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Article 226 in The Constitution Of India 1949
Article 227 in The Constitution Of India 1949
Surya Dev Rai vs Ram Chander Rai & Ors on 7 August, 2003
Shalini Shyam Shetty & Anr vs Rajendra Shankar Patil on 23 July, 2010
M/S. M.M.T.C. Limited vs Commr.Of Commercial Tax & Ors on 3 November, 2008

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Bombay High Court
Nos. (I vs Vishwanath Champat Naik on 5 August, 2011
Bench: B. P. Dharmadhikari, V. A. Naik, Prasanna B. Varale
                                     1
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH




                                                                    
           LETTERS PATENT APPEAL NO. 268 OF 2007




                                            
                            IN
              WRIT PETITION NO. 1851  OF  1995

     Ramchandra Dagoji Rangari




                                           
     through LRs.

     (i) Smt. Lilabai Ramchandra 
         Rangari, aged about 69 yeas,




                                 
     (ii) Sau. Pratibha Shamrao
                    
          Ghodeswar, aged about 47 years,
          r/o Nandgaon Khandeshwar,
          Tq. Nandgaon Khandeshwar,
                   
          District - Amravati.

     (iii) Naresh Ramchandra Rangari,
           aged about 44 years,
      


           occupation - Service, r/o 
   



           Chandur Bazar, Dist. Amravati.

     (iv) Prashant Ramchandra Rangari,
          aged about 40 years,





          occupation - Service.

     (v) Dnyaneshwar Ramchandra 
         Rangari, aged about 33 yearrs,
         occupation - Service.





     (vi) Sau. Rajni Deepakrao Gajbhiye,
          aged 33 years, occupation -
          Household work, r/o Ganpati 
          Nagar, Amravati.




                                            ::: Downloaded on - 09/06/2013 17:36:36 :::
                                         2
     (vii) Kishore Ramchandra Rangari,
           aged 30 years, occupation -




                                                                        
           Business, r/o Subnis Plot,
           Amravati.




                                                
     Nos. (I), (iv), (v) & (vi) residents 
     of Sabnis Plot, Amravati, Tq. & 
     District - Amravati.                         ...   APPELLANTS




                                               
                 Versus

     1. Vishwanath Champat Naik,




                                   
        aged 55 years, occupation -
        Agriculturist, r/o Talvel,
                      
        Chandur Bazar, Dist. Amravati.

     2. Additional Collector, Amravati.            ...   RESPONDENTS
                     
     Shri J.T. Gilda, Advocate for the appellants.
     Shri Anil S. Mardikar, Advocate for respondent No. 1.
      


     Shri N.W. Sambre, GP for respondent No. 2.
     S/Shri   A.S.   Chandurkar,   A.M.   Ghare   and   Shantanu   Khedkar, 
   



     Amicus Curiae.
                             .....





                         
                       CORAM :   B.P. DHARMADHIKARI,
                                 MRS. VASANTI A. NAIK &
                                 PRASANNA B. VARALE, JJ.

DATE OF RESERVING THE JUDGMENT : JULY 12, 2011.

DATE OF PRONOUNCING THE JUDGMENT: AUGUST 05, 2011 JUDGMENT : (Per B.P. DHARMADHIKARI, J.)

1. Following questions are placed before us as per ::: Downloaded on - 09/06/2013 17:36:36 ::: 3 orders of the Hon'ble the Chief Justice :-

i) Whether the learned Division Bench in deciding L.P.A. No. 150/2010 on 1.10.2010 was bound to take into account and follow the view of the Supreme Court in M.M.T.C. Limited .vs.

Commissioner of Commercial Tax and ors - (2009) 1 SCC 8, taken by a bench of three Judges of the Supreme Court instead of following the view of the Supreme Court in Shalini Shyam Shetty and another .vs. Rajendra Shankar Patil - 2010 (7) SCALE 428, decided by two Judges of that Court having regard to the rule of law and practice laid down by the Supreme Court in State of U.P. .vs. Ram Chandra Trivedi - AIR 1976 SC 2547 ?

And

ii) Whether the learned Division Bench ought to have followed the law laid down by the Supreme Court in M.M.T.C. Limited and held that a L.P.A. is tenable against an order of Single Judge passed in a petition under Articles 226 and 227 of the Constitution of India in a matter arising out of an order of inferior Court or Tribunals in a dispute between two private parties such as a landlord and tenant ?

::: Downloaded on - 09/06/2013 17:36:36 ::: 4

2. History leading to this Reference.

Judgment in L.P.A. No. 150/2010 dated 1.10.2010 at the root of controversy is reported at 2011(2) Mah.L.J. 497--

Kalpesh Hemantbhai Shah vs.Manhar Auto Stores, Amraoti.

The history leading to these proceedings can be safely stated from the reference order of later Division Bench in Letters Patent appeal 268/2007 arising out of W.P. No. 1851/1995--

Ramchandra s/o Dagoji Rangari, (dead) through his legal heirs, . Versus .1. Vishwanath Champat Naik & . Additional Collector, Amravati on 20th December 2010. Said L.P.A. arose from the judgment refusing to issue the writ of certiorari in a writ petition under Article 226 and 227 of the Constitution of India and to interfere with the order passed by the Additional Collector in proceedings under the C.P. & Berar Letting of Houses and Rent Control Order, 1949. The tenability of said LPA was questioned relying upon the judgment of the Division Bench of this Court in L.P.A. No. 150/2010 where the earlier Division Bench held that dispute between landlord and tenant can be entertained only under Article 227 of the Constitution of India.

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Contention was as Article 226 could not have been invoked, the L.P.A. was barred. The decision of Hon'ble Supreme Court in Shalini Shyam Shetty and another .vs. Rajendra Shankar Patil - 2010 (7) SCALE 428-(2010) 8 SCC 329 --2010 AIR SCW 6387 was also pressed into service by respondent landlord.

Appellants-tenants urged that that Division Bench erred in considering itself bound by the decision in Shalini Shyam Shetty (supra), which is rendered by a bench of two Judges, without considering that a larger Bench of the Hon'ble Supreme Court comprising of three Judges in M.M.T.C.Limited .vs.

Commissioner of Commercial Tax and ors.- (2009) 1 S.C.C. 8 has held that a writ petition under Article 226 of the Constitution is maintainable in similar circumstances and, therefore, the L.P.A. was/is tenable. It was argued that when the High Court comes across any conflict between the views expressed by the larger and smaller Benches of the Supreme Court, it cannot disregard the views expressed by the larger Benches and is bound to follow the view expressed by the larger Bench. Support was taken from State of U.P. .vs. Ram Chandra ::: Downloaded on - 09/06/2013 17:36:36 ::: 6 Trivedi - AIR 1976 S.C. 2547. Later Division Bench of this Court noted that in Shalini Shyam Shetty's case (supra) Hon'ble two-

Judges Bench of the Supreme Court, after tracing the history of the conferment of the writ jurisdiction on the High Courts and having regard to the parameters of interference laid down in earlier decisions, came to the conclusion that in a pure dispute between a landlord and tenant which is a dispute between private parties, the High Court ought not to have entertained the writ petition under Article 226 of the Constitution of India but ought to have dismissed it. Position of law laid down by the Larger Bench of Hon'ble Supreme Court in M.M.T.C. Limited (supra) where it has been held that the High Court was in error in holding that the L.P.A. was not tenable since a writ petition was under Article 227 of the Constitution, is also noted. Division Bench in order of reference, expresses that while the judgment in M.M.T.C. Limited (supra) arises out of a prayer to quash an order passed by the Assistant Commissioner, Commercial Tax and is not strictly a dispute between the private parties, the Supreme Court never-the-less affirmed that the nature of relief sought for ::: Downloaded on - 09/06/2013 17:36:36 ::: 7 and the controversy involved determines the Article of the Constitution which is applicable, as distinct from the nature of the parties to the writ petition. It pointed out that in M.M.T.C.Limited, larger bench of Supreme Court affirmed the law laid down in Surya Dev Rai .vs. Ram Chander Rai and others- (2003) 6 SCC 675 and that arose out of a private dispute between the parties in a civil suit under Order 39 Rules 1 & 2 CPC , and held that writ of certiorari can be issued under Article 226 of the Constitution against the order of the Tribunal or an order passed by the subordinate Courts. It found that such disputes, are normally in the nature of private disputes between the parties. Decisions of the Supreme Court on the issue noted in M.M.T.C. Limited are also pointed out. It appeared to later Division Bench that decisions of inferior Tribunal or subordinates courts in purely private parties have long been considered as amenable to writ jurisdiction of this Court under Article 226 read with Article 227 of the Constitution of India and that the judgment in Shalini Shyam Shetty's case took a different view. Since both conflicting views of Hon'ble Apex Court were ::: Downloaded on - 09/06/2013 17:36:36 ::: 8 submitted to the earlier Division Bench, later Division Bench then considered the the law laid down by the Supreme Court in State of U.P. .vs. Ram Chandra Trivedi - AIR 1976 S.C. 2547, and thought it appropriate to make a reference to the larger Bench which has come before us.

Reference to earlier Division Bench judgment in LPA 150/2010 dated 1.10.2010 is also necessary but then it is being made at appropriate length little later while appreciating it in the background of findings being reached below.

3. Arguments.

We now briefly proceed to note the contentions advanced by respective learned Counsel and by other learned Advocates in response to general notice circulated by the High Court Bar Association.

