Kanhaiyyalal Fattelalji ... vs Mahavir Tea Company And Ors.
2007 Latest Caselaw 105 Bom

JUDGMENT

D.D. Sinha, J.

1. Admit. Heard finally by consent of Shri Bhangde, learned Senior Counsel for the appellant, Shri Purohit, learned Counsel for the respondent Nos. 1 to 4, and Shri Fulzele, learned Assistant Government Pleader for the respondent No. 5.

2. The Letters Patent Appeal is preferred by the landlord against the judgment dated 1-2-2006 passed by the learned Single Judge whereby writ petition filed by the respondent Nos. 1 to 4 (tenants) was allowed and order dated 30-4-2001 passed by the Additional Collector, Nagpur as well as order dated 30-10-1998 passed by the Rent Controller, Nagpur were quashed and set aside and fhe matter was remitted to the Rent Controller for reconsideration for grant of permission to landlord to issue quit notice except under Clause 13(3)(v) of the C. P. and Berar Letting of Premises and Rent Control Order, 1949 with a direction to decide the same within a period of nine months from the date of communication of the order of the learned Single Judge.

3. Shri Purohit, learned Counsel for the respondent Nos. 1 to 4, raised a preliminary objection about maintainability of the Letters Patent Appeal. It was contended that though the petition was filed under Articles 226 and 227 of the Constitution of India by the respondent Nos. 1 to 4, however, in substance it was a petition under Article 227 of the Constitution only. It was submitted that perusal of the judgment of the learned Single Judge shows that the learned Single Judge has exercised jurisdiction under Article 227 of the Constitution while setting aside orders passed by the Rent Controller as well as lower appellate Authority. It was further submitted that it is not in dispute that the Rent Controller acts as a Court, which is subordinate to the High Court and, therefore, jurisdictional error occasioned due to failure to exercise the same by the Rent Controller as well as lower Appellate Authority can be corrected by the learned Single Judge in exercise of jurisdiction under Article 227 of the Constitution. In the instant case, learned Single Judge has held that evidence, which was adduced by the parties and available on record has not been properly considered by the Rent Controller as well as lower appellate Authority and, therefore, they failed to exercise jurisdiction available to them. The learned Single Judge, therefore, remanded the matter back to the Rent Controller for fresh consideration and decision in the light of the observations made by the learned Single Judge in the impugned judgment. It was, therefore, contended that since impugned judgment passed by the learned Single Judge is under Article 227 of the Constitution, the Letters Patent Appeal is not maintainable. In order to substantiate the contentions, reliance is placed on the decisions of the Apex Court in Surya Dev Rai v. Ram Chander Rai and Ors. and Kondiba Dhondiba Dalvi since deceased by his L.Rs. Smt. Chandrabhagabai Kondiba Dalvi and Ors. v. Narayan Namdeo Nanware .

4. Shri Bhangde, learned Senior Counsel for the appellant, contended that writ petition was filed by the respondent Nos. 1 to 4 under Articles 226 and 227 of the Constitution. It was submitted that though petition was filed under both Articles 226 and 227 of the Constitution, however, in substance, it was a petition under Article 226 of the Constitution and the jurisdiction exercised by the learned Single Judge was also under Article 226 of the Constitution only and hence, the Letters Patent Appeal is maintainable. It was contended that in practice, the parameters for exercising jurisdiction to issue a writ of certiorari under Article 226 and exercising supervisory jurisdiction under Article 227 are almost similar and, therefore, distinction between two jurisdictions stands almost obliterated in practice and hence, preliminary objection raised by the respondent Nos. 1 to 4 about maintainability of the Letters Patent Appeal is not sustainable in law. In order to substantiate the contentions, reliance is placed on the decisions of the Apex Court in Mangalbhai and Ors. v. Dr. Radhyshyam and Kishorilal v. Sales Officer, District Land Development Bank and Ors. (2006) 7 SCC 496.

5. We have considered the contentions canvassed by the learned Counsel for the parties and perused the impugned judgment passed by the learned Single Judge. In the instant appeal, judgment of the learned Single Judge, which is impugned, is passed in the writ petition filed under Articles 226 and 227 of the Constitution and, therefore, merely because the petition was titled as one under Articles 226 and 227 of the Constitution, whether such petition should be treated to be one under Article 226 of the Constitution only ? In our view, mere mention of Article 226 of the Constitution will not make an appeal maintainable under Clause 15 of the letters patent, if in substance the jurisdiction exercised by the learned Single Judge was the supervisory jurisdiction under Article 227 of the Constitution.

