Bombay High Court
Madhukar Chandrabhan Mohite vs Balkrishna Govind Sulakhe on 6 August, 1999
Equivalent citations: (1999)101BOMLR824
Author: R.J. Kochar
Bench: R.J. Kochar
JUDGMENT A.V. Savant, J.
1. By consent of all the learned Counsel, the four Letters Patent Appeals are taken up for hearing together in view of the common question of law arising therein pursuant to the orders passed by the Apex Court. We will briefly indicate the broad facts of these four appeals.
2. Letters Patent Appeal No. 126 of 1997 is filed by the tenant against the Judgment and Order dated 10th March, 1997 in Writ Petition No. 6011 of 1996. The appellant is admittedly a tenant of the suit premises protected by the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short, the 'Bombay Rent, Act'). The respondent-landlord filed the suit before the IInd Joint Civil Judge, J.D., Barshi, District Solapur for possession on the ground of default in payment of rent and permanent construction on 7.1.1987. The suit was decreed on the 11th October, 1995 only on the ground of default in payment of rent. The ground of permanent construction was rejected. The tenant filed Civil Appeal No. 361 of 1995 in the Court of the IInd Additional District Judge, Solapur, who, by his Judgment and Decree dated 26th July, 1996, dismissed the appeal. Being aggrieved by the said concurrent finding decreeing the suit of the landlords for eviction under the Bombay Rent Act, the tenant had filed Writ Petition No. 6011 of 1996. The title of the Writ Petition mentions "In the matter of Articles 226 and 227 of the Constitution of India". The learned Single Judge treated the petition as one under Article 227 and by his Judgment and Order dated 10th March, 1997 dismissed the petition. In the course of the Judgment, the learned Judge observed at more than one place that the petition was filed under Article 227. It is this Judgment dated 10th March, 1997 which is challenged before us in L.P.A. No. 126 of 1997. This L.P.A. was initially heard at the admission stage on 19th August, 1997 when the following order was passed:-
P.C. Admit.
2. Ad interim relief to continue.
3. The learned Counsel on behalf of the Respondent states that this Letters Patent Appeal is not maintainable as the learned Single Judge has decided the matter under Article 227 of the Constitution.
4. As against this, the learned Counsel appearing on behalf of the Appellant submits that the petition has filed the Writ Petition under Article 226 and, therefore, there is no question of treating the Writ Petition as one under Article 227 of the Constitution. For this purpose, reliance is placed on the decision of the Supreme Court in the case of Sushilabai Laxminarayan Mudliyar and Ors. v. Nihalchand Waghajibhai Shaha and Ors. .
5. As this question is required to be decided, the Letters Patent Appeal is admitted.
3. Against the above Order dated 19th August, 1997, the respondent landlord approached the Apex Court by Special Leave to Appeal (Civil) No. 816 of 1999 and the Apex Court passed the following order on 1st February, 1999:-
ORDER Prima facie the writ petition appears to be filed under Article 227 but as the High Court has admitted the Letters Patent Appeal and has kept the question of law open for examination, we do not say anything further on this point. We only request the High Court to dispose of Letters Patent Appeal within two months.
The Special Leave Petition is disposed of accordingly.
That is how the appeal is placed before us for deciding the question as to whether the Letters Patent Appeal is competent in the facts of the case before us.
4. The second matter viz., L.P.A. No. 31 of 1998 is also by the tenant against the Judgment and Order dated 14th January, 1998 passed by the learned Single Judge in Writ Petition No. 1232 of 1989. The appellant claims to be a tenant protected by the provisions of the Bombay Rent Act. Civil Suit No. 2655 of 1982 was filed by the respondents -landlords before the Principal Judge, Small Causes Court, Pune, for eviction on the ground of arrears of rent. On 15th June, 1985 the suit was decreed. The appellant-tenant filed Civil Appeal No. 862 of 1985, which was dismissed by the Additional District Judge, Pune, on 2nd February, 1989, Against the said Judgment and Decree, the appellant-tenant filed Writ Petition No. 1232 of 1989 in this Court. In the title of the petition, it is specifically mentioned as under:-
In the matter of Article 227 of the Constitution of India.
and In the matter of provisions of the Bombay Rent Act.
The learned Single Judge by his Judgment and Order dated 14th January, 1998 dismissed the said petition. It is this order which is challenged before us in L.P.A. No. 31 of 1998. This appeal was admitted on 19th February, 1998. That order was challenged in Special Leave to Appeal (Civil) No. 2741, 2742-43, 2744 and 2745 of 1999. The Apex court passed the following order on May 7, 1998:-
ORDER Leave granted. Heard Counsel. In all these matters the question of maintainability of the Letters Patent Appeal in the High Court is argued. In support of that learned Counsel places reliance on Umaji Keshao Meshram and Ors. v. Radhikabai (widow of Anandrao Banapurkar) and Anr., . Mr. Ranjit Kumar, learned Counsel appearing for the respondent, also cites authorities to support the maintainability. We consider that it is appropriate for the High Court to consider the question of maintainability as a preliminary issue and decide the matter at an early date.
We, therefore, request the High Court to dispose of the question of maintainability preferably within one month after the reopening of Courts after summer vacation.
The appeals are disposed of accordingly.
It must be stated that the Order quoted above is a common order under which L.P.A. Nos. 31 of 1998 and 32 of 1998 were directed to be heard on the question of maintainability of the Letters Patent Appeal as a preliminary issue.
5. Letters Patent Appeal No. 32 of 1998 is against the Judgment and Order dated 14th January, 1998 passed by the learned Judge in Writ Petition No. 253 of 1997. The respondents-landlord had filed Civil Suit No. 901 of 1986 in the Court of the Principal Judge, Small Causes Court, Pune, for eviction on the ground of nuisance and annoyance under the Bombay Rent Act. The suit was decreed on 23rd August, 1989. Civil Appeal No. 1028 of 1989 filed by the tenant was dismissed by the 10th Additional District Judge, Pune, on 18th September, 1996. These concurrent findings were challenged by the appellant-tenant in Writ Petition No. 253 of 1997, The title of the Writ Petition reads as under:-
In the matter of Article 227 of the Constitution of India.
And In the matter of provisions of the Bombay Rent Act.
The Writ Petition was dismissed by the learned Single Judge. It is this order dated 14th January, 1998 which is challenged in L.P.A. No. 32 of 1998. As indicated earlier, against the order dated 19th February, 1998 passed by the Division Bench admitted the L.P.A., appeal was filed to the Apex Court and by the Order dated 7th May, 1999, reproduced in para 4 above, this Court has been directed to decide the question of maintainability of L. P, A. as a preliminary point.
