Madhya Pradesh High Court
Manoj Kumar vs Board Of Revenue And Ors. on 2 November, 2007
Equivalent citations: AIR2008MP22, 2007(4)MPHT545, AIR 2008 MADHYA PRADESH 22, 2008 (1) AIR KANT HCR 353, (2008) 1 JAB LJ 76, (2008) 1 MPLJ 152, (2007) 4 MPHT 545
Author: Dipak Misra
Bench: Chief Justice, Dipak Misra, S.K. Gangele
ORDER Dipak Misra, J.
Introductory backdrop:
1. Questioning the assailability and substantiality of the order passed by the learned Single Judge in Writ Petition No. 5731/2006 the present writ appeal was preferred under Section 2 of the M.P. Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 (for short 'the 2005 Adhiniyam'). When the same was placed before a Division Bench for the purpose of admission on 20-8-2007 the Bench hearing the appeal took note of the decision rendered in the case of Rama and Co. v. State of Madhya Pradesh and Anr. 2007 (3) M.P.H.T. 325 (D.B.) : 2007 (11) M.P.J.R. 229, wherein a view was expressed to the effect that an order passed by the learned Single Judge while dealing with the sustainability of the order passed by the Board of Revenue is delineation under supervisory jurisdiction under Article 226 or 227 of the Constitution of India and not in exercise of original jurisdiction under Article 226 of the Constitution and the dictum propounded in Dr. Jaidev Siddha and Ors. v. Jaiprakash Siddha and Ors. 2007 (3) M.P.H.T. 388 (F.B.) : 2007 (3) M.P.L.J. 595, whereby the view expressed in Rama and Co. (supra) was overruled, and further noticed the order passed by the Apex Court in the Special Leave Petition affirming the order passed in Rama and Co. (supra), and directed the matter to be listed on 23-8-2007. Thereafter the Division Bench hearing the appeal on admission on the subsequent date thought it condign and seemly to refer the matter to a Larger Bench regard being had to the far reaching effect and impact of the controversy involved because of the order passed by the Apex Court in the Special Leave Petition and the effect of the Full Bench decision in the said context. That is how the matter has travelled to the Larger Bench to be dwelled upon with regard to the scope of maintainability of the writ appeal under the 2005 Adhiniyam.
Prelude in particularity:
2. M.P. Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam, 1981 was passed by the State Legislature which received assent of the President on 21-6-1981. In Balkrishna Das and Ors. v. Perfect Pottery Co. Ltd., Jabalpurand Ors. , 1981 Adhiniyam was declared ultra vires and it was further held that the said Act does not extinguish the right of appeal under Clause 10 of the Letters Patent. The decision rendered in the case of Balkrishna Das (supra) and Ors. decisions from the Bombay High Court travelled to the Apex Court. The Constitution Bench of the Apex Court in Jamshed N. Guzdar v. State of Maharashtra and Ors. etc. , upheld the validity of 1981 Adhiniyam.
3. After the constitutional validity of the 1981 Adhiniyam was sustained the Letters Patent Appeals pending in the High Court, being not maintainable, were dismissed. At that juncture the State Legislature enacted the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 (Act No. 14 of 2006). The said Act was brought into existence to provide for an appeal from a judgment or order passed by the one Judge of the High Court in exercise of the original jurisdiction to a Division Bench of the same High Court. Section 2 of the Act, to which we shall advert to in detail at a later stage, postulates that an appeal shall lie from a judgment or order passed by one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India to a Division Bench comprising of two Judges of the same High Court. It has also been provided therein that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.
4. Keeping in view the language employed under the 2005 Adhiniyam in Lakhan Lal Sonkar v. Gun Carriage Factory 2007 (1) M.P.H.T. 335, wherein the legal propriety of the order passed by the learned Single Judge in a writ petition arising out of the award passed by the Labour Court was called in question, an objection was raised with regard to the maintainability of the appeal on the foundation that the order passed by the learned Single Judge is one under Article 227 of the Constitution of India. The Division Bench of this Court repelled the stand and opined that the law is now well settled by the Apex Court that where the learned Single Judge does not mention the provision under which the order has been passed and from the pleadings in the writ petition and the reliefs claimed in the writ petition, the Court can infer that the same is not only under Article 227 but also under Article 226 of the Constitution of India.
5. In State of M.P. and Ors. v. M.S. Wakankar and Anr. 2007 (1) M.P.H.T. 298 (D.B.) : 2007 (1) M.P.L.J. 99, a similar objection was taken and the Division Bench dealing with the same reiterated the view expressed in Lakhan Lal Sonkar (supra).
6. When the matter stood thus, an order passed in a writ petition assailing the order passed by the Board of Revenue was challenged in a writ appeal Rama & Co. v. State of M.P. and Anr. (supra) under Section 2 of the 2005 Adhiniyam. The Division Bench referred to Clause 10 of the Letters Patent and the language employed under Section 2 of the 2005 Adhiniyam and expressed the opinion that for exercising powers under the said provision it was sine qua non that the judgment must have been delivered in exercise of original jurisdiction of the High Court. The Division Bench proceeded to express the view thus:
...Exercise of original jurisdiction is not a condition precedent for exercising the jurisdiction by Division Bench under LPA. While, as per Section 2 of the Adhiniyam, 2005, a judgment or order passed by one Judge of the High Court must be in exercise of original jurisdiction under Article 226 of the Constitution of India and there is a specific bar for exercise of appellate jurisdiction against the appellate orders and orders passed in exercise, of supervisory jurisdiction under Article 227 of the Constitution of India.
13. From comparative reading of Clause 10 of the Letters Patent and Section 2 of the Adhiniyam, 2005, it is clear that the scope of both the provisions are not pari materia and the scope of appeal under the Adhiniyam, 2005 is much narrower than the power under Clause 10 of the Letters Patent. The bar of exercising appellate jurisdiction under Article 227 of the Constitution of India is not specifically mentioned in the Letters Patent. Similarly, there was no specific bar for exercising jurisdiction against an interlocutory order passed by the Division Bench, but these two bars are specifically inserted in the Adhiniyam, 2005, which makes the difference in the two provisions.
7. After so stating the Division Bench referred to the decisions rendered in Umaji v. Radhika Bai , Surya Dev Rai v. Ram Chander Rai and Ors. , Harivishnu Kamath v. Ahmad Ishaque , Custodian of Evacuee Property v. Khan Saheb Abdul Shukoor , Ranjeet Singh v. Ravi Prakash , Krishan Prasad Gupta v. Controller, Printing and Stationary and L. Chandra Kumar v. Union of India (1997) 2 S.C.C. 261 and expressed the view as under:
20... Section 2 of the Adhiniyam, 2005 specifically lays down that an appeal shall lie from the order passed by one Judge of the High Court in exercise of original jurisdiction.
21. Thus, the condition precedent for exercising powers of the Appellate Court under the Adhiniyam, 2005 is that the learned Single Judge must be invoked in its original jurisdiction. Thus, it is clear that merely because the High Court has exercise its jurisdiction under Article 226 of the Constitution of India while issuing a writ of certiorari even then an appeal shall not lie, because the High Court while issuing a writ of certiorari under Article 226 of the Constitution of India is in fact exercising supervisory jurisdiction and not original jurisdiction.
(Underlining is ours)
8. Thereafter the Division Bench referred to the decisions in State of M.P. v. M.S. Wakankar (supra) and Smt. Shiva Dubey (Jhira) v. Sumit Ranjan Dubey (W.A. No. 310/2006, decided on 14-8-2006) and in Paragraphs 24 and 25 expressed thus:
24. The argument raised by the learned Counsel for the appellant that the appeal is maintainable against every order passed by the learned Single Judge in exercise of powers under Article 226 of the Constitution of India is not supported by the language of Section 2 of the Adhiniyam, because if the said interpretation is made, the exercise of original jurisdiction will become redundant. The legislature by use of the words "in exercise of its original jurisdiction" has made its intention clear that an appeal shall lie only if the learned Single Judge has exercised its original jurisdiction. The words "in exercise of its original jurisdiction" qualifies for the words "Article 226 of the Constitution of India".
25. Thus, it is clear that even though an appeal against an order passed by the learned Single Judge in exercise of jurisdiction under Article 226 will lie only if the learned Single Judge has exercise power as an original jurisdiction and not under supervisory jurisdiction. The supervisory jurisdiction of the High Court cannot be equated with original jurisdiction. In such circumstances, even if the learned Single Judge has exercised its jurisdiction under Article 226 of the Constitution of India and issued a writ of certiorari against an order passed by any Tribunal or a Court, then an appeal will not lie.
