Bombay High Court
Suresh S/O Mohanlal Jaiswal And 11 Otrs vs Sheela D/O Vasantrao Chauhan And 4 Otrs on 18 January, 2022
Author: Anil L. Pansare
Bench: S.B. Shukre, Anil Laxman Pansare
LPA.86.10.P
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
LETTERS PATENT APPEAL NO. 86/2010
IN
WRIT PETITION NO. 814/2000
(Suresh s/o Mohanlal Jaiswal and Others vs. Sheela D/o Vasantrao Chauhan and others )
............................................................................................ .........................................................
Office Notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's order
of directions and Registrar's orders
...........................................................................................................................................
Shri R.L.Khapre, Senior Advocate with Shri A.J. Bhoot, Advocate for appellant
nos.1 to 11
Shri C.S.Kaptan, Senior Advocate with Shri Rohan Chandurkar, Advocate for
appellant no.12
Shri S.R.Deshpande, Advocate for respondent no.7
Shri A.M.Ghare, Advocate for Respondents 8A and 9 to 13
Shri N.R. Patil, AGP for respondent no.14
CORAM : SUNIL B. SHUKRE &
ANIL L. PANSARE, JJ.
DATE OF RESERVING : 13th December, 2021.
DATE OF PRONOUNCEMENT: 18th January, 2022.
ORDER :(Per: Anil L. Pansare, J.) We have heard Shri R.L.Khapre, learned senior Advocate with Adv. Bhoot, for appellant nos. 1 to 11; Shri C.S. Kaptan, learned senior Advocate with Adv. Rohan Chandurkar, for appellant no.12 and Shri A.M. Ghare, learned Advocate for respondent nos. 8A and 9 to 13, on the point of maintainability of the Letters Patent Appeal (henceforth abbreviated to "LPA").
LPA.86.10.P 2
2. According to Shri Ghare, learned Advocate for respondent nos. 8Aand 9 to 13, the LPA is not maintainable. It is his contention that the impugned order dated 16.12.2008 passed by learned single Judge in Writ Petition No. 814/2000 has been passed under Article 227 of the Constitution of India and, therefore, the LPA is not maintainable. According to him, the maintainability of LPA would be based on the nature of order passed by learned single Judge, irrespective of the fact whether the petition has been filed under Art. 226 or under Arts.226 and 227. He further submits that, assuming that the maintainability would be decided on the basis of the contents of the petition, the pleadings in the petition filed by the appellants before the learned single Judge would show that the petition has been filed under Art.227 though it has been titled under Arts.226 and 227. He has referred to paragraph 18 of the petition filed before the learned single Judge wherein the averments have been made by the appellants as under :-
".........by not disposing of the Revision as filed and by remanding the matter to the Agricultural Lands Tribunal, the learned Designated Member, Maharashtra LPA.86.10.P 3 Revenue Tribunal, Nagpur committed a serious error of law which needs to be corrected by exercising the supervisory jurisdiction of this Hon'ble Court under Art. 227 of the Constitution of India. The order needs to be quashed and set aside by this Hon'ble Court."
3. Thus, according to Shri Ghare, the pleadings will also indicate that the appellants have invoked jurisdiction of the Court under Art.227 and not under Art.226. It is then contended by Shri Ghare that only two grounds were argued before the learned single Judge, namely, the Agricultural Lands Tribunal at Yavatmal had no jurisdiction to decide the question of validity of the will and sale-deed executed in favour of petitioners. The aforesaid grounds, according to Shri Ghare, will clearly show that the appellants have invoked the jurisdiction under Art. 227 and not under Art. 226. He has then pointed out that the learned Single Judge, by the impugned order, has been pleased to dismiss the petition upholding the order of the Maharashtra Revenue Tribunal, Nagpur (in short "MRT"). Any order of remand which does not conclude any rights of the parties could only be challenged under Art.227 before the learned single LPA.86.10.P 4 Judge, as is the case here and, therefore, it is argued that LPA is not maintainable.
