top of page

The power of a High court:- Transfer cases U/A 228

Updated: Sep 13, 2022

The power of a High court to transfer cases under Article 228

Before any High Court can exercise its powers of transfer under

Article 228".

A suit or case must be actually pending in a court subordinate to the High Court No one can more the High Court under Article 228 stating that such a suit or case in intended to be filed, It must be actually filed and must be pending. If it has been dismissed or disposed of already, Article 228, will not apply. there major conditions must exist, they are : The High Court must be satisfied that it involves a substantial question of law as he interpretation of the constitution. It should really involve such a question. A merTrivolous allegation that such a question is involved will not do. S) The High Court must be satisfied that determination of that questions necessary fo ne disposal of the case. If the suit can be disposed of on the other questions raised (ike limitation, non maintainability by a single person when a representative suit has to be filed under the law etc.. Article 228 w not apply. Usually the High Court will not act till this point is Clear, and will wait act at once. (Ramaswami Ambalom Vs. Madars Hindu Religious Endowments Boards, (1951) M. L. J. 115

"Original jurisdiction of the Supreme Court".

Originanal Jurisdiction of the Supreme Court - The supreme court of India shall have exclusive original jurisdiction in any dispute –

1) between the Government of India and one or more states or;

2) between the Government of India and any state or states on one side and one or more states on the other; or

3) between two or more states.

The dispute must relate to some justiciable right. i.e. dispute must involve a matter of legal right. The constitution, however, excludes from the original jurisdiction any dispute - a) arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which, having been entered into or executed before the commencement of the constitution continues in operation after such commencement; or b) which provides that the said jurisdiction should not extend to such a dispute.

(Article 131). Appellate jurisdiction of the Supreme Court constitutional cases – An appeal shall lie to the Supreme Court, from any judgement, decree or final order of a High court in the territory of India whether in a civil, criminal or other proceeding, if the High court certifies under Article 134-A that the case involves a substantial question of law as to the interpretation of the constitution. (Article 132).

"Prohibition and certiorari".

Prohibition and Certiorari - The writs in the nature of prohibition and certiorari are issued to an authority acting in a judicial capacity. An order in the nature of prohibition is a judicial writ, issued by a superior court to an inferior court, preventing the latter from usurping the jurisdiction which is not legally vested in it, compelling it to keep within the limits of its jurisdiction and forbidding it to continue proceedings which are in excess of its jurisdiction or which are in contravention of the law. "Prohibition is a writ issuing out of the High court of Justice and directed to an inferior court which forbids such court to continue proceedings therein in excess of its jurisdiction or in contravention of the law of the land. An order in the nature of certiorani requires the record of the orders of the court al to be sent up to the court issuing the writ to have Its legality enquired into 64 and if necessary to have the order passed. Tre writ of certiorari is defined as the writ which "issues out of a superior court di je directed to the judge or other officer of an inferior court of record, It requires that the record of the proceedings in some cause or matter pending before such inferior ut shall be transferred to the superior court shall be transterred to the superior Coun to be there dealt with in order to ensure that the applicant for the writ may have a more sure and speedy justice".

"Writs and Habeus Corpus".

Writs - Under Article 32 of the constitution the Supreme Court and under Article 226 of the constitution the High court have power to issue direction or orders or wirts. including writs in the nature of habeas corpus, mandamus, prohibition, quo- warranto and certiorari whichever may be appropriate for the enforcement of any of the rights conferred by Part III of the constitution.

Habeas Corpus - "have the body" a writ issued to a goaler, requiring him to bring a prisoner into court. The High Courts under Article 226, and the supreme court under Article 32, are empowered to issue "Writ of Habeas Corpus" a writ issued by a judge required an imprisoned person to be brought to a stated place at a stated time, usually to a court, for the legality of his imprisonment to be examined. (habeas corpus = have the body). The writ of "habeas corpus" is an order issued by the court calling upon the detainee to bring the detenue before the court and state the grounds for detention of the prisoner, and if no legal justification is shown the detenue is released forthwith.


Quo-Warranto - A prerogative writ which can be granted by the Supreme Court and High Courts in India to inquire from the other party by what authority he claimed or usurped the office, franchise or liberty in order to determine the right. (Article 32 and 226 of the constitution of India, 1950). Quo-Warranto proceeding confers jurisdiction. and authority on the judiciary to control executive action in the matter of appointments to public office against the relevant statutory provision; it also protects a citizen from being deprived of public office to which he may have a right. It affords a judicial enquiry in which any person holding any independent substantive public office or franchise or liberty is called upon to show by what right he holds it. If the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of "quo-warranto"ousts him from that office.


Mandamus - official or some corporation carrying on official functions, commanding the performance of a public duty. The pre-emptory commands the act without qualification and disobedience in a contempt. The alternative writ requires the doing of the act or some justification before the court of the failure to do it. A prerogative writ issued by a higher court directed to some It is a high prerogative writ in the nature of a command requiring any specific act to be done or forborne by any person holding a public office, whether of a permanent or temporary nature, or by a corporation or inferior court of jurisidiction. Mandamus is ordinarily issued against a public authority and not against a private body or statutory duty in the performance of which the petitioner has legal interest.

bottom of page