6. Letters Patent Appeal No. 48 of 1998 is against the Judgment and Order dated 27th February, 1998 passed by the learned Single Judge in Writ Petition No. 964 of 1998. The first respondent-landlady had filed Suit No. 661/1771 of 1986 in the Court of Small Causes, Bombay, for eviction of the appellant on the ground of bona fide requirement under Section 13(1)(g) of the Bombay Rent Act. The suit was decreed on 9th April, 1996. The appellant filed Appeal No. 370 of 1996 before the Appellate Bench of the Court of Small Causes, Bombay. The appeal was dismissed on December 20, 1997. Against the said Judgments and Decrees, appellant had filed Writ Petition No. 964 of 1998 in this Court. In the title of this petition, it was stated as under:-
In the matter of Articles 226 and 227 of the Constitution of India.
And In the matter of Bombay Housing and Rent Control Act, 1948.
The Writ Petition was treated by the learned Single Judge as a petition under Article 227 of the Constitution of India, as is evident from the Order dated 27th February, 1998. The learned Judge has dismissed the petition on merits by his Order dated 27th February, 1998. This order is challenged in L.P.A. No. 48 of 1998. The appeal was admitted by the Division Bench on 19th March, 1998. Against the said order, respondent No. 1 landlady had filed Civil Appeal No. 2741 of 1999 to the Apex Court which has been disposed of with the two other appeals mentioned above, arising out of L.P.A. Nos. 31 and 32 of 1998. Under the common Order dated 7th May, 1999 passed by the Apex Court, this Court has been directed to consider the question of maintainability of the appeal as a preliminary issue and that is how the matter has been placed before us.
7. We have heard the learned Counsel for the appellants-tenant viz. Shri Anturkar, Shri Apte, Shri Clive D'Souza and Shri Hegde. We have also heard Shri N.A. Rane, Shri Kumbhakoni and Shri Page for the respondents-landlords.
8. All the four appeals arise out of the suits filed under the Bombay Rent Act. As will be evident from the facts set out above, in each of the four cases the landlord/landlady had filed the suit for eviction on one or more grounds available under the Bombay Rent Act. The suits were filed in the Civil Court under Section 28 of the said Act. The said suits were decreed. Appeals were filed to the District Court or the Appellate Bench of the Court of Small Causes in Bombay in accordance with the provisions of Section 29 of the said Act. After the dismissal of the appeals by the Appeal Court, Writ Petitions were filed in this Court. It is true that, in some cases, in the title of the said petitions it has been mentioned as follows:-
In the matter of Article 227 of the Constitution of India;
And In the matter of the Bombay Rent Act.
In others, it is mentioned as follows:-
In the matter of Article 226 of the Constitution of India;
And In the matter of Article 227 of the Constitution of India;
And In the matter of the Bombay Rent Act.
9. The question which arises for our determination is about the maintainability of a Letters Patent Appeal under Clause 15 of the Letters Patent of the Chartered High Courts, which reads as under;
15. Appeal to the High Court from Judges of the Court. - And we do further ordain that an appeal shall lie to the said High Court of Judicature at Bombay from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act made on or after the first day of February One thousand nine hundred and twenty-nine in the exercise of appellate jurisdiction in respect of a decree or order made in 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 judgments of Judges of the said High Court or of such Division Court shall be to Us, Our heirs or Successors in Our or Their Privy Council, as hereinafter provided.
10. The orders passed by the Apex Court in these Appeals make a specific reference to its decision in the leading case on the point viz., Umaji Keshao Meshram and Ors. v. Smt. Radhikabai and Anr., (for short, Umaji's (case), which was decided on 14th March, 1986. Before we deal with the propositions of law laid down in Umaji's case, we may make a reference to the decision of the Special Bench of 5 learned Judges of this Court in State of Maharashtra v. Kusum Charudutt Bharma Upadhye 83 Bom. L.R. 75 rendered on November, 17, 1980, (for short, 'Kusum Upadhye's case). The Judgment of the Special Bench was delivered by D.P. Madon, J. (as His Lordship then was). It traced the origin and history of the High Courts in India in existence at the date of the commencement of the Constitution, particularly of the High Court of Judicature at Bombay; the nature and source of their various jurisdictions and the power of the High Courts to regulate the exercise of their jurisdiction and the nature of proceedings under Articles 226 and 227 of the Constitution of India. It was observed that the Constitution of India was the result of a process of evolution. It did not make a break with the past. It preserved and put its imprimatur upon the continuance of institutions, including the High Courts and of the laws, including the Letters Patent, which were in existence at the commencement of the Constitution. Referring to Articles 226, 227 and 228, it was held that they did not confer upon the High Courts wholly new powers not possessed previously by existing High Courts or not reflected in any of the powers or jurisdiction possessed by them at the commencement of the Constitution. The power under Article 226 is modelled upon the high prerogative writ jurisdiction possessed by the three Chartered High Courts in the exercise of their original jurisdiction, though under Article 226 that power has been made much wider and conferred upon all High Courts. Article 227 derives its origin from Section 15 of the Indian High Courts Act, 1861, Section 107 of the Government of India Act, 1915 and Section 224 of the Government of India Act, 1935. It was held that an appeal is a continuation of the original proceeding and an appeal filed against the decision of the Single Judge in a proceeding under Article 226 cannot be equated with a second application filed in the High Court for the same relief. Referring to Clause 15 of the Letters Patent, it was held that an appeal against the Judgment of a Single Judge in a proceeding under Article 227 is expressly barred. On a consideration of the two Articles, it was held that Articles 226 and 227 operate in different fields. The power of the High Court under Article 226 to issue directions, orders and writs is not supplemental to or in furtherance of the power of superintendence under Article 227. In exercising its powers under Article 226, the High Court exercises original jurisdiction as contrasted with its appellate and revisional jurisdiction. Where the original proceeding, which led to the proceeding under Article 226 concerns a civil right, the proceeding under Article 226 would be an original civil proceeding. It was further held that where the facts justify a party in filing an application either under Article 226 or 227, and the party chooses to file his application under both these Articles, the Court ought to treat the application as being one made under Article 226 and hence, an order passed in such a proceeding would be appealable under Clause 15 of the Letters Patent. If in deciding such an application made under Articles 226 and 227, the Court gives in the final order ancillary direction which pertains to Article 227, this would not deprive the party of his 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. These conclusions are to be found in the summary of the Judgment of the Special Bench at pages 143 to 146 of 83, Bombay Law Reporter. In the result, it was held that an appeal lies under Clause 15 of the Letters Patent from the Judgment of a Single Judge of the High Court in a petition under Article 226 filed either on the Original Side or on the Appellate Side of the High Court. It was further held that an appeal does not lie under Clause 15 of the Letters Patent from the Judgment of a Single Judge of the High Court in a proceeding under Article 227.
