Mehar Singh vs State Of Himachal Pradesh And ...
2021 Latest Caselaw 2442 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

LPA Nos. 122 & 123 of 2008.

.

Reserved on : 10.03.2021.

Date of decision: 24.03.2021.

1. LPA No. 122 of 2008.

    Mehar Singh                                                 .....Appellant.

                                   Versus
    State of Himachal Pradesh and others                       .....Respondents.





    2. LPA No. 123 of 2008.

    Mehar Singh                                                 .....Appellant.
                        r          Versus

    State of Himachal Pradesh and others                       .....Respondents.


    Coram

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1 Yes

For the Appellant(s) : Mr. G.D.Verma, Senior Advocate with Mr. B.C.Vema,

Advocate.

For the Respondents: Mr. Ashok Sharma, Advocate

General with Mr. Vinod Thakur, Mr. Shiv Pal Manhans, Additional Advocate Generals, Mr. J.S.Guleria and Mr. Bhupinder Thakur, Deputy Advocate Generals, for the respondents-State.

Mr. R.L. Sood, Senior Advocate with Mr. Arjun Lal, Advocate, for respondents No. 2 to 4 and 5(a) to 5(f).

Whether the reporters of the local papers may be allowed to see the Judgment?Yes

Tarlok Singh Chauhan, Judge

.

When these appeals were taken up for hearing

on 03.03.2021, the learned counsel for respondents No. 2

to 4, 5(a) to 5(f) raised the question regarding the very

maintainability of these appeals. Thereafter, the arguments

were heard on 10.03.2021 and judgment was ordered to be

reserved. r

2. However, before proceeding to answer the

question, certain bare minimal facts need to be noticed.

3. The appellant-petitioner instituted an application

for partition of the suit land before the Assistant Collector

1st Grade, Nadaun, District Hamirpur, H.P. on 20.08.1991.

The mode of partition was framed by the Assistant Collector

on 23.05.1992 and thereafter vide order dated 22.04.1994

ordered the partition of the suit land.

4. Aggrieved by the said order, respondents No. 2

to 4 and 5 filed an appeal before the Collector, Hamirpur,

who vide his order dated 01.03.1995 dismissed the same.

Respondents No. 2 to 4 and 5 thereafter filed revision

petition before the Divisional Commissioner, Mandi, who

dismissed the same vide order dated 22.08.1996.

Respondents No.2 to 4 and 5 thereafter filed second

revision petition before the Financial Commissioner

.

(Appeals) who vide order dated 05.05.2006 accepted the

revision and ordered the remand of the case to the

Assistant Collector.

5. Aggrieved by the said order, the petitioner-

appellant preferred CWP No. 633 of 2006 invoking both

Articles 226 as also 227 of the Constitution of India.

However, the same was dismissed by the learned Writ

Court on 28.08.2008, constraining the petitioner-appellant

to file the instant appeal under Clause 10 of the Letters

Patent Appeal of the Lahore High Court as applicable to the

State of Himachal Pradesh.

6. Clause 10 of the Letters Patent Appeal of the

Lahore High Court as applicable to the State of Himachal

Pradesh reads as under:

"10. Appeals to the High Court from Judges of the Court.- And we do further ordain that an appeal shall lie to the said High Court of Judicature at Lahore from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of power of superintendence under the provisions of Section 107

of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to

.

Section 108 of the Government of India Act, and

that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to

Section 108 of the Government of India Act, made on or after the first day of February, one thousand nine hundred and twenty nine in the exercise of appellate jurisdiction in respect of a decree or order made in exercise of appellate jurisdiction by a Court subject

to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal but that the right of appeal from other judgements of Judges of the said

High Court or of such Division Court shall be to us. Our Heirs or successors in Our or Their Privy Council,

as hereinafter provided."

7. It is apparent from this clause that four classes

of cases are excepted from the Letters Patent jurisdiction of

this Court. These four classes are shown in the parenthesis

clause and they can be stated as under:-

1. Judgments passed in exercise of appellate jurisdiction in respect of a decree or order made in

exercise of appellate jurisdiction by a Court subject to the jurisdiction of the High Court.

2. An order made in exercise of the revisional jurisdiction.

3. A sentence or order passed or made in exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act.

4. The orders passed in exercise of criminal jurisdiction.

.

