Gujarat High Court
Vajabhai Polabhai Kanjariya & vs Prabhubhai Thakershibhai Kanjhariya & ... on 9 August, 2017
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/CRA/346/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 346 of 2015
With
CIVIL REVISION APPLICATION NO. 332 of 2015
With
CIVIL REVISION APPLICATION NO. 54 of 2016
With
CIVIL REVISION APPLICATION NO. 414 of 2016
With
CIVIL REVISION APPLICATION NO. 7 of 2017
With
CIVIL REVISION APPLICATION NO. 45 of 2017
With
CIVIL REVISION APPLICATION NO. 294 of 2013
With
CIVIL REVISION APPLICATION NO. 452 of 2015
With
CIVIL REVISION APPLICATION NO. 13 of 2016
With
CIVIL REVISION APPLICATION NO. 385 of 2015
With
CIVIL REVISION APPLICATION NO. 390 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of
the judgment ? YES
4 Whether this case involves a substantial question of
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C/CRA/346/2015 JUDGMENT
law as to the interpretation of the Constitution of YES
India or any order made thereunder ?
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VAJABHAI POLABHAI KANJARIYA & 1....Applicant(s)
Versus
PRABHUBHAI THAKERSHIBHAI KANJHARIYA & 6....Opponent(s)
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Appearance:
MS MEGHA JANI, ADVOCATE for the Applicant(s) No. 1 - 2
MR VENUGOPAL PATEL, AGP for the Opponent(s) No. 6 - 7 (in all the
matters)
MR ANAND L SHARMA, ADVOCATE for the Opponent(s) No. 1
NOTICE SERVED for the Opponent(s) No. 3.1 - 3.3 , 3.5
NOTICE SERVED BY DS for the Opponent(s) No. 2 , 3.4 , 4 - 5
UNSERVED-EXPIRED (N) for the Opponent(s) No. 3
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 09/08/2017
ORAL JUDGMENT
1. All these Civil Revision Applications have come up for consideration on the issue of their maintainability in the wake of the decision of the Division Bench in Civil Revision Application No.386 of 2015 in case of Jay Atul Shah & Ors. Vs. Arvindbhai Amrutbhai Patel & Ors., decided on 21.7.2017, in which the reference made to the Division Bench has been answered as under:-
"10. In light of the foregoing discussion and reasons, the reference is answered as follows.
"Civil Revision Application would not be maintainable before this Court under Section 115 of the Code of Civil Page 2 of 14 HC-NIC Page 2 of 14 Created On Wed Aug 16 22:57:34 IST 2017 C/CRA/346/2015 JUDGMENT Procedure, 1908 against the orders passed by the Collector under Section 23(2) of the Mamlatdars' Courts Act, as the Collector functioning under the said Section or any of the authorities under the Mamlatdars' Courts Act cannot be construed as 'court' within the meaning and for the purposes of Section 115 of the Code and they are not 'the court subordinate to the High Court' under and for the purposes of the Code."
2. The respective learned Advocates for the applicants have submitted that though their Civil Revision Applications filed under Section 115 of CPC against the orders passed by the Collector or Deputy Collector under the Mamlatdars' Courts Act, would not be maintainable in view of the above decision of the Division Bench, they may be permitted to convert the revision applications into the petitions either under Article 226 and/or 227 of the Constitution of India.
3. In view of the above submissions, the revision applications are being considered without going into the merits, only on the limited issue as to whether they should be permitted to be converted into the petitions as prayed for.