11. It will be evident from the above conclusions that one must ascertain the facts which justify a party filing an application either under Article 226 or Article 227 of the Constitution. In Umaji's case decided on 14th March, 1986 (AIR 1986 SC 1272) (supra), the Apex Court was dealing with a case under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. The proceedings arose out of an application made by the respondent landlady Radhikabai for possession of the lands on the ground that she wanted them for her personal cultivation. The application was allowed and she obtained possession of the lands. However, on the ground that, instead of personally cultivating the said lands, the landlady had leased them to the second respondent, Umaji filed an application under the said Tenancy Act claiming that he had become entitled to have the possession of the land restored to him. The application of Umaji was allowed by the Additional Tahsildar, Brahmapuri, District Chandrapur. The landlady's appeal against the said order was allowed by the Sub-Divisional Officer, Brahmapuri. Thereafter, Umaji filed a revision application to the Maharashtra Revenue Tribunal (M.R.T.), at Nagpur, which was allowed. The landlady filed a petition under Article 227 before the Nagpur Bench of the Bombay High Court, which was heard by a Single Judge. The High Court allowed the petition, set aside the order of the M.R.T. and restored the order of the Sub-Divisional Officer. Against the said Judgment and Order passed by a Single Judge, Umaji had filed an appeal under Clause 15 of the Letters Patent to the Division Bench of the Bombay High Court (Nagpur Bench). The Division Bench dismissed the appeal as not being competent in view of the decision of the Full Bench of the Bombay High Court in Shankar Naroba Salunke v. Gyanchand Lobhachand Kothari, Letters Patent Appeals Nos. 3, 10, 11 and 17 of 1979 and 34 of 1980 decided on 3rd December, 1980. It was against the said order of the Division Bench that Umaji approached the Apex Court by Special Leave.
12. In Umaji's case, the Apex Court speaking through the learned Judge D.P. Madon, J., considered the history of the establishment of the High Courts in the country and traced the origin of the powers under Articles 226 and 227 of the Constitution, with reference to the provisions In the Government of India Act, 1915 and the Government of India Act, 1935. In paragraphs 99 to 103 of the Judgment, at pages 1317 to 1319 of AIR, the Court indicated the distinction between the powers under Articles 226 and 227. It was held that the two Articles stood on an entirely different footing; their source and origin were different and the models upon which they were patterned were also different. Under Article 226, the High Courts have power to issue directions, orders and writs to any person or authority including any Government. Under Article 227, every High Court has the power of superintendence over all Courts and Tribunals throughout the territory in relation to which it exercises jurisdiction. The power to issue writs is not the same as the power of superintendence. By no stretch of imagination can a writ in the nature of habeas corpus or mandamus or quo warranto or prohibition or certiorari be equated with the power of superintendence. These are writs which are directed against persons, authorities and the State. The power of superintendence conferred upon every High Court by Article 227 is a supervisory jurisdiction intended to ensure that subordinate Courts and Tribunals act within the limits of their authority and according to law. These observations are to be found in para 99 of the Judgment.
13. In Para 100 of the Judgment in Umaji's case, the Apex Court emphasised that a series of its decisions had firmly established that a proceeding under Article 226 is an original proceeding. It was then held in paragraph 102 that it is equally well-settled in law that a proceeding under Article 227 is not an original proceeding. In paragraph 102, the Court referred to the provisions of Section 107 of the Government of India Act, 1915, Section 224 of the Government of India Act, 1935 with the addition of Sub-section (2) and the fact that Section 224 of the 1935 Act was reproduced with certain modification under Article 227 of the Constitution after deleting Sub-section (2) of Section 224 of the 1935 Act. Referring to the decision in Waryam Singh v. Amarnath, it was held that the deletion of Sub-section (2) of Section 224 of the 1935 Act from the corresponding provisions of Article 227 of the Constitution had the effect of restoring to the High Court the power of judicial superintendence they had under Section 15 of the High Courts Act, 1851 and Section 107 of the Government of India Act, 1915. Since all the subsequent decisions, to which we will make a brief reference, rely heavily on the law enunciated in Umqji's case, we find it necessary to reproduce paras 99 to 103 of the Judgment as under:-
99. According to the Full Bench even where Clause 15 to apply, an appeal would be barred by the express words of Clause 15 because the nature of the jurisdiction under Articles 226 and 227 is the same inasmuch as it consists of granting the same relief, namely, scrutiny of records and control of subordinate Courts and Tribunals and, therefore, the exercise of jurisdiction under these Articles would be covered by the expression "revisional jurisdiction and "power of superintendence". We are afraid, the Full Bench has misunderstood this scope and effect of the powers conferred by these Articles. These two Articles stand on any entirely different footing. As made abundantly clear in the earlier part of this judgment, their source and origin are different and the models upon which they are patterned are also different. Under Article 226 the High Courts have power to issue directions, orders and writs to any person or authority including any Government Under Article 227 every High Court has the power of superintendence over all Courts and Tribunals throughout the territory in relation to which it exercises jurisdiction. The power to issue writs is not the same as the power of superintendence, by no stretch of imagination can a writ in the nature of habeas corpus or mandamus or quo warranto or prohibition or certiorari be equated with the power of superintendence. These are writs which are directed against persons, authorities and the State. The power of superintendence conferred upon every High Court by Article 227 is a supervisory jurisdiction intended to ensure that subordinate Courts and Tribunals act within the limits of their authority and according to law (See State of Gujarat v. Vakhatsinghji Vajesinghji Veghela and Ahmedabad Mfg. and Calico Ptg. Co. Ltd. v. Ramtahel Ramnand . The orders, directions and writs under Article 226 are not intended for this purpose and the power of superintendence conferred upon the High Courts by Article 227 is in addition to that conferred upon the High Courts by Article 226. Though at the first blush it may seem that a writ of certiorari or a writ of prohibition partakes of the nature of superintendence inasmuch as at times the end result Is the same, the nature of the power to issue these writs is different from the supervisory of superintending power under Article 227. The powers conferred by Articles 226 and 227 are separate and distinct and operate in different fields. The fact that the same result can at times be achieved by two different processes does not mean that these two processes are the same.
