the world, states plainly that RN “condemns the capitalistic system.”9 Bishop Emile Guerry for his part explained why “the Popes condemned liberal capitalism so severely” by saying that “the ‘social system’ itself [is condemned] where it is based on a concept of private ownership opposed to the community end assigned by God to the goods of the earth.”10 Amintore Fanfani, whose study of the “capitalist spirit” more than rivals the treatises of Weber and Tawney, declared that “there is an unbridgeable gulf between the Catholic and the capitalistic conception of life.”11 If, then, the neutral, almost “mechanical” system built on a division between labor and capital is not condemned by the Popes, what is it that they did condemn – and, more to the point, how does what they condemn relate to the thing, the third element of Percy’s triad, that most people mean when they say “capitalism”?
The careful reader will be ready to reply that all of the answers to the first part of our question are spelled out in precision and detail by Pius XI in QA, who, in exercising his ordinary magisterium, simply reiterated and more or less codified the common opinion both of his predecessors and of Catholic philosophical tradition. Condemned by the Pope is the social and moral philosophy that prevailed since the advent of industrialism, and which reigns still today (it is “an economic science alien to the true moral law” (QA §135; see also §§42, 43, 131)). Also condemned are the broader ideologies supporting rationalist economics (and highlighted by His Excellency at the beginning of his introduction): liberalism (§§14, 24, 26), individualism (§§46, 70, 89, 110), and materialism (§§120–1, 134). Condemned as well, at least implicitly, is the triumph of machine- and technology-worship, to the exclusion of the focus man should have on the “one thing necessary” and the other values that support such a focus (“dead matter leaves the factory ennobled and transformed, where men are corrupted and degraded”(§138)). Condemned, in the strongest terms, is limitless, free competition (§§89, 108–110), as is the resultant gross disequilibrium in the distribution of ownership (§§57, 60–63) and the massive concentration of wealth in the hands of a few (§106). Condemned is the anarchist conception of the state which refuses to sanction any enforcement of the moral law (§135). Resulting from these condemned principles and practices, furthermore, is a condemned economic life that is “hard, cruel, and relentless,” producing crying evils, and leading to economic imperialism and a “noxious and detestable internationalism...in financial affairs” (§§3–4, 102–110, 134–135, 137).
It will help us better appreciate what Pope Pius XI was driving at by concentrating upon what he advocated, in addition to and in light of what he condemned in his encyclical. For while he refrains from setting forth in detail a point-by-point program for social and economic restoration (indeed this is the task of the laity who collaborate to develop and implement a “truly Christian social science” and conduct specific activities “in accordance with Christian social doctrine”15), he clearly articulates the attributes of a sane and healthy social economy that serve as stars by which to navigate in our quest to understand – and then to implement – the principles of a socio-economic order worthy of Catholic men and families.
QA is frequently understood to be a restatement of the most well known and hardly controversial Catholic moral principles in the field of economic thought (such as the right of workingmen to a just or family wage; the right of both labor and capital to a proper share – but not to all – of profits; the need to steer social philosophy away from the twin errors of individualism and collectivism; plus the utter opposition of Catholicism to Socialist doctrine). It is that, of course, as His Excellency highlights in the introduction. But across the encyclical’s paragraphs, a careful reader will observe a vindication, sometimes subtle, sometimes not, of two key, indispensable principles of political economy that have been and remain dear to the hearts of Social Catholics of all generations, even if they are not declared in concise statements (e.g., “No one can be at the same time a sincere Catholic and a true Socialist”) that can be made almost platitudinous through repetition and without broader context. These two principles are: (1) the need, in a healthy and rightly ordered society, for a wide distribution of productive property, and (2) the importance of organizing economic activity in free “vocational groups” uniting the employers and employees of the various industries and professions.
The latter is perhaps less susceptible of rejection, insofar as it is so clearly stated. “The aim of social legislation must therefore be the re-establishment of vocational groups” (§84). It could not be more clear. Encompassed in an individual Guild or Corporation (yes, that’s what the Pontiff meant – for, following Leo XIII16 and St. Pius X,17 whose social teaching he declared in Ubi Arcano (UA) §60 to be in “full force” at the outset of his pontificate, he specifically laments the Guilds’ destruction at the hands of liberal individualism (§80)) will be both “employers and employees of one and the same group joining forces to produce goods or give service” (§85, emphasis mine), uniting not according to their status as supplier or procurer of labor (along familiar trades-union lines), but according to the functions they exercise in society (§84). Putting, as it were, the “crown” atop the corporative social order that he outlines in the paragraphs dealing with vocational groups, the Pope calls for the development of a true juridical order, with “social charity” as its “soul” and a State ready “to protect and defend it effectively” (§89). The sincerity of the Pope on this point was made only more obvious by his frank advocacy of Corporatism in Divini Redemptoris (§54), six years later.