3.1. In this background, Adv. Gilda for Appellants in LPA contended that earlier Division Bench judgment in LPA 150/2010 ::: Downloaded on - 09/06/2013 17:36:36 ::: 9 dated 1.10.2010 does not take correct stock of the situation. Shri Mardikar pointed out that in view of later Full Bench pronouncement by this Court in 2011 (5) Ljsoft 11=2011 (2) Mah.L.J. 916 in LPA 261 of 2005 With LPA 26/2011 & 304 To 308 of 2010 in Advani Oerlikon Ltd. Vs. Machindra Govind Makasare & Ors. on 17-3-2011, the limited question as to whether facts justified invocation of Art. 226 and it was properly invoked needs to be gone into. Applying these tests, according to him, view of earlier Division Bench in facts before it does not call for any change. Learned GP Shri Sambre has also addressed on same lines. According to Adv. Chandurkar (learned amicus curiae) and Adv. Ghare who assisted us voluntarily, the judgment of Hon'ble Apex Court in Shalini Shetty does not alter the legal position settled well over number of years. He also urged that in Surya Dev Rai, the scope of writ jurisdiction is further widened. Adv. Khedkar assisted the Court by showing the nature and scope of powers under Art. 226. All Counsel did not in any way question the full bench judgment in Advani Oerlikon Ltd. Vs. Machindra Govind Makasare & Ors.(supra).

::: Downloaded on - 09/06/2013 17:36:36 ::: 10

3.2. Shri Gilda has invited our attention to law as explained in Advani Oerlikon Ltd. Vs. Machindra Govind Makasare & Ors.(supra). and to Special Bench judgment in 1981 Mah.L.J. 93--State of Maharashtra vs. Kusum Charudutta relied upon by the Full Bench. He has heavily relied upon the conclusions recorded therein in an attempt to urge that conclusion no. 30 therein is not looked into in Shalini Shyam Shetty vs. Rajendra Shankar Patil (supra) and provisions in Rule 18 of Chapter XVII of Bombay High Court Appellate Side Rules, 1960 are also not considered there. He strives to demonstrate that errors noticed in appreciation of controversy in Surya Dev Rai vs. Ram Chandar Rai (2003) 6 SCC 675 (supra) really do not exist. He invites attention to relevant discussion in this connection by Hon'ble Apex Court as contained in (2009) 5 SCC 616 2009--AIR SCW 4006 "Radhey Shyam v. Chhabi Nath"

to urge that view of Hon'ble 9 Judges in AIR 1967 S.C. 1-

"Naresh Shridhar Mirajkar v. State of Maharashtra" has not been correctly culled out therein. Surya Dev Rai vs. Ram Chandar Rai (supra) and ratio of this 9 judges bench is ::: Downloaded on - 09/06/2013 17:36:36 ::: 11 considered and applied correctly in Advani Oerlikon Ltd. Vs. Machindra Govind Makasare & Ors.(supra). Various Larger Bench and Division bench judgments of Hon'ble Apex Court looked into by Full Bench of this Court are also pressed into service to show how the judgment in Surya Dev Rai vs. Ram Chandar Rai (supra) has been consistently followed. He also states that against earlier Division bench view in LPA 150/2010, "leave" is already granted by the Hon'ble Apex Court but then question of law is left open for consideration of this Court.

Learned Counsel in this background, takes us through various paragraphs in Shalini Shyam Shetty vs. Rajendra Shankar Patil (supra), to show that position as assessed therein is not correct. According to him, in said matter, writ of certiorari was properly invoked and hence, LPA ought to have been entertained. He further points out that before earlier Division Bench in LPA 150/2010, there was no prayer for any writ at all.

He also points out that in W.P. 1851 of 1995 (LPA 268/2007), petition is both under Art. 226 & 227 of the Constitution, Additional Collector whose order was assailed therein, is party ::: Downloaded on - 09/06/2013 17:36:36 ::: 12 respondent 2 and prayer is to issue writ of certiorari to quash that order.

3.3. On the aspect of maintainability of LPA, he points out that in AIR 1964 S.C. 477 "Syed Yakoob v. K. S.

Radhakrishnan" where Hon'ble Constitution Bench has held that a writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals. He argues that this view is not noticed in Radhye Shyam Chhabi Nath, (supra). He draws heavily from Full Bench judgment of this Court in Advani Oerlikon Ltd. Vs. Machindra Govind Makasare & Ors.(supra) to point out how a still larger bench of Hon'ble 9 judges in "Naresh Shridhar Mirajkar v. State of Maharashtra" found that writ of certiorari can be issued to inferior courts. According to him this Full Bench was aware of present reference and hence, did not make any comments upon the view in Shalini Shyam Shetty vs. Rajendra Shankar Patil in this respect. LPA is held to be maintainable if jurisdiction under Art. 226 of the Constitution of India of learned Single ::: Downloaded on - 09/06/2013 17:36:36 ::: 13 Judge of this Court is "properly invoked". He further states that this Full Bench did not notice (2001) 9 SCC 609- Kanhaiyalal Agrawal v. Factory Manager, Gwalior Sugar Co. Ltd., & (2006) 7 SCC 496- Kishorilal v. Sales Officer, District Land Development Bank,. He invited attention to judgment delivered by Hon'ble 4 judges of Supreme Court reported at AIR 1963 SC 786--Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another. to show that there, in a writ of certiorari, not only the tribunal or authority whose order is sought to be quashed but also parties in whose favour the said order is issued are declared as necessary parties. Constitution Bench judgment of Hon'ble Apex Court delivered in 1964 in case of Mohd. Emanuel Haq vs. Mohd. Hussala reported at 1968 Mah.L.J. (NOC)1, taking similar view and judgment of Hon'ble 3 judges taking a contrary view reported at AIR 1999 SC 976--

Savitri Devi v. District Judge, Gorakhpur and others, is also pointed out with comment that attention of Hon'ble 3 judges was not invited to earlier two views of Larger Benches holding the field. He points out that in AIR 1992 S.C. 185 - Sushilabai ::: Downloaded on - 09/06/2013 17:36:36 ::: 14 Laxminarayan Mudliyar vs. Nihalchand Waghajibhai Shaha, also the authority was not party.

3.4. He also made reference to some other precedents but as We find those considered in Advani Oerlikon Ltd. Vs. Machindra Govind Makasare & Ors.(supra), We are not referring them here. He concludes by urging that State of Maharashtra vs. Kusum Charudutta (supra) is still a good law and there the challenge was to order of Labour Court. Said judgment and Full Bench view clearly show that in private dispute also writ can be issued. Hence, view in Surya Dev Rai is correct and needs to be followed.

3.5. On the law of precedents, learned Counsel states that this Court has to find out the Larger bench view and apply it.

State of U.P. .vs. Ram Chandra Trivedi - AIR 1976 S.C. 2547 is pressed into service for that purpose. If the divergent views are reached by coordinate benches, this Court has to find out which one takes the correct view on law applicable before it. (2002)1 ::: Downloaded on - 09/06/2013 17:36:36 ::: 15 SCC 1--Pradip Chandra Parija v. Pramod Chandra Patnaik, & (2001) 4 SCC 448--Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha, where the respective Constitution Benches state that a decision of a Constitution Bench of Apex Court binds a Bench of its two learned Judges and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness. At the most, they could have ordered that the matter be heard by a Bench of three learned Judges. (1996) 4 SCC 119--State Bank of India Scheduled Caste/Tribe Employees' Welfare Assn. v. State Bank of India, where Hon 3 judges state that larger bench view is to be followed is also relied. Attention is invited to (1997) 8 SCC 767- G.M., Telecom v. A. Srinivasa Rao, where the Hon'ble Apex Court through Hon'ble 3 Judges states that it is not permissible for it, or for that matter, any Bench of lesser strength, to take a view contrary to that in Bangalore Water Supply or to bypass that decision so long as it holds the field.(2008) 10 SCC 1 (Hon'ble 3 Judges) --

Official Liquidator v. Dayanand, is pointed out to highlight importance and basics of judicial discipline. The Larger ::: Downloaded on - 09/06/2013 17:36:36 ::: 16 Benches of Calcutta High Court & Karnataka High Court reported at AIR 2004 Cal. 1-- "New India Assurance Co. Ltd v.

Tara Sundari Phauzdar (FB)" & AIR 1980 Kart. 92--AIR 1980 Karnt. 92 "Govindanaik v. West Patent Press Co." respectively are also cited. It is urged that the judgment of Hon'ble 3 judges in M.M.T.C. Limited .vs. Commissioner of Commercial Tax and ors (supra) was cited before Division bench in LPA 150/2010 and it ought to have been followed. He also relied upon Part III dealing with Precedent:Nature and History in book "Law in the making" by Sir Carleton Kemp Allen (7th edition, first Indian reprint 1997) to buttress his submissions. He also read out part dealing with conflicting decisions contained in book "Precedent in English Law" by Rupert Cross (3rd Edition) to show when decision can be really said to be conflicting.

3.6. Shri Mardikar for respondent in LPA states that in the light of subsequent judgment in Advani Oerlikon Ltd. Vs. Machindra Govind Makasare & Ors.(supra), he does not dispute the tenability of LPA in landlord-tenant adjudication, if ::: Downloaded on - 09/06/2013 17:36:37 ::: 17 facts justify filing of writ petition under Art. 226 of the Constitution and it is invoked properly also. He invites attention to discussion in Shalini Shetty to state that there the dispute was of purely private nature and hence, no question of any jurisdictional error was involved. He points out that in LPA 150/2010 the situation was identical and there was no prayer for any writ at all. He relies upon Full Bench of this Court reported at 1995(2) Bom.L.R. 640--Kamleshkumar Ishwardas Patel vs. Union of India & others to explain what is binding as declaration of law and what is obiter. As the judgment of Hon'ble 3 judges in M.M.T.C. Limited .vs. Commissioner of Commercial Tax and ors (supra) was cited, according to him "reference" in present facts was not necessary.