4. Shri Ghare, learned Advocate for concerned respondents has placed reliance on the following judgments in support of his contentions :-
1) (2009) Vol. 10 SCC 584: {Ashok K Jha and others vs. Garden Silk Mills Ltd. And another}
2) 2019 Vol.5 ABR 31: {Kalusing @ Kaysing Jairam Bhil vs.Ramsingh Girase}
3) 2011 (5) Mh.L.J. 193: {Ramchandra Dagoji Rangari vs. Smt. Lilabai Ramchandra Rangari)
4) (2017)Vol.5 SCC 533: {Ram Kishan Fauji vs.State of Haryana and others}
5. The first judgment has been considered in the second judgment, which has been heavily relied upon by the respondents in support of their contention that LPA is not maintainable. The question of maintainability of LPA was considered by the coordinate Bench of this Court in the said judgment. The learned single Judge had by the impugned order therein quashed and set aside the orders passed by the Tahsildar and MRT. The coordinate Bench considered LPA.86.10.P 5 the judgment of the Full Bench of this Court in the case of M/s Advani Oerlikon Ltd. vs. Macchindra Govind Makasare and others, reported in AIR 2011 BOMBAY 84 : (2011) vol.2 Mh.L.J. 916. We may mention here that the aforesaid judgment of Advani Oerlikon has been relied upon by the appellants as well, in support of their contention that LPA is maintainable. In that sense, the issue of maintainability of LPA could be determined by taking aid of Advani Oerlikon's judgment. The coordinate Bench in the judgment relied upon by the respondents, has reproduced the principles of law settled by the Full Bench in paragraph 6 of the Advani Oerlikon's judgment, which reads as follows :
"6. We have gone through the judgment passed by learned single Judge of this Court which is impugned in the present Letters Patent Appeal. In the case of "Advani Oerlikon v. Macchindra Govind Makasare" (supra),the full Bench of this Court settled the following principles of law :-
"20. Upon this discussion, we now proceed to answer the questions formulated in the order of reference:
Re: 1: It is not a correct proposition in law that this Court cannot correct jurisdictional errors or errors resulting in miscarriage of justice committed by authorities which are subordinate to it by invoking powers under Article 226 of the Constitution.
Re:2: It is not a correct proposition in law that jurisdictional errors or errors resulting in miscarriage of LPA.86.10.P 6 justice committed by subordinate courts/ Tribunals can only be corrected this Court in exercise of powers under Article 227 of the Constitution. The writ of certiorari can be issued under Article 226 of the Constitution where the subordinate Court or Tribunal commits an error of jurisdiction. Where the subordinate Court or Tribunal acts without jurisdiction or in excess of it or fails to exercise jurisdiction, that error of jurisdiction can be corrected. Moreover when the Court or Tribunal has acted illegally or improperly such as in breach of the principles of natural justice the writ of certiorari is available under Article 226.
Re:3: Where the facts justify the invocation of either Article 226 or 227 of the Constitution to correct a jurisdictional error or an error resulting in a miscarriage of justice committed by authorities subordinate to this Court, there is no reason or justification to deprive a party of the right to invoke the constitutional remedy under Article 226 of the Constitution.
Re.4: It is open to the Court while dealing with a petition filed under Articles 226 and/or 227 of the Constitution or a Letters Patent Appeal under clause 15 of the Letters Patent arising from the judgment in such a petition to determine whether the facts justify the party in filing the petition under Article 226 and/ or 227 of the Constitution.
Re.5: The cause title, the averments and prayers in the petition can be taken into account while deciding whether the petition is one under Article 226 and/ or 227 of the Constitution.
Re. 6: If the petitioner elects to invoke Article 226 and /or 227 of the Constitution and the facts justify such invocation, a Letters Patent Appeal against the order of the learned Single Judge would be maintainable even though LPA.86.10.P 7 the Single Judge has purported to exercise jurisdiction only under Article 227 of the Constitution. The fact that the learned Single Judge has adverted only to the provisions of Article 227 of the Constitution would not bar the maintainability of such an appeal. The true test is whether the facts justify the invocation of Articles 226 and 227 and this has to be determined on the facts of each case having due regard to (i) the nature of the jurisdiction invoked;
(ii) the averments contained in the petition; (iii) the reliefs sought; and (iv) the true nature of the principal order passed by the single Judge. The true nature of the order passed by the single Judge has to be determined on the basis of the principal character of the relief granted. The fact that an ancillary direction has been issued under Article 227 of the Constitution would not dilute the character of an order as one with reference to Article 226.