(Emphasis added)
9. After rendering of the decision in Rama and Co. (supra), another Division Bench of this Court perceiving two conflicting views regarding maintainability referred the matter to a Larger Bench. The Larger Bench discerned the decisions rendered in the cases of Smt. Shiva Dubey (Jhira) (supra), Lakhan Lal Sonkar (supra), M.S. Wakankar (supra), Rama and Co. (supra), Hari Vishnu Kamath (supra), Umaji Keshao Meshram (supra), Sushilabai Laxminarayan Mudaliyar and Ors. v. Nihalchand Waghajibhai Shaha and Ors. A.I.R. 1993 Suppl. (1) S.C.C. 11, Ratnagiri District Central Co-operative Bank Ltd. v. Dinkar Kashinath Watve C.A. No. 520 of 1989, decided on 27-1-1989, Mangalbhai and Ors. v. Radheyshyam , Lokmat Newspapers Pvt. ltd. v. Shankarprasad , Surya Dev Rai (supra), Custodian of Evacuee Property, Bangalore (supra), Nagendra Nath Bora and Anr. v. Commissioner of Hills Division and Appeals , T.C. Basappa v. T. Nagappa and Anr. , Rupa Ashok Hurra v. Ashoka Hurra and Anr. A.I.R. 2002 S.C. 1771, Kishorilal v. Sales Officer, District Land Development Bank and Ors. (2006) 7 S.C.C. 496, Balkishan Das (supra), Jamshed N. Guzdar (supra), Ramesh v. Gendalal Motilal Patni . Thereafter one of us (Dipak Mishra, J.) speaking on behalf of Hon'ble the Chief Justice and for himself expressed 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 in the constitutional context are to be perceived. It cannot be said in a hyper technical 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 emphasized in the a for equoted decisions of the Apex Court. The pleadings, as has been indicated hereinabove, also assume immense significance. As has been held in the case of Sutya 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 co-inside, co-exit, overlap or 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.
18. In view of our aforesaid analysis we are disposed to hold that the law laid down in the cases of Lakhan Lal Sonkar (supra), M.S. Wakankar (supra) and Smt. Shiva Dubey (Jheera)(supra), lay down the law correctly being in consonance and accord of the decisions of the Apex Court and the decision rendered in Mis. Rama and Co. (supra), does not lay down the law soundly and accordingly the same is hereby overruled.
10. At this juncture, it is apposite to note that prior to delivery of the decision by the Full Bench, the order passed in Rama & Co. (supra), was assailed before the Apex Court in S.L.P. No. (Civil) No. 9186/2007. The Apex Court in the said case on 9-7-2007 had passed the following order:
Delay condoned.
There is no ground to interfere with the order of the High Court as the question of law had already been decided by this Court and if any writ petition is filed before the High Court, against the order of the Board of Revenue and against that order of the High Court no LPA is maintainable as this is not the original order. The Special Leave Petition is therefore, dismissed.
11. After the said order was passed, as has been indicated earlier, the Division Bench keeping in view the effect and impact of the order of the Apex Court on the Full Bench decision and the far reaching effect referred the matter to the Larger Bench.
12. Be it noted, the Division Bench looking to the principles at ratio decidendi, stare decisis, per incuriam and rule of sub silentio and the law of binding precedent framed the following question:
What is the effect of the order of the Supreme Court passed in SLP in the matter of Rama & Co. (supra), on the status and effect of the decision of the Full Bench as discussed above and what should be the correct position under the law which should be followed by the Division Bench?
13. We have heard learned Counsel for the appellant, learned Counsel for the respondent State and learned Counsel who have appeared as amicus curiae.
Letters patent and Section 2 of the 2005 Adhiniyam:
14. By virtue of Clause 1 of the Letters Patent the High Court of Nagpur was established. The said clause also declared the Nagpur High Court to be a Court of Record. Clause 10 of the Letters Patent reads as under:
10. Appeal to the High Court from Judges of the Courts.--And we do further ordain that an appeal shall lie to the said High Court of Judicature at Nagpur 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 the 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 the powers of superintendence under the provisions of Section one hundred and seven 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 one hundred and eight 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 of the said High Court or one Judge of any Division Court, pursuant to Section one hundred and eight of the Government of India Act, made 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, 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 judgment of Judge of the said High Court or of such Division Court shall be to Us, Our Heirs and successors in Our or Their Privy Council, as hereinafter provided.
15. In Umaji Keshao Meshram (supra), a two-Judge Bench of the Apex Court was dealing with Clause 15 of the Letters Patent of the Chartered High Courts. The Apex Court traced the history of Letters Patent, scrutinized the powers conferred on the Chartered High Courts under the Government of India, Act, 1935 and the various provisions therein, adverted to the speech of Dr. Ambedkar in the Constituent Assembly with regard to Draft Constitution, referred to the decision rendered in Stale of Gujrat v. Vora Fiddali Bardruddin Mithibarwala , and thereafter in Paragraph 80 expressed the opinion as under:
80. What has been stated above would show that it is erroneous to characterize the Government of India Acts as ordinary laws and not as constitutional laws. It is true that these Constitution Acts were given to a subject country by a foreign constituent and legislative body but then we must remember that it was this very foreign constituent and legislative body which brought into being the Constituent Assembly, freed it of all limitations and made it possible for it to give to India its Constitution.
16. In Paragraph 88, Their Lordships referred to the decision rendered in the case of National Sewing Thread Co. Ltd. v. James Chadwick & Bros. Ltd. 1953 S.C. 357, wherein it had been opined that the Bombay High Court possessed all the jurisdiction that it had at the time of commencement of 1915 Act and could also exercise all such jurisdictions that would be conferred upon it from time to time by the legislative powers conferred by the Act and, therefore, unless the right of appeal was otherwise excluded, an intra-Court appeal lay under Clause 15 of the Letters Patent of the Bombay High Court. It was also reiterated therein that the same would apply to the Letters Patent of Calcutta and Madras High Courts. It was also stated that the Letters Patent establishing the Lahore High Court constitute the Charter of the Punjab High Court. Clause 10 of the Letters Patent is in pari materia with Clause 15 of the Letters Patent of the Chartered High Courts. After so holding in Paragraph 101, Their Lordships proceeded to state as follows:
101. Consequently, where a petition filed under Article 226 of the Constitution is according to the rules of a particular High Court heard by a Single Judge, an intra-Court appeal will lie from that judgment if such a right of appeal is provided in the charter of that High Court, whether such Charter be Letters Patent or a Statute....
17. Thus, it is quite clear that the Clause 10 of the Letters Patent ispari materia with Clause 15 of the Letters Patent of the Chartered High Courts. The said clause was interpreted to convey that if the appeal is not excluded under the Letters Patent, an appeal did lie to a Division Bench from the order of a Single Judge. Keeping in view the language employed "order passed or made in the exercise of the power of superintendence under the provisions of Section one hundred seven of the Government of India Act", it has been held in many a decision that an appeal from such an order did not lie. Similarly, unnecessary to emphasise, would be the position where there is a statutory embargo or interdict.
18. At this juncture we may aptly refer to the object and reasons of 2005 Adhiniyam. The relevant part of it is reproduced below:
Statement of objects and reasons,--At present there is no provision of law to file an against a judgment or order passed by one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India to a Division Bench comprising of two Judges of the same High Court by virtue of the Madhya Pradesh Uchcha Nyayalaya (Letters Patent Appeal Sampati) Adhiniyam, 1918 (No. 29 of 1981).
(Emphasis added)
19. Section 2 of the Adhiniyam is relevant for the present purpose. The necessitous part is reproduced below:
2. Appeal to the Division Bench of the High Court from a judgment or order of one Judge of the High Court made in exercise of original jurisdiction.--(1) An appeal shall lie from a judgment or order passed by one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India to a Division Bench comprising of two Judges of the same High Court:
Provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.
(2) An appeal under Sub-section (1) shall be filed within 45 days from the date of order passed by a Single Judge:
Provided that any appeal may be admitted after the prescribed period of 45 days if the petitioner satisfies the Division Bench that he had sufficient cause of not preferring the appeal within such period.