6. The Apex Court in para (24) of its judgment in the case of Surya Dev Rai (cited supra) has elaborated difference between a writ of certiorari under Article 226 of the Constitution and supervisory jurisdiction of the Court under Article 227 of the Constitution and observed thus:

The difference between Articles 226 and 227 of the Constitution was well brought out in Umaji Keshao Meshram and Ors. v. Smt. Radhikabai and Anr. (1986) Supp SCC 401. Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this Article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.

The above referred observations make it implicitly clear that under Article 226 of the Constitution, jurisdiction exercised by this Court while issuing writ of certiorari is the original jurisdiction whereas when power is exercised by this Court to correct the jurisdictional error, such as lower Court/Tribunal assumed jurisdiction, which is not vested, failure to exercise jurisdiction, which is vested, resulting in failure of justice or jurisdiction though available is being exercised in a manner, which tantamounts to overstepping the limits of jurisdiction, it is always under supervisory jurisdiction under Article 227 of the Constitution. It is no doubt true that the Apex Court in para (25) of its judgment in the case of Surya Dev Rai (cited supra) has held that distinction between these two jurisdictions stands almost obliterated in practice and, therefore, it has become customary with the Lawyers labelling their petitions as one under Articles 226 and 227 of the Constitution. However, the Apex Court has also observed in the said paragraph that such practice has been deprecated in some judicial pronouncements and in para (38) has observed thus:

Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:

(1) Amendment by Act No. 46 of 1999 with effect from 1-7-2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate court is found to have acted (i) without jurisdiction -- by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step into exercise its supervisory jurisdiction.

The observations of the Apex Court in sub-paras (5) to (8) of para (38) are not relevant for the controversy in issue. The observations of the Apex Court in sub-para (9) of para (38) are relevant for the controversy in issue and are as follows:

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the Act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.

7. It is, therefore, evident that the original jurisdiction of the High Court under Article 226 of the Constitution while issuing a writ of certiorari is distinct from the supervisory jurisdiction exercised under Article 227 of the Constitution. It is no doubt true that though it seems that the distinction between two jurisdictions stands almost obliterated in practice, however, nature of jurisdiction this Court exercises under these two Articles is quite distinct and different, although may be for correcting the jurisdictional error. We cannot ignore history and background in which supervisory jurisdiction of the High Court came into existence. Section 15 of the High Court Act of 1961 gave a power of judicial superintendence to the High Court apart from revisional jurisdiction. Section 7 of the Government of India Act, 1919 as well as Section 224 of the Government of India Act, 1935 were similarly worded. However, Sub-section (2) was added in Section 224, which confined the jurisdiction of the High Court to judgments of the inferior Courts, which were not otherwise subject to appeal or revision. That restriction has not been carried forward in Article 227 of the Constitution. It is no doubt true that original jurisdiction under Article 226 or supervisory jurisdiction under Article 227 of the Constitution of the High Court is unfettered and may be invoked for correcting the jurisdictional error. However, their areas of operation are distinct and separate and it is the tenor of the order passed by the learned Single Judge coupled with pleadings in the petition and contentions raised therein, which would decide whether jurisdiction exercised by the learned Single Judge was under Article 226 or Article 227 of the Constitution. Similarly, jurisdictional errors resulting in failure of justice committed by the subordinate Courts or Tribunals while passing orders and since such Courts and Tribunals are subordinate to the High Court and, therefore, subject to supervisory jurisdiction of this Court under Article 227 of the Constitution and since this Court is conferred with power to correct such jurisdictional errors in exercise of power under Article 227, there is no reason, in such situation, to have a resort to the original jurisdiction vested in the High Court under Article 226, which may be exercised by the High Court for correcting the jurisdictional errors caused by the Authorities, which are not subordinate to the High Court.

8. It is well settled that in exercise of original jurisdiction, this Court can issue writ of certiorari and set aside the orders or proceedings of the subordinate Courts. It is equally well settled that while doing so, this Court cannot substitute its own decision in place thereof, whereas in exercise of supervisory jurisdiction under Article 227 of the Constitution, this Court is not only entitled to set aside the order passed by the Court or Tribunal below and can correct the jurisdictional error, but is also legally entitled to give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter. Under Article 227, this Court in an appropriate case, is also entitled to make an order in supersession or substitution of the order of the subordinate Court. Filing of the writ petition under Articles 226 and 227 of the Constitution by itself would not determine that the order passed by the learned Single Judge is under Article 226 of the Constitution unless in substance the pleadings, reliefs claimed and jurisdiction invoked show that it was under Article 226 of the Constitution. Similarly, tenor of the order passed by the learned Single Judge also renders active assistance to determine whether jurisdiction exercised by the learned Single Judge was under either Article 226 or Article 227 of the Constitution.