What has to be ascertained is the true nature of the order passed by the Single Judge and not what provision is mentioned while exercising this power.
Re. 7: Where a petition is filed under Articles 226 and 227 of the Constitution and the facts justify the filing of such a petition, it is not lawful for the Court to hold that jurisdictional errors or errors resulting in a miscarriage of justice committed by the subordinate Courts or Tribunals can be corrected only by exercising powers under Article 227 (and that the meaning of Article 226 is redundant), thus depriving the party of a right of appeal under Clause 15 of the Letters Patent.
Re. 8: When a petition is filed under Articles 226 and 227 of the Constitution and the facts justify the filing of such a petition, it is not open to the Court to hold that Article 226 need not have been invoked, on the ground that Article 227 is clothed with the power to grant the same relief thus depriving the party of a right to elect or choose a remedy.
LPA.86.10.P 8 Re: 9: In a situation where a petition is filed under Article 227 of the Constitution and judgment is rendered in favour of the petitioner, recourse to an appeal under Clause 15 of the Letters Patent is not barred to the Respondent before the single Judge merely on the ground that the petition was under Article 227. In State of Madhya Pradesh v. Visan Kumar Shiv Charanlal (AIR 2009 SC 1999) (supra), the appeal before the Division Bench was filed by the respondent to the proceedings before the single Judge in a petition which had been instituted under Article 227. Accepting the submission that a nomenclature is of no consequence and it is the nature of the reliefs sought and the controversy involved which determine which Article is applicable, the Supreme Court held that the appeal before the Division Bench was maintainable. A similar position arose in the decision of the Supreme Court in MMTC v. Commissioner of Commercial Tax (AIR 2009 SC 1349) (supra). The Division Bench of the High Court had held that since the petition before the single Judge was under Article 227 of the Constitution, an appeal at the behest of the Respondent to the petition was not maintainable. The Supreme Court held that the High Court was not justified in holding that the Letters Patent Appeal was not maintainable since the High Court did not consider the nature of controversy and the prayers involved in the Writ Petition."
6. Thereafter the Court while applying the aforesaid principles as laid down by Full Bench to the facts of the petition before it, has held in paragraph 7 as under :
"7. No doubt, Writ Petition No.2092 of 1996 was filed under Articles 227 and 226 of the Constitution of India. However, nomenclature of Writ Petition or mere reference of Article 227 of the Constitution of India, does not make LPA.86.10.P 9 any difference. As ruled by the Full Bench of this Court, unless the Maharashtra Revenue Tribunal, which is under the supervisory jurisdiction of this Court, exceeds its jurisdiction or contravenes the principles of natural justice, this Court cannot invoke writ jurisdiction under Article 226 of the Constitution of India. However, obviously the order passed by Tahsildar, Nadurbar in Case No.26 of 1975 under Section 3 of the Scheduled Tribes Act and subsequent order passed by the Maharashtra Revenue Tribunal in Appeal No. 1 of 1992 on 15th June 1992 are passed within its jurisdiction. Even in both the proceedings opportunity of hearing was given to both the parties. Therefore, it cannot be said that the Tahsildar or Maharashtra Revenue Tribunal exceeded their jurisdiction or in any manner contravened the principles of natural justice. Therefore, in view of the above discussed settled position of law the learned single Judge cannot invoke writ jurisdiction under Article 226 of the Constitution of India. On the other hand after going through the order passed by the learned single Judge and after considering the facts and pleadings in the writ petition as well as prayer, it becomes clear that the learned single Judge exercised supervisory jurisdiction under Article 227 of the Constitution of India. Therefore, against the judgment passed by this Court exercising supervisory jurisdiction under Article 227 of the Constitution of India, the Letters Patent Appeal is not tenable. On this account alone the present Letters Patent Appeal deserves to be dismissed."
The Court then proceeded to test the petition on merits as well and found that there is no substance in the petition and, accordingly, dismissed the same.