20. In the case of Rama & Co. (supra), it has been held that appeal under the Letters Patent and appeal under the 2005 Adhiniyam is different. Under the Letters Patent an appeal did lie from decision passed under Article 226 of the Constitution. What has been expressed in Rama & Co. (supra) is that when Section 2 uses the words "in execise of its original jurisdiction" the said words qualify the words "Article 226 of the Constitution of India" and even if the learned Single Judge exercises the jurisdiction under Article 226 of the Constitution of India and issues a writ of certiorari against a Court or Tribunal an appeal would not lie against such an order passed by the learned Single Judge as it is an order in exercise of supervisory jurisdiction.
21. The question that falls for consideration is whether an appeal provided under Letters Patent, especially arising from the writ petition is different than that emerges and emanates under Section 2 of the Adhiniyam. As has been noticed in Rama & Co. (supra), the Division Bench laid emphasis on the terms "in exercise of its original jurisdiction" and expressed the view that even if the writ of certiorari is issued under Article 226 not in exercise of its original jurisdiction, no writ appeal would lie. It is manifest that for issue of writ under Article 226 two compartments have been carved out: first, "in exercise of original jurisdiction" and second, "supervisory jurisdiction". To appreciate the same it is imperative to understand certain concept to which, presently we proceed to advert.
Writ of certiorari, the original jurisdiction, supervisory jurisdiction and power of superintendence:
22. At this juncture, it is necessary to notice few decisions in the field which relate to issue of writ of certiorari and the jurisdictional canvass. In (Penugonda) Venkataratnam and Anr. v. Secy. of State and Ors. A.I.R. 1930 Madras 896, a Division Bench of Madras High Court after referring to the Indian High Courts Act, 1861, the Letters Patent of 1867 and Section 110 of the Government of India Act, 1919 dealt with the fundamental concept of original jurisdiction and held as under:
...The fact remains, that Governors and Ministers are declared not amenable to the original jurisdiction of the High Court in respect of their official acts. Then is the jurisdiction in certiorari original? I think the question must be answered in the affirmative. By Section 34, Judicature Act of 1873 (corresponding to Section 55 of the present Act of 1925), to the Queen's Bench Division of the High Court were assigned:
All causes and matters...which would have been within the exclusive cognizance of the Court of Queen's Bench in the exercise of its original jurisdiction.
This is explained thus in the "Supreme Court Practice:"
Matters within the exclusive cognizance of the Court of Queen's Bench in the exercise of its original jurisdiction at the commencement of this Act included the supervision of decisions of Inferior Tribunals generally by certiorari: see the Supreme Court Practice 1928, P. 1610.
(Emphasis added)
23. In M. Ramayya v. The State of Madras, represented by the Secy. Home Department and Anr. , the Division Bench was considering maintainability of an appeal under Clause 15 of the Letters Patent. A preliminary objection was advanced by the respondents therein that no appeal did lie against an order of a Single Judge while issuing or refusing to issue a writ of certiorari. The Bench referred to inherent of power of jurisdiction from the King's Bench of England under the Charter of 1866 whereby it could issue prerogative writs within ordinary original jurisdiction of the High Court. After analyzing various provisions the Bench expressed the view in Paragraph 8 which reads as under:
These authorities make it plain that the power to issue the writ is original and the jurisdiction exercised is original jurisdiction.
(Emphasis supplied)
24. The aforesaid decisions were considered in Stale of Uttar Pradesh v. Vijayanand . Their Lordships in Paragraph 9 have expressed the view as under:
(9) Article 226 confers a power on a High Court to issue the writs, orders, or directions mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. This is neither an appellate nor a revisional jurisdiction of the High Court. Though the power is not confined to the prerogative writs issued by the English Courts, it is modelled on the said writs mainly to enable the High Courts to keep the Subordinate Tribunals within bounds. Before the Constitution, the chartered High Courts, that is, the High Courts at Bombay, Calcutta and Madras, were issuing prerogative writs similar to those issued by the King's Bench Division, subject to the same limitations imposed on the said writs. In Venkataratnam v. Secretary of State I.L.R. 53 Mad. 979 : A.I.R. 1930 Mad. 896, a Division Bench of Madras High Court, consisting of Venkatasubba Rao and Madhavan Nair., JJ., held that the jurisdiction to issue a writ of certiorari was original jurisdiction. In Ryots of Garabandha v. Zamindar of Parlakimedi I.L.R. 1938 Mad. 816 : A.I.R. 1938 Mad. 722, another Division Bench of the same High Court, consisting of Leach, C.J., and Madhavan Nair., J., considered the question again incidentally and came to the same conclusion and held that a writ of certiorari is issued only in exercise of the original jurisdiction of the High Court. In Ramayya v. State of Madras , a Division Bench, consisting of Govinda Menon and Ramaswami Gounder, JJ., considered the question whether the proceedings under Article 226 of the Constitution are in exercise of the original jurisdiction or revisional jurisdiction of the High Court: and the learned Judges held that the power to issue writs under Article 226 of the Constitution is original and the jurisdiction exercised is original jurisdiction. In Hamid Hassan v. Banwarilal Roy 1947-2 Mad. L.J. 32 at P. 35 : A.I.R. 1947 P.C. 90 at p. 93, the Privy Council was considering the question whether the original civil jurisdiction which the Supreme Court of Calcutta possessed over certain classes of persons outside the territorial limits of that jurisdiction has been inherited by the High Court. In that context the Judicial Committee observed:
It cannot be disputed that the issue of such writs is a matter of original jurisdiction.
The Calcutta High Court, in Budge Budge Municipality v. Mangru , came to the same conclusion, namely, that the jurisdiction exercised under Article 226 of the Constitution is original as distinguished from appellate or revisional jurisdiction, though original, is a special jurisdiction and should not be confused with ordinary civil jurisdiction, but the High Court pointed out that the jurisdiction: under the Letters Patent. The Andhra High Court in Satyanarayanamurthi v. I.T. Appellate Tribunal Madras Bench (S) A.I.R. 1957 Andh. Pra. 123, described it as an extraordinary original jurisdiction. It is therefore, clear from the nature of the power conferred under Article 226 of the Constitution and the decisions on the subject that the High Court in exercise of its power under Article 226 of the Constitution exercises original jurisdiction, though the said jurisdiction shall not be confused with the ordinary civil jurisdiction of the High Court. This jurisdiction, though original in character as contrasted with its appellate and revisional jurisdictions, is exercisable throughout the territories in relation to which its exercises jurisdiction and may, for convenience, be described as extra-ordinary original jurisdiction. If that be so, it cannot be contended that a petition under Article 226 of the Constitution is a continuation of the proceedings under the Act.
25. In Nagendra Nath Bora (supra), Their Lordships have held as under:
The jurisdiction under Article 226 of the Constitution is limited to seeing that the judicial or quasi-judicial Tribunals or administrative bodies exercising quasi-judicial powers, do not exercise their powers in excess of their statutory jurisdiction, but correctly administer the law within the ambit of the statute creating them or entrusting those functions to them....
26. In Ahmedabad Mfg. & Calico Ptg. Co. v. Ramtahel Ramnand , it has been held as under:
Under Article 226 of the Constitution it may in this connection be pointed out the High Court does not hear an appeal or a revision: that Court is moved to interfere after bringing before itself the record of a case decided by or pending before a Court, a Tribunal or an Authority, within its jurisdiction.
27. In this context we may refer with profit to the distinction drawn by the Apex Court in the case of Surya Dev Rai (supra), between Article 226 and Article 227 of the Constitution of India. Their Lordships have specially drawn the distinction between the writ of certiorari under Article 226 and supervisory jurisdiction under Article 227 of the Constitution. It has been thus characterized:
24. The difference between Articles 226 and 227 of the Constitution was well brought out in Umaji Keshao Meshram and Ors. v. Smt. Radhikabai and Anr. (1986) Supp. S.C.C. 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.
Thereafter, in Paragraph 25 it has been further elaborated:
Firstly, the writ at 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 may be 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.
(Emphasis supplied)
28. In Paragraph 38 of the said decision the Apex Court summed up its conclusions. Sub-paragraphs (3), (4) and (9) being relevant are reproduced:
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a Subordinate Court is found to have acted (i) without jurisdiction--by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the Subordinate Courts within the bounds of their jurisdiction. When the Subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
*** *** *** *** *** (9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the Subordinate Courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the Subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the Subordinate Court as the Court should have made in the fads and circumstances of the case.