100. Under Article 226 an order, direction or writ is to issue to a person, authority or the State. In a proceeding under that Article the person, authority or State against whom the direction, order or writ is sought is a necessary party. Under Article 227, however, what comes up before the High Court is the order or judgment of a subordinate Court or Tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate Court or Tribunal has acted within its authority and according to law. Prior to the commencement of the Constitution, the Chartered High Courts as also the Judicial Committee had held that the power to issue prerogative writs possessed by the Chartered High Courts was an exercise of original jurisdiction (see Mahamedalli Allabux v. Ismailji Abdulali ; Raghunath Keshav Khadilkar v. Poona Municipality ; Ryots of Garabandho and other villages v. Zamindar of Parlakimedi and Moulvi Hamid Hasam Normani v. Banwarilal Roy (1946-47) 74 Ind. App. 120 : AIR 1947 PC 90. In the last mentioned case which dealt with the nature of a writ of quo warranto, the Judicial Committee held :
In their Lordships' opinion any original civil jurisdiction possessed by the High Court and not in express terms conferred by the Letters Patent or later enactments falls within the description of ordinary original civil jurisdiction". By Article 226 the power of issuing prerogative writs possessed by the Chartered High Courts prior to the commencement of the Constitution has been made wider and more extensive and conferred upon every High Court. The nature of the exercise of the power under Article 226, however, remains the same as in the case of the power of issuing prerogative writs possessed by the Chartered High Courts. A series of decisions of this Court has firmly established that a proceeding under Article 226 is an original proceeding and when it concerns civil rights, it is an original civil proceedings (see for instance State of Uttar Pradesh v. Dr. Vijay Anand Maharaj - Commr. of Income Tax, Bombay v. Ishwarlal Bhagwandas (1966) 1 S.C.R. 190; Ramesh v. Gendalal Motilal Patni ; Arbind Kumar Singh v. Nand Kishore Prasad ; and Ahmedabad Mfg. and Calico Ptg. Co. Ltd. v. Ramtahel Ramnand .
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 the High Court, whether such charter be Letters Patent or a Statute. Clause 15 of the Letters Patent of the Bombay High Court gives in such a case a right of intra-Court appeal and, therefore, the decision of a Single Judge of that High Court given in a petition under Article 226 would be appealable to a Division "Bench of that High Court.
102. It is equally well-settled in law that a proceeding under Article 227 is not an original proceeding. In this connection, we need refer to only two decisions of this Court. In Ahmedabad Mfg. and Colico Ptg. Co.'s case this Court said :
Article 227 of the Constitution no doubt does not confer on the High Court power similar to that of an ordinary' Court of appeal. The material part of this Article substantially reproduces the provisions of Section 107 of the Government of India Act, 1915, except that the power of superintendence has been extended by this Article to Tribunals as well. Section 107 according to preponderance of judicial opinion clothed the High Courts with a power of judicial superintendence apart from and independently of the provisions of the other laws conferring on them revisional jurisdiction. The power under Article 227 of the Constitution 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 : see Wary am Singh v. Amar Nath, of the Constitution it may in his 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.
The origin and nature of the power of superintendence conferred upon the High Courts by Article 227 was thus stated by this Court in Waryam Singh v. Amarnath, . It reads as follows (at pages 570-1) (of S.C.R.) : (at p. 217 of AIR) :
The material part of Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915, except that the power of superintendence has been extended by the Article also to Tribunals.... The only question raised is as to the nature of the power of superintendence, conferred by the Article. Reference is made to Clause (2) of the article in support of the contention that this article only confers on the High Court administrative superintendence over the subordinate Courts and Tribunals. We are unable to accept this contention because Clause (2) is expressed to be without prejudice to the generality of the provisions in Clause (1). Further, the preponderance of judicial opinion in India was that Section 107 which was similar in terms to Section 15 of the High Courts Act, 1861, gave a power of judicial superintendence to the High Court apart from and independently of the provisions of other laws conferring revisional jurisdiction on the High Court. In this connection it has to be remembered that Section 107 of the Government of India Act, 1915 was reproduced in the Government of India Act, 1935, as Section 224. Section 224 of the 1935 Act, however, introduced Sub-section (2), which was new, providing that nothing in the Section should be construed as giving the High Court any jurisdiction to question any judgment of any inferior Court which was not otherwise subject to appeal or revision. The idea presumably was to nullify the effect of the decisions of the different High Courts referred to above. Section 224 of the 1935 Act has been reproduced with certain modifications in Article 227 of the Constitution. It is significant to note that Sub-section (2) to Section 224 of the 1935 Act has been omitted from Article 227. This significant omission has been regarded by all High Courts in India before whom this question has arisen as having restored to the High Court the power of judicial superintendence it had under Section 15 of the High Courts Act, 1861, and Section 107 of the Government of India Act, 1915.
103. Under Clause 15 of the Letters Patent of the Bombay High Court no Intra-Court appeal lay against an "order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act". By the same process of interpretation by reason of which the phrase "pursuant to Section 108 of Government of India Act" in Clause 15 is to be read as "pursuant to Article 225 of the Constitution of India", the phrase "order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act" is to be read as "order passed or made in the exercise of superintendence under the provisions of Article 227 of the Constitution". The result is that an intra-Court appeal does not lie against the judgment of a Single Judge of the Bombay High Court given in a petition under Article 227 by reason of such appeal being expressly barred by Clause 15 of the Letters Patent of that High Court. This is the view also taken by different High Courts (see, for instance, Jagannath Ganbqji Chikhale v. Gulabrao Raghobaji Bobde . Sukhendu Bikash v. Hare Krishna De ; Shrinivasa Reddiar v. Krishnaswami Reddiar : In re : V. Tirupuliswamy Naidu ; J. and K. Cooperative Bank v. Shamsud-din-Bacha AIR 1970 J. & K. 190 : 1970 Kash. L.J. 323 and Ishwar Singh v. Ram Piari .
14. After analysing the powers of the High Court under Articles 226 and 227 as above, the Apex Court dealt with the situation where petitions were filed, both under Articles 226 and 227 of the Constitution of India. Under Rule 18 of Chapter XVII of the Appellate Side Rules of the Bombay High Court, where such petitions are filed against the orders of the Tribunal or authorities specified in the said Rule or against decrees or orders of Court specified in that Rule, they are to be heard and disposed of by a Single Judge. The question then arises whether an appeal would He against a decision of a Single Judge in such a case. This is precisely the question required to be decided by us in view of the orders passed by the Apex Court in these four appeals. The Apex Court has answered the question in para 106 of the Judgment in Umaji's case to the effect that "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 said 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".