8. Articles 226 and 227 of the Constitution of India

read as under:

"226. Power of High Courts to issue certain writs.-(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in

appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights

conferred by Part III and for any other purpose.

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the

territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not

within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without -

(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

(b) giving such party an opportunity of being heard,

makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or

from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before

.

the expiry of the next day afterwards on which the

High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause (2) of Article 32.

227. Power of superintendence over all courts by the High Court.-(1) Every High Court shall have superintendence over all courts and tribunals

throughout the territories interrelation to which it

exercises jurisdiction.

(2) Without prejudice to the generality of the foregoing provisions, the High Court may-

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such

courts.

(3) The High Court may also settle tables of fees to be

allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:

Provided that any rules made, forms prescribed or tables settled under clause ( 2 ) or clause ( 3 ) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.

(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces"

9. Though, a number of judgments have been cited

.

at the Bar by learned counsel for both the parties,however,

we would make note only of those judgments which are

relevant for the point in issue.

10. A three Judge Bench of the Hon'ble Supreme

Court in Radhey Shyam and another vs. Chhabi Nath

and others (2015) 5 SCC 423 has made certain pertinent

observations in paragraphs 22 to 27 which are extracted

hereinbelow:

"22. We may now come to the judgment in Surya Dev Rai. Therein, the appellant was aggrieved by denial

of interim injunction in a pending suit and preferred a writ petition in the High court stating that after CPC amendment by Act 46 of 1999 w.e.f. 1 July, 2002,

remedy of revision under Section 115 was no longer

available. The High Court dismissed the petition following its Full Bench Judgment in Ganga Saran to

the effect that a writ was not maintainable as no mandamus could issue to a private person. The Bench considered the question of the impact of CPC amendment on power and jurisdiction of the High Court to entertain a writ of certiorari under Article 226 or a petition under Article 227 to involve power of superintendence. The Bench noted the legal position that after CPC amendment revisional

jurisdiction of the High Court against interlocutory order was curtailed.

.

23. The Bench then referred to the history of writ of certiorari and its scope and concluded thus : (Surya Dev Rai case 2, SCC pp.687-90, paras 18-19 & 24-25)

"18. Naresh Shridhar Mirajkar case was cited before the Constitution Bench in Rupa Ashok Hurra case and considered. It has been clearly

held: (i) that it is a well-settled principle that the technicalities associated with the [pic]prerogative writs in English law have no role to play under our constitutional scheme;

(ii) that a writ of certiorari to call for records

and examine the same for passing appropriate orders, is issued by a superior court to an inferior court which certifies its records for examination; and (iii) that a High Court cannot

issue a writ to another High Court, nor can one Bench of a High Court issue a writ to a different Bench of the High Court; much less

can the writ jurisdiction of a High Court be invoked to seek issuance of a writ of certiorari

to the Supreme Court. The High Courts are not constituted as inferior courts in our constitutional scheme.

19. Thus, there is no manner of doubt that the orders and proceedings of a judicial court subordinate to the High Court are amenable to writ jurisdiction of the High Court under Article 226 of the Constitution.

* * *

24. The difference between Articles 226 and 227 of the Constitution was well brought out in Umaji Keshao Meshram v. Radhikabai [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.

25. Upon a review of decided cases and a survey of the occasions, wherein the High

Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in [pic]practice. Probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in

some judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general difference

.

between the two jurisdictions. Firstly, the writ

of certiorari is an exercise of its original jurisdiction by the High Court; exercise of

supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate, revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent

up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise

of supervisory jurisdiction, the High Court may

not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant,

maybe, by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or

guided by the High Court. In appropriate cases the High Court, while exercising supervisory

jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made.

Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well.

24. It is the above holding, correctness of which was doubted in the referring order already mentioned above.

25. It is true that this Court has laid down that technicalities associated with the prerogative writs in

.

