Ramloutan Sahu vs Shobhnath Sahu
2023 Latest Caselaw 6932 MP

IN THE HIGH COURT OF MADHYA PRADESH
                 AT JABALPUR
                     BEFORE
      HON'BLE SHRI JUSTICE SHEEL NAGU
                        &
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
           ON THE 28th OF APRIL, 2023
           WRIT APPEAL No. 502 of 2023



     BETWEEN:-
1.   RAMLOUTAN SAHU S/O LATE SHRI
     VAISHWANATH SAHU, AGED ABOUT 59
     YEARS, OCCUPATION: AGRICULTURIST,
     R/O  VILLAGE   KESHWAHI,  TEHSIL
     BAHARI, DISTRICT SIDHI (MADHYA
     PRADESH)

2.   SUNDERLAL SAHU S/O LATE SHRI
     VAISHWANATH SAHU, AGED ABOUT 57
     YEARS, OCCUPATION: AGRICULTURIST,
     R/O  VILLAGE   KESHWAHI,  TEHSIL
     BAHARI, DISTRICT SIDHI (MADHYA
     PRADESH)

3.   RAMKARAN SAHU S/O LATE SHRI
     VAISHWANATH SAHU, AGED ABOUT 53
     YEARS, OCCUPATION: AGRICULTURIST,
     R/O  VILLAGE   KESHWAHI,  TEHSIL
     BAHARI, DISTRICT SIDHI (MADHYA
     PRADESH)

                                         .....PETITIONERS

(BY SHRI VINAYAK PRASAD SHAH & SHRI RAKESH KUMAR SAHU-
ADVOCATE)

                       AND

1.   SHOBHNATH SAHU S/O SHRI GALHORI
     SAHU R/O VILLAGE KESHWAHI TEHSIL
                                                2


               BAHARI, DISTRICT                 SIDHI       (MADHYA
               PRADESH)

       2.      RAMMANI SAHU S/O SHRI VISHWANATH
               SAHU, R/O VILLAGE KESHWAHI, TEHSIL
               BAHARI, DISTRICT SIDHI (MADHYA
               PRADESH)

       3.      STATE OF MADHYA PRADESH THROUGH
               THE   COLLECTOR,  SIDHI  (MADHYA
               PRADESH)

                                                                       .....RESPONDENTS

       (RESPONDENT NO.1 BY SHRI FALGUN YADAV - ADVOCATE)
------------------------------------------------------------------------------------------------
       This petition coming on for Orders this day, Hon'ble Shri Justice
SHEEL NAGU passed the following:

                                         ORDER

Present appeal has been filed u/S.2(1) of M.P. Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 (for brevity "Adhiniyam of 2005") against final order dated 10.02.2023 passed in MP. No.5414/2018 by learned Single Judge dismissing said petition, which had been preferred against an order of Board of Revenue passed on 22.09.2018.

2. The objection raised by Registry of this Court is of maintainability of this appeal in view of bar in Section 2(1) of Adhiniyam of 2005.

2.1 The objection is that the power exercised by learned Single Judge was not in his original jurisdiction under Article 226 of Constitution but under supervisory jurisdiction under Article 227 and, therefore, in view of the statutory bar, present appeal is not maintainable.

3. To counter the aforesaid objection, learned counsel for appellant, Shri Shah has relied upon decision of Apex Court in State of M.P. & Others vs. Visan Kumar Shiv Charan Lal reported in (2008) 15 SCC 233, which inter alia holds thus:-

"17. From the aforesaid enunciation of law it is quite vivid and luminescent that the pleadings in the writ petition, nature of the order passed by the learned Single Judge, character and the contour of the order, directions issued, nomenclature given, the jurisdictional prospective (sic perspective) in the constitutional context are to be perceived. It cannot be said in a hypertechnical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. Phraseology used in exercise of original jurisdiction under Article 226 of the Constitution in Section 2 of the Act cannot be given a restricted and constricted meaning because an order passed in a writ petition can tantamount to an order under Article 226 or 227 of the Constitution of India and it would depend upon the real nature of the order passed by the learned Single Judge. To elaborate; whether the learned Single Judge has exercised his jurisdiction under Article 226 or under Article 227 or both would depend upon various aspects and many a facet as has been emphasised in the aforequoted decisions of the Apex Court. The pleadings, as has been indicated hereinabove, also assume immense significance. As has been held in Surya Dev Rai (supra) a writ of certiorari can be issued under Article 226 of the Constitution against an order of a tribunal or an order passed by the subordinate court. In quintessentiality, it cannot be put in a straitjacket formula that any order of the learned Single Judge that deals with an order arising from an inferior tribunal or the subordinate court is an order under Article 227 of the Constitution of India and not an order under Article 226 of the Constitution. It would not be an overemphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can coincide,

coexist, overlap, imbricate. In this context it is apt to note that there may be cases where the learned Single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of the case.