LPA.86.10.P 10
7. Advocate Ghare, taking aid of above finding has argued that before the said Bench also, the petition was filed under Article 227 and 226 of the Constitution. The Court has held that the nomenclature of writ petition does not make any difference. The test will be whether the MRT has exceeded its jurisdiction or contravened the principles of natural justice. The Court found that MRT has done neither in the said case and therefore held that jurisdiction under Art.226 cannot be invoked. Shri Ghare then submitted that in the case in hand also, the MRT has not exceeded its jurisdiction or contravened the principles of natural justice. Accordingly, it is urged that since there is no breach of rules of natural justice, nor is there an error of jurisdiction, the petition as well as the order of learned single Judge will have to be construed to be an order passed under Art.227 and not under Art.226 of the Constitution. It is further the submission of Adv. Ghare that this is the only judgment in which the distinction in Art. 226 and Art.227 is specifically discussed.
8. We do not agree with the aforesaid argument. The coordinate Bench, in our view, has based its judgment in terms of the law laid down in Advani Oerlikon's case (supra), as could be LPA.86.10.P 11 seen from the findings recorded in paragraph 7. The coordinate Bench having found that the order impugned before the learned Single Judge was passed within its jurisdiction and that both the parties were given opportunity of hearing, held that the learned Single Judge could not have invoked writ jurisdiction under Art.226 of the Constitution. We find that the coordinate Bench has taken a view of non-maintainability of LPA in view of the peculiar facts before it and has not laid down a law.
9. In the present case, we have not yet arrived at a conclusion as to whether the order passed by MRT was within jurisdiction and whether opportunity of hearing was given to both the sides. To record such finding, we will have to delve upon the merits of the case.
10. The appellants have come up with the case that MRT has committed jurisdictional error by not taking cognizance of the pursis filed by the petitioner for disposal of Revision before it, on the ground that it has become infructuous. It is further the case of the appellants that MRT has assumed jurisdiction, which was not invested in it by transposing the respondent nos.7 and 8 as LPA.86.10.P 12 applicants in the Revision Petition. The said pleadings will have to be tested in the light of law laid down in Advani Oerlikon's case (supra) which has been relied upon by the respondents themselves.
11. The respondents have then relied upon the judgment in the case of Ramchandra Rangari vs. Vishwanath Naik: 2011(5) Mh.L.J. 193, on the point that the MRT having been not made a party-respondent in the Writ Petition filed before learned single Judge the appellants have knowingly not invoked the jurisdiction under Art.226 of the Constitution. It is so because, it is argued, the petition for issuance of writ of certiorari under Art.226 would not be maintainable without impleading the Tribunal whose order was assailed before the learned Single Judge. In other words, Shri Ghare has made an attempt to convince this Court that neither the petition nor the order passed by learned Single Judge was under Art.226 of the Constitution of India. His further argument is that the title of the petition referring to Art.226 will be of no help to the appellants and that the contents of petition as also the order impugned would clearly establish that the jurisdiction of the High Court has been invoked under Art.227 and, therefore, LPA is not maintainable.
LPA.86.10.P 13
12. The aforesaid argument has been countered by the appellants by taking aid of the ruling in Motilal Rokde and others vs. Balkrushna Lokhande and others, reported in 2020 Vol.I Mh.L.J.110, where the following question was taken up for consideration, "as to whether the finding of the Full Bench in the case of Ramchandra Rangari holding a petition for issuance of writ of certiorari under Art.226 of the Constitution of India would not be maintainable,without impleading the court/ Tribunal/ authority whose order is assailed before the High Court as a party respondent", lays down the correct position of law or not".
The Full Bench after taking into account various judgments some of which have been cited in the present case as well, has ultimately rendered its answer in paragraph nos. 20 and 21 as under :
"20. In the facts and circumstances of this case and the decision of the Apex Court in Jogendrasinhji's case rendered subsequent to the decision of the Full Bench of this Court in Ramchandra Rangari's case, covering the entire controversy, in our view, it is permissible for us to hold that the decision in Ramchandra Rangari's case no longer remains a good law. In our view, it depends upon the facts and circumstances of each case as to whether the tribunal or the authority which passed an order is a necessary party, without which the petition under Article 226 or 227 of the Constitution of India seeking a writ of certiorari is required to be dismissed. When a tribunal or an authority is required to defend its order, it is to be made a LPA.86.10.P 14 party, failing which the proceedings before the High Court would be regarded as not maintainable. Obviously, in such a case also, the party can be given an opportunity to join such Court/ tribunal /authority as a party-respondent.