England have no role to play under our constitutional

scheme. There is no parallel system of King's Court in India and of all other courts having limited

jurisdiction subject to supervision of King's Court. Courts are set up under the Constitution or the laws. All courts in the jurisdiction of a High Court are subordinate to it and subject to its control and

supervision under Article 227. Writ jurisdiction is constitutionally conferred on all High Courts. Broad principles of writ jurisdiction followed in England are

applicable to India and a writ of certiorari lies against

patently erroneous or without jurisdiction orders of Tribunals or authorities or courts other than judicial courts. There are no precedents in India for High

Courts to issue writs to subordinate courts. Control of working of subordinate courts in dealing with their

judicial orders is exercised by way of appellate or revisional powers or power of superintendence under

Article 227. Orders of civil court stand on different footing from the orders of authorities or Tribunals or

courts other than judicial/civil courts. While appellate or revisional jurisdiction is regulated by statutes, power of superintendence under Article 227 is constitutional. The expression "inferior court" is not referable to judicial courts, as rightly observed in the referring order in paras 26 and 27 quoted above.

26. The Bench in Surya Dev Rai also observed in para 25 of its judgment that distinction between Articles 226 and 227 stood almost obliterated. In para 24 of

the said judgment distinction in the two articles has been noted. In view thereof, observation that scope

.

of Article 226 and 227 was obliterated was not

correct as rightly observed by the referring Bench in Para 32 quoted above. We make it clear that though

despite the curtailment of revisional jurisdiction under Section 115 CPC by Act 46 of 1999, jurisdiction of the High Court under Article 227 remains unaffected, it has been wrongly assumed in certain

quarters that the said jurisdiction has been expanded. Scope of Article 227 has been explained in several decisions including Waryam Singh and

another vs. Amarnath AIR 1954 SC 215, Ouseph

Mathai vs. M. Abdul Khadir(2002) 1 SCC 319, Shalini Shyam Shetty vs. Rajendra Shankar Patil(2010) 8 SCC 329 and Sameer Suresh Gupta vs. Rahul Kumar

Agarwal (2013) 9 SCC 374. In Shalini Shyam Shetty, this Court observed : ( SCC p. 352, paras 64-67)

"64. However, this Court unfortunately discerns that of late there is a growing trend amongst

several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to

execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases the High Courts, in a routine manner, entertain petitions under Article 227 over such disputes and such petitions are treated as writ petitions.

65. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private

.

individuals writ court should not interfere

unless there is any infraction of statute or it can be shown that a private individual is acting

in collusion with a statutory authority.

66. We may also observe that in some High Courts there is a tendency of entertaining petitions under Article 227 of the Constitution

by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev and in view of the recent amendment to Section 115

of the Civil Procedure Code by the Civil

Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 CPC has been curtailed. In our view, even if the scope of Section 115 CPC

is curtailed that has not resulted in expanding the High Court's power of superintendence. It is too well known to be reiterated that in

exercising its jurisdiction, High Court must follow the regime of law.

67. As a result of frequent interference by the Hon'ble High Court either under Article 226 or 227 of the Constitution with pending civil and

at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice. This Court hopes and trusts that in exercising its power either under Article 226 or 227, the Hon'ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest courts of justice

within their jurisdiction will adhere to them strictly." (emphasis added)

.

27. Thus, we are of the view that judicial orders of

civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the

view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226."

11.

Thereafter, following the judgment in Radhey

Shyam's case (supra), the Hon'ble Supreme Court in

Jogendrasinhji Vijaysinghji vs. State of Gujarat and

others (2015) 9 SCC 1 in paragraphs 25 to 30 held as

under:

"25. In Kishorilal v. Sales Officer, District Land Development Bank and Others (2006) 7 SCC 496, 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.

.

26.Dealing with the maintainability of the appeal, the two-Judge Bench held that:- (Kishorilal case 42, SCC p. 500, para 13)

"13.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 r 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 1993 Supp (1) SCC 11."

27. In Ashok K. Jha and others v. Garden Silk Mills Ltd.

and Another (2009) 10 SCC 584, 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. The learned Single Judge dismissed the

petition. Being grieved by the aforesaid order, a letters patent appeal was preferred under clause 15

.

of the Letters Patent. The Division Bench allowed the

appeal and set aside the judgment and order passed by the learned Single Judge. A contention was raised

before this Court pertaining to maintainability of letters patent appeal under clause 15 of the Letters Patent.

28. R.M. Lodha, J. (as His Lordship then was) speaking for the Court, referred to the authorities in Umaji Keshao Meshram 1986 Supp SCC 401, Ratnagiri Dist.