As for the first of our two principles, it is capitulated in the declaration of Leo XIII in Rerum Novarum (the “Magna Charta,” according to Pius XI, “on which all Christian activities in social matters are ultimately based” (§38)): “The law, therefore, should favor ownership, and its policy should be to induce as many as possible of the people to become owners” (RN, §46). That Pius XI throughout QA reiterated his predecessor’s call for development of what Fr. McNabb termed the “ownership system,” in opposition to the then- and still-prevailing “wage system,” is clear on a number of counts. Let us look at these to ensure that there is no mistaking the point.
That Pius XI is referring, throughout QA, to productive property is clearly proven in three ways.
First, if one looks at the logical progression of the portion of QA dealing with property (§§44–66), the discussion of the right of ownership (§§44–53) appears as a preamble for the treatment of the distribution of both ownership and the products and income that are the fruit of the property owned. Now the type of property that, combined with labor, creates products and income is by definition, productive property. Furthermore, the discussion that takes place at §§56–66 regards the distribution of wealth and income derived from the very property whose ownership by private individuals was just defended in those preceding paragraphs. So in even just general terms, there is no doubt, based upon the structure and the “narrative” progression of this particular section of the encyclical, that the property that is the subject of discussion here is of the productive kind.
The commentary on the encyclical by Nell-Breuning,18 its drafter, confirms the point, by noting clearly that the discussion in these paragraphs deals with, among other things, whether ownership as such is a title to income from the property owned (which it is); the kind of property at issue, therefore, is productive.
Finally, §§53, 54, and 56 make explicit reference to property upon which labor is expended, whether that property is one’s own or that of one’s neighbor.19 One man might hire another to work his land or his machine to produce new wealth, but not to work his food, drink, and his furniture, which all serve merely to satisfy a need or a want. Furthermore, at §53 there is the possibility of “some new form or new value” being produced by the labor of a man who works “as his own master,” directly implying that his labor is applied to some land or capital, because it is only in this way that new wealth can be created by labor. The kind of property thus referred to is necessarily productive property. Indeed, no other interpretation of these passages is remotely possible, since the whole discussion ultimately addresses how to reconcile the competing claims of capital and labor to not just wealth in general but also to the products resulting from the combination of labor with that wealth. So the property in dispute is precisely that kind that can create new wealth when labor is applied to it: namely, productive property.
Having established that the ownership in question in QA §§44–66 is the ownership of productive property, we now look at the Pontiff’s treatment of the distribution of ownership (which follows its mere vindication as a right in itself), to show that he was indeed aiming for a better, more widespread distribution. We take the argument in five parts.
First, the Pope decries the present distribution of property between the two classes, those possessing capital, and those possessing mere labor. Insofar as we have established above that, in general, the property that Pius is referring to throughout this part of the encyclical must be of the productive kind, his condemnation of the present state of property distribution must deal essentially with that kind of property.
Following his warning that “not every kind of distribution of wealth and property amongst men is such that it can at all, and still less can adequately, attain the end intended by God” (§60), he goes on to denounce as a “grave evil” (§61) “the vast differences between the few who hold excessive wealth and the many who live in destitution” (§61). More stridently, he then declares that “the immense number of propertyless wage-earners on the one hand, and the superabundant riches of the fortunate few on the other, is an unanswerable argument that the earthly goods so abundantly produced in this age of industrialism are far from rightly distributed” (§63). By denouncing the present distribution of “earthly goods,” the Pope prepares the way for the solution he will propose in the paragraphs that follow, as we see below.
A close examination of the actual texts we have just cited, where the Pope demands the rectification of inequity in the distribution of income (irrespective of whether this rectification is a means or an end in itself – for arguably it is both), reveals that he also requires an adjustment to the inequity in the distribution of property in general.