21. In view of the decisions of the Apex Court in the case of Sh.Jogendrasinhji Vijaysinghji vs.State of Gujarat and others reported in 2015 Mh.L.J. Online (S.C.) 71 = AIR 2015 SC 3623, we hold that the decision of the Full Bench of this Court in the case of Ramchandra Dagdoji Rangari through LRs Smt.Lilabai Ramchandra Rangari and others vs. Vishwanath Champat Naik and another, reported in 2011 (5) Mh.L.J. (F.B.) 193, no longer remains a good law to the extent it holds that "a writ petition under Article 226 of the Constitution of India for a writ of certiorari would not be maintainable without impleading the tribunal/Court which passed an order under challenge."
subject to certain exceptions carved out inthis judgment. Thus, the question of law at Serial No. (4) is answered accordingly."
13. The exceptions carved out in the said judgment were that it would depend upon the facts and circumstances of each case, as to whether the Tribunal or the Authority which passed an order, is a necessary party, without which the petition under Art.226 or 227 of the Constitution seeking a writ of certiorari is required to be dismissed. It is further held that when a Tribunal or the Authority is required to defend its order it is to be made a party, failing which the proceeding before the High Court would be regarded as not maintainable. However, it is then clarified by the Full Bench that in LPA.86.10.P 15 such a case also, party can be given an opportunity to join such Court/Tribunal/Authority as a party-respondent.
14. Thus, the Full Bench has categorically held that it is not always necessary to make the Authority/Tribunal/Court as party- respondent in the petition before the High Court while invoking jurisdiction under Art.226 of the Constitution. Further, if presence of such Authority/Tribunal/Court is found necessary, the High Court can permit the petitioner to add such Authority/ Tribunal/ Court as party-respondent. It cannot be therefore said, as argued by Mr Ghare, that absence of MRT as party-respondent in the petition before the learned Single Judge, would indicate that the petitioners have filed the said petition under Art. 227 of the Constitution.
15. Shri Ghare, has then referred to the judgment of Hon'ble Supreme Court in (2017)Vol.5 SCC 533: (Ram Kishan Fauji vs.State of Haryana and others). The question was maintainability of LPA where orders were passed in exercise of criminal jurisdiction. The Hon'ble Supreme Court has held that the LPA will not be maintainable against the order passed by learned single Judge of High Court in exercise of criminal jurisdiction. However, our LPA.86.10.P 16 attention has been drawn by Shri Ghare to paragraph 40 of the said judgment which according to him, is relevant to decide the issue involved in the petition. Paragraph 40 reads as under :
"40. As the controversy in Jogendrasinhji Vijaysinghji case related to further two aspects, namely, whether the nomenclature of the article is sufficient enough and further, whether a tribunal is a necessary party to the litigation, the two-Judge Bench proceeded to answer the same. In that context, the Court referred to the authorities in Lokmat Newspapers (P) Ltd vs. Shankarprasad, Kishorilal, Ashok K.Jha and Rameshchandra Sankla and opined that maintainability of a letters patent appeal would depend upon the pleadings in the writ petition, the nature and character of the order passed by the learned single Judge, the type of directions issued regard being had to the jurisdictional perspectives in the constitutional context. It further observed that barring the civil court, from which order as held by the three-Judge in Radhey Shyam that a writ petition can lie only under Article 227 of the Constitution, orders from tribunals cannot always be regarded for all purposes to be under Article 227 of the Constitution. Whether the learned single Judge has exercised the jurisdiction under Article 226 or under Article 227 or both, would depend upon various aspects. There can be orders passed by learned Single Judge which can be construed as an order under both the articles in a composite manner, for they can co- exist, coincide and imbricate. It was reiterated that it would depend upon the nature, contour and character of the order and it will be the obligation of the Division bench hearing the letters patent appeal to discern and decide whether the order has been passed by learned single Judge in exercise of jurisdiction under Article 226 or 227 of the Constitution or both. The two-Judge Bench further clarified that the Division bench would also be required to scrutinize whether the facts of the case justify the assertions made in the petition to invoke the jurisdiction under both the articles and the relief prayed LPA.86.10.P 17 on that foundation. The delineation with regard to necessary party not being relevant in the present case, the said aspect need not be adverted to."