3.7. Shri Atul Chandurkar, the learned amicus curiae read out paragraphs from Shalini Shyam Shetty vs. Rajendra Shankar Patil to urge that it did not pose or contain any challenge to any jurisdictional error or to any error in decision making process. (1996) 6 SCC 44-- Union of India vs. ::: Downloaded on - 09/06/2013 17:36:37 ::: 18 Dhanwanti Devi, is relied upon to urge how ratio decidendi needs to be isolated. Enunciation or principles on which case is decided are alone urged to be binding. He states that thus viewed, Hon'ble Apex Court in Shalini Shyam Shetty vs. Rajendra Shankar Patil nowhere states that in disputes between landlord and tenant, in no case LPA is tenable. The earlier Division Bench deciding LPA 150/2010 proceeded under wrong impression and he argues that in a given case, there can be infractions of statute like Maharashtra Rent Act or other pari-

materia provisions. He further points out that LPA 150/2010 was filed by landlord and learned Single Judge of this Court had allowed petition filed by tenant after reversing the finding on comparative hardship. Our attention is invited to points referred to Full Bench in Advani Oerlikon Ltd. Vs. Machindra Govind Makasare & Ors, particularly point nos. 1 to 3 and point no. 9 with answers to the same to argue that when facts justify and provisions of Art. 226 are properly invoked, the LPA against such adjudication of Single Judge is very much maintainable. He points out that when court fails to consider aspects like ::: Downloaded on - 09/06/2013 17:36:37 ::: 19 comparative hardship, need being satisfied by partial eviction, undisputed or indisputable employer-employee relationship, limited jurisdiction under S. 33-C(2) of IDA or other similar legal fetters on its jurisdiction, infraction of law in otherwise private disputes is also possible.

3.8. To explain, how the registry has been registering i.e. categorizing the matters in the light of observations by Hon'ble Apex Court in Shalini Shyam Shetty vs. Rajendra Shankar Patil (supra), Division Bench judgment of this Court reported at 1995(2) Mah.L.J. 753 -- Nagpur Cable Operators Association vs. State of Maharashtra, is also relied upon with contention that attention of Hon'ble Apex Court was not invited to either Rule 18 or Rule 28 of Chapter XVII of Bombay High Court Appellate Side Rules,1960. It is urged that proceedings invoking Art. 226 r/w 227 can be entertained and decided by learned Single Judge of this Court. Division Bench judgment reported at 1991 Mah.L.J. 734-- Vasantdada Dugdha Vyavasaik vs. Commissioner, Dairy Development is pressed into service to ::: Downloaded on - 09/06/2013 17:36:37 ::: 20 explain the what is included in phrase "dispute" between parties.

3.9. Learned Counsel has further urged that merely because view in Surya Dev Rai is referred to Larger Bench, that does not mean that it has ceased to be a binding precedent. He relies upon (2009) 13 SCC 608--Harbhajan Singh v. State of Punjab, (2009) 13 SCC 608, wherein Hon'ble Apex Court states that only because the correctness of a portion of the judgment has been doubted by another Bench, the same would not mean that it should wait for the decision of the larger Bench, particularly when the same instead of assisting the appellants ran counter to their contention. 1994 Mah.L.J. 1371--

Mahendrakumar Shantilal Shah vs. State of Maharashtra is also cited for this proposition.

3.10. Learned Govt. Pleader Shri Sambre has relied upon the Division Bench judgment reported at (1999)101 BOMLR 824-- Madhukar Chandrabhan Mohite vs. Balkrishna Govind Sulakhe, particularly paragraph 26 to show how the pleadings ::: Downloaded on - 09/06/2013 17:36:37 ::: 21 need to be perused or authority/tribunal must be impleaded as party to properly invoke and justify entitlement to relief under Art. 226. According to him, judgment by Hon'ble 3 Judges of Hon'ble Apex Court in M.M.T.C. Limited .vs. Commissioner of Commercial Tax and ors (supra) needed to be followed here.

3.11. Shri Ghare had on very first day of hearing, in absence of Adv. Gilda had stated that he would like to assist the Court. He relied upon discussion in Surya Dev Rai vs. Ram Chandar Rai (2003) 6 SCC 675 (Para 7).--AIR 2003 S.C. 3044, to urge that technicalities till then felt necessary for issuance of writ of certiorari under Art. 226 to Trial Courts/Tribunals are relaxed and hence, in appropriate matters, whenever this Court through its Single Judge finds a case for intervention made out, that jurisdiction can be exercised. He relies upon AIR 1993 SC 1225--Mohan Pandey vs. Smt. Usha Rani to show dispute between two private persons relating to immovable property has been recognized as private dispute. (1973) 1 SCC 273-- M/s Hindustan Steel Ltd. vs. Smt. Kalyan Banerjee is cited to ::: Downloaded on - 09/06/2013 17:36:37 ::: 22 contend that even in civil dispute, mandamus can be issued when facts are not in dispute and title to property is clear. It is urged that it provides remedy in case of violations of rights of citizen by State or statutory authority. 2008 AIR SCW 3460--

"Mavji C. Lakum v. Central Bank of India" is also relied upon to show how challenge to labour dispute has been found to be under Art. 226 and hence, LPA was held maintainable.

3.12. Adv. Khedkar who appeared to assist this Court in response to notice circulated by Bar Association, contended that remedy under Art. 226 is available irrespective of the nature of dispute or parties thereto, if facts justify its invocation. He relies upon the Constitution Bench judgment of Hon'ble Apex Court reported at AIR 1966 SC 1445-- Ramesh & another vs. Gendlal Motilal Patni, particularly paragraph 10 to urge that decisions affecting private civil rights under Art. 226 are already accepted and expected. AIR 1966 S.C. 81 "Dwarka Nath v. Income-tax Officer, Special Circle, D Ward, Kanpur" is also used to explain the nature and scope of jurisdiction of High Court. It is urged ::: Downloaded on - 09/06/2013 17:36:37 ::: 23 that Article 226 is couched in comprehensive phraseology and it ex-facie confers a wide power on the High Court to reach injustice wherever it is found. A wide language in describing the nature of the power, the purposes for which and the person or authority against whom it can be exercised was designedly used by the Constitution. The High Court can issue writs in the nature of prerogative writs as understood in England, but the scope of those writs also is widened by the use of the expression "nature", which expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. AIR 1964 S.C. 477- "Syed Yakoob v. K. S.

Radhakrishnan" relied upon by Adv. Gilda is also cited by him.

According to him only test to be satisfied for invocation of Art.

226 is jurisdictional error and other tests are not relevant.

3.13. In brief reply, Adv. Gilda points out that in Shalini Shyam Shetty vs. Rajendra Shankar Patil (supra) the SLP questioned adjudication by the learned single judge directly and hence, question of tenability of LPA was not involved at all.

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(2010) 9 SCC 479-- Uma Shankar Singh v. State of Bihar, (2011)1 SCC 210 -- Amar Singh v. Union of India, and (2011) 1 SCC 694- Siddharam Satlingappa Mhetre v. State of Maharashtra, are relied upon by him to urge that reference made in Radhye Shyam vs. Chabbi Nath does not in any way dilute the propositions accepted in Surya Dev Rai vs. Ram Chandar Rai (supra). He points out that in last judgment, Hon'ble Apex Court notes its Constitution Bench judgment in Union of India v. Raghubir Singh. and points out the design behind the doctrine of binding precedent which has the merit of promoting a certainty and consistency in judicial decisions in para 9. On the question of understanding the ratio, he draws attention to (2007) 7 SCC 378 Rajendra Singh v. State of U.P., paragraph 19.

4. Though it was urged that this Court is constitutionally obliged to reach injustice whenever and where-

ever possible and that in Surya Dev Rai (supra), the Hon'ble Apex Court has widened the law on the scope of interference, ::: Downloaded on - 09/06/2013 17:36:37 ::: 25 since the law as explained in Advani Oerlikon (supra) on the point is not in dispute , We are not considering all these facets but then We must record our gratitudes to all these advocates for valuable assistance rendered by them.

4.1. Law in Surya Dev Rai vs. Ram Chandar Rai (2003) 6 SCC 675--AIR 2003 S.C. 3044, is already referred to Larger bench by Hon'ble Apex Court itself in Radhey Shyam vs. Chabbi Nath. In Surya Dev Rai, Hon'ble Supreme Court through its two Hon'ble Judges have observed :--

"38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as here-under-:-

(1) Amendment by Act No. 46 of 1999 with effect from 1-7-2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by ::: Downloaded on - 09/06/2013 17:36:37 ::: 26 the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or

(iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

::: Downloaded on - 09/06/2013 17:36:37 ::: 27

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion.

Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the ::: Downloaded on - 09/06/2013 17:36:37 ::: 28 pendency of any suit or proceedings in a subordinate court and error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings.

The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction ::: Downloaded on - 09/06/2013 17:36:37 ::: 29 exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions.

While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.

39. Though we have tried to lay down broad principles and working rules the fact remains that the parameters for exercise of jurisdiction under Article-226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules. Not less than often the High Court would be faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may ::: Downloaded on - 09/06/2013 17:36:37 ::: 30 earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise self-restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where a stitch in time would save nine'. At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge."

In view of appreciation of this judgment by Hon'ble Apex Court itself in "Radhey Shyam v. Chhabi Nath", We find it not necessary to consider it here. It may be mentioned here that in Shankara Coop. Housing Society Ltd. v. M. Prabhakar,(2011) 5 SCC 607 decided on May 5, 2011, Surya Dev Rai is again relied upon to note the parameters. Moreover, it is also relied upon in Advani Orelikon Ltd. by Full Bench of this Court.