For in §61, the Pontiff demands, yes, that each class “receive its due share” of profits, but he also maintains that in general – without reference only or specifically to income or the products of industry – “the distribution of created goods must be brought into conformity with the demands of the common good and social justice” (emphasis mine). The reference to social justice and the common good especially situates the Pope’s remarks within the framework of a discussion of that kind of property that provides people with a living, for it is the distribution of this productive property and how that distribution is handled in terms of a broad social institution – rather than just the availability of food and clothing to individuals or individual families – that is most bound up with the overall structure of society and the social order, and therefore properly discussed in terms of social justice and the common good.24 Two paragraphs later, the Pope contrasts, as we have seen, “the immense number of propertyless wage-earners on the one hand, and the superabundant riches of the fortunate few on the other” (§63), again without limiting his remarks only to income or products generated by the use of capital. Finally, in §64 the Pope expresses concern that without “efficacious remedies,” the “dispossessed laboring masses” in the newly capitalistic countries, along with the “immense army of hired rural laborers,” will remain “perpetually sunk in the proletarian condition” (emphasis mine).
Note the explicit reference to the propertylessness and “proletarian” status of wage-earners, propertylessnes that must refer to their non-ownership of productive property, and not their lack of the basic means of sustenance (i.e., property for consumption), which the Pope concedes elsewhere had been in certain areas mitigated and partially remedied since Leo XIII’s day. For it is the “condition” of not owning productive property that causes, as we have seen at §64, the “uncertainty” that is necessarily – the Pope almost offers a definition here – “the lot of the proletarian.” One has the sense here and elsewhere that the Pope means “proletarian” as an almost binary indicator of “status” (i.e., one is an owner or one is not), rather than simply as a descriptor of degree (i.e., that one doesn’t have enough material possessions, even if one has some).25 In fact this is the only way to read the Pope’s language, for no one could maintain that even the poorest of the “non-owning” masses did not possess some rags of clothing and some modest number of personal items. The point is, though, that this kind of ownership does not yield a living, while owning capital or land does so, when labor is applied to it. Confirming this interpretation is that fact that the Pope specifically calls, six years later, for efficacious methods to be applied to rectify the mal-distribution of property; he demands precisely that the methods adopted in furtherance of such an aim “will really affect those who actually possess more than their share of capital resources, and who continue to accumulate them to the grievous detriment of others” (DR §75, emphasis mine).
Now the need for a man who owns only labor to approach someone else who owns productive property, in order to seek employment and obtain income, arises precisely because the man does not own his own productive property. But, as we have already seen, the Pope specifically calls for ownership of property to be distributed among the class of laborers who presently do not own, even while he insists that “man is born to labor as the bird to fly” (§64).27 So he is aiming, at least in broad terms and to the extent feasible, at a re-union of work and property, of labor and ownership. Unless we are to believe – and this is both ludicrous, and distinctly refuted by §64 – that the Pope intends for the masses to come into ownership of proprietary and financial assets, such that they need not labor but can rather obtain income exclusively from property, the ideal envisioned, even though in the distance and a long ways off, must be the man who can apply labor “to his own property” (§56), as his own “master” (§53), so as to depend more upon himself and less upon the “uncertainty” (§64) of a wage built upon only the “alliance” (§56) between his toil and another’s property.
The small proprietor appears again at §72, where the Pope discusses the limits the capitalistic economy must observe in employing women and children. He rightly finds it “intolerable, and to be opposed with all Our strength,” that mothers of families be “forced to engage in gainful occupations outside the domestic walls to the neglect of their own proper cares and duties.” Now “gainful occupation” evokes employment for a wage, a necessity, as we have seen, principally for non-owning men and families. But Pius is far from condemning altogether the contribution of women and children to the home economy, just as he is far from condemning labor (even while he decries the proletarian status of the laborers). It is rather the homestead and the shop that are subtly offered as the ideal where “the rest of the family [can] contribute according to their power towards the common maintenance, as in the rural home or in the families of many artisans and small shopkeepers.” Here labor is joined to the family’s property, not to someone else’s. And again at §103 we find a reference, not to an individual, but to a whole social system that differs from that “in which were provided by different people the capital and labor jointly needed for production” (§101). As an example of this “[other] economic system” the Pope offers the peasant-owners, namely “the agricultural classes, who form the larger portion of the human family, and who find in their occupation the means of obtaining honestly and justly what is needful for their maintenance” (§103). And finally, when wrapping up a concluding section of the encyclical calling for a renewal of Christian principles and Christian charity, the Pontiff places before us a Model Who, though He spent His life “in labors” (§128), was not employed by the “Schwartz Lumber Conglomerate,” but Who had full share of ownership in “Joseph & Son, Proprietors”: namely, “Him Who, being in the form of God, chose to become a Carpenter among men, and to be known as the Son of a Carpenter” (§140).