15. In paragraph 110 of the Judgment in Umaji's case, having regard to the facts of that case where the proceedings were initiated under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 for restoration or possession of land, it was held by the Apex Court that the petition filed before the High Court was admittedly under Article 227 of the Constitution and under the Rules of the High Court it was heard by a Single Judge and hence, under Clause 15 of the Letters Patent, an intra-Court appeal against such a decision, which is rendered in exercise of the powers or superintendence under Article 227 of the Constitution of India (similar to the provisions of Section 107 of the Government of India Act, 1915) was held to be specifically barred. In the result, it was held that the appeal filed by Umaji before the Division Bench of the High Court was rightly dismissed as being not maintainable.
16. The law laid down in Umaji's case has been subsequently reiterated by the Apex Court in many decisions. We will only refer to four of them which arose from the decisions of this Court : (i) Ratnagiri District Central Cooperative Bank Ltd. v. Dinkar Kashinath Watve and Ors., 1993 Supp. (1) SCC 9 (ii) Sushilabai Laxminarayan Mudliyar and Ors. v. Nihalchand Waghajibhai Shaha and Ors. (iii) Mangalbhai and Ors. v. Dr. Radheshyam Parischandra Agarwal, and (iv) the recent decision in M/s. Lokmat Newspapers Pvt. Ltd. v. Shankarprasad, 1999 (4) Scale 109 : 1999 (3) All Mah. R. 303 (SC), We will refer to these cases in brief.
17. In the case of Ratnagiri District Central Cooperative Bank Ltd. (supra), the Court reiterated the law laid down in paragraph 106 of the Judgment in Umaji's case and, on facts held that the case disclosed that the relief was granted by the Single Judge under Article 226 of the Constitution and not under Article 227. It was, therefore, held that the L.P.A. was maintainable and the order passed by the High Court taking a contrary view was set aside.
18. In Sushilabai Laxminarayan Mudliyars (supra), the Apex Court disapproved the view taken by the Division Bench of this Court and reiterated the tests laid down in para 106 of the Judgment in Umaji's case where emphasis has been laid on whether the facts justified a party filing an application either under Article 226 or Article 227 on which would depend the availability of the remedy of an appeal under Clause 15 of the Letters Patent. Needless to say that where the facts justified the filing of an application under both Articles 226 and 227 and where substantial part of the order appealed against and the main directions issued by the Single Judge are under Article 226, merely because some ancillary directions have been issued which may pertain to Article 227 that ought not to deprive a party of a right of appeal under Clause 15 of the Letters Patent. On the facts of Sushilabai's case, it was held by the Apex Court that the Division Bench of this Court was wrong in holding that the appeal was not maintainable against the order passed by the Single Judge. This conclusion is to be found in paragraph 4 of the Judgment of the Apex Court, at page 14.
19. In Mangalbhai and Ors. (supra), the Apex Court referred to the law laid down in Umaji's case. Mangalbhai's case arose out of an application filed by the landlord under Section 13 of the C.P. and Berar Letting of Houses and Rent Control Order, 1949, with notice of ejectment. The landlord's application was based on several grounds, but the eviction was pressed in the High Court only on the ground of need of the entire house of bona fide occupation and habitual default in the payment of rent by the tenant. The Deputy Collector and Rent Controller, Gondia, decided all the grounds against the landlord and dismissed the application. The Resident Deputy Collector, Bhandara, dismissed the appeal. The landlord filed Writ Petition under Articles 226 and 227 before the High Court. The Single Judge held that the tenants were habitual defaulters and the landlord had established bona fide need. The matter was, however, remanded to the Rent Controller for determining the extent of the need of the landlord for his residence and clinic. The tenants, being aggrieved by the order of remand passed by the Single Judge, filed a Letters Patent Appeal. The Division Bench of the High Court dismissed the appeal taking a view that, in truth and substance, the order passed by the Single Judge was under Article 227 and hence, L.P.A. was not maintainable. It was against this order that the tenants moved the Apex Court. In para 6 of the Judgment, at page 570, the Apex Court held that the totality of facts and circumstances of the case, the pleadings of the parties in the Writ Petition and the Judgment of the Single Judge left no manner of doubt that it was an order passed under Article 226 and, in that view of the matter the L.P.A. was maintainable.
20. In M/s. Lokmat Newspapers Put Ltd. v. Shankarprasad (supra), the proceedings arose out of a complaint filed by the respondent in the Labour Court under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, 'M.R.T.U. and P.U.L.P. Act') alleging unfair labour practice by the appellant employer. During the pendency of the said complaint, the State Government acting on a failure report of the Conciliation Officer made a reference of the industrial dispute under Section 10 of the Industrial Disputes Act, 1947. The employer contended before the Industrial Court, Nagpur, that reference under Section 10 of the I.D. Act was incomplete and was barred by the provisions of Section 59 of the M.R.T.U. and P.U.L.P. Act. This contention was upheld by the Industrial Court and the reference under Section 10 of the I.D. Act was disposed of. The complaint filed by the respondent to the Labour Court under the M.R.T. U- and P.U.L.P. Act was dismissed by the Labour Court. The respondent filed a Revision before the Industrial Tribunal, which was dismissed upholding the finding of the Labour Court that the employer had not engaged in any unfair labour practice. The respondent then filed a Writ Petition under Article 226 and 227 challenging the decisions rendered by both the Courts below. The writ petition was rejected by the Single Judge and thereafter Letters Patent Appeal was filed. The appeal was allowed and it was held that the appellant had engaged in unfair labour practice and hence, it was directed to pay back wages since, in the meanwhile, the respondent had got superannuated. The order of the Division Bench was challenged before the Apex Court by the employer and the question arose whether the L.P.A. was competent. In para 16 of the Judgment at pages 117-118, the Apex Court reiterated the law enunciated in Umaji's case. On the question whether the facts justified the party filing an application, either under Article 226 or 227, it was held that the Single Judge has exercised the jurisdiction only under Article 226. This conclusion was based on the relevant averments made in the Writ Petition and the nature of jurisdiction invoked. In the circumstances, it was held that the L.P.A. was maintainable.
21. Having referred to the decisions of the Apex Court on the scope of the powers exercised by the High Court either under Article 226 and Article 227 upon which depends the question of maintainability of an appeal under Clause 15 of the Letters Patent, we may make a brief reference to a few decisions of this Court, viz. (i) Purushottam and Anr. v. Avinash Vasudeo Javdekar and Anr., Letters Patent Appeal No. 61 of 1989, decided on 7th September, 1989 : , (ii) Hiralal Bhagirath Marwadi and Anr. v. Vishwanath Parashram Katekar and Ors., L.P.A. No. 28 of 1987, decided on 6th October, 1989 : 1990 Mah. L.J. 259 and (iii) Jagdish Balwantro Abhyankar v. State of Maharashtra and Ors., L.P. As. Nos. 90, 98 and 124 of 1988 and 20 of 1983, decided on 28th April, 1993 : 1993 Mah. L.J. 958.