(Emphasis added)
29. At this juncture, it is apposite to reproduce the relevant portion from Paragraph 39:
39. Though we have tried to lay down broad principles and working rules the fact remains that the parameters for exercise of jurisdiction under Article 226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules. Not less than often the High Court would be faced with dilemma....
(Underlining is ours)
30. From the aforesaid pronouncements of law it is luminescent that the issue of a writ is original and the jurisdiction exercised is original jurisdiction. For this reason in Hari Vishnu Kamath (supra), which has been referred to in Surya Dev Rai (supra), the following four propositions were laid down:
(1) Certiorari will be issued for correcting errors of jurisdiction.
(2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of it undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice.
(3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the Inferior Court or Tribunal, even if they be erroneous.
(4) An error is the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision.
(Emphasis added)
31. The purpose of referring to the aforesaid decisions is only to show that in issuing a writ of certiorari the High Court acts in exercise of original jurisdiction and not in exercise of appellate or revisional jurisdiction. Their Lordships have made a distinction with regard to supervisory jurisdiction and appellate or revisional jurisdiction. As is evincible, the power to issue writs under Article 226 of the Constitution is original and the jurisdiction exercised is original jurisdiction. We may also note that in Surya Dev Rai (supra), the Apex Court while referring to Umaji Keshao Meshram (supra), has opined that the proceedings under Article 226 are in exercise of original jurisdiction of the High Court while the proceedings under Article 227 of the Constitution are not original but only supervisory. It is worth noting that Article 227 is not restricted to administrative superintendence. It also encompasses judicial superintendence. Their Lordships have held that though the powers under Article 227 is akin to that of appellate or revisional power yet to be used sparingly and only in appropriate cases for the purpose of keeping the Subordinate Courts and Tribunal within the bounds of their authority and not for correcting mere errors. The Apex Court has further held that exercise of supeivisory jurisdiction is not an original jurisdiction and in that sense it is akin to appellate, revisional or corrective jurisdiction. The powers exercised under Article 226 and Article 227 of the Constitution, as has been held in Surya Dev Rai (supra), are distinct. In Paragraph 19 of the said decision it has been held as under:
19. Thus, there is no manner of doubt that the orders and proceedings of a Judicial Court subordinate to High Court are amenable to writ jurisdiction of High Court under Article 226 of the Constitution.
32. Their Lordships have held that though they have laid broad parameters for exercise of jurisdiction under Articles 226 and 227 of the Constitution, it cannot be tied down in straitjacket formula or rigid rules.
33. If the analysis of law is properly understood it is clear as noon day that the High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. We may repeat at the cost of repetition that in the case of Vijay Anand (supra), the matter had travelled from the lower forums and Their Lordships have repelled the contention that the petition under Article 226 of the Constitution of India is a continuation of the proceeding initiated under the statutory enactment. Their Lordships have regarded it as extra-ordinary original jurisdiction. It has been sometimes stated to be a special equitable jurisdiction. In Ramayya (supra), it has been held thai the power to issue writ is original and the jurisdiction exercised is original jurisdiction. The said view has been approved in VijayAnand (supra). In Surya Dev Rai (supra), distinction has been made between the original jurisdiction and the supervisory jurisdiction. The same principles have been stated in Hari Vishnu Kamath (supra) and Smt. Sudha Patil (supra).
34. At this juncture we may fruitfully state that the word 'superintendence' has not been used in Article 226 of the Constitution. It is also evident that the term 'writs' is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and Tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and Tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum.
35. In Hari Vishnu Kamath (supra), in Paragraph 20 it has been held as under:
20. We are also of opinion that the Election Tribunals are subject to the superintendence of the High Courts under Article 227 of the Constitution, and that superintendence is both judicial and administrative. That was held by this Court in Waryam Singh v. Amarnath , where it was observed that in this respect Article 227 went further than Section 224 of the Government of India Act, 1935, under which the superintendence was purely administrative, and that it restored the position under Section 107 of the Government of India Act, 1915. It may also be noted that while in a 'certiorari' under Article 226 the High Court can only annul the decision of the Tribunal, it can, under Article 227, do that, and also issue further directions in the matter. "We must accordingly hold that the application of the appellant for a writ of 'certiorari' and for other reliefs was maintainable under Articles 226 and 227 of the Constitution.
36. Thereafter Their Lordships proceeded to pass the following directions:
...Under the circumstances, the proper order to pass is to quash the decision of the Tribunal and remove it out of the way by 'certiorari' under Article 226, and to set aside the election of the first respondent in exercise of the powers conferred by Article 227....
(Emphasis supplied)
37. From the aforesaid enunciation of law it is quite vivid that two powers are distinct and that is why Their Lordships resorted to Article 226 for one part and invoked Article 227 of the Constitution for the other facet. It is worth noting that Articles 226 and 227 of the Constitution of India are supplement to each other but that does not convey that the power exercised under them are identical in all cases. The Apex Court, time and again, has expressed the view that the power exercised under Article 226 is to be characterized as supervisory power and not power exercised in appellate or revisional jurisdiction. The consistent view of the Apex Court is that the power exercised under Article 226 is in exercise of original jurisdiction and not under 'supervisory jurisdiction'. To elaborate: whenever word 'supervisory' has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or Tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of 'judicial review' but the jurisdiction exercised is different. In Achutananda Baidya v. Prafullya Kumar Gayen , it has been held that power of superintendence under Article 227 includes within its concept the power of judicial review. In our considered opinion when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a Tribunal or Inferior Courts or Administrative Authorities.
38. In this context we may profitably refer to the decision rendered in L. Chandra Kumar (supra), wherein it has been held as under:
99. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional....
We have referred to the aforesaid decision only to indicate that Their Lordships have used both the Articles because of the amalgam of jurisdiction which may be required while dealing with the lis arising from the Tribunal as the dividing line has become extremely thin--almost a vanishing point.
39. In Rama and Co. (supra), the Division Bench opined that an appeal against an order of the learned Single Judge in exercise of jurisdiction under Article 226 of the Constitution of India will only be maintainable if he has exercised the power under original jurisdiction and not under supervisory jurisdiction. The Division Bench has further expressed the opinion that supervisory jurisdiction of the High Court cannot be equated with the original jurisdiction and, therefore, even if Single Judge has exercised jurisdiction under Article 226 of the Constitution of India and issued a writ of certiorari against an order passed by a Tribunal or a Court then an appeal would not lie.
The effect of dismissal of Special Leave Petition arising from the decision rendered in Rama and Co. (supra):
40. Regard being had to the basic term of reference presently we shall advert to the issue whether the order passed in Special Leave Petition (Civil) No. 9186/2007 being a declaration of law under Article 141 of the Constitution of India and is a binding precedent regard being had to the earlier decisions of the Apex Court. In this context we think it apposite to refer to certain decisions in the field some of which have been brought to our notice at the Bar.
41. In Kunhayammed and Ors. v. State of Kerala and Anr. , a three Judge Bench of the Apex Court has expressed the opinion as under:
27. A petition for leave to appeal to this Court may be dismissed by a non-speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non-peaking order, i.e., it does not assign reasons for dismissing the Special Leave Petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared....
Thereafter Their Lordships have proceeded to sum up the conclusions as under:
(i) Where an appeal or revision is provided against an order passed by a Court, Tribunal or any other Authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the sub-ordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of the law.
(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is up to the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal.
(iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability or merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter, (iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case, it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order, Le., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the Court, Tribunal or Authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the Court, Tribunal or Authority below has stood merged in the order of the Supreme Court rejecting Special Leave Petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.
(vi) One leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.
(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by Sub-rule (1) of Rule 1 of Order 47 of the CPC.
42. In view of the aforesaid analysis and regard being had to the language and speech employed by Their Lordships while dismissing the Special Leave Petition, it is difficult to accept the contention that it is not a declaration of law under Article 141 of the Constitution.
43. The next aspect, the centroidal and seminal one that is imperative to deal with, the impact of the dismissal of the SLP on the Full Bench decision rendered in Dr. Jaidev Siddha and Ors. (supra). At this juncture, it is to be borne in mind that it is the obligation of the High Court to find out the binding precedent keeping in view the law of precedents. There can be many a decision of the Superior Court on a particular aspect but the High Court bound by law of precedents has a sacrosanct duty to follow that precedent which as per the law is the binding precedent. To give an example, an obiter dicta of the Supreme Court is binding on the High Court but if there is a decision in the said field or on the said point that dictum is to be followed. There are also two other factors, namely, the date of decision and the Bench strength. We may restate that the point involved has to be the same. Keeping the aforesaid principles in view, we proceed to refer to certain decisions in the field.