4. The learned Advocate Ms. Megha Jain for the applicants in Civil Revision Application No.346 of 2015 placing heavy reliance on the decisions of this Court in case of Mandrake Raman Thanker, Prop. Lax mi Aluminum Ind. Vs. Mechanized Moralization Heir of Dec. Reverberant Mechanized, reported in 2004(1) GLH 736, and of Page 3 of 14 HC-NIC Page 3 of 14 Created On Wed Aug 16 22:57:34 IST 2017 C/CRA/346/2015 JUDGMENT Supreme Court in case of Municipal Corporation of Delhi Vs. R. P. Kuomintang and Ar., reported in 2004 (2) GLR 1066, and also in case of Col. Amil Kai (Reed.) Vs. Municipal Corp. Indore and Ors., reported in (2005) 12 SCC 734 submitted that the High Court has inherent powers and can permit conversion of Civil Revision Applications into petitions under Article 226 and/or 227 of the Constitution of India. She also submitted that the powers under Section 115 and under Article 227 of the Constitution are analogous in nature being supervisory powers of this Court over the subordinate Courts and hence, conversion be permitted. Ms. Jani further submitted that the applicants had earlier filed Special Civil Application, challenging the impugned order, however, the same was permitted to be converted into Civil Revision Application and now, in view of the judgement of the Division Bench, since Civil Revision Application is not maintainable the applicants are required to file petition under Article 226 and/or 227 of the Constitution of India. According to her, if the Civil Revision Application is not permitted to be converted into petition, great hardship would be caused to the applicants.
5. The learned Sr. Advocate Mr. Kavina appearing for the applicants in Civil Revision Application No.452 of 2015 additionally submitted that there was profound ambiguity prevailing as to whether the revision application under Section 115 of CPC Page 4 of 14 HC-NIC Page 4 of 14 Created On Wed Aug 16 22:57:34 IST 2017 C/CRA/346/2015 JUDGMENT or the petition under Article 226/227 would lie against the order passed by the authority under the Mamlatdars' Courts Act, and now since the issue has been set at rest, the applicants should be permitted to convert the Revision Application into the petition under Article 226 and/or 227 of the Constitution of India. He further submitted that such an ambiguity continued for a long time and the revision applications were being entertained by the High Court and in many cases, the interim orders have also been passed. Mr. Adil Mira, learned Advocate appearing for the private respondents in Civil Revision Application No.252 of 2015 and for the applicants in Civil Revision Application Nos.332 of 2015, 54 of 2016 and 414 of 2016 supported the contentions raised by the learned Sr. Advocate Mr. Kavina and urged to permit conversion of the Civil Revision Applications into the Special Civil Applications.
6. However, the learned AGP Mr. Venugopal Patel, relying upon the decision of the Bombay High Court in case of Mahabharata S/o Satyanarayanan Vs. Anita Trust, threw. Ku. Pris, reported in 2003(1) Bomber 230 and of the Supreme Court in case of Vishnu Kumar Vs. Shantee Praised, reported in (1980) 2 SCC 378 submitted that the revision under Section 115 of CPC is a separate and distinct proceeding than that of the petition under Article 227 of the Constitution of India and one can not be permitted to be converted into the other.
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7. After having carefully considered the submissions made by the learned Advocates for the parties and the various decisions of this Court as well as of the Supreme Court, it appears that though the Supreme Court in case of Vishnu Kumar Vs. Shantee Praised (supra) had held that the conversion of revision application filed under Section 115 of CPC into the petition under Article 227 of the Constitution of India can not be permitted, the three Judges' Bench of the Supreme Court in case of Municipal Corporation of Delhi Vs. R. P. Kuomintang and Ar. (supra) observed inter Alia that the High Court can convert any proceeding instituted before it in one manner to be that of another, provided a proper cause bas been made out and in the interest of justice. In case of Nabob Shafting Ali khan and Ors. Vs. Nabob Imelda Ah Baha'ullah and Ors., reported in (2009) 5 SCC 162, the Supreme Court observed in para 48 as under:-
"If the High Court had the jurisdiction to entertain either an appeal or a revision application or a writ petition under Articles 226 and 227 of the Constitution of India, in a given case it, subject to fulfillment of other conditions, could even convert a revision application or a writ petition into an appeal or vice versa in exercise of its inherent power. Indisputably, however, for the said purpose, an appropriate case for exercise of such jurisdiction must be made out."