22. In Purushottam and Anr. (supra), Avinash Vasudeo Javdekar and Anr. (supra) the L.P.A. arose out of a petition under Article 226 read with Article 227 where an order passed on merits by the Rent Control Authorities under the C.P. and Berar Letting of Houses and Rent Control Order, 1949 was challenged. The Single Judge held that the order impugned in the petition was based upon the concurrent findings of fact needing no interference in the supervisory jurisdiction under Article 227. A Envision Bench of this Court held that having regard to the nature of the controversy raised in the petition and the fact that the Single Judge had, in fact, exercised jurisdiction under Article 227, it was clear that the L.P.A. was not maintainable.
23. In Hiralal Bhagirath Marwadi (supra) a Writ Petition was filed challenging the order passed by the Maharashtra Revenue Tribunal (M.R.T.) in the exercise of its revisional jurisdiction under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. The proceedings were initiated by the Tahsildar starting an inquiry for restoration of possession of an agricultural land and the Tahsildar held Parashram (father of the respondent Vishwanath) not to be the tenant. Parashram appealed to the Deputy Collector, who held that he was a tenant. Hiralal challenged the order in the M.R.T. which allowed the application. Being aggrieved by the order passed by the M.R.T., the heirs of Parashram filed Writ Petition which was allowed by a Single Judge and the order of the Deputy Collector holding Parashram to be a tenant was restored. Hence, Hiralal filed a L.P.A. The question arose whether the L.P.A. was maintainable? This Court took the view that the Court must look to the substance of the order and ascertain what particular jurisdiction the Single Judge had in fact exercised. If the Single Judge had in fact invoked only the supervisory jurisdiction under Article 227, obviously L.P.A. would not lie. In the circumstances, it was held that the L.P. A, was not maintainable.
24. In Jagdish Balwantrao Abhyankar, (supra) a Full Bench of this Court again considered the law laid down by the Apex Court in Umaji's case. The Full Bench was hearing four Letters Patent Appeals. The orders impugned before the Single Judge were passed either by the Ceiling Authorities under the Maharashtra Agricultural Lands (Ceiling on Holding) Act, 1961 or by the Rent Control Authorities under the C.P. and Berar Letting of Houses and Rent Control Order, 1949 or by the Labour Court under Section 33-C(2) of the Industrial Disputes Act. The petitions were filed purportedly under Articles 226 and 227 in the first three appeals arising out of the proceedings under the Ceiling Act or the Rent Control Order and in the fourth appeal, arising out of the order passed by the Labour Court under the Industrial Disputes Act, the petition was filed under Article 226. The Full Bench referred to the decisions of the Apex Court in Umaji's case, and the other cases referred to above and concluded that the party had a right to elect or choose a remedy whether to file a petition under Article 226 or Article 227. When the party invokes jurisdiction under Article 226, it is not open to the High Court to exercise powers under Article 227 when the relief can be granted under Article 226. Where, however, the facts justify filing of an application under either Article 226 or Article 227 and the party chooses to file the application under both the Articles, if the Court treats the application as one under Article 226 and if substantial part of the order passed by the Single Judge is under Article 226 and only some ancillary directions pertaining to Article 227 are given, the order should be treated as one under Article 226 and the party will have the right of an appeal. On the facts of the cases before the Full Bench, all the four appeals were held to be maintainable under Clause 15.
25. On a careful consideration of the above decisions of the Apex Court and of this Court, it is clear that if the Single Judge has exercised jurisdiction under Article 226 a L.P.A. is clearly maintainable under Clauses 15. If the order passed by the Single Judge is only under Article 227 then a L.P.A. is not maintainable in view of the exclusion under Clause 15 viz. no appeal being maintainable against the order passed in exercise of the powers of superintendence under the provisions of Section 107 of the Government of India Act, 1935 (which was similar to Article 227). The approach of the Court has been to find out whether the facts justify the filing of the petition under Article 226 or Article 227. The words "facts justify" have been used by the Apex Court in para 106 of its Judgment in Umaji's case.
26. In our view, the following tests can be applied to come to the conclusion whether the facts justify the filing of a petition either under Article 226 or Article 227 of the Constitution.
(i) The first and foremost test that must be applied is the pleadings in the writ petition. This is clear from the observations of the Apex Court in Mangalbhai's case where in paragraph 6 of the Judgment, the Apex Court has observed that where in the totality of facts and circumstances of the case, the pleadings of the parties in the writ Petition and the Judgment of the Single Judge leaves no manner of doubt that it was an order passed under Article 226, a L.P.A. would be maintainable. Similar observations are to be found in Sushilabai's case where a reference is made in para 3 of the Judgment to the grounds taken in Writ Petition, if unmistakably go to show that it was a petition under Article 226, the L.P.A. would be maintainable.
(ii) The second test would be the approach and the observations of the Single Judge as to whether he was exercising the powers under Article 226 or Article 227. The Apex Court held this in para 6 of its Judgment in Mangalbhai's case and similar observations are to be found in Sushilabai's case in paras 3 and 4 of the Judgment.
(iii) The third factor which is relevant is whether the person, authority or State against whom a writ is sought, was made a party which is the requirement of a petition under Article 226, unlike a petition under Article 227 where the Court or Tribunal is not required to be made a party. This test emerges from the observations of the Apex Court in Umaji's case. We must hasten to add that, recently, in the case of Savitridevi v. The District Judge, Gorakhpur, 1999 AIR S.C.W. 597 the Apex Court has disapproved the practice of the judicial officers being shown as respondents in the petitions filed in the High Court and Special Leave Petitions filed in the Apex Court. The observations pertain to the judicial officers being made parties in proceedings as against a person, authority or a State being required to be made a party in a petition under Article 226 and a Court or a Tribunal not being so required in a petition under Article 227.
(iv) The fourth factor would be the relief prayed for in the petition. Where the relief prayed for is for issuance of a writ in the nature of habeas corpus or mandamus or quo warranto or prohibition or certiorari, such writs would normally be issued in exercise of powers under Article 226 where such writs are directed against the person, authority and State. Where, however, the reliefs prayed for are in exercise of powers of superintendence conferred upon every High Court by Article 227 which is a supervisory jurisdiction intended to ensure that subordinate Courts and Tribunals act within the limits of their authority and according to law, the exercise of jurisdiction would be under Article 227. This test emerges from the observations made in para 99 of the judgment in Umaji's case.