44. In Union of India and Anr. v. Raghubir Singh (dead) by LRs. Etc. , it has been held as under:
29. We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court. We would, however, like to think that for the purpose of imparting certainty and endowing due authority decisions of this Court in the future should be rendered by Division Benches of at least three Judges unless, for compelling reasons, that is not conveniently possible.
45. In Indian Oil Corporation Ltd. v. Municipal Corporation and Anr. , the Apex Court has ruled thus:
8. ...The Division Bench of the High Court in 1989 MPLJ 20 was clearly in error in taking the view that the decision of this Court in Ratna Prabha A.I.R. 1977 S.C. 308 (supra) was not binding on it. In doing so, the Division Bench of the High Court did something which even a later co-equal Bench of this Court did not and could not do. The view taken by the Division Bench of High Court in 1989 MPLJ 20 proceeds on a total misunderstanding of the law of precedents and Article 141 of the Constitution of India, to which it referred. But for the fact that the view of the Division Bench of the High Court proceeds on a misapprehensions of the law of precedents and Article 141 of the Constitution, it would be exposed to the criticism of an aberration in judicial discipline....
46. In N.S. Giri v. Corporation of City of Mangalore and Ors. , the Apex Court has observed as follows:
12. ...A decision by the Constitution Bench and a decision by a Bench of more strength cannot be overlooked to treat a later decision by a Bench of lesser strength as of a binding authority; more so, when the attention of the Judges deciding the latter case was not invited to the earlier decisions available....
47. In Chandra Prakash v. State of U.P. and Anr. 2002 A.I.R. S.C.W. 1573, the Apex Court approved the law laid down in the cases of Raghubir Singh (supra) and Pradip Chandra Parka and Ors. v. Pramod Chandra Patnaik and Ors. . Be it noted in Raghubir Singh (supra), it was held that the pronouncement of law by a Division Bench of the Apex Court is binding on a Division Bench of the same or similar number of Judges of the same Court.
48. In this context we may refer with profit to the Full Bench decision of this Court in Jabalpur Bus Operators Association and Ors. v. State of M.P. and Anr. 2003 (1) M.P.H.T. 226 (F.B.) : 2003 (1) M.P.J.R. 158, wherein a Full Bench consisting of five Judges overruled the decision rendered by a Full Bench consisting of three Judges in State of M.P. v. Balveer Singh 2001 (3) M.P.H.T. 255 (F.B.) : 2001 (2) M.P.U. 644 and expressed the opinion in Paragraph 10 as under:
10. In case of conflict between two decisions of the Apex Court, Benches comprising of equal number of Judges, decision of earlier Bench is binding unless explained by the latter Bench of equal strength, in which case the later decision is binding. Decision of a Larger Bench is binding on smaller Benches. Therefore, the decision of earlier Division Bench, unless distinguished by latter Division Bench, is binding on the High Courts and the Subordinate Courts. Similarly, in presence of Division Bench decisions and Larger Bench decisions, the decisions of Larger Bench are binding on the High Courts and the Subordinate Courts.
49. In Section Brahmanand and Ors. v. K.R. Muthugopal (Dead) and Ors. , a two Judge Bench of the Apex Court expressed the view that a co-ordinate Bench of the Apex Court is bound by the judgment delivered by another co-ordinate Bench.
50. From the aforesaid enunciation of law it is crystal clear that the High Court is bound by the earlier decisions rendered by the Co-ordinate Bench unless earlier decision has been dealt with by the later Bench of equal strength. The Apex Court has dismissed the SLP by stating that as the question of law had already been decided by the Apex Court that if any writ petition is filed before the High Court, against the order of the Board of Revenue against that order of the Writ Court no LPA is maintainable the same being not an original order. From the aforesaid order a singular aspect is discernible that the order passed by the Board of Revenue is not an original order and hence, no LPA is maintainable. This Court at this juncture, is required to see whether there are earlier decisions in this spectrum/field. We have already referred to the language of Class 10 of the Letters Patent and Section 2 of the 2005 Adhiniyam. We have scanned the anatomy of both the provisions and also seen how the Apex Court has cleared the maze of original jurisdiction and supervisory jurisdiction. In Vijayanand (supra), Surya Dev Rai (supra), Hari Vishnu Kamath (supra) and Umaji Keshao Meshram (supra), the distinction between exercise of jurisdiction under Articles 226 and 227 of the Constitution have been spelt out. It has been stated in categorical and unequivocal terms that exercise of jurisdiction under Article 226 is original and the exercise of the same under Article 227 is supervisory. The Apex Court on many an occasion has laid down that there can be overlapping in exercise of jurisdiction as a consequence of which an order may fall under the compartment of Articles 226 and 227 of the Constitution of India. Their Lordships have also opined that a litigant may seek relief under Article 226 of the Constitution read with Article 227 of the Constitution. Their Lordships while dismissing the Special Leave Petition have stated that against an order of Board of Revenue no LPA is maintainable as the order passed by the Board of Revenue is not an original order. In our humble view the said decision has not taken note of the law laid down in Vijayanand (supra), Surya Dev Rai (supra), Hari Vishnu Kamath (supra) and Umaji Keshao Meshram (supra). We may hasten to clarify here by virtue of a statutory provision the power of Letters Patent can be annihilated or abridged. If the history of Letters Patent is scrutinised it is evincible that no appeal under Letters Patent was maintainable against the order passed or made in exercise of the powers of superintendence under the provisions of Section 107 of the Government of India Act, 1935. The said power of superintendence has been engrafted along with certain other concepts under Article 227 of the Constitution. For this simon pure reason in Umaji Keshao Meskram (supra), the Apex Court has made a distinction and laid down the law that no appeal would lie against an order passed under Article 227 of the Constitution. However, Their Lordships carved out certain distinctions which were followed later on in number of decisions. We think it apt to refer to certain decisions in this regard.
51. In Umaji Keshao Meshram (supra), the Apex Court has ruled thus:
106. ...In our opinion, 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 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226. Such was the view taken by the Allahabad High Court in Aidal Singh v. Karan Singh and by the Punjab High Court in Raj Kishan Jain v. TulsiDass and Barham Dutt v. People's Cooperative Transport Society Ltd., New Delhi and we are in agreement with it.
52. In Sushilabai Laxminarayan Mudliayar and Ors. v. Nihalchand Waghajibhai Shaha and Ors. A.I.R. 1993 Suppl. (1) S.C.C. 11, the Apex Court referred to an unreported judgment passed in Ratnagiri District Central Co-operative Bank Ltd. v. Dinkar Kashinath Watve C.A. No. 520 of 1989, decided on 27-1-1989), wherein it has been held as under:
Even when in the cause title of an application both Article 226 and Article 227 of the Constitution have been mentioned, the learned single Judge is at liberty to decide, according to facts of each particular case, whether the said application ought to be dealt with only under Article 226 of the Constitution. For determining the question of maintainability of an appeal against such a judgment of the Single Judge the Division Bench has to find out whether in substance the judgment has been passed by the learned Single Judge in exercise of the jurisdiction under Article 226 of the Constitution. In the event in passing his judgment on an application which had mentioned in its cause title both Articles 226 and 227, the Single Judge has in fact invoked only his supervisory powers under Article 227, the appeal under Clause 15 would not lie. The Clause 15 of the Letters Patent expressly bars appeals against order of Single Judge passed under revisional or supervisory powers. Even when the learned Single Judge's order has been passed under both the articles, for deciding the maintainability against such an order what would be relevant is the principal or main relief granted by the judgment passed by learned Single Judge and not the ancillary directions given by him. The expression 'ancillary' means, in the context, incidental or consequential to the main part of the order.
Thus, the determining factor is the real nature of the 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, 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.
53. Thereafter Their Lordships explained the ratio laid down in the case of Umaji Keshao Meshram and Ors. (supra), and expressed thus:
...In Umaji case, it was clearly held that where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution of India and the party chooses to file his application under both these articles in fairness of justice to party and in order not to deprive him of 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 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226. Rule 18 of the Bombay High Court Appellate Side Rules read with Clause 15 of the Letters Patent provides for appeal to the Division Bench of the High Court from a judgment of the learned Single Judge passed on a writ petition under Article 226 of the Constitution. In the present case, the Division Bench was clearly wrong in holding that the appeal was not maintainable against the order of the learned Single Judge.