16. It is accordingly argued that the maintainability of LPA would depend upon the pleadings in writ petition, the nature and character of the order passed by learned single Judge, the type of directions issued regard being had to jurisdictional perspectives in the constitutional context. As stated earlier, Shri Ghare has referred to paragraph 18 of the petition filed before the learned single Judge wherein the appellants have sought to set aside the order of MRT under supervisory jurisdiction of the High Court to mean that the appellants have invoked jurisdiction under Art.227. It is further reiterated that the order of remand passed by MRT was well within the jurisdiction and the order of learned single Judge upholding the said order could only be passed under Art.227. This being so., Shri Ghare has vehemently argued that the petition filed before the learned single Judge as also the order passed therein was passed under Art.227 and, therefore, LPA is not maintainable.
17. The aforesaid judgment will also be of no help to the respondents. The answer to the plea taken by the respondents has LPA.86.10.P 18 already been dealt with by us while analyzing the arguments of respondents on the basis of Kalusingh's case (supra). No further discussion is therefore required.
18. As against this, learned Senior Advocates appearing for respective appellants, have argued that the law is well-settled on this point as carved out in Advani Oerlikon's case ( supra). The true test for determining maintainability of LPA is whether the facts of the case justify the invocation of Articles 226 and 227. This has to be determined with due regard to (i) nature of jurisdiction invoked,
(ii) averments contained in the petition; (iii) relief(s) sought and (iv) the true nature of the order passed by learned single Judge.
19. When a petition is filed under Articles 226 and 227 of the Constitution and the facts justify filing of such a petition, it is not open to the Court to hold that Art.226 need not have been invoked on the ground that Art.227 is clothed with the power to grant the same relief thus depriving a party of right to elect or choose the remedy. It is further argued that if the facts in a petition before learned single Judge justify filing of petition either under Art.226 or 226 & 227, then the LPA is maintainable. It is also LPA.86.10.P 19 argued that filing of such a petition under Art. 226 does not mean that the petition must succeed or that the learned single Judge has to exercise jurisdiction under Art.226. In a given case, the petition may be filed under Art.226 and 227 or only under Art.226 but the learned Judge may pass order under Art.227. Such a situation, by itself, does not oust the jurisdiction of the High Court to entertain the LPA.
20. Shri Khapre and Shri Kaptan, learned senior Advocates have drawn our attention to the pleadings made by the appellants in the petition before the learned single Judge particularly in paragraph nos. 19 to 21, to contend that issue of MRT travelling beyond jurisdiction was raised before the learned single Judge. It has been pleaded in these paragraphs that the order of MRT to transpose respondent nos.7 and 8 therein as petitioners, was without jurisdiction particularly when limited powers are conferred upon MRT u/s 318 of the Maharashtra Land Revenue Code. Thus, it is argued that there was not only an error of jurisdiction but also assumption of jurisdiction on it. In the circumstances, the writ of certiorari was maintainable before learned single Judge.
LPA.86.10.P 20
21. In addition to above, learned Senior Counsel Shri Khapre has relied upon the following judgments :-
1) AIR 1955 SC 233: (Hari Vishnu Kamath vs Syed Ahmad)
2) 1993 Vol.1 SCC 11:(Sushilabai Laxminarayan vs.Nihalchand)
3) 1999 Vol.6 I SC 275:(Lokmat Newspaper vs. Shankarprasad)
4) 2008 (3) SCC 525: (Shahu Shikshan Prasarak vs. Lata P.Kore)
5) 2008 Vol.12 SCC 726: (Mavji C.Lakum v.Central Bank)
6) 2008 Vol.15 SCC 233: (State of M P v.Visan Kumar)
7) AIR 2015 SC 3623: (Sh.Jogendrasinhji vs.State of Gujarat
8) AIR 1994 BOM 141 :( Jagdish Abhyankar vs.State)(Full Bench)
22. We need not go into the details of the above-referred judgments, inasmuch as the ratio laid down in these cases has largely been covered in the judgment of Advani Oerlikon' case (supra).