9. Article 227 of the Constitution confers on every High Court special power and responsibility over all subordinate Courts and Tribunals within its territorial jurisdiction, with the object of securing that all such Institutions exercise their powers and discharge their duties properly and in accordance with law. The power conferred by this Article on every High Court is unlimited and unfettered. There are no limits or restrictions placed on the power of superintendence and looking to the nature of power conferred on the High Court under Article 227, the High Court is armed with a weapon, which could be used for the purpose of seeing that justice is meted out fairly and properly by the Courts and Tribunals, which are subordinate to the High Court. Thus, the supervisory jurisdiction of this Court under Article 227 extends to keeping all subordinate Courts and Tribunals within the limit of their authority and to ensure that they obey the law. In other words, the jurisdiction vested in this Court under Article 227 is to ensure that the judicial or quasi-judicial Tribunals do not exercise their powers in excess of their statutory jurisdiction and correctly administer the law by exercising power within their jurisdiction. However, the power of superintendence conferred on the High Court extends only over Courts and Tribunals throughout the territories in relation to which High Court exercises jurisdiction.

10. It is no doubt true that in exercising supervisory power, the High Court does not act as a Court of appeal. However, exercise of power under this Article involves a duty to keep inferior Courts and Tribunals within the bounds of their authority and to see that they do duty expected or required by them in legal manner. The exercise of this power and interfering with the orders of the Courts or Tribunals is restricted to the case of grave injustice, failure of justice and Court or Tribunal has assumed jurisdiction, which it does not have or has failed to exercise jurisdiction, which it has as well as in case of jurisdiction though available is being exercised in a manner, which tantamounts to overstepping the limits of jurisdiction as has been held by the Apex Court. It is well settled that in exercise of jurisdiction under Article 227 of the Constitution, the High Court can set aside or ignore findings of facts of the inferior Court or Tribunal, if there is no evidence to justify such conclusion or if no reasonable person would possibly have come to the conclusion, which the Court or Tribunal has come to or it is a finding, which is perverse in law. In the instant case, the relevant observations of the learned Single Judge in para (12) of the impugned judgment read thus:

12. In this background when the respondent No. 2 landlord approached the authority with specific case that area in his possession is only 550 sq. feet on mezzanine floor, the Rent Controller or the Appellate Authority ought to have looked into this entire evidence which has come on record to find out what is the correct area in occupation of respondent No. 2 landlord. Neither the Rent Controller nor the Appellate Authority have looked into these aspects of the matter. The evidence was led by parties and was available on record and its non-consideration therefore constitutes failure to exercise the jurisdiction. It was essential for them to comment upon propriety or otherwise of the said evidence or its correctness or the errors therein. But that has not been done by any of the Authorities. I, therefore, find that the Rent Controller as also the Appellate Authority have failed to exercise the jurisdiction available to them in this respect and consequently their orders are unsustainable.

Similarly, in para (16) of the impugned judgment, the learned Single Judge has observed as under:

16. Thus, I find that the authorities below have not correctly appreciated facts available on record and there is, therefore, corresponding failure to exercise jurisdiction. The impugned order dated 30-4-2001 passed by respondent No. 1 Additional Collector and the order dated 30-10-1998 passed by Rent Controller, Nagpur are therefore quashed and set aside. The proceedings in Rent Control Case No. 849/A-71(2)/1988-89 are restored back to the file of Rent Controller excepting the case under Clause 13(3)(v). As the proceedings are very old, the Rent Controller is directed to decide the same afresh as early as possible and in any case within a period of nine months from the date of communication of this order to it. The parties are at liberty to amend their respective pleas in order to point out subsequent events, if relevant in this respect. Parties to appear before the Rent Controller on 20th February, 2006.

Looking to the pleadings, points raised, contentions canvassed and prayers made in the writ petition as well as tenor of the impugned judgment of the learned Single Judge, it is implicitly clear that same is passed to correct the jurisdictional error committed by the Court subordinate to the High Court and has resulted in failure of justice. In such situation, looking to the observations made and directions given by the learned Single Judge in the impugned judgment, we are of the view that the jurisdiction invoked by the petitioner and exercised by the learned Single Judge is under Article 227 of the Constitution and not the original jurisdiction under Article 226 of the Constitution though petition was filed under both these Articles and as can be seen in view of law laid down by the Apex Court in the case of Surya Dev Rai (cited supra).