::: Downloaded on - 09/06/2013 17:36:37 ::: 31

4.2. In 2009 AIR SCW 4006 "Radhey Shyam v. Chhabi Nath", above view in Surya Dev Rai vs. Ram Chandar Rai is considered by Hon'ble Apex Court through its Two Hon'ble Judges as under :--

"10. . As early as in 1957, a Constitution Bench of this Court in the case of Shri Sohan Lal vs. Union of India and Another, AIR 1957 SC 529 - held that a writ of mandamus or an order in the nature of mandamus is not to be made against a private individual. A writ of and/or in the nature of Mandamus normally is issued asking a person to do a particular thing which is in the nature of his public duty. In Sohan Lal (supra) rival claims of property were in issue and the learned Judges held in paragraph 5 that the writ Court should refrain themselves from entering the said field. Since in view of the Court such an exercise calls for "entering into a field of investigation which is more appropriate for a Civil Court in a properly constituted suit to do rather than for a Court exercising the prerogative of issuing writs" (see para 5, page

531). The learned Judges held that if only it can be proved that the ::: Downloaded on - 09/06/2013 17:36:37 ::: 32 appellant-Sohan Lal acted in collusion with Union of India in evicting the respondent-Jagan Nath, then an order of mandamus can be issued (see para 7), but it will not issue otherwise.

12. Following the aforesaid principle, this Court fails to understand how can the writ Court intervene in a dispute over property rights between private individuals. Apart from the decision in the case of Sohan Lal (supra), subsequently in the case of Mohd. Hanif vs. The State of Assam, 1969 (2) SCC 782 - a three-Judge Bench of this Court explaining the general principle relating to High Court's jurisdiction under Article 226 held that the jurisdiction of the High Court is extraordinary in nature and is vested in the High Court not for the purpose of declaring the private rights of the parties but it is conferred for the purpose of ensuring that the law of the land is implicitly obeyed and that the various tribunals and public authorities are kept within the limits of the jurisdiction (see para 5), The learned Judges reiterated the principle further by saying :-

"...In a proceeding under Article 226 the High Court is not concerned merely with the determination of the private rights of ::: Downloaded on - 09/06/2013 17:36:37 ::: 33 the parties; the only object of such a proceeding under Article 226 is to ensure that the law of the land is implicitly obeyed and that various authorities and tribunals act within the limits of their respective jurisdiction."

19. It is only in the case of Surya Dev Rai vs. Ram Chander Rai and others, 2003 (6) SCC 675, a two Judge Bench of this Court held, possibly for the first time the "orders and proceedings of a judicial Court subordinate to the High Court are amenable to the writ jurisdiction of the High Court under Art.226 of the Constitution (para 19, page 688 of the report). The attention of the Court was not drawn to the earlier Constitution Bench judgment in Sohan Lal (supra) or the three-Judge Bench judgment in Hanif (supra). Both these judgments are still holding the field.

20. . Before coming to the aforesaid conclusion, the learned Judges in Surya Dev Rai (supra) noticed the contrary view expressed in a Nine-Judge Constitution Bench judgment of this Court in the case of Naresh Shridhar Mirajkar and others vs. State of Maharashtra, AIR 1967 SC 1 (V 54 C 1). In Mirajkar (supra) a nine-Judge Constitution Bench considered the history of writ of Certiorari and ::: Downloaded on - 09/06/2013 17:36:37 ::: 34 after considering various English and Indian decisions came to the conclusion "Certiorari does not lie to quash the judgments of inferior Courts of civil jurisdiction." (See paragraph 63 page 18 of the Report). The learned Judges in saying so followed the law relating to Certiorari as prevalent in England and held that in England the judicial orders passed by civil Courts of plenary jurisdiction in relation to matters brought before them are not amenable to the jurisdiction of Certiorari.

21. The learned Judges in Surya Dev Rai (supra), however, opined that the Judges never held in Mirajkar (supra) that the law relating to Certiorari in England was accepted by Supreme Court.

But this observation in Surya Dev Rai (supra) appears to have been made without properly considering the concurring and a separate opinion given by Justice Sarkar in Mirajkar (supra) wherein his Lordship clearly held "As certiorari is a technical word of English law and had its origin in that law, for determining its scope and contents we have necessarily to resort to English law." (See Para 82 page 23).

22. In our view the appreciation of the ratio in Mirajkar (supra) ::: Downloaded on - 09/06/2013 17:36:37 ::: 35 by learned judges, in Surya Dev Rai (supra), with great respect, was possibly a little erroneous and with that we cannot agree.

23.. The two-Judge Bench in Surya Dev Rai (supra), did not, as obviously it could not, overrule the ratio in Mirajkar (supra), a Constitution Bench decision of a nine-Judge Bench. But the learned Judges justified their different view in Surya Dev Rai (supra), inter alia on the ground that law relating to Certiorari changed both in England and in India. In support of that opinion, the learned Judges held that the statement of law in Halsbury, on which the ratio in Mirajkar (supra) is based, has been changed and in support of that quoted the paragraphs 103 and 109 from Halsbury's Laws of England, 4th Edn. (Reissue), Vol. 1 (1). Those paragraphs are set out below :-

"103. Historically, prohibition was a writ whereby the royal Courts of common law prohibited other Courts from entertaining matters falling within the exclusive jurisdiction of the common law Courts; certiorari was issued to bring the record of an inferior Court into the King's Bench for review or to remove indictments for trial in that Court; mandamus was directed to inferior Courts and ::: Downloaded on - 09/06/2013 17:36:37 ::: 36 tribunals, and to public officers and bodies, to order the performance of a public duty. All three were called prerogative writs;

109. Certiorari lies to bring decisions of an inferior Court, tribunal, public authority or any other body of persons before the High Court for review so that the Court may determine whether they should be quashed, or to quash such decisions. The order of prohibition is an order issuing out of the High Court and directed to an inferior Court or tribunal or public authority which forbids that Court or tribunal or authority to act in excess of its jurisdiction or contrary to law. Both certiorari and prohibition are employed for the control of inferior Courts, tribunals and public authorities."

24. The aforesaid paragraphs are based on general principles which are older than the time when Mirajkar (supra) was decided are still good. Those principles nowhere indicate that judgments of an inferior civil Court of plenary jurisdiction are amenable to correction by a writ of certiorari. In any event, change of law in England cannot dilute the binding nature of the ratio in Mirjakar (supra) and which has not been overruled and is holding the field ::: Downloaded on - 09/06/2013 17:36:37 ::: 37 for decades. It is clear from the law laid down in Mirajkar (supra) in paragraph 63 that a distinction has been made between judicial orders of inferior Courts of civil jurisdiction and orders of inferior tribunals or Court which are not civil Courts and which cannot pass judicial orders. Therefore, judicial orders passed by civil Courts of plenary jurisdiction stand on a different footing in view of the law pronounced in para 63 in Mirajkar (supra). The passage in the subsequent edition of Halsbury (4th Edition) which has been quoted in Surya Dev Rai (supra) does not at all show that there has been any change in law on the points in issue pointed out above.

25.. Learned Judges in Surya Dev Rai (supra) stated in paragraph 18, page 687 of the report that decision rendered in Mirajkar (supra) was considered by the Constitution Bench in Rupa Ashok Hurra vs. Ashok Hurra and another, (2002) 4 SCC 388 - and wherein the learned Judges took a different view and in support of that, the following paragraph from Rupa Ashok Hurra (supra) has been quoted : "(i) that it is a well-settled principle that the technicalities associated with the prerogative writs in English law ::: Downloaded on - 09/06/2013 17:36:37 ::: 38 have no role to play under our constitutional scheme; (ii) that a writ of certiorari to call for records and examine the same for passing appropriate orders, is issued by a superior Court to an inferior Court which certifies its records for examination; and (iii) that a High Court cannot issue a writ to another High Court, nor can one Bench of a High Court issue a writ to a different Bench of the High Court; much less can the writ jurisdiction of a High Court be invoked to seek issuance of a writ of certiorari to the Supreme Court. The High Courts are not constituted as inferior Courts in our constitutional scheme."

26. We are constrained to point out again that in Rupa Ashok Hurra (supra) the Constitution Bench did not take any view which is contrary to the views expressed in Mirajkar (supra). On the other hand, the ratio in Mirajkar (supra) was referred to with respect and was relied on in Rupa Ashok Hurra (supra). Mirajkar (supra) was referred to in paragraph 8 page 399 and again in paragraph 11 in page 402 and again in paragraph 59 page 418 and also in paragraph 60 page 419 of Rupa Ashok Hurra (supra).

Nowhere even any whisper of a divergence from the ratio in ::: Downloaded on - 09/06/2013 17:36:37 ::: 39 Mirajkar (supra) was expressed. Rather passages from Mirajkar (supra) have been quoted with approval.

27.. In fact the question which was referred to the Constitution Bench in Rupa Ashok Hurra (supra) is quoted in paragraph 1 of the judgment and it is clear from the perusal of the said paragraph that the question for consideration in Rupa Ashok Hurra (supra) was totally different.

28. Therefore, this Court unfortunately is in disagreement with the view which has been expressed in Surya Dev Rai (supra) in so far as correction of or any interference with judicial orders of Civil Court by a writ of certiorari is concerned."

The Hon, Judges therefore observed as under:--

"31. We are of the view that the aforesaid proposition laid down in Surya Dev Rai (supra), is contrary to the ratio in Mirajkar (supra) and the ratio in Mirajkar (supra) has not been overruled in Rupa Ashok Hurra (supra).