23. What we find is that Advani Oerlikon's judgment is relied upon by both the parties. There is no dispute on the well- settled proposition of law as laid down in Advani Oerlikon's judgment of which following findings are relevant to decide preliminary objections;
i) Where the facts justify the invocation of either Art.226 or 227 to correct jurisdictional error or an error restraining any LPA.86.10.P 21 miscarriage of justice committed by the authorities subordinate to the High Court.
ii) The cause title, the averments and prayers in the petition can be taken into account while deciding whether the petition is one under Art. 226 or under Art.227.
iii) The true test for determining whether the facts justify invocation of Art. 226 and 227 would lie in the nature of jurisdiction invoked, the averments contained in the petition,the reliefs sought and the true nature of the order passed by learned single Judge.
iv) The nomenclature of the petition so also the order passed by learned Single Judge, in a given case, may not be of any consequence to decide maintainability of LPA and, in any case, would be relatable to the nature of reliefs sought and the controversy in the petition filed before the learned single Judge.
24. Keeping in mind the above proposition of law, we may now refer to the facts of the case to the extent necessary to decide whether the LPA is maintainable.
25. The present case arises out of the order passed by MRT in revision application No.10A/282/1980(Old) (10A 119 of 1998 LPA.86.10.P 22 New). In the said revision, the issue was regarding fixation of purchase price and issuance of certificate under Bombay Tenancy Agricultural Lands (Vidarbha Region), Act, 1958.
26. Original Application was filed by one Pirulal. After his death, by virtue of Will dated 03.06.1964, Mohanlal s/o Pirulal became the successor in interest. The Tenancy court, as well as the Appellate Tenancy Tribunal dismissed the Application for grant of sale certificate. Mohanlal therefore preferred revision application before the MRT. During the pendency of the said revision application on 19.05.1995 the original landlord executed sale deed in favour of Mohanlal. Mohanlal therefore filed a pursis before the MRT on 23.06.1999 stating that the revision has become infructuous.
27. The Respondent No.8 however filed application and contested the claim that the revision is not infructuous. The Respondent No.7 and 8 also filed application for transposition of their names as applicants.
28. The learned Member of the MRT has passed order of remand of the proceedings to the Agricultural Lands Tribunal LPA.86.10.P 23 Yeotmal and also allowed the application of Respondent No. 7 and 8 to transpose them as applicants.
29. The said order is under challenge on the ground that MRT had no jurisdiction to remand the case to the Agricultural Lands Tribunal as the original cause in the proceedings no longer exists and that it had no jurisdiction to transpose the Respondent No.7 and 8 as the applicants in the proceedings initiated by Mohanlal, particularly when the Respondents Nos.7 and 8 were claiming adverse interest to Mohanlal.
30. In our considered view, the facts narrated herein-above would clearly establish that the appellants herein have challenged the jurisdictional error committed by the MRT. According to appellants, the MRT failed to act within its jurisdiction when the petitioners before it filed pursis for disposal of revision on the ground that it has become infructuous. The appellants have also challenged the order of the MRT transposing the respondent nos.7 and 8 as applicants in the said petition on the ground that the MRT committed not only error of jurisdiction but also error by assuming jurisdiction that was not vested in it. In that sense, it can safely be concluded LPA.86.10.P 24 that the appellants had invoked the jurisdiction under Art.226 before the learned single Judge. In the circumstances whether the learned single Judge has passed order under Art. 227 or not will be of no significance. It will be thus open for the the applicants to challenge the said order in LPA in view of the settled position of law, as mentioned above.
31. We accordingly find no substance in the challenge by respondents to maintainability of LPA in the present case. We accordingly hold that the LPA is maintainable.
Put up for final hearing after four weeks.
JUDGE JUDGE
sahare
Digitally Signed ByNARENDRA
BHAGWANTRAO SAHARE
Location:
Signing Date:18.01.2022 15:24