11. We cannot turn the nelson's eye in regard to the concept of supervisory jurisdiction vested in this Court under Article 227 of the Constitution as well as contingencies warranting exercise of such jurisdiction by this Court. In the instant case, learned Single Judge not only set aside the order of the subordinate Courts/Tribunals, but also remanded matter back to the Rent Controller for reconsideration and the Rent Controller is expected to do so in the light of the observations made by the learned Single Judge in the impugned judgment. It is, therefore, not a case where orders passed by the Courts below are quashed and set aside simpliciter.

12. The Division Bench of this Court in para (9) of its judgment in the case of Kondiba Dhondiba Dalvi since deceased by his L.Rs. Smt. Chandrabhagabai Kondiba Dalvi and Ors. (cited supra) has observed thus:

9. The Division Bench not only considered the Full Bench Judgment in the case of Jagdish Balwantrao Abhyankar, but the Apex Court judgment in Umaji's case and other cases decided by the Apex Court and observed in paras 25 and 26 as under:

25. On a careful consideration of the above decisions of the Apex Court and of this Court, it is clear that if the Single Judge has exercised jurisdiction under Article 226, a L.P.A. is clearly maintainable under Clause 15. If the order passed by the Single Judge is only under Article 227, then a L.P.A. is not maintainable in view of the exclusion under Clause 15 viz. no appeal being maintainable against the order passed in exercise of the powers of superintendence under the provisions of Section 107 of the Government of India Act, 1935 (which was similar to Article 227). The approach of the Court has been to find out whether the facts justify the filing of the petition under Article 226 or Article 227. The words 'facts justify' have been used by the Apex Court in para 106 of its judgment in Umaji's case.

26. In our view, the following tests can be applied to come to the conclusion whether the facts justify the filing of a petition either under Article 226 or Article 227 of the Constitution.

(i) The first and foremost test that must be applied is the pleadings in the writ petition. This is clear from the observations of the Apex Court in Mangalbhai's case where in paragraph 6 of the judgment, the Apex Court has observed that where in the totality of facts and circumstances of the case, the pleadings of the parties in the writ petition and the judgment of the Single Judge leaves no manner of doubt that it was an order passed under Article 226, a L.P.A. would be maintainable. Similar observations are to be found in Sushilabai's case where a reference is made in para 3 of the judgment to the grounds taken in writ petition, if unmistakably go to show that it was a petition under Article 226, the L.P.A. would be maintainable.

(ii) The second test would be the approach and the observations of the Single Judge as to whether he was exercising the powers under Article 226 or Article 227. The Apex Court held this in para 6 of its judgment in Mangalbhai's case and similar observations are to be found in Sushilabai's case in paras 3 and 4 of the judgment.

(iii) The third factor which is relevant is whether the person, authority or State against whom a writ is sought, was made a party which is the requirement of a petition under Article 226, unlike a petition under Article 227 where the Court or Tribunal is not required to be made a party. This test emerges from the observations of the Apex Court in Umaji 's case. We must hasten to add that, recently, in the case of Savitridevi v. The District Judge, Gorakhpur, the Apex Court has disapproved the practice of the judicial officers being shown as respondents in the petitions filed in the High Court and Special Leave Petitions filed in the Apex Court. The observations pertain to the judicial officers being made parties in proceedings as against a person, authority or a State being required to be 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.

(iv) The fourth factor would be the relief prayed for in the petition. Where the relief prayed for is for issuance of a writ in the nature of habeas corpus or mandamus or quo warranto or prohibition or certiorari, such writs would normally be issued in exercise of powers under Article 226 where such writs are directed against the person, authority and State. Where, however, the reliefs prayed for are in exercise of powers of superintendence conferred upon every High Court by Article 227 which is a supervisory jurisdiction intended to ensure that subordinate Courts and Tribunals act within the limits of their authority and according to law, the exercise of jurisdiction would be under Article 227. This test merges from the observations made in para 99 of the judgment in Umaji's case.

(v) The fifth factor is whether the jurisdiction invoked in the petition irrespective of the label mentioned in the title of the petition was primarily of original nature in which case it would be a petition under Article 226 or whether it was invoked in the nature of supervisory jurisdiction, in which case it would be under Article 227. The observations to this effect are found in para 100 of the judgment in Umaji's case reproduced above, where there is a reference to some Privy Council decisions.

