Himachal Pradesh High Court
Mehar Singh vs State Of Himachal Pradesh And Others on 24 March, 2021
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
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).
1Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 2 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.
::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 3Respondents 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 ::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 4 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.::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 5
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 ::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 6 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"::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 7
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 ::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 8 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 ::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 9 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 ::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 10 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.
::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 1125. 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 ::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 12 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.
::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 1365. 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 ::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 14 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 ::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 15 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 ::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 16 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.::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 17
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 ::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 18 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 ::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 19 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 ::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 20 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 ::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 21 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."
::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 2213. 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.::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 23
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 ::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 24
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 ::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 25 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."
::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 26In 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 ::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 27 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 ::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 28 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, ::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 29 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.
::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 3019. 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 ::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 31 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 ::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 32 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 ::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 33 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 ::: Downloaded on - 25/03/2021 20:12:45 :::HCHP 34 Constitution and, as such, the present appeals are clearly maintainable.
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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) ::: Downloaded on - 25/03/2021 20:12:45 :::HCHP