32. In view of our difference of opinion with the views expressed in Surya Dev Rai (supra), matter may be placed before his Lordship the Hon'ble the Chief Justice of India for constituting a Larger ::: Downloaded on - 09/06/2013 17:36:38 ::: 40 Bench, to consider the correctness or otherwise of the law laid down in Surya Dev Rai (supra) on the question discussed above."

We have attempted to mark the relevant portion which to us appears to be the reason of disagreement but then We are not in position to consider this issue and judgment in more details because Hon'ble Apex Court itself has found it appropriate to place it before its Larger Bench. Moreover, it is really not necessary here, looking to the questions referred to us and also because of undisputed law on maintainability of LPA settled by the other Full Bench of this Court in Advani Oerlikons (supra)very recently on 17.03.2011.

5. This brings us to consideration of the judgment of Hon'ble 2 Judges of the Apex Court viz. Shalini Shyam Shetty v.

Rajendra Shankar Patil, which prompted earlier Division Bench of this Court to take a particular view in LPA 150/2010.

5.1. 2010 AIR SCW 6387- "Shalini Shyam Shetty v.

::: Downloaded on - 09/06/2013 17:36:38 ::: 41

Rajendra Shankar Patil", following paragraphs throw light on controversy considered therein.

"14. The appellants then moved to the High Court with a prayer to issue a writ of certiorari and/or any other writ, order or command and call for the papers and proceedings from the lower courts. The High Court dismissed the Writ Petition only on the ground that against concurrent finding of facts by the Courts below the exercise of writ jurisdiction is not warranted.

15. The facts of the case have been discussed in detail in order to show that in a pure dispute of landlord and tenant between private parties, a writ petition was entertained by the High Court. It did not pass any order on the writ petition, inter alia, on the ground that there are concurrent findings of fact. If the findings have not been concurrent, the High Court might have interfered. In any event High Court did not hold that a writ petition is not maintainable in a dispute between landlord and tenant in which both are private parties and the dispute is of civil nature.

16. It was urged before this Court that petitions under Article 227 of the Constitution are filed against orders of Civil Court and even ::: Downloaded on - 09/06/2013 17:36:38 ::: 42 in disputes between landlord and tenant. Under the Bombay High Court Rules, such petitions are called writ petitions."

Perusal of paragraphs 18 & 19 show that it was presented as a petition under Art. 226 of the Constitution of India with prayer to issue a writ of certiorari. Apex Court finds that the petition which was filed before the High Court was a pure and simple writ petition. Thereafter practice of treating petitions under Art.

227 as writ petitions is looked into and after pointing out the difference between two jurisdictions and provisions of Bombay High Court Appellate Side Rules,1960; Hon'ble Apex Court observes:-

"32. No writ petition can be moved under Article 227 of the Constitution nor can a writ be issued under Article 227 of the Constitution. Therefore, a petition filed under Article 227 of the Constitution cannot be called a writ petition. This is clearly the Constitutional position. No rule of any High Court can amend or alter this clear Constitutional scheme. In fact the Rules of Bombay High Court have not done that and proceedings under Articles 226 and 227 have been separately dealt with under the said Rules."

::: Downloaded on - 09/06/2013 17:36:38 ::: 43

As this is not the issue required to be gone into by us, We do not consider some arguments advanced in that respect. Thereafter in paragraph 54 decision of the Supreme Court in case of Surya Dev Rai v. Ram Chander Rai and others has been noted mentioning that the correctness of that ratio has been doubted by another Division Bench of Apex Court in Radhey Shyam and another v. Chhabi Nath and others and a request to the Hon'ble Chief Justice for a reference to a larger Bench is stated to be pending. At the end in said paragraph it is observed that --

"But insofar as the formulation of the principles on the scope of interference by the High Court under Article 227 is concerned, there is no divergence of views." Then in paragraph 55 principles laid down in Surya Dev Rai (supra) are reproduced. Then in paragraph 62 after an analysis of its earlier decisions, 15 principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution formulated as (a) to (o) are narrated. Then in paragraphs 63& 64 it is observed:--

"63. In the facts of the present case we find that the petition has been entertained as a writ petition in a dispute between landlord ::: Downloaded on - 09/06/2013 17:36:38 ::: 44 and tenant amongst private parties.

64. It is well settled that a writ petition is a remedy in public law which may be filed by any person but the main respondent should be either Government, Governmental agencies or a State or instrumentalities of a State within the meaning of Article 12.

Private individuals cannot be equated with State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. Under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform."

Discussion by the Hon'ble Apex Court thereafter in paragraphs 67 to 71 shows that a writ can not be issued against a private person. It is noticed:-

"72. Therefore, a private person becomes amenable to writ jurisdiction only if he is connected with a statutory authority or only if he/she discharges any official duty.

73. In the instant case none of the above features are present, even ::: Downloaded on - 09/06/2013 17:36:38 ::: 45 then a writ petition was filed in a pure dispute between landlord and tenant and where the only respondent is the plaintiff landlord.

Therefore, High Court erred by entertaining the writ petition.

However, the petition was dismissed on merits by a rather cryptic order.

74. It has repeatedly been held by this Court that a proceeding under Article 226 of the Constitution is not the appropriate forum for adjudication of property disputes or disputes relating to title. In Mohammed Hanif v. The State of Assam [1969 (2) SCC 782] a three-Judge Bench of this Court, explaining the general principles governing writ jurisdiction under Article 226, held that this jurisdiction is extraordinary in nature and is not meant for declaring the private rights of the parties. [See para 5, page 786 of the report].

76. Following the aforesaid principles in Hanif (supra), this Court in M/s. Hindustan Steel Limited, Rourkela v. Smt. Kalyani Banerjee and others [(1973) 1 SCC 273] : (AIR 1973 SC 408) held that serious questions about title and possession of land cannot be dealt with by writ court. In formulating these principles in Kalyani ::: Downloaded on - 09/06/2013 17:36:38 ::: 46 Banerjee (supra), this Court relied on Constitution Bench decision in Sohan Lal (AIR 1957 SC 529) (supra) [See paragraph 16 page 282 (of SCC) : (Para 16, at P. 414 of AIR) of the report]. Again in State of Rajasthan v. Bhawani Singh and others [1993 Supp (1) SCC 306] : (AIR 1992 SC 1018 : 1992 AIR SCW 930) this Court held that a writ petition is not the appropriate forum to declare a person's title to property, [see para 7, page 309 of the Report].

Subsequently, again in the case of Mohan Pandey and another v.

Usha Rani Rajgaria and others, reported in (1992) 4 SCC 61 :

(AIR 1993 SC 1225 : 1992 AIR SCW 3226), this Court held that a regular suit is the appropriate remedy for deciding property disputes between private persons and remedy under Article 226 is not available to decide such disputes unless there is violation of some statutory duty on the part of a statutory authority. ."

Perspective in which this matter is looked into by Hon'ble Apex Court also becomes apparent where it is observed that a writ court can not evict tenant and also from following paragraphs:-

"78. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ ::: Downloaded on - 09/06/2013 17:36:38 ::: 47 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 High Courts, in a routine manner, entertain petition under Article 227 over such disputes and such petitions are treated as writ petitions.

79. 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."

In last paragraph Hon'ble Apex Court concludes as under :--

"83. For the reasons aforesaid, it is held that the High Court committed an error in entertaining the writ petition in a dispute between landlord and tenant and where the only respondent is a private landlord. The course adopted by the High Court cannot be approved. Of course, High Court's order of non-interference in view ::: Downloaded on - 09/06/2013 17:36:38 ::: 48 of concurrent findings of facts is unexceptionable. Consequently, the appeal is dismissed. However, there shall be no order as to costs."

This judgment therefore shows that writ petition under Art. 226 can not be entertained against a private individual in private dispute where no government or like authority is respondent as no relief is claimed against it or unless there is infraction of any statutory provisions or private individual is acting in collusion with statutory authority. It nowhere lays down that in no case writ of certiorari can be issued by High Court to Court or Tribunal subordinate to it. It also does not declare that in a dispute between landlord and tenant, article 226 can never be invoked or writ can not be issued. Some of the appropriate situations in which same can be issued are quoted in this judgment only. It therefore does not change the settled law on the subject. Application of mind and various precedents used only show error committed in entertaining a writ petition for certiorari in purely private civil dispute i.e. where "state" as envisaged under Art. 12 is not impleaded. It also becomes clear that issue of tenability of LPA ::: Downloaded on - 09/06/2013 17:36:38 ::: 49 was not even involved there as SLP was directly after the order of this Court through its learned Single Judge. We therefore humbly hold that the judicially recognized principles viz.

"whether facts justify recourse to Art. 226" or " where Art.226 is properly invoked" in vogue are not in any way altered by this pronouncement. Full Bench of this Court has again authoritatively affirmed these principles in Advani Oerlikon Ltd. Vs. Machindra Govind Makasare & Ors. (supra).

5.2. Question of tenability of LPA against the judgment of Single Judge of this Court is settled recently by Full Bench of this Court in Advani Oerlikon Ltd. Vs. Machindra Govind Makasare & Ors. (supra) decided on 17.03.2011. As almost all binding precedents are looked into in it and conclusions reached there are not in dispute before us, We are not required to refer and appreciate all those precedents over again. It is sufficient to mention the answers given by said Full Bench here:--

"20. Upon this discussion, we now proceed to answer the questions formulated in the order of reference:

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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 justice committed by subordinate Courts/Tribunals can only be corrected by 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 Article 227 of the Constitution to correct a jurisdictional error or an error resulting in a miscarriage of justice committed by ::: Downloaded on - 09/06/2013 17:36:38 ::: 51 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 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 ::: Downloaded on - 09/06/2013 17:36:38 ::: 52 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 mentioning of Article 226 is ::: Downloaded on - 09/06/2013 17:36:38 ::: 53 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.