Central Coop. Bank Ltd. v. Dinkar Kashinath Watve

1993 Supp (1) SCC 9, Ramesh Chandra Sankla v. Vikram Cement (2008) 14 SCC 58 and stated thus: (Ashok Jha Case43, SCC pp. 599-600, paras 36-37)

"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."

29. At this juncture, we think it appropriate to reproduce a passage from Ramesh Chandra Sankla (supra) which has been quoted in Ashok Jha (supra).

In the said case, the two-Judge Bench while dealing with the maintainability of letters patent appeal under clause 15 of the Letters Patent has ruled that:

(Ashok Jha case43, SCC p. 599, para 35)

"35.....'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.... (Ramesh Chandra Sankla case46, SCC p. 75, para 47)"

        30.   From     the


                              aforesaid       pronouncements,

graphically clear that maintainability of a letters

patent appeal would depend upon the pleadings in it is

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."

12. The issue thereafter came up for consideration

before the Hon'ble Supreme Court in Himalayan Coop.

Group Housing Society vs. Balwan Singh and others

(2015) 7 SCC 373 wherein after relying upon the

judgment in case of Radhey Shyam's case (supra), it was

held in paragraphs 15 to 17 as under:

"15. The first issue need not detain us for long. It is the stand of the learned counsel for the respondents, that, since the Writ Petition that was filed was both under Articles 226 and 227 of the Constitution of India, the Court apart from examining the merits of the Writ Petition could also issue incidental and ancillary directions to do complete justice between

parties litigating before it. We do not agree. The issue in our view is no more debatable in view of the

.

decision of this Court in the case of Jaisingh and Ors.

vs. Municipal Corporation of Delhi and Anr., 2010 9 SCC 385. The Court has stated: (SCC p. 390, para

15) "15.....we may notice certain well recognised principles governing the exercise of jurisdiction by the High Court under Article

227 of the Constitution of India. Undoubtedly the High Court, under this article, has the jurisdiction to ensure that all subordinate

courts as well as statutory or quasi-judicial

tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to

ensure that they act in accordance with the well- established principles of law. The High

Court is vested with the powers of superintendence and/or judicial revision, even

in matters where no revision or appeal lies to the High Court. The jurisdiction under this

article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well-known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The

exercise of jurisdiction must be within the well-recognised constraints "

.

(emphasis supplied

16. The scope and extent of power of the Writ Court in a petition filed under Article 226 and 227 of the

Constitution came up for consideration before three Judge Bench of this Court in the recent case of Radhey Shyam and Anr v. Chhabi Nath & Ors. (2015) 5 SCC 423. This Court observed that the Writ of

Certiorari under Article 226 though directed against the orders of a inferior court would be distinct and separate from the challenge to an order of an inferior

court under Article 227 of the Constitution. The

supervisory jurisdiction comes into play in the latter case and it is only when the scope and ambit of the remedy sought for does not fall in purview of the

scope of supervisory jurisdiction under Article 227, the jurisdiction of the Court under Article 226 could

be invoked.

17. In the present case, what was challenged by the

members of the Society was an order passed by the Registrar and the Revisional Authority under the

provisions of the Act and the Rules framed thereunder. The prayer was to set aside the orders passed by the authorities below. Even if the said petitions(s) were styled as a petition under Article 226, the content and the prayers thereunder being ones requiring exercise of supervisory jurisdiction only, could be treated as petitions filed under Article 227 of the Constitution only."

13. Subsequently, similar issue thereafter came up

before a three Judge Bench of the Hon'ble Supreme Court in

.

Life Insurance Corporation of India vs. Nandini J.

Shah and others AIR 2018 SC 1197 wherein while

considering Articles 226 and 227 with regard to

maintainability of writ appeal, it was observed as under:

"51. In the case of Radhey Shyam(AIR 2015 SC 3269) (supra) decided by a three- Judge Bench, this Court after analyzing all the earlier decisions on the point,

restated the legal position that in cases where

judicial order violated the fundamental right, the challenge thereto would lie by way of an appeal or revision or under Article 227, and not by way of writ

under Article 226 and Article 32. The dictum in paragraphs 25, 27 and 29 of this decision is instructive. The same read thus:

"25. It is true that this Court has laid down that

technicalities associated with the prerogative writs in England have no role to play under our

constitutional scheme. There is no parallel system of King's Court in India and of all other courts having limited jurisdiction subject to supervision of King's Court. Courts are set up under the Constitution or the laws. All courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision Under Article 227. Writ jurisdiction is constitutionally conferred on all High Courts.