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 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.

13. The above position was highlighted in MMTC Ltd. v. CCT (2008) 13 Scale 682

14. In view of what has been stated above, the High Court was not justified in holding that the letters patent appeal was not maintainable. In addition, a bare reading of this Court's earlier order shows that the impugned order is clearly erroneous. The impugned order is set aside. The writ appeal shall be heard by the Division Bench on merits.

15. The appeal is allowed."

4. From the aforesaid, it is obvious that lot many factors have to be taken into account to decide as to whether Single Bench exercised power under Article 226 or 227 of the Constitution as laid down by Apex Court in various cases. The ratio culled out from various decisions is that it is not only the nomenclature of the petition but the nature of relief sought, the source of cause of action and whether learned Single Judge has treated the cause as an original one under Article 226 or not.

5. In the said judgment of Apex Court in Visan Kumar Shiv Charan Lal (supra), it is noteworthy to reproduce following paragraphs:-

"Thus, the determining factor is the real nature of principal order passed by the Single Judge which is appealed against and neither the mentioning in the cause-title of the application of both the articles nor the granting of ancillary orders thereupon made by learned Single Judge would be relevant. Thus, in each case, the Division Bench may consider the substance of the judgment under appeal to ascertain whether the Single Judge has mainly or principally exercised in the matter his jurisdiction under Article 226 or under Article 227. In the event in his judgment the learned Single Judge himself had mentioned the particular article of the Constitution under which he was passing his judgment, in an appeal under Clause

15 against such a judgment it may not be necessary for the Appellate Bench to elaborately examine the question of its maintainability. When without mentioning the particular article the learned Single Judge decided on merits the application, in order to decide the question of maintainability of an appeal, against such a judgment, the Division Bench might examine the relief granted by the learned Single Judge. When more than one relief are granted by the learned Single Judge, for maintainability of an appeal, the determination would be the main and not the ancillary relief. When a combined application under Articles 226 and 227 of the Constitution is summarily dismissed without reasons, the appeal court may consider whether the facts alleged, warranted filing of the application under Article 226 or under Article 227 of the Constitution."

5.1 From the underlined portion of aforesaid extracted paragraph of said judgment, it is obvious that one of the relevant factors to decide the question is by reading the order of Single Bench which if mentions the particular article in which jurisdiction is exercised, then no further enquiry is necessary.

5.2 In the instant case, by reading of order of learned Single Judge, Paragraph 4 mentions that petition has been filed under Article 227 of the Constitution and; therefore, in all probability learned Single Judge has exercised the power under Article 227 and not under Article 226 of the Constitution.

5.3 Moreover the reliefs sought by petitioner in MP. No.5414/2018 were as follows:-

"(i) quash the impugned order dt. 22/9/18 Annexure P-4 passed by the Member of Board of Revenue Gwalior in Revision No.5031-Do/2015, and also quash the order dt. 30/5/15 passed by the Tehsildar Bahari Distt. Sidhi vide Annexure P-3.

(ii) To remand back the case to the revenue authority for a just and proper order by hearing both the parties and their material evidence, on the issues involved in the case.

(iii) pass such other order/relief as deemed just and proper in the fact and circumstances of the case.

(iv) Allow the instant writ petition accordingly together with cost."

6. From the above, it is further evident that no writ was sought to be issued. The nature of relief sought was akin to one under supervisory jurisdiction under Article 227.

7. In the conspectus of above discussion, what comes out loud and clear is that jurisdiction exercised by learned Single Judge is not under Article 226 but under Article 227 of Constitution.

8. In view of statutory bar contained in Section 2(1) of Adhiniyam of 2005, this appeal is not maintainable and is dismissed as such sans cost.

                    (SHEEL NAGU)                                    (DWARKA DHISH BANSAL)
                      JUDGE                                                  JUDGE

 mohsin


Digitally signed by MOHAMMED
MOHSIN QURESHI
Date: 2023.05.02 10:41:22 +05'30'