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 vs. Visan Kumar Shiv Charanlal (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 ::: Downloaded on - 09/06/2013 17:36:38 ::: 54 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 M.M.T.C. vs. Commissioner of Commercial Tax (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 the controversy and the prayers involved in the Writ Petition.

21. Consequently, when a petition which is filed before the Single Judge invokes Article 227 of the Constitution and a decision is rendered in favour of the Petitioner, it is open to the Respondent to demonstrate before the Division Bench in appeal that the nature of the controversy, the averments contained in the petition, the reliefs sought and the principal character of the order of the Learned Single Judge would support the maintainability of the appeal on the ground that the facts justify the invocation of both Articles 226 ::: Downloaded on - 09/06/2013 17:36:38 ::: 55 and 227 of the Constitution. Whether that is so will be determined by the Division Bench on the circumstances of each case."

5.3. Most of judgments cited before us are all considered by this Full Bench. Number in bracket show the relevant paragraphs in it. We are, therefore, not looking into the same again.

1. Shalini Shyam Shetty vs. Rajendra Shankar Patil (2010) 8 SCC 329, 2.M.M.T.C. vs. Commissioner of Commercial Tax (2009) 1 SCC 8 (Para 17).--AIR 2009 S.C. 1349. 3.Ashok K.Jha vs. Garden Silk Mills Limited. (2009) 10 SCC 584 (Para 16). 4.Radhey Shyam vs. Chhabi Nath (2009) 5 SCC 616 (Para 7). 5.Shahu Shikshan Prasarak Mandal vs. Lata P. Kore.(2008) 13 SCC 525 (Para 17) 6.Mavji C. Lakum vs. Central Bank of India (2008) 12 SCC 726 (Para 17). 7.Ramesh Chandra Sankla (2008) 14 SCC 58 (Para 16). 8.State of Madhya Pradesh vs. Visan Kumar Shiv Charanlal (2008) 15 SCC 233 (Para 16). 9.National Textile Corporation (SM) Ltd. vs. Devraj Chandrabali Pai 2006 (3) LJSOFT 146 (Para 2). 10.Surya Dev Rai vs. Ram Chandar Rai (2003) 6 SCC 675 (Para 7).--AIR 2003 S.C. 3044. 11. Lokmat ::: Downloaded on - 09/06/2013 17:36:38 ::: 56 Newspapers Pvt. Ltd. vs. Shankarprasad AIR 1999 SC 2423 (Para

15). 12.L.Chandra Kumar v. Union of India (1997) 3 SCC 261 (Para 10). 13.Jagdish Balwantrao Abhyankar vs. State of Maharashtra. AIR 1994 Bombay 141 (Para 2). 14.Sushilabai Laxminarayan Mudliyar vs. Nihalchand Waghajibhai Shaha AIR 1992 SC 185 (Para 13). 15.Mohan Pandey vs. Ushal Rani Rajgaria (1992) 4 SCC 61 (Para 6). 16.Sushilabai Laxminarayan Mudliyar vs. Nihalchand Waghajibhai Shaha 1989 Mh.L.J. 695 (Para 13). 17.Umaji Keshao Meshram vs. Smt.Radhikabai AIR 1986 SC 1272 (Para 12). 18. State of Maharashtra vs. Kusum Charudutta 1981 Mh.L.J. 93 (Para 12). 19.Hindustan Steel Ltd.

vs. Kalyani Banerjee (1973) 1 SCC 273 (Para 6). 20.Mohd. Hanif Vs. State of Assam (1969) 2 SCC 782 (Para 6). 21.Naresh Shridhar Mirajkar vs. State of Maharashtra AIR 1967 SC 1 (Para

5). 22.Dwarka Nath vs. Income-tax Officer AIR 1966 SC 81 (Para

4). 23.Syed Yakoob vs. K.S.Radhakrishnan AIR 1964 SC 477 (Para 4). 24.Custodian of Evacuee Property vs. Khan Saheb Abdul Shukoor AIR 1961 SC 1087 (Para 3). 25.Sohanlal vs. Union of India AIR 1957 SC 529 (Para 6). 26. Hari Vishnu ::: Downloaded on - 09/06/2013 17:36:38 ::: 57 Kamath vs. Ahmed Ishaque AIR 1955 SC 233 (Para 3).

27.Waryam Singh v. Amarnath AIR 1954 SC 215 (Para 10).

28.T.C. Basappa vs. T. Nagappa AIR 1954 SC 440 (Para 4).

5.4. We refer to judgment of Hon'ble Apex Court dated 05.01.2010 in AIR 2010 S.C. 1116 -"Harjinder Singh v. Punjab State Warehousing Corporation". Hon'ble Apex Court found that while setting aside the award of labour court, the High Court failed to notice that in the reply filed on behalf of the corporation before the Labour Court, the appellant's (employees) claim for reinstatement with back wages was not resisted on the ground that his initial appointment was illegal or unconstitutional and that no evidence was produced nor any argument was advanced in that regard. Therefore, the labour Court did not get any opportunity to consider the issue whether reinstatement should be denied to the appellant by applying the new jurisprudence developed by the superior Courts in recent years that the Court should not pass an award which may result ::: Downloaded on - 09/06/2013 17:36:38 ::: 58 in perpetuation of illegality. The order of the High Court substituting award of reinstatement with compensation was improper. In paragraph 17, Hon'ble Apex Court observes:--

"17. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty-bound to keep in mind that the/Industrial Disputes Act and other simitar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to

(e), 43 and 43-A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues.

More than 41 years ago, Gajendragadkar, J., opined that "the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and ::: Downloaded on - 09/06/2013 17:36:38 ::: 59 meaning and significance to the ideal of welfare State" - State of Mysore v. Worker of Gold Mines, AIR 1958 SC 923."

6. Next aspect to be examined is whether consideration by the Hon'ble Apex Court through its 3 Hon'ble Judges in M.M.T.C. vs. Commissioner of Commercial Tax (2009) 1 SCC 8

--AIR 2009 S.C. 1349 in any way affects these judicially recognized principles viz. "whether facts justify recourse to Art.

226" or " where Art.226 is properly invoked" ?

6.1. M.M.T.C. vs. Commissioner of Commercial Tax (supra) which forms basis for present reference is considered by Full Bench in Advani Orelinks Ltd. (supra) paragraph 17. We reproduce the same :--

"17. The same principles have been formulated by the Supreme Court in Mavji C. Lakum vs. Central Bank of India, (2008) 12 SCC 726 where the Court noted that apart from the fact that the petition was labeled under Article 226 of the Constitution, it was clear that the grounds raised in the petition suggested that the ::: Downloaded on - 09/06/2013 17:36:38 ::: 60 petition was not only under Article 227, but also under Article 226 of the Constitution. Consequently, the contentions raised and the facts stated in the petition justified the Respondent in filing an application both under Articles 226 and 227 of the Constitution. A similar view was taken by the Supreme Court in Shahu Shikshan Prasarak Mandal vs. Lata P. Kore.(2008) 13 SCC 525. In M.M.T.C.

vs. Commissioner of Commercial Tax , (2009) 1 SCC 8 the Supreme Court noted that the High Court had merely proceeded on the basis of the nomenclature given in the Petition which invoked Article 227 of the Constitution. A Division Bench of the High Court had held that the order of the Single Judge was passed in exercise of the power of superintendence under Article 227 against which a Letters Patent Appeal was not maintainable. While reversing that view, the Supreme Court observed that "the High Court did not consider the nature of the controversy and the prayers involved in the Writ Petition".

Reference to this judgment in more details is necessary while answering the second question placed before us. But then the nature of controversy raised for determination, pleadings in ::: Downloaded on - 09/06/2013 17:36:38 ::: 61 petition, nature of order passed, character and contour of order, directions issued, nomenclature given and the constitutional perspective are held to be relevant to gather the jurisdiction invoked. Hon'ble Apex Court was not required to consider a situation in which only respondent in certiorari petition is a private individual.

Hon'ble Apex Court in paragraph 16 (in M.M.T.C.) reproduces paragraphs 17,19 & 25 in Surya Dev Rai v. Ram Chander Rai and Ors. [AIR 2003 SC 3044] after referring to decisions in Custodian of Evacuee Property, Bangalore v. Khan Saheb Abdul Shukoor, etc. (1961 (3) SCR 855] and Nagendra Nath Bora and Anr. v. Commissioner of Hills Division [AIR 1958 SC 398], T.C. Basappa v. T. Nagappa [AIR 1954 SC 440] and Rupa Ashok Hurra v. Ashok Hurra [AIR 2002 SC 1771]. It notes paragraph 19 which reads :-- "19. Thus, there is no manner of doubt that the orders and proceedings of a judicial court subordinate to the High Court are amenable to writ jurisdiction of the High Court under Article 226 of the Constitution . "

::: Downloaded on - 09/06/2013 17:36:38 ::: 62

6.2. It is seen that M.M.T.C. vs. Commissioner of Commercial Tax (supra) is not looked into in Shalini Shetty (supra). M.M.T.C. vs. Commissioner of Commercial Tax (supra) shows that there facts justified invocation of Art. 226 of the Constitution of India. Learned counsel for the appellant M.M.T.C. submitted before Hon'ble Apex Court that the order of Apex Court sending matter back was very clear and the conclusions of the High Court that merely limitation stood waived was contrary to the clear terms of said earlier order.