8. In view of the afore-stated observations made by the Supreme Court, there remains hardly any doubt Page 6 of 14 HC-NIC Page 6 of 14 Created On Wed Aug 16 22:57:34 IST 2017 C/CRA/346/2015 JUDGMENT to the proposition that the High Court has inherent power to permit conversion of proceedings of Civil Revision Application into a petition under Article 227 of the Constitution of India or a writ petition under Article 226 of the Constitution of India, in appropriate cases and if proper cause is made out. However, at this juncture it may be noted that the present proceedings of Civil Revision Application have been filed challenging the orders passed by the authority under the Mamladars' Courts Act and in some of the revision applications, the interim orders passed by the Collector/Deputy Collector have been challenged. Such proceedings basically are arising out of the lis between two private parties in respect of the property disputes. When the request is made by the learned Advocates for the parties to permit conversion of Civil Revision Applications filed under Section 115 of CPC into the petitions under Article 226/227 of the Constitution, the Court is also required to consider as to whether such conversion is for appropriate or proper cause or is in the interest of justice.
9. Though specific query was put by the Court as to which proceedings would be maintainable against the impugned orders passed under the Mamlatdars' Act, the learned Advocates were not very sure as to whether a petition under Article 227 would lie or a writ petition under Article 226 of the Constitution would lie. It is axiomatic to say Page 7 of 14 HC-NIC Page 7 of 14 Created On Wed Aug 16 22:57:34 IST 2017 C/CRA/346/2015 JUDGMENT that the writ petition under Article 226 is entertained by the High Court in exercise of its original jurisdiction, whereas the petition under Article 227 is entertained in exercise of its supervisory jurisdiction. Both the jurisdictions operate in different fields and the insistence of the learned Advocates for the applicants to permit conversion of Civil Revision Applications into petitions under Article 226 and/or 227 can not be permitted. Ms.Jani has placed heavy reliance on the decision of the Supreme Court in case of Surya Dev Rai Vs. Ram Chander Rai and Ors., reported in (2003) 6 SCC 675, in which it was held inter alia that the distinction between the two jurisdictions i.e. under Article 226 and 227 of the Constitution stands almost obliterated in practice and it has become customary with the lawyers labeling their petitions as one common under Articles 226 and 227 of the Constitution. In this regard, it is required to be noted that the said judgement has been partly overruled by the three Judges' Bench of the Supreme Court in case of Radhey Shyam and Anr. Vs. Chhabi Nath and Ors., reported in (2015) 5 SCC 423, in which it has been observed as under:-
"26. The Bench in Surya Dev Rai also observed in para 25 of its judgment that distinction between Articles 226 and 227 stood almost obliterated. In para 24 of the said judgment distinction in the two articles has been noted. In view thereof, observation that scope of Article 226 and Page 8 of 14 HC-NIC Page 8 of 14 Created On Wed Aug 16 22:57:34 IST 2017 C/CRA/346/2015 JUDGMENT 227 was obliterated was not correct as rightly observed by the referring Bench in Para 32 quoted above. We make it clear that though despite the curtailment of revisional jurisdiction under Section 115 CPC by Act 46 of 1999, jurisdiction of the High Court under Article 227 remains unaffected, it has been wrongly assumed in certain quarters that the said jurisdiction has been expanded. Scope of Article 227 has been explained in several decisions including Waryam Singh and another vs. Amarnath and another, Ouseph Mathai vs. M. Abdul Khadir, Shalini Shyam Shetty vs. Rajendra Shankar Patil and Sameer Suresh Gupta vs. Rahul Kumar Agarwal. In Shalini Shyam Shetty, this Court observed :
"64. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases the High Courts, in a routine manner, entertain petitions under Article 227 over such disputes and such petitions are treated as writ petitions.
65. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority.
66. We may also observe that in some Page 9 of 14 HC-NIC Page 9 of 14 Created On Wed Aug 16 22:57:34 IST 2017 C/CRA/346/2015 JUDGMENT High Courts there is a tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev and in view of the recent amendment to Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding the High Court's power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.