Broad principles of writ jurisdiction followed in England are applicable to India and a writ of

.

certiorari lies against patently erroneous or

without jurisdiction orders of Tribunals or authorities or courts other than judicial courts.

There are no precedents in India for the High Courts to issue writs to subordinate courts. Control of working of subordinate courts in dealing with their judicial orders is exercised

by way of appellate or revisional powers or power of superintendence Under Article 227. Orders of civil court stand on different footing

from the orders of authorities or Tribunals or

courts other than judicial/civil courts. While appellate or revisional jurisdiction is regulated by statutes, power of superintendence Under

Article 227 is constitutional. The expression "inferior court" is not referable to judicial

courts, as rightly observed in the referring order in paras 26 and 27 quoted above.

26. XXX XXX XXX

27. Thus, we are of the view that judicial orders

of civil courts are not amenable to a writ of certiorari Under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article

226.

        28.    XXX     XXX             XXX










              29.    Accordingly,    we     answer        the    question
              referred as follows:




                                                          .

29.1 Judicial orders of civil court are not

amenable to writ jurisdiction under Article 226 of the Constitution;

29.2 Jurisdiction Under Article 227 is distinct from jurisdiction Under Article 226.

29.3 Contrary view in Surya Dev Rai is overruled. (emphasis supplied)

52. Similar view has been expressed in

Jogendrasinghji (AIR 2015 SC 3623, Para 25) (supra).

In this decision, it has been held that the order passed by the Civil Court is amenable to scrutiny only in exercise of jurisdiction under Article 227 of the

Constitution of India and no intra court appeal is maintainable from the decision of a Single Judge. In

paragraph 30 of the reported decision, the Court observed thus:

"30. 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."

In the concluding part of the reported judgment in paragraph 44, the Court observed thus:

.

"44. 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 rstraight-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)."

53. In paragraph 45.2 of the same judgment, the

Court authoritatively concluded that an order passed

by a Civil Court is amenable to scrutiny of the High Court only 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.

54. In the impugned judgment, the Division Bench merely went by the decisions of the Delhi High Court and its own Court in Nusli Neville Wadia (2010 (4) AIR

Bom R (NOC) 397) and Prakash Securities Pvt. Ltd. (supra). We do not find any other analysis made by

.

the Division Bench to entertain the Letters Patent

Appeal, as to in what manner the judgment of the learned Single Judge would come within the purview

of exercise of powers under Article 226 of the Constitution of India. Absent that analysis, the Division Bench could not have assumed jurisdiction to entertain the Letters Patent Appeal merely by

referring to the earlier decisions of the same High Court in Nusli Neville Wadia and Prakash Securities Pvt. Ltd.

55. In other words, the Division Bench of the Bombay High Court ought to have dismissed the Letters Patent Appeal filed by the respondents as not

maintainable. In that event, it was not open to the Division Bench to undertake analysis on the merits of the case as has been done in the impugned

judgment. That was impermissible and of no avail, being without jurisdiction. Indeed, that will leave the

respondents with an adverse decision of the learned Single Judge dismissing their writ petition No.4337 of

2012 vide judgment dated 14.08.2012, whereby the eviction order passed by the Estate Officer dated 05.12.2011 and confirmed by the City Civil Court on 03.04.2012 has been upheld."

14. What would be thus clear from the aforesaid

exposition of law is that Article 227 of the Constitution of

India confers powers of superintendence over all Courts

and Tribunals throughout the territories in relation to which

the High Court exercises jurisdiction and such power of

.

superintendence is administrative as well as judicial and is

capable of being invoked at the instance of any person

aggrieved or may even be exercised suo motu.

15. There is a difference between a writ of certiorari

under Article 226 and supervisory jurisdiction under Article

227 of the constitution. The difference between these two

Articles was well brought out in the case of Umaji Keshao

Meshram and others vs. Smt. Radhikabai and another

AIR 1986 SC 1272 (supra).

16. 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. The power under Article 227 is intended

to be used for the purpose of keeping Subordinate Courts

and Tribunals within the bounds of their authority and not

for correcting mere errors.