54. In Mangalbhai and Ors. v. Dr. Radhyshyam , a two Judge Bench of the Apex Court after reproducing certain Paragraphs from Umaji Keshao Meshram (supra), proceeded to state as under:
6. The learned Single Judge in his impugned judgment dated 11-12-1987 nowhere mentioned that he was exercising the powers under Article 227 of the Constitution. The learned Single Judge examining the matter on merit and set aside the orders of the Rent Controller as well as the Resident Deputy Collector on the ground that the aforesaid judgments were perverse. The findings of the Rent Controller and Resident Deputy Collector were set aside on the question of habitual defaulter as well as on the ground of bona fide need. Thus in the totality of the facts and circumstances of the case, the pleadings of the parties in the writ petition and the judgment of the learned Single Judge leaves no manner of doubt that it was an order passed under Article 226 of the Constitution and in that view of the matter the Letters Patent Appeal was maintainable before the High Court....
55. In Lokmat Newspapers Pvt. Ltd. v. Shankarprasad , the Apex Court took note of the fact situation where an order passed by the Labour Court under Section 28 of the Maharashtra (Recognition of Trade Unions and Prevention of Unfair Labour Practices) Act, 1971 was confirmed by the Industrial Tribunal under Section 44 of the said enactment. Both the Courts held that retrenchment of the respondent did not amount to any 'Unfair labour practice' on the part of the appellant. The said orders were challenged by the respondent by filing a writ petition under Articles 226 and 227 of the Constitution of India, before the High Court of Judicature at Bombay, Nagpur Bench and the learned Single Judge dismissed the writ petition. Their Lordships took note of the fact that the order passed by the learned Single Judge showed that he was considering the writ petition of the respondents which was moved before him invoking jurisdiction under Articles 226 and 227 of the Constitution of India and thereafter Their Lordships adverted to the averments made in the writ petition and eventually expressed the view thus:
16. It is, therefore, obvious that the writ petition invoking jurisdiction of the High Court both under Articles 226 and 227 of the Constitution had tried to make out a case for the High Court's interference seeking issuance of an appropriate writ of certiorari under Article 226 of the Constitution of India. Basic averments for invoking such a jurisdiction were already pleaded in the writ petition for the High Court's consideration. It is true, as submitted by learned Counsel for the appellant, that the order of the learned Single Judge nowhere stated that the Court was considering the writ petition under Article 226 of the Constitution of India. It is equally true that the learned Single Judge dismissed the writ petition by observing that the Courts below had appreciated the contentions and rejected the complaint. But the said observation of the learned Single Judge did not necessarily mean that the learned Judge was not inclined to interfere under Article 227 of the Constitution of India only. The said observation equally supports the conclusion that the learned Judge was not inclined to interfere under Articles 226 and 227. As seen earlier, he was considering the aforesaid writ petition moved under Article 226 as well as Article 227 of the Constitution of India. Under these circumstances, it is not possible to agree with the contention of learned Counsel for the appellant that the learned Single Judge had refused to interfere only under Article 227 of the Constitution of India when he dismissed the writ petition of the respondent....
56. In Hindustan Lever Limited v. B.N Dongre , it has been held that the decision of Industrial Tribunal under the Industrial Disputes Act would be subject to review by the High Court under Article 226/227 of the Constitution of India and Letters Patent Appeal will lie against the judgment.
57. In Kanyaiyalal Agrawal and Ors. v. Factory Manager, Gwalior Sugar Co. Ltd. , the Apex Court after referring to the decision rendered in the case of Lokmat Newspapers Pvt. Ltd. v. Shankarprasad , proceeded to state as under:
But with an explanation that if the Single Judge of the High Court in considering the petition under Article 226 or Article 227 does not state under which provision he has decided the matter and where the facts justify filing of petition both under Art, 226 and Article 227 and a petition so filed is dismissed by the Single Judge on merits, the matter may be considered in its proper perspective in an appeal. This Court held as aforesaid in view of the decisions of this in Umaji Keshao Meshram v. Radhikabai 1986 Supp. S.C.C. 401; Ratnagiri District Central Co-operative Bank Ltd. v. Dinkar Kashinath Waive 1993 Supp. (1) S.C.C. 9 and Sushilabai Laxminarayan Mudliyar v. Nihalchand Waghajibhai Shaha 1993 Suppl. (1) S.C.C. 11.
6. Hence, we are of the view that it is wholly unnecessary for us to examine this aspect of the matter in view of the declaration of law may by this Court in Lokmat Newspapers Pvt. Ltd. v. Shankarprasad , (supra), after adverting to all the decisions on the point.
58. In Kishorilal v. Sales Officer, District Land Development Bank and Ors. (2006) 7 S.C.C. 496, the Apex Court was dealing with an order whereby the learned Single Judge had reversed the finding of the Board of Revenue. An LPA was preferred and the Division Bench dismissed the same holding that it was not maintainable on the premises that the learned Single Judge had exercised the jurisdiction under Article 227 of the Constitution of India. Their Lordships while dealing with the maintainability of the appeal before the Division Bench have opined thus:
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 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.
(Emphasis supplied)
59. At this juncture we would like to pause for a while, for it is condign as well as imperative. In Kishorilal (supra), the Apex Court had expressly stated that an LPA would be maintainable if the writ petition is filed under Articles 226 and 227 of the Constitution of India, as has been held by the Apex Court in Shushilabai Laxminarayan Mudaliyar and Ors. (supra). We have specifically referred to this aspect to highlight that the SLP that arose from Rama and Co. (supra), this Court has dealt with an order passed by the Board of Revenue.
60. The labyrinthine the crosses the mind because one feels that the term 'original jurisdiction' being absent in the Clause 10 of the Letters Patent creates a statutory prescription and prohibition to entertain a writ appeal if the learned Single Judge has dealt with the same in exercise of supervisory power under Article 226 of the Constitution. We have repeated at the cost of repetition that there can be no scintilla of doubt that an appeal provision can always be curtailed and an appeal under the Letters Patent is subject to statutory provision. That has been so stated Jamshed N. Guzdar (supra), but, a significant one, whether there is such prohibition, an obstruction, an embargo. In Clause 10 of the Letters Patent or for that matter in Clause 15 of the Letters Patent of the Chartered High Courts Articles 226 and 227 were not used and could not have used but the Apex Court while interpreting the said phraseology has used Articles 226 and 227 of the Constitution in number of decisions. Their Lordships, we may humbly state, have drawn the distinction between the original jurisdiction and supervisory jurisdiction, exercise of power under Articles 226 and 227 and many other facets which are to be taken into consideration while entertaining an appeal under the Letters Patent. Therefore, it would be an anathema to the precedential concept to express an opinion that the said decisions would not be applicable to the 2005 Adhiniyam.
61. Ergo, the order passed in the Special Leave Petition arising from Rama & Co. (supra) would not be a binding precedent on the High Court and the High Court is obliged to follow the earlier view expressed by the Apex Court. We may note with certitude that the order passed in Rama & Co. (supra), would be binding between the parties to the said lis.
62. From the aforesaid it is quite vivid that the maintainability of a writ appeal from an order of the learned Single Judge would depend upon many an aspect and cannot be put into a straitjacket formula. It cannot be stated with mathematical exactitude. It would depend upon 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 and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper technical 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. 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 emphasized in the aforequoted decisions of the Apex Court. The pleadings, as has been indicated hereinabove, also assume immense significance. 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 co-inside, co-exit, overlap or 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 each case.
63. In view of the aforesaid premised reasons, we are of the humble view that dismissal of an appeal from Rama & Co. (supra), is not a binding precedent as there are earlier judgments in the field and the High Court bound to follow the earlier decisions as per the law laid down in Raghuvir Singh (dead) by L.Rs. etc. (supra), Indian Oil Corporation Ltd. (supra), N.S. Giri (supra), Chandra Prakash (supra), Jabalpur Bus Operators Association and Ors. (supra) and 5. Brahmanand and Ors. (supra).
64. In Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors. , the Apex Court has ruled thus:
...8 An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision....