(vi) The sixth test to be applied would be the real nature of the order passed by the Single Judge. Where substantial part of the order is under Article 226, the mere fact that, in the final order, the Court gives ancillary directions which may pertain to Article 227, ought not to deprive the party of a right of an appeal under Clause 15 of the Letters Patent. This test emerges from para 106 of the judgment in Umaji 's case. It is reiterated by the Apex Court in the case of Ratnagiri District Central Co-operative Bank (supra).

The Division Bench of this Court in para (13) of the above referred judgment has finally concluded the issue by observing thus:

13) If the tests laid down by the Division Bench as mentioned above are taken into consideration, it is clear from the facts, totality of the circumstances and the pleadings, it was clearly a petition under Article 227 of the Constitution of India. Further, the approach and the observations made by the learned Single Judge and considering the contentions raised before him and prayer made show that he was asked to exercise the Supervisory Jurisdiction under Article 227 of the Constitution of India. The real nature of the prayer made and the order passed go to show that the High Court was asked to exercise supervisory jurisdiction under Article 227 over the subordinate Courts. It is clear from the tests mentioned above that one cannot merely go by the title of the petition or the Article mentioned in prayer clause. One has to take into consideration all the facts, totality of the circumstances and the pleadings and to find out what jurisdiction was invoked of the High Court. Taking into consideration the same, we are of the opinion that the High Court was, in fact, called upon to exercise the jurisdiction under Article 227 of the Constitution of India and it was so exercised same.

While applying the said analogy to the facts, pleadings, prayer clauses of writ petition and contentions canvassed before the learned Single Judge, we have no hesitation to hold that the jurisdiction invoked by the petitioner in the writ petition was undoubtedly supervisory jurisdiction under Article 227 of the Constitution and tenor of the judgment passed by the learned Single Judge further confirms that jurisdiction exercised by the learned Single Judge was not the original jurisdiction under Article 226, but one under Article 227 of the Constitution.

13. Insofar as judgment of the Apex Court in the case of Mangalbhai and Ors. (cited supra) is concerned, the observations made by the Apex Court in para (6) make it implicitly clear that the Apex Court on the basis of totality of the facts and circumstances, pleadings of the parties in the said writ petition and tenor of the judgment delivered by the learned Single Judge held that in such situation, it leaves no manner of doubt that the order passed by the learned Single Judge in writ petition was under Article 226 of the Constitution. However, in view of peculiar facts and circumstances of the present case, tenor of the judgment passed by the learned Single Judge, pleadings and prayers made in the petition and the law laid down by the Apex Court in the case of Surya Dev Rai (cited supra), the decision of the Apex Court in the case of Mangalbhai and Ors. (cited supra) does not help the appellant.

14. Similarly, so far as the case of Kishorilal (cited supra) is concerned, the observations made by the Apex Court in its judgment show that the Letters Patent Appeal was held to be maintainable since order passed by the learned Single Judge was in the writ petition filed under Articles 226 and 227 of the Constitution. However, in view of legal position emerging from the law laid down by the Apex Court in Surya Dev Rai (cited supra), though in practice parameters for exercising jurisdiction to issue a writ of certiorari under Article 226 of the Constitution and exercise of supervisory jurisdiction under Article 227 are similar, however, writ of certiorari is issued by the High Court in exercise of original jurisdiction for correcting the gross error committed by the Authorities, which may or may not be directly subordinate to the High Court including Courts and Tribunals, whereas in exercise of supervisory jurisdiction, the High Court is not only entitled to set aside the order impugned in the writ petition passed by the Court or Tribunal, but the learned Single Judge is also entitled to give suitable directions so as to guide the subordinate Court or Tribunal as to the manner in which it would act or proceed thereafter or afresh. Similarly, High Court also is entitled, in appropriate case, in exercise of power/jurisdiction under Article 227, to make an order in supersession or substitution of the order of the subordinate Court though such power may not be available in exercise of original jurisdiction under Article 226. In the circumstances, the decision of the Apex Court in the case of Kishorilal (cited supra) is of no help to the appellant.

15. In the backdrop of the above referred facts, it is difficult to hold that the learned Single Judge had exercised original jurisdiction of this Court under Article 226 of the Constitution. For the reasons stated hereinabove, it is evident that jurisdiction exercised by the learned Single Judge was under Article 227 of the Constitution and, therefore, in view of latest decision of the Apex Court in the case of Surya Dev Rai (cited supra), the Letters Patent Appeal is not maintainable. We uphold the preliminary objection raised by Shri Purohit, learned Counsel for the respondent Nos. 1 to 4, and dismiss the Letters Patent Appeal as not maintainable. No order as to costs.