(v) The fifth factor is whether the jurisdiction invoked in the petition, irrespective of the label mentioned in the title of the petition, was primarily of original nature in which case it would be a petition under Article 226 or whether it was invoked in the nature of supervisory jurisdiction, in which case it would be under Article 227. The observations to this effect are found in para 100 of the judgment in Umaji's case reproduced above, where there is a reference to some Privy Council decisions.
(vi) The sixth test to be applied would be the real nature of the order passed by the Single Judge. Where substantial part of the order is under Article 226, the mere fact that, in the final order, the Court gives ancillary directions which may pertain to Article 227, Ought not to deprive the party of a right of an appeal under Clause 15 of the Letters Patent. This test emerges from para 106 of the judgment in Umaji's case. It is reiterated by the Apex Court in the case of Ratnagiri District Central Co-operative Bank (supra).
27. It is obvious that the above mentioned tests are illustrative and cannot be exhaustive. Further, no single test or factor, by itself, can be said to be determinative of the real nature of the jurisdiction exercised by the Single Judge and one will have to take into account the cumulative effect of all the factors mentioned above.
28. We may at this stage refer to the Maharashtra Act XVII of 1986, namely, Maharashtra High Court (Hearing of Writ Petitions by Division Bench and Abolition of Letters Patent Appeals) Act, 1986 which is stated to have come into effect from 1st July, 1989. Under Section 3 of the said Maharashtra Act, it is provided as under:
3. (1) Notwithstanding anything contained in the Letters Patent for the High Court of Judicature at Bombay, dated the 28th December, 1865 and in any other instrument having the force of law or in any other law for the time being in force, no appeal, arising from a suit or other proceedings (including the applications referred to in Section 2) instituted or commenced whether before or after the commencement of this Act, shall lie to the High Court from a judgment, decree or order of a Single Judge of the High Court made on or after the commencement of this Act whether in the exercise of the original or appellate jurisdiction of the High Court.
(2) Notwithstanding anything contained in Sub-section (1), all such appeals pending before the High Court, on the date immediately preceding the date of commencement of this Act, shall be continued and disposed of by that Court, as if this Act has not been passed.
The result of the said provisions, it prima facie appears to us, is to abolish the L.P.A. altogether. Even an appeal arising from a judgment and decree passed in a suit on the Original Side of this Court, would no longer be maintainable despite the provisions in Clause 15 of the Letters Patent.
29. We may also refer to the statement of object and reasons dated 23rd December, 1985 appended to the said Maharashtra Act which reads as under :
STATEMENT OF OBJECTS AND REASONS Under the Original Side Rules of the High Court of Judicature at Bombay, an application for the issue of a direction, order or writ under Article 226 of the Constitution of India, other than an application for a writ of habeas corpus, is heard and disposed of by a Single Judge or a specially constituted Bench of the High Court sitting on the Original Side. Whereas similar applications under the Appellate Side Rules (with few exceptions) are heard and disposed of on the Appellate Side by a Division Bench to be appointed by the Chief Justice. In view of the importance of such cases and to have uniformity of procedure, it is considered necessary that, instead of leaving this matter entirely to rules, a statutory provision by an Act should be made to provide that all such cases should ordinarily be heard and disposed of, whether on the Original Side or on the Appellate Side of the High Court, by a Division Bench of that Court and rules may be made to prescribe the less important cases which may be decided by a Single Judge.
2. Clause 15 of the Letters Patent for the High Court of Judicature at Bombay, dated the 28th December, 1865 provides for appeals against judgments of a Single Judge of the High Court. The clause has two parts. The first part in brief, provides for such appeals in all cases, except when such judgments are passed in Second Appeals or in the exercise of the revisional jurisdiction. The second part is really in the nature of an exception to the first, inasmuch as it provides, by way of relaxation, appeals under the above clause even in cases of Second Appeals, provided the Judge concerned declares or certifies! that the case is fit one for appeal. The appeal provided by way of exception in the second part of the clause has now been barred by Section 100A inserted in the Code of Civil Procedure, 1908, by Central Act 104 of 1976 and there is as such no further right of appeal against the decision of a Single Judge in Second Appeal with certificate of fitness. But in view of mounting arrears in the High Court, to discourage further litigation In the same Court and to give finality to the decision of the High Court, even though given by a Single Judge, It is necessary to abolish appeals in the same Court from Judgments or orders of a Single Judge, whether exercising original or appellate jurisdiction, on the lines of the Madhya Pradesh Uchcha Nyayalaya (Leters Patent Appeals Samapti) Adhiniyam, 1981 (M.P. XXIX of 1981) enacted in Madhya Pradesh.
3. This Bill is intended to achieve the objects mentioned above.
30. Placing reliance on para 2 of the Statement of Objects and Reasons quoted above, it is contended before us by the learned Counsel appearing for the respondents in all these appeals, who are the landlords; in the proceedings under the Bombay Rent Act, that having regard to the mounting arrears in this Court and with a view to giving finality to the decision of a Single Judge of this Court, it is necessary to abolish all intra Court appeals. As will be evident from the provisions of Section 3 of the Maharashtra Act XVII of 1986, even a appeal from a decree passed by a Single Judge of this Court in a suit on the Original Side has been abolished by virtue of provisions of Sub-section (1) of Section 3 of the said Act. It is true that in proceedings under Article 227 arising out of the orders passed under the Bombay Rent Act, two Courts have already applied their mind and the writ petition is filed thereafter. Hence, the learned Counsel for the landlords contend that there should be no further intra Court appeal in such matters. However, if the proceedings are initiated under Article 226, it is difficult to accept the contention that there should be no further appeal. If there is no intra Court appeal, it may adversely affect not only the Union of India, State of Maharashtra, Government Undertakings, big Corporations, rich businessmen or large landholders but it may also affect poor workmen who are wrongfully dismissed from service, students who have been wrongly denied admissions to colleges and Universities, small farmers who barely manage to eke out a livelihood and also persons belonging to the backward and disadvantaged classes who claim protection of their fundamental rights. We need not examine this question any further since the validity of the Maharashtra Act XVII of 1986 is pending before the Apex Court.
31. Bearing in mind the above mentioned tests, we will proceed to answer the question about the maintainability of the four L.P. As. before us in the light of the directions of the Apex Court.