65. We have already analysed the distinction between the original and supervisory jurisdiction. If the entire provision is scrutinised in a purposive manner it is clear that the Legislature has intended to make a distinction between an order passed in exercise of original jurisdiction under Article 226of the Constitution and an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution. It has to be borne in mind that the power of the High Court under Article 226 of the Constitution are not confined to prerogative writs inasmuch as it can issue directions, orders, writs and can mould the relief to meet the peculiar requirements. The powers conferred on the High Court under the said Article is of wide expanse'. In Director of settlements, A.P. and Ors. v. M.R. Apparao and Anr. , it has been held that the power under Article 226 is essentially a power upon the High Court for issuance of high prerogative writs for enforcement of fundamental rights as well as non-fundamental or ordinary legal rights, which may come within the expression 'for any other purposes'. The powers of the High Courts under Article 226 though are discretionary and no limits can be placed upon their discretion they must be exercised along the recognized lines and subject to certain self-imposed restrictions. It is a constitutional power conferred on the High Court to see no man is subject to injustice by violation of law. In exercise of this Article the High Court is expected to erase injustice and not to make justice a by-product.
66. When the provision has made two distinctions and the legislative intendment is clear, such intention is to be understood in accord with the view expressed by the Apex Court. When the Legislature has used the terms 'in exercise of original jurisdiction' and 'supervisory jurisdiction' it has to be understood that they are used in contradistinctions in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. That is the purpose of the said provision and if the Section is understood in entirety it is clear as day.
Conclusions:
67. In view of our aforesaid analysis we proceed to record our conclusions in seriatim:
(i) A power to issue the writ is original and the jurisdiction exercised is original jurisdiction.
(ii) Proceedings under Article 226 of the Constitution are in exercise of original jurisdiction of the High Court whereas the proceedings initiated under Article 227 of the Constitution are supervisory in nature.
(iii) When a writ is issued under Article 226 of the Constitution it is issued in exercise of original jurisdiction whether against a Tribunal or an Inferior Court or Administrative Authorities.
(iv) The power exercised under Article 226 of the Constitution is in exercise of original jurisdiction and not supervisor}' jurisdiction.
(v) Exercise of supervisory power and power of superintendence is not to be equated with the original or supervisory jurisdiction.
(vi) The order passed in SLP (Civil) No. 9186/2007 is a declaration of law under Article 141 of the Constitution but the High Court is bound to follow the earlier decisions in the field regard being had to the concept of precedents as per law laid down by the Apex Court and the five-Judge Bench decision in Jabalpur Motor Association (supra).
(vii) The decision rendered in Rama and Company (supra), is binding upon the parties inter se.
(viii) The decisions rendered by the Apex Court in the context of appeal under Letters Patent as regards maintainability of an appeal would govern the field pertaining to maintainability of appeal preferred under Section 2 of the 2005 Adhiniyam.
(ix) The view taken by the Full Bench in Dr. Jaidev Siddha and Ors. (supra), cannot be treated to have been impliedly overruled due to dismissal of the Special Leave Petition preferred against the order rendered in the case of Rama and Company (supra).
(x) The law laid down in the case of Dr. Jaidev Siddha (supra) holds the filed and the principles laid down therein will have full applicability.
68. The reference is answered accordingly. Let the matter be listed before the appropriate Division Bench.
Subhash Samvatsar, J.
69. (1) I have a privilege to go through the order of Brother Judge Hon. Shri Justice Dipak Misra. The question involved in this case is about the maintainability of writ appeal against the order passed by Single Judge in. exercise of writ jurisdiction against the order passed by Tribunal. Brother Misra, J. is of the opinion that the order passed by the Apex Court in SLP No. 9186/2007 is a declaration of law under Article 141 of the Constitution, but the High Court is bound to follow the earlier decisions in the field regard being had to the concept of precedents as per law laid down by the Apex Court and the five Judge Bench decision in Jabalpur Motor Association (supra). After going through the order passed by Brother Misra, J., I am, with due respect, unable to agree with the view expressed by brother Misra, J., hence, I am giving my own reasonings in the matter.
70. (2) Division Bench of this Court in the case of Rama and Co. v. State of MP. and Anr. 2007(3) M.P.H.T. 325 (DB) : 2007(2) MPJR 229, has taken a view that the condition precedent for exercising powers of an Appellate Court under the M.P. Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 (hereinafter, referred to as the "Adhiniyam") is that the learned Judge must exercise its original jurisdiction under Article 226 of the Constitution of India. Since, the High Court has exercised its jurisdiction under Article 226 of the Constitution of India while issuing writ of certiorari against the order passed by the Tribunal or Court, hence, writ appeal will not lie as the Single Bench has not exercised its original jurisdiction but has, in fact, exercised its supervisory jurisdiction. The view taken by the Division Bench in Rama and Company (supra), was referred to a Larger Bench as there was a conflict of opinion amongst the decisions in the cases of Rama and Company (supra), State of Madhya Pradesh v. M.S. Wakankar 2007(1) M.P.H.T. 298 (DB) : 2007(1) M PLJ 99 and Shrimad Shiva Dubey (Jhira) v. Sumit Ranjan Dubey W.A. No. 310/2006, decided on 14-8-2006.
71. (3) Full Bench in the case of Dr. Jaidev Siddha v. Jaiprakash Siddha and Ors. 2007(3) M.P.H.T. 388 (F.B.) : 2007(3) MPLJ 595, has overruled the judgment of Division Bench of this Court in the case of Rama and Co. (supra), and held that even if the Single Judge hearing a petition under Article 226 of the Constitution against the order passed by the Court or Tribunal, a writ appeal lies.
72. (4) Before the Full Bench could deliver the aforesaid judgment, the judgment of Division Bench in case of Rama and Company (supra) was challenged before the Supreme Court in SLP (C) No. 9186/07. Said SLP was dismissed by the Apex Court by holding as follows:
There is no ground to interfere with the order of the High Court as the question of law had already been decided by this Court that if any writ petition is filed before the High Court, against the order of the Board of Revenue and against that order of the High Court no LPA is maintainable as this is not the original order. The Special Leave Petition is, therefore, dismissed.
Thus, the Apex Court dismissed the appeal in the case of Rama and Company by holding that no appeal lies before the Division Bench if a writ petition is filed before the High Court against the order of Board of Revenue as the said order is not an original order.
73. (5) Again the question about maintainability of appeal was raised before the Division Bench and the Division Bench deemed it fit to refer the matter to the Larger Bench by framing following question:
What is the effect of the order of the Supreme Court passed in SLP in the matter of Rama and Company (supra), on the status and effect of the decision of the Full Bench as discussed above and what should be the correct position under the law which should be followed by the Division Bench?
74. (6) The principle behind Article 141 of the Constitution of India is to maintain consistency in the judgment delivery system. Apex Court, being the highest Court of law in the hierarchical system of Courts in the country, as a matter of discipline, it is expected that all the Lower Courts including the High Courts should consistently follow the dictum laid down by the Apex Court as a matter of judicial discipline which will give uniformity and consistency to" the judgment delivery system.
75. (7) Division Bench of this Court in the case of Rama and Company (supra), has considered the maintainability of writ appeal against order passed by learned Single Judge in exercise of its writ jurisdiction under Article 226 of the Constitution of India and held that as the High Court is not exercising its original jurisdiction and is exercising only its supervisory jurisdiction, writ appeal is not maintainable. For arriving at the said conclusion, the Division Bench has relied upon a judgment of the Apex Court in the case of Hari Vishnu Kamath v. Ahmad Ishaque and Ors. , wherein the Apex Court in Para 10 of its judgment had dealt with the powers of certiorari and held as under:
According to the common law of England, 'certiorari' is a high prerogative writ issued by the Court of the King's Bench or Chancery to Inferior Courts or Tribunals in the exercise of supervisory jurisdiction with a view to ensure that they acted within the bounds of their jurisdiction. To this end, they were commanded to transmit the records of a case or matter pending with them to the Superior Court to be dealt with there, and if the order was found to be without jurisdiction, it was quashed. The Court issuing 'certiorari' to quash, however, could not substitute its own decision on the merits, or give directions to be complied with by the Court, or the Tribunal. Its work was destructive; it simply wiped out the order passed without jurisdiction, and left the matter there.
(Emphasis supplied) The Apex Court in Para 21 of its judgment had laid down that the following principles may be taken as established:
(1) 'Certiorari' will be issued for correcting errors of jurisdiction, as when an Inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it.
(2) 'Certiorari' will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice.
(3) The Court issuing a writ of 'certiorari' acts in exercise of a supervisory and not appellate jurisdiction.