67. As a result of frequent interference by the Hon'ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice. This Court hopes and trusts that in exercising its power either under Article 226 or 227, the Hon'ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest courts of justice within their jurisdiction will adhere to them strictly."
27. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private Page 10 of 14 HC-NIC Page 10 of 14 Created On Wed Aug 16 22:57:34 IST 2017 C/CRA/346/2015 JUDGMENT person not discharging any public duty. Scope of Article 227 is different from Article 226."
10. In the above stated case, the three Judges' Bench answered the reference made to it by specifically holding that the judicial orders of the Civil Court are not amenable to writ jurisdiction under Article 226, and that the jurisdiction under Article 227 is distinct from jurisdiction under Article 226 of the Constitution of India. The Bench further held that contrary view in Surya Dev Rai Vs. Ram Chander Rai and Ors. (supra) is overruled. At this juncture, it would be also apposite to regurgitate the difference between Articles 226 and 227 of the Constitution as laid down by Supreme Court in various decisions. The observations of Supreme Court in case of Umaji Keshao Meshram and Ors. Vs. Radhikabai, W/d of Anandrao Banapurkar and Anr., reported in 1986 (supp) SCC 401, in para 100 being relevant are reproduced as under:-
"100. ... 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 Page 11 of 14 HC-NIC Page 11 of 14 Created On Wed Aug 16 22:57:34 IST 2017 C/CRA/346/2015 JUDGMENT 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 Vaghela and Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel 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 or 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 processes are the same."
11. In view of the above, the scope of petitions under Article 226 and 227 being absolutely different, the applicants can not be permitted to convert the present Civil Revision Applications into the petitions under Article 226 and/or 227 of the Constitution of India in absence of any clarity as to under which provision the proceedings are required to be converted. As stated earlier, the Supreme Court has strongly deprecated the practice of the High Courts Page 12 of 14 HC-NIC Page 12 of 14 Created On Wed Aug 16 22:57:34 IST 2017 C/CRA/346/2015 JUDGMENT entertaining the petitions under Article 227 treating them as writ petitions in routine manner. The Supreme Court has also strongly deprecated the practice of the High Courts in entertaining writ petitions involving disputed questions of facts with regard to the property rights between private parties. In the instant cases, impugned orders passed under the Mamlatdars' Courts Act pertain to the disputes with regard to the property rights between private parties. Permitting en mass conversion of Civil Revision Applications into petitions under Article 226 and/or 227 of the Constitution would tantamount to permitting the applicants to proceed with the petitions which otherwise may not be maintainable under the law, and depriving the coordinate Benches taking up the petitions under Article 226/227 of the Constitution as per the roster from raising the issue of maintainability of such petitions. In that view of the matter, the submissions of the learned Advocates for the applicants to permit conversion of Civil Revision Applications into Special Civil Applications under Article 226 and 227 of the Constitution of India can not be accepted.
12. All the Civil Revision Applications, therefore, being not maintainable under Section 115 of CPC in view of the judgement of the Division Bench of this Court in case of Jay Atul Shah & Ors. Vs. Arvindbhai Amrutbhai Patel & Ors. (supra) are dismissed. However, it is Page 13 of 14 HC-NIC Page 13 of 14 Created On Wed Aug 16 22:57:34 IST 2017 C/CRA/346/2015 JUDGMENT clarified that since the Civil Revision Applications are being disposed of on the ground of non-maintainability alone, without examining them on merits, the applicants shall be at liberty to file appropriate proceedings as may be permissible under the law. The interim orders continuing in the Civil Revision Application Nos.346 of 2015, 452 of 2015, 54 of 2016, 294 of 2013, 332 of 2015, 414 of 2016, & 385 of 2015, are continued up to 31.8.2017 to enable the applicants to file appropriate proceedings as may be permissible under the law. The learned Advocates for the applicants shall be entitled to take back the certified copies of the impugned orders on the replacement of the simple copies.
(BELA M. TRIVEDI, J.) vinod Page 14 of 14 HC-NIC Page 14 of 14 Created On Wed Aug 16 22:57:34 IST 2017