17. Though, the distinction between these two

jurisdictions under Articles 226 and 227 of the Constitution

is very clear in the sense that one is in exercise of original

jurisdiction of the High Court while the other is not original,

but is only supervisory. However, it has become customary

with the lawyers labelling their petitions as one common

.

under Articles 226 and 227 of the Constitution. An appeal is

provided by way of intra-Court appeal against the order of

the learned Single Judge in the exercise of its original

jurisdiction and not in exercise of its supervisory jurisdiction.

18. In the case of Sadhana Lodh vs. National

Insurance Co. Ltd., AIR 2003 SCW 930, it has clearly

been observed that where remedy for filing a revision

before the High Court under Section 115 of the CPC has

been expressly barred by the State enactment, only in such

case a petition under Article 227 of the Constitution would

lie and not under Article 226 of the Constitution. Meaning

thereby, where the State legislature has barred a remedy

of filing revision before the High Court under Section 115 of

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 the jurisdiction of

the High Court under Article 226. This being the position of

law, there cannot be any appeal against the order of the

learned Single Judge passed in the exercise of its

supervisory jurisdiction.

19. We need to clarify that right of appeal is a

statutory right and where the statute has provided the right

.

of appeal only against an order passed by the learned

Single Judge of this Court in its original jurisdiction, it has to

be held that no appeal lies against the order of the learned

Single Judge passed in exercise of supervisory jurisdiction

under Article 227 (See: Ishwar Singh vs. Smt. Ram Piari

and another, AIR 1978 HP 39).

20. Where the petitions are filed under Articles 226

and 227 of the Constitution, the Court would have to

examine the allegations made in the petition and the relief

claimed therein and see as to whether the petitioner has

sought for exercise of original jurisdiction under Article 226

or to exercise its supervisory power under Article 227 of

the Constitution.

21. If the challenge is limited only to the correctness

or otherwise of the order/award, then the petitioner is

obviously invoking the powers of the High Court under

Article 227 of the Constitution because the cause has not

been initiated for the first time in this Court. However, if in

addition to the correctness of the order/award, the

petitioner also challenged the vires of the provisions of the

statute or any other provision or the very jurisdiction of the

authority passing the order on the ground that it suffered

.

from error of law apparent on the face of the record, then

he is invoking the powers of the High Court under Article

226 as well and in such cases the decision will be deemed

to have been rendered in exercise of its original jurisdiction

under Article 226 of the Constitution and consequently an

appeal will then lie against r the order passed by the

learned Single Judge of this Court in exercise of its original

jurisdiction. Conversely, no appeal would lie against the

order of the learned Single Judge passed in supervisory

power under Article 227 of the Constitution.

22. 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 10 of

the Letters Patent where the substantial part of the order

sought to be appealed against is under Article 226. 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 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. A statement by a 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.

23. Thus, 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 Single

Judge, the type of directions issued regard being had to

.

the jurisdictional perspectives in the constitutional context.

Whether a letters patent appeal would lie against the

order passed by the Single Judge that has travelled to him

from the other tribunals or authorities, would depend upon

many a facet.

24. Now, when the facts of this case are judged in

light of the law laid down by the Hon'ble Supreme Court in

the aforesaid judgments, it would be noticed that the

order(s) assailed in the present case emanate out of the

partition proceedings initiated before the Assistant

Collector under the Land Revenue Act. The learned Writ

Court on the basis of the pleadings both oral and

documentary placed before it proceeded to exercise the writ

jurisdiction in respect of the points that were adjudicated

upon by the quasi-judicial orders of the authorities

constituted under the Land Revenue Act and, therefore, the

orders are amenable to the writ jurisdiction of this Court in

exercise of original jurisdiction under Article 226 as well as

in exercise of its supervisory power under Article 227 of the

Constitution and, as such, the present appeals are clearly

maintainable.

.

25. Consequently, the objection raised by the

learned counsel for respondents No. 2 to 4, 5(a) to 5(f)

regarding the maintainability of the appeals is over-ruled.

26. List the appeals for final hearing on

28-04-2021.

(Tarlok Singh Chauhan) Judge

(Chander Bhusan Barowalia) Judge 24th March, 2021.

(krt)