If this all-too-familiar scene is not what Pius wishes to advocate in calling for wages high enough to support the family and its head, then we must return to the “rural home or…the families of many artisans and small shopkeepers,” specifically offered by the Pope as the example of a situation where the family does have a means of support beyond “the wage income of its father and head.” But the key here is the need for ownership of the property the family needs to generate an alternative “means” of support, and to enable its members to participate in the creation of wealth necessary for a life of modest material sufficiency and dignity.
Fifth, and finally: QA’s explicit references, in the area of distribution of property ownership, to the demands made by the predecessor of Pius XI and author of Rerum Novarum confirm beyond all doubt that family ownership of productive property is precisely is being advocated. Five times, over as many paragraphs, Pius XI refers specifically to what Leo XIII proposed as a way of both endorsing his own recommendations and vindicating and renewing Leo’s proposals. It is Leo XIII, says Pius, who urged “the uplifting of the proletariat” as the “necessary object of Our efforts” (§62). Leo’s injunctions “have lost none of their force or wisdom for our own age.” Pius XI’s calls, which we have just examined, that workingmen obtain an “ample sufficiency” so that they may rise out of their non-owning status; that they be “freed from….hand-to-mouth uncertainty which is the lot of the proletarian”; that they may be enabled to “support life’s changing fortunes” and pass on “some little provision for those whom they leave behind them” (§64); all of these are ideas that were “not merely suggested, but stated in frank and open terms” by Leo XIII. Finally, the Pope writes that the need for the “propertyless wage-earner…[to] acquire a certain moderate ownership” was “already declared by Us, following the footsteps of Our Predecessor” (§66).
And what were those footsteps that Pius intended to follow in?
One: The father of every family is enjoined in RN to “provide food and all necessaries for those whom he has begotten” and to enable them “who carry on, so to speak, and continue his personality, [to have] all that is needful to enable them to keep themselves decently from want and misery amid the uncertainties of this mortal life.” Fair enough. But how? “[I]n no other way,” says Leo XIII, “can a father effect this except by the ownership of productive property, which he can transmit to his children by inheritance” (RN §13, emphasis mine).30 Note the explicit parallel between this and Pius’s concern for what a workingman needs to pass on to his family.
If a workman’s wages be sufficient to enable him comfortably to support himself, his wife, and his children, he will find it easy, if he be a sensible man, to practice thrift, and he will not fail, by cutting down expenses, to put by some little savings and thus secure a modest source of income. Nature itself would urge him to this. We have seen that this great labor question cannot be solved save by assuming as a principle that private ownership must be held sacred and inviolable. The law, therefore, should favor ownership, and its policy should be to induce as many as possible of the people to become owners (RN §46, emphasis mine).
Many excellent results will follow from this; and, first of all, property will certainly become more equitably divided. For, the result of civil change and revolution has been to divide cities into two classes separated by a wide chasm. On the one side there is the party which holds power because it holds wealth; which has in its grasp the whole of labor and trade; which manipulates for its own benefit and its own purposes all the sources of supply, and which is not without influence even in the administration of the commonwealth. On the other side there is the needy and powerless multitude, sick and sore in spirit and ever ready for disturbance. If working people can be encouraged to look forward to obtaining a share in the land, the consequence will be that the gulf between vast wealth and sheer poverty will be bridged over, and the respective classes will be brought nearer to one another (RN §47, emphasis mine).
The second point, relating to what Pius XII calls “the insistent call of the two Pontiffs of the social Encyclicals,”34 deals with the family’s plot of land – the smallholding – as that which nearest approximates to the ideal form of productive property possessed by the family, necessary for safeguarding its liberty to pursue and fulfill its economic, social, moral, and spiritual duties: “Of all the goods that can be the object of private property, none is more conformable to nature, according to the teaching of Rerum Novarum, than the land, the holding on which the family lives, and from the products of which it draws all of part of its subsistence.”35 The successor of Pius XI goes to far as to state, “in the spirit of Rerum Novarum,” that “as a rule, only that stability which is rooted in one’s own holding makes of the family the vital and most perfect and fecund cell of society....”36 Leo XIII’s demand that individuals be enabled to look forward to obtaining “a share in the land,” and Pius XI’s allusion to it, give substance to the continuity of aim that animates Catholic teaching on this point and inspired Pius XII’s confirmation of it, enabling us, in hindsight, to establish with precision the content of Quadragesimo Anno in this regard.