Additionally it was submitted that the prayer in the Writ Petition was to quash the order passed by the Assistant Commissioner, Commercial Tax. That being so, the mere fact that the writ petition was styled under Article 227 of the Constitution was of no consequence. Hon'ble Apex Court accepted this argument and held that it is the nature of the relief sought for and the controversy involved which determines the Article which is applicable. The authority ie Commissioner of Commercial Tax was already a party respondent. Thus this judgment shows that mere title or nomenclature of petition is not decisive and ::: Downloaded on - 09/06/2013 17:36:38 ::: 63 standard tests settled in this respect need to be applied to find out the nature of jurisdiction involved. This judgment nowhere states that High Court can under Art. 226 interfere in private dispute of pure civil nature as envisaged in Shalini Shetty (supra). Hence, though this judgment is by larger bench of the Hon'ble Apex Court, still it was not relevant in Shalini Shyam Shetty vs. Rajendra Shankar Patil (supra) where the question was of competency of High Court to issue writ of certiorari in pure civil dispute where only respondent is a private individual.

The Division Bench of this Court in LPA 150/2010 -Kalpesh Hemantbhai Shah vs. Manhar Auto Stores, Amraoti,(supra) was attempting to find out law squarely governing landlord-tenant dispute and as it came across it in Shalini Shetty, it did not consider this precedent i.e. M.M.T.C. vs. Commissioner of Commercial Tax, (supra).

7. We have noted that in Shalini Shyam Shetty vs. Rajendra Shankar Patil (supra) the SLP questioned adjudication by the learned single judge of this Court directly. Said judgment ::: Downloaded on - 09/06/2013 17:36:38 ::: 64 of the Single Judge was not assailed before the Division Bench in LPA and hence, tenability of LPA was not in issue at all before the Hon'ble Apex Court. We have also found that M.M.T.C. vs. Commissioner of Commercial Tax(supra) has no bearing on it.

(2010) 9 SCC 479-- Uma Shankar Singh v. State of Bihar, (2011) 1 SCC 210 -- Amar Singh v. Union of India, and (2011) 1 SCC 694- Siddharam Satlingappa Mhetre v. State of Maharashtra, relied upon to urge that reference made in Radhye Shyam vs. Chabbi Nath does not in any way dilute the propositions accepted in Surya Dev Rai vs. Ram Chandar Rai (supra) therefore need not be considered here. In last judgment, Hon'ble Apex Court notes that its Constitution Bench judgment in Union of India v. Raghubir Singh. observes as under: (SCC p.

766, para 9) "9. The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a ::: Downloaded on - 09/06/2013 17:36:38 ::: 65 court." However, it will be proper even to consider the law on binding precedents before proceeding further.

7.1. Observations of Hon'ble Apex Court in (2007) 7 SCC 378 -- Rajendra Singh v. State of U.P. in paragraph 19 are helpful here to understand what Hon'ble Apex Court has said in Shalini Shyam Shetty vs. Rajendra Shankar Patil and M.M.T.C. vs. Commissioner of Commercial Tax (both supra).

Those observations with relevant background are:--

"17. The decision in Municipal Corpn. of Delhi v. Ram Kishan Rohtagi which described the power as an extraordinary power to be exercised very sparingly and only if compelling reasons exist proceeded on its own peculiar facts. The broad statement contained in that decision cannot be understood out of context. That was a case where the very same proceeding against certain persons initially arrayed as accused, had been quashed. But, thereafter from the evidence, it appeared to the court that some of them have to be tried as accused in exercise of power under Section 319 of the Code. This Court in that context after referring to Joginder Singh v.

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State of Punjab held that "if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the court can take cognizance against them and try them along with the other accused". (Ram Kishan Rohtagi case1, SCC p. 8, para 19) This Court thus upheld the power of the court to invoke Section 319 of the Code even in such a case. Their Lordships then added:

(Ram Kishan Rohtagi case, SCC p. 8, para 19) "But, we would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken."

With respect, I understand this sentence as relating to exercise of the power under Section 319 of the Code in a case where the prosecution against the person sought to be arraigned, had earlier ::: Downloaded on - 09/06/2013 17:36:38 ::: 67 been quashed by the court, but still he is to be roped in, in exercise of power under Section 319 of the Code.

18. These observations have unfortunately led to some decisions using these expressions, even in cases where there has not been a prior quashing of the charge and a proceeding is taken in terms of Section 319 of the Code. With respect, it appears to me that there is no warrant for such narrowing down of the power of the court. After all, an authority has to be understood in the context of the facts based on which the observations therein are made. The ratio of a decision is generally secundum subjectam materiam.

19. In Quinn v. Leathem Earl of Halsbury, L.C. stated: (All ER p. 7 G-H) "... that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an ::: Downloaded on - 09/06/2013 17:36:38 ::: 68 authority for what it actually decides."

The above dictum, as regards the first proposition, was quoted and adopted by the Privy Council in Punjab Coop. Bank Ltd. v. CIT."

7.2. What is binding precedent can be understood from Union of India v. S.K. Kapoor,(2011) 4 SCC 589, where the Hon'ble Apex Court observes:--

"8. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the employee concerned. However, if it is relied upon, then a copy of the same must be supplied in advance to the employee concerned, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in S.N. Narula v.

Union of India .

9. It may be noted that the decision in S.N. Narula case was prior to the decision in T.V. Patel case. It is well settled that if a subsequent coordinate Bench of equal strength wants to take a different view, it can only refer the matter to a larger Bench, ::: Downloaded on - 09/06/2013 17:36:38 ::: 69 otherwise the prior decision of a coordinate Bench is binding on the subsequent Bench of equal strength. Since, the decision in S.N. Narula case was not noticed in T.V.

Patel case , the latter decision is a judgment per incuriam. The decision in S.N. Narula case was binding on the subsequent Bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court."

We find following observations of Hon'ble Apex Court on per incuriam doctrine also important in this regard. In State of Orissa v. Mamata Mohanty,(2011) 3 SCC 436, the Hon'ble Court observes:--

64. "Incuria" literally means "carelessness". In practice per incuriam is taken to mean per ignoratium. The courts have developed this principle in relaxation of the rule of stare decisis.

Thus the "quotable in law", is avoided and ignored if it is rendered, in ignoratium of a statute or other binding authority.

65. In Mamleshwar Prasad v. Kanhaiya Lal this Court held:

"7. ... where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority ::: Downloaded on - 09/06/2013 17:36:38 ::: 70 running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission."

Little later it is stated ( at page 462 SCC):-

(xiii) The aforesaid two judgments in Damodar Nayak and Bhanu Prasad Panda (Dr.), could not be brought to the notice of either the High Court or this Court while dealing with the issue. Special leave petition in Kalidas Mohapatra has been dealt with without considering the requirement of law merely making the reference to Circular dated 6-11-1990, which was not the first document ever issued in respect of eligibility.

Thus, all the judgments and orders passed by the High Court as well as by this Court cited and relied upon by the respondents are held to be not of a binding nature. (Per incuriam) 7.3. It is not necessary for us to labour more on this aspect. Full Bench of this Court in 2008 (8) LJSOFT 23=2008(4) Mah.L.J. 843--Emkay Exports & anr. Vs. Madhusudan ::: Downloaded on - 09/06/2013 17:36:38 ::: 71 Shrikrishna has explained in paragraphs 11,25 & 12 to 16 the law on the point of precedent and ratio decidendi. Full Bench declares that it is the ratio understood in its correct perspective that is made applicable to a subsequent case on the strength of a binding precedent. When the judgment of equibench on the same principle with similar facts, if a precedent applicable in law, goes unnoticed in a subsequent judgment, the subsequent judgment may not be termed as a good law in face of the doctrine of stare decisis. While interpreting the judgment, the court has to pin point its attention to the ratio of the judgment.

The judgments which have held the field for a fairly long time ought not to be disturbed unless it is a necessary . Controversies must be determined in each case by use of discretion by the court. It may be appropriate not to perpetuate errors but it should also be ensured that consistency of law is not done away with by such discretion. Reference has been made by Full Bench to the cases of (i) Mishri Lal (dead) by Lrs. v. Dhirendra Nath (dead) by Lrs. & ors., JT 1999 (2) SC 586,(ii) Milkfood Ltd. v.

GMC Ice Cream (P) Ltd., 2004 (7) SCC 288, and (iii) S.

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Brahmanand and others v. K.R. Muthugopal(dead) and others, 2005 (12) SCC 764. Full Bench holds that in order to apply a judgment as a precedent, the relevant laws and earlier judgments should be brought to the notice of the court and they should be correctly applied. Mere observations in a previous judgment may not be binding on a subsequent Bench if they are not truly applicable to the facts and controversies in a subsequent case as per settled principle of "ratio decidendi". The rule of precedent, thus,is held to place an obligation upon the Bench considering such judgments that the Court should discuss the facts and the law of both the cases and then come to a conclusion whether the principle enunciated in the previous judgment is actually applicable on facts and law to the subsequent case. This principle equally applies when the Courts have to consider which of the two views expressed by earlier equi or other Benches is applicable to the subsequent case. The rule of precedent is found to be not without exceptions. It has its own limitations. Besides this, there are exceptions to the rule of precedent. There are judiciously accepted exceptions to the rule ::: Downloaded on - 09/06/2013 17:36:38 ::: 73 of precedent and they are decisions per incuriam, subsilentio and stare decisis. These principles explain when and where a precedent,which is otherwise a good law, necessarily need not be accepted in subsequent judgments if it fully satisfies essentials of these exceptions. Said Full Bench notices that in the case of Commissioner of Customs (Fort) vs.Toyota Kirloskar Motor (P) Ltd., 2007 (5) SCC 371, the Supreme Court stated the law relating to precedents and held that a decision, as is well known, is an authority for what it decides and not what can logically be deduced therefrom. The ratio of a decision must be culled out from the facts involved in a given case. It is settled principle that it is not every thing said by a Judge,while giving judgment, that constitutes a precedent. The only thing in a Judge's decision which bind parties is the principle upon which the case is decided and for this reason it is important to analyse the decision and isolate "ratio decidendi" from it. Its three essential features are (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct or perceptible facts; (ii) statements of the ::: Downloaded on - 09/06/2013 17:36:39 ::: 74 principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. Furthermore, ratio decidendi of a judgment has to be found out only on reading the entire judgment. The ratio of the judgment is what is set out in the judgment itself. Answer to the question necessarily would have to be read in the context what is set out in the judgment and not in isolation. Full Bench reached these conclusions by relying upon (i) Union of India vs. Godfrey Philips India Ltd., AIR 1996 SC 806, (ii) Union of India vs. Dhanwanti Devi, 1996 (6) SCC 44, (iii) State of Tripura vs. Tripura Bar Association, AIR 1999 SC 1494 and (iv) Islamic Academy of Education vs. State of Karnataka, 2003 (6) SCC 697.