76. (8) Question before this Bench is not to find out the correctness of the decision either in the case of Rama and Co. (supra), or the correctness of the judgment delivered by the Full Bench in the case of Dr. Jaidev Siddha (supra), wherein the Full Bench has held that as the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India always exercises its original jurisdiction, hence, the writ appeal is maintainable. Question about the correctness of both the views is not open before this Bench and only question which is to be decided is whether the judgment of the Apex Court in the SLP in the matter of Rama and Company is binding or not.
77. (9) Division Bench had dismissed the appeal filed by Rama and Company only on the ground that the appeal is not maintainable. Said judgment was challenged before the Apex Court by filing SLP and, the Apex Court has dismissed the SLP by giving a short reasoning. Thus, the only question involved before the Apex Court was directly in relation to the maintainability of the writ appeal and once the Apex Court has held that the writ appeal is not maintainable, even though by short reasoning, whether this Court can hold that said judgment is not bind on the High Court.
78. (10) The Apex Court in the case of Anil Kumar Neotia v. Union of India , has laid down that in the hierarchy of judicial system, the Apex Court is the highest Court in the country and all other Courts are bound to follow the law laid down by the Apex Court and they cannot assign any reason whatsoever to hold that the judgment of the Apex Court is not a binding precedent. The High Court cannot find any reason whatsoever to hold that the judgment of the Apex Court is not binding. The High Court cannot say that certain points are not urged before the High Court and therefore, the said judgment is not binding. The Apex Court in Para 18 of its judgment for the said purpose, has relied upon the observations of the Apex Court in the case of Smt. Somwanti v. State of Punjab , which reads as under:
The binding effect of a decision does not depend upon whether a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced was actually decided.
79. (11) The Apex Court in the case of Tirupati Balaji Developers Pvt. Ltd. v. State of Bihar , while considering the relationship between the Apex Court and the High Court has laid down in Paragraphs 8 and 9 as under:
8. Under the constitutional scheme as framed for the judiciary, the Supreme Court and the High Courts both are Courts of record. The High Court is not a Court 'subordinate' to the Supreme Court. In a way the canvass of judicial powers vesting in the High Court is wider inasmuch as it has jurisdiction to issue all prerogative writs conferred by Article 226 of the Constitution for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose while the original jurisdiction of Supreme Court to issue prerogative writs remains confined to the enforcement of fundamental rights and to deal with some such matters, such as Presidential election or inter-State disputes which the Constitution does not envisage being heard and determined by High Courts. The High Court exercises power of superintendence under Article 227 of the Constitution over all Subordinate Courts and Tribunals; the Supreme Court has not been conferred with any power of superintendence. If the Supreme Court and the High Courts both were to be thought of as brothers in the administration of justice, the High Court has larger jurisdiction but the Supreme Court still remains the elder brother. There are a few provisions which give an edge, and assign a superior place in the hierarchy, to Supreme Court over High Courts. So far as the appellate jurisdiction is concerned, in all civil and criminal matters, the Supreme Court is the highest and the ultimate Court of appeal. It is the final interpreter of the law. Under Article 139A, the Supreme Court may transfer any case pending before one High Court to another High Court or may withdraw the case to itself. Under Article 141 the law declared by the Supreme Court shall be binding on all Courts, including High Courts, within the territory of India. Under Article 144 all authorities, civil and judicial, in the territory of India - and that would include High Court as well - shall act in aid of the Supreme Court.
9. In a unified hierarchical judicial system which India has accepted under its Constitution, vertically the Supreme Court is placed over the High Courts. The very fact that the Constitution confers an appellate power on the Supreme Court over the High Courts, certain consequences naturally flow and follow. Appeal implied in its natural and ordinary meaning the removal of a cause from any Inferior Court or Tribunal to a superior one for the purpose of testing the soundness of decision and proceedings of the Inferior Court or Tribunal. The superior forum shall have jurisdiction to reverse, confirm annul or modify the decree or order of the forum appealed against and in the event of a remand the lower forum shall have to re-hear the matter and comply with such directions as may accompany the order of remand. The appellate jurisdiction inherently carries with it a power to issue corrective directions binding on the forum below and failure on the part of latter to carry out such directions or show disrespect to or to question the propriety of such directions would - it is obvious - be destructive of the hierarchical system in administration of justice. The seekers of justice and the society would lose faith in both.
Thus, it is clear that the Apex Court in the aforesaid judgment has held that the High Court have no jurisdiction or powers to criticise the judgments of the Apex Court.
80. (12) Another case on the point is Suga Ram v. State of Rajasthan , wherein in Para 6, the Apex Court has held that the judicial discipline to abide by declaration of law by this Court, cannot be forsaken, under any pretext by any authority or Court, be it even the highest Court in a Stale.
81. (13) Inacase of State of West Bengal v. Ashish Kumar Roy , the Apex Court has held that it is not open to any party, or Authority, or Tribunal or Court including the High Court to reopen the issue which is already decided by the Apex Court as decision by the Apex Court on the said issue is the law declared within the meaning of Article 141 of the Constitution of India.
82. (14) It is, thus, clear that the High Court is bound to obey the law declared by the Apex Court and cannot take any pretext to hold that the said law is not binding and should not be followed and reopen the issue decided by the Apex Court.
83. (15) In the present case, the Apex Court while dismissing SLP No. 9186/2007 has held that the writ appeal filed by the Rama and Company is not maintainable. In the present case, the Division Bench had dismissed writ appeal filed by Rama and Company as not maintainable and the said judgment is upheld by the Apex Court by giving similar reasoning. Sole question before the Apex Court in the aforesaid SLP was whether the appeal was maintainable or not and now the question is whether the said decision is a precedent.
84. (16) The Apex Court in the case of Kunhayammed and Ors. v. State of Kerala and Anr. (2006) 6 S.C.C. 359 has held as under:
(i) Where an appeal or revision is provided against an order passed by a Court, Tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the sub-ordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.
(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is up to the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal.
(iii) Doctrine of merger is not a doctrine of universal; or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability or merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.
(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the Court, Tribunal or Authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the Court, Tribunal or Authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata is subsequent proceedings between the parties.
(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.
(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by Sub-rule (1) of Rule 1 of Order 47 of the CPC.
85. (17) In the case of Rama and Co. (supra), the Apex Court has dismissed the SLP by a speaking order though giving short reasoning, hence, it will be covered in category No. (v) mentioned by the Apex Court in the aforesaid decision, i.e., if the order refusing leave to appeal is a speaking order, i.e., giving reasons for refusing the grant of leave. In such circumstances, there are only two implications, firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution of India and, secondly other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the Court, Tribunal or Authority in any proceeding subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country.
86. (18) Thus, now only two implications arise from the order of the Apex Court and it is not open to this Court to examine the correctness of the judgment of the Division Bench in the case of Rama and Co. or by the Full Bench in the case of Dr. Jaidev Siddha and only option for this Court is to hold that the judgment of the Apex Court will hold the field, because any number of the Apex Court which is directly on the question to hold that writ appeal challenging the judgment of the learned Single Judge in a petition challenging the order of the Tribunal is maintainable. Judgment rendered by the Full Bench in the case of Dr. Jaidev Siddha (supra), is per incuriam as the same was passed after decision of the Apex Court in SLP No. 9186/2007.
87. (19) The object for which the reference was made appears to be that the Division Bench could not declare a judgment rendered by the three-Judge Bench as per incuriam and, hence the matter was referred to the Larger Bench. This Court now cannot say that the judgment rendered by the Apex Court is not applicable on any reason particularly when the judgment in the SLP is the solitary judgment of the Apex Court on the provisions of the Adhiniyam. Earlier, there was no occasion for the Apex Court to examine the question of maintainability in the light of the provisions of the Adhiniyam which came into force with effect from 5th April, 2006. The Apex Court dismissed the SLP after considering the fact that the judgment of the learned Single Judge hearing writ petition against the Board of Revenue was not in original jurisdiction, hence, writ appeal is not maintainable.
88. (20) So far as this Court is concerned, the view taken by the Supreme Court in SLP No. 9186/2007 is a binding precedent as the sole question before the Supreme Court in the said SLP was about the maintainability of the appeal after coming into force of Adhiniyam of 2005 and earlier the Supreme Court had no occasion to deal with such a situation. Hence, so far as this Court is concerned, said view has attained finality and cannot be reopened in view of the aforesaid decision of the Apex Court. Therefore, judgment in SLP No. 9186/2007 is a binding precedent which is to be followed by this High Court unless the view taken by the Apex Court in the said SLP is overruled.