32. In L.P.A. No. 126 of 1997, the petition was filed purporting to be under Article 226 and Article 227 of the Constitution by the tenant in the proceedings under the Bombay Rent Act. The respondent had filed a suit in the Civil Court for possession on the ground of default and permanent construction. The suit was decreed only on the ground of default and tenant's appeal was dismissed by the Additional District Judge, Solapur. The grounds in the writ petition clearly suggested that they invoked the supervisory jurisdiction of the High Court in exercise of its powers under Article 227. The subordinate Courts were not made parties since that is not necessary in a petition under Article 227. The prayers in the petition are also more in the nature of exercise of appellate or revisional jurisdiction and not in the nature of a original jurisdiction. The order passed by the learned Single Judge dismissing the petition specifically says that the petition was filed under Article 227. It says so in para 2 and twice in para 5 of the order. In the circumstances, we hold that the L.P.A. is not maintainable. We may add here that the order dated 1st February, 1999 passed by the Apex Court in the S.L.P. filed by the respondent/landlord makes the following observations.
Prima facie the writ petition appears to be filed under Article 227 but as the High Court had admitted the L.P.A. and has kept the question of law open for examination, we do not say anything further on this point.
Taking into account all the abovementioned facts and circumstances, we hold that L.P.A. No. 126 of 1997 is not maintainable since the impugned order passed by the learned Single Judge on 10th March, 1997 in Writ Petition No. 6011 of 1996 was an order passed in exercise of powers under Article 227. Hence, under Clause 15 of the Letters Patent, an appeal would not lie. The appeal is, therefore, dismissed. Interim order stands vacated.
33. In L.P.A. No. 31 of 1998, the order impugned is dated 14th January, 1998 passed by the learned Single Judge in Writ Petition No. 1232 of 1989. The petition filed by the tenant was specifically under Article 227 of the Constitution as the title itself suggests. The landlord had filed a suit for eviction in the Court of Small Causes, Pune on the grounds of default and permanent alterations. The ground of default was held proved by the Trial Court. The appeal filed by the tenant was dismissed by the Additional District Judge, Pune and these concurrent findings were challenged in this Court. The Courts whose orders were challenged in the petition under Article 227 were not made respondents. The averments and grounds in the petition show that the petition was under Article 227 and what was invoked was not the original jurisdiction of this Court but the supervisory jurisdiction of this Court. The reliefs prayed for in the petition were in the nature of the reliefs that are granted in exercise of powers of superintendence under Article 227. It is true that the order passed by the Single Judge does not specifically say that it was passed under Article 227. However, having regard to all the facts and circumstances mentioned above, we are of the view that the petition to this Court was under Article 227 and hence L.P.A. would not be maintainable under Clause 15. L.P.A. No. 31 of 1998 is, therefore, dismissed. Interim order stands vacated.
34. In L.P.A. No, 32 of 1998, the order impugned is dated 14th January, 1998 passed by the learned Single Judge in Writ Petition No. 253 of 1997. The suit was filed by the respondents/landlords in the Court of Small Causes, Pune for possession on the ground that the appellant/tenant was guilty of conduct amounting to nuisance and annoyance within the meaning of Section 13 of the Bombay Rent Act. The suit was decreed by the Trial Court. Aggrieved by the said judgment and decree, appeal was filed in the District Court, Pune which was dismissed and the appellant wais directed to hand over vacant possession of the suit premises. These concurrent findings were challenged in Writ Petition No. 253 of 1997. In the title of the petition, it was specifically mentioned that the petition was "in the matter of Article 227 of the Constitution of India". Courts whose orders were challenged were not made parties to the petition. The averments and grounds in the petition clearly suggest that what was invoked was the supervisory jurisdiction of this Court under Article 227 and not the original jurisdiction under Article 226. The reliefs prayed for were also in the nature of those granted in exercise of supervisory jurisdiction. It is true that the impugned order passed by the Single Judge does not specifically say that it was passed under Article 226. Nevertheless having regard to all the facts and circumstances, we hold that the impugned order was passed in exercise of the jurisdiction under Article 227. Hence, L.P.A. No. 32 of 1998 is dismissed. Interim order stands vacated.
35. L.P.A. No. 48 of 1998 is filed against the order dated 27th February, 1998 by the learned Single Judge in Writ Petition No. 964 of 1998. The proceedings arose out of R.A.E. Suit No. 661/1771 of 1996 filed by the plaintiff/landlady for possession in the Court of Small Causes at Bombay for possession under the Bombay Rent Act on grounds of her bona fide and reasonable requirement under Section 13(1)(g) of the said Act. The Trial Court decreed the suit. Appeal was preferred by the appellant-State Transport Corporation - before the Appellate Bench of the Court of Small Causes at Bombay. It was dismissed on 20th December, 1997. Against the said orders, writ petition was filed in this Court mentioning in the title "In the matter of Articles 226 and 227 of the Constitution of India". However, the Courts whose orders were challenged were not made parties in the writ petition. The averments and grounds in the writ petition show that what was invoked, was the supervisory jurisdiction of the Court under Article 227 and not the original jurisdiction under Article 226. Similar is the case as far as prayers in the petition are concerned. Moreover the impugned order passed by the Single Judge specifically states that the petition was under Article 227. In the circumstances, we hold that the petition was under Article 227 and hence L.P.A. would not be maintainable under Clause 15. L.P.A. No. 48 of 1998 is, therefore, dismissed. Interim order stands vacated.
36. At this stage, Counsel appearing for the appellants/tenants pray for stay of execution of the decrees for eviction for a period of 8 weeks. Counsel appearing for the respondents/landlords oppose the prayer on the ground that in the face of the findings recorded by the learned Single Judge in a petition under Article 227 of the Constitution of India, no case is made out for grant of any further indulgence. However, since we have disposed of the appeals pursuant to the directions of the Apex Court and since interim relief was granted in appeals which were admitted by this Court, we think it appropriate to grant some protection to the appellants. Hence, we pass the following order:
(i) Appellants in each of the four appeals will not be evicted from the premises in question for a period of six weeks from today;
(ii) This protection for a period of six weeks is subject to the usual condition which is imposed in matters arising under the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, that the appellant will file a written undertaking in this Court containing the usual statements namely, (a) the names and ages of the persons who are in possession of the premises; (b) that no third party rights of whatsoever nature will be created in the premises or any part thereof;
(iii) The rent/compensation will be paid upto date regularly;
(iv) Such written undertaking to be filed by each of the appellants within a period of two weeks from today. It is made clear that in the event of an appellant failing to file the undertaking as above within two weeks, the protection for six weeks granted under Clause (i) above, will automatically stand vacated on expiry of a period of two weeks.
37. No order as to costs.
38. Issuance of certified copy expedited.