7.4. This law therefore when applied shows ratio in Shalini Shyam Shetty vs. Rajendra Shankar Patil (supra) is only that that writ petition under Art. 226 can not be entertained against a private individual in a private dispute where no government or like authority under Art. 12 is respondent and no relief is claimed against it or unless there is infraction of any ::: Downloaded on - 09/06/2013 17:36:39 ::: 75 statutory provisions or private individual is acting in collusion with statutory authority. It nowhere declares that in no case writ of certiorari can be issued by High Court to Court or Tribunal subordinate to it.

It also helps in understanding the law as laid down in MMTC Limited,(supra) but We are making reference to it little later in the body of this judgment.

8. In this light it is now necessary to consider conclusions reached in LPA 150/2010 since reported at 2011(2) Mah.L.J. 497-- Kalpesh Hemantbhai Shah vs.Manhar Auto Stores, Amraoti.

There a preliminary objection as to the maintainability of the letters patent appeal in the light of the decision of Supreme Court in the case of Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil(supra) was required to be decided in following background:-- ( i) The subject matter of the writ petition before the learned Single Judge was purely a dispute between the landlord and the tenant, namely the suit was filed for eviction of ::: Downloaded on - 09/06/2013 17:36:39 ::: 76 the tenant on certain grounds. (ii) The learned Single Judge thus examined the correctness of the impugned judgment before him and having found a total perverse approach of the said court and incorrect application of law and in a clear error of jurisdiction vested in the appellate court, set aside the appellate judgment and thus allowed the writ petition.(iii) No writ much less writ of certiorari was even sought by the respondents in LPA in their writ petition and the only prayer was to quash and set aside the judgment and order passed by the District Judge- 3.

Appellant Kalpesh in support of maintainability of LPA had advanced the following contentions :-

(a) Writ petition that was filed by the respondents was admittedly under Articles 226 and 227 of the Constitution of India with a prayer therein to quash and set aside the judgment of District Judge3. (b) In the case of Surya Dev Rai v. Ram Chander Rai -(supra) the ratio decidendi laid down by the Supreme Court is that a writ of certiorari will lie even to demolish the order of District Judge, and therefore the judgment of the learned Single Judge quashing the judgment rendered by ::: Downloaded on - 09/06/2013 17:36:39 ::: 77 the District Judge, though in a dispute between landlord and tenant, was a writ of certiorari quashing the said appellate judgment. Though referred by a Bench of Supreme Court to a larger bench in the case of Radhey Shyam v. Chhabi Nath, as there is no decision yet taken by the larger Bench of the Supreme Court,the said judgment in Surya Dev Rai, supra, has a binding effect as on the date. Said judgment in the case of Surya Dev Rai has been approved and followed in the subsequent judgment in the case of M.M.T.C. Ltd. v. Commissioner of Commercial Tax

-(supra) and be applied while considering the objection. (c) In the case of Shalini Shetty and the impugned order of Bombay High Court had in few lines dismissed the writ petition because of concurrent findings on facts. In LPA 150/201, the learned Single Judge entertained the writ petition and allowed it by setting aside the judgment and order recorded by the District Judge3, Amravati. (d) The respondents have lodged cross-

objection in respect of certain finding in LPA indicate that the respondents also wanted to treat the writ petition under Article 226 and not under Article 227 of the Constitution of India. (e) ::: Downloaded on - 09/06/2013 17:36:39 ::: 78 The question required in the case of Shalini Shetty to be decided was not whether the writ petition was maintainable before the learned Single Judge of the Bombay High Court, that too under Article 227 of the Constitution of India. However, the Hon'ble apex court decided the said issue and it is merely in the nature of obiter dicta and not the ratio decidendi. (f) Relief was claimed by the landlord in terms of statutory provisions of Section 16 of the Rent Act regarding the grounds for eviction and, therefore, the complaint was of infraction of statute as envisaged in paragraphs 79 in the case of Shalini Shetty, supra.

8.1. Findings of the Division Bench can be briefly stated now. In paragraph 6 it is observed the prayer in petition did not seek any writ and only correction in the judgment of the District Judge alleging it to be perverse and not in accordance with law and suffering from error of jurisdiction. In Paragraph 7, it was held by Division Bench that though the Hon'ble Apex Court had seen the prayer vide para 19 of the judgment in Shalini, which was for issuance of writ of certiorari, it still held ::: Downloaded on - 09/06/2013 17:36:39 ::: 79 that the said writ petition was not maintainable under Article 226 of the Constitution. At end of paragraph 8, the Division Bench observes that the Apex Court held that to a proceeding under Article 227 of the Constitution, only Appellate Side Rules apply but to a proceeding under Article 226, both namely Original as well as Appellate Side Rules apply depending on situs of the cause of action and that the proceeding under Article 227 of the Constitution is never an original proceeding. Consequently, Division Bench noted that in para 32, the Hon'ble Apex Court concluded the nature of the proceedings as under Article 227 of the Constitution. Then comments of Hon'ble Apex Court on Surya Dev Rai v. Ram Chander Rai,(supra) are noted and in next paragraph its judgment in Radheshyam vs. Chabbinath (supra) finds consideration. It then proceeds to note that the principles laid down regarding scope of interference under Article 227 have been found to be consistent and the apex court then in para 62 of the said judgment formulated the parameters after deducing from various earlier judgments including the case of Surya Dev Rai v. Ram Chander Rai,(supra) for interference ::: Downloaded on - 09/06/2013 17:36:39 ::: 80 under Article 227. Then in paragraph 11, observation by Division Bench that the learned Single Judge found perverse approach on the part of the District Judge in appeal appears. Then the the ratio in the decision in Shalini Shetty, in a case of pure dispute between landlord and tenant, is found to be that a writ petition under Article 226 is not maintainable but an application (not writ petition) under Article 227 of the Constitution would be maintainable, that too in the light of para 62 of the said judgment. Then parameters (a) to (o) are reproduced and then in paragraph 12, the Division Bench proceeds to reject the submission made on behalf of appellant with reference to para 79 of the said judgment and records that there is no question of infraction of statute when a landlord or a tenant seeks remedy under the provisions of the Rent Act and the infraction of statute referred to in para 79 is about the infraction while performing public duty under the provisions of the enactment by a public officer or the statutory authority. The said submission is found not to apply in a case of civil suit between the landlord and a tenant filed on the grounds available under the provisions of ::: Downloaded on - 09/06/2013 17:36:39 ::: 81 Section16 or any other provision of Rent Act. In paragraph 13.

paragraphs 79,81 to 83 in Shalini Shetty are then quoted and in paragraph 14 the Division Bench reiterates that it is a direct pronouncement on the issue regarding the petitions arising out of disputes between `landlord and tenant' and entertaining the same under Article 227 of the Constitution. Therefore, the preliminary objection of the respondent - tenant (petitioner before the Single Judge) was upheld and landlords LPA was held not maintainable.

8.2. We have already noted the relevant observations in Shalini Shyam Shetty vs. Rajendra Shankar Patil (supra) and also of later Full Bench judgment in Advani Oerlikon Ltd. Vs. Machindra Govind Makasare & Ors. (supra). We have also noted the law as laid down by Hon'ble Apex Court and We find that law on the scope of interference under Art. 226 of Constitution of India has not undergone any change Shalini Shetty. Hon'ble Apex Court has not laid down any new proposition of law there. The parameters of said interference are ::: Downloaded on - 09/06/2013 17:36:39 ::: 82 already succinctly recorded in Advani Oerlikon Ltd. Vs. Machindra Govind Makasare & Ors. (supra). We are in full agreement with the same. We feel that ratio in Shalini Shetty has not been correctly culled out by Division Bench of this Court in its judgment in L.P.A. No. 150/2010 dated 1.10.2010 reported at 2011(2) Mah.L.J. 497-- Kalpesh Hemantbhai Shah vs.Manhar Auto Stores, Amraoti. We are also unable to notice any conflict in this respect in M.M.T.C. Ltd. v. Commissioner of Commercial Tax on one hand and Shalini Shetty, on the other.

Neither of these two judgments have changed the well settled law on the subject and the Division bench should have applied the law as expounded in Advani Orelikon Ltd. (supra).

9. Thus, having found answer to question no. 1 referred to us, We look for answer to question no. 2 as formulated. In AIR 1986 S.C. 1272 "Umaji Keshao Meshram v. Radhikabai", Hon Apex Court has stated:--

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 ::: Downloaded on - 09/06/2013 17:36:39 ::: 83 the person, authority or State against whom the direction, order or writ is sought is a necessary party."

This observation also finds mention in AIR 2009 S.C.

1999 "State of Madhya Pradesh v. Visan Kumar Shiv Charan Lal"(supra).

In AIR 1954 Bom. 33 (Vol