There is much more to Pius XI’s monumental social encyclical than its take on capitalism, work, and property, as His Excellency rightly highlights. But perhaps for the needs of our time these aspects are properly emphasized. With QA as our guide, we can think with the Church about that “thing” that moderns mean when they say “capitalism,” while we worry less about the label. We will support the idea of a Guild System, so clearly promoted in this and other social encyclicals. And we will work to foster as best we can in our own little circles, in our own families, at least, if not elsewhere, a wider distribution of ownership of productive property, striving both to see and to realize the ideal re-integration of work and property, where a man’s labor – which is obligatory on most all of us – is combined with his property rather than someone else’s. Let us become, with the doctrine of the Popes to inspire us, the peasant proprietors; the independent tradesman; the employee-owners; the self-employed entrepreneurs of a resurgent Christendom.
Given the outlook of Pope Pius XI on this question, it would not be gratuitous to see in his encyclical a word of encouragement for the Distributists (whose land movement he lauded as a “most praiseworthy enterprise” in a letter from then Cardinal Pacelli), the Corporatists, the Solidarists, and so many others of Social Catholic conviction who sought to understand the role of private ownership of productive property in society, to clarify it, and to mark its duties and limitations in view of the common good of society. “Most helpful therefore and worthy of all praise,” the Pope writes, “are the efforts of those who, in a spirit of harmony and with due regard for the traditions of the Church, seek to determine the precise nature of these duties, and to define the boundaries imposed by the requirements of social life upon the right of ownership itself or upon its use” (§48).
Of course no one would have the parochial temerity to call Pius XI a “Distributist.” Nevertheless, he laments the mal-distribution of productive property; defends its private ownership so far as to wish that more people had it; sees the solution to the plight of the employed masses in wage-earner “ownership”; insists that the right of property must conform to the needs of the common good, and must therefore be subject to regulation by the public authority in its interest (§§49–50); and expects, finally, that after following his program “the production and acquisition of goods [and] the use of wealth…will within a short time be brought back again to the standards of equity and just distribution” (§139, emphasis mine). So what, then, would we call him, especially in light of his principled, if unintentional, sanction of the outline for reform offered some years later by an English historian in a little essay called Restoration of Property?
Meanwhile, let Pius rouse our spirits for the battle ahead with the closing thoughts of QA. We must avoid, he says, as “valiant soldiers of Christ” who are ready to “strain every thew and sinew” (§148), modernism of the moral, social, and juridical kind (§46),37 lest we fall victim to a schizophrenia that cuts off social thought and public life from day-to-day Catholic duty, prayer, and worship – a “cleavage” in the conscience later condemned by the Pope as “a scandal to the weak, and to the malicious a pretext to discredit the Church” (DR, §55). Instead, we will reach outside our ramparts and invite the cooperation of all men of good will to apply Catholic principles (§98), adapting to modern needs the unchanging and unchangeable doctrine of the Church (§19). We will develop and thrust into public view a truly Christian social science (§20), and convince well-intentioned but erroneous social reformers that their just demands are more cogently defended by the Church and promoted by Christian charity (§118). We will avoid contributing to the calumny that the Church is on the side of the rich (§§44, 127) by ignoring her social teaching or, worse, by hiding immoral economic practice under her name.38 And, finally, because “nowadays the conditions of social and economic life are such that vast multitudes of men can only with great difficulty pay attention to…their eternal salvation” (§132), we endeavor “unremittingly” to reform society according to the mind of the Church (§128), imitating and attaining to the marvelous unity of the divine plan, which “the Church preaches” and “right reason demands” (§139).
As for the “final say” on work and property, perhaps we may be permitted to see in the words of the Carpenter of Nazareth regarding Holy Matrimony a lesson that is instructive here as well: “What therefore God hath joined together, let no man put asunder” (St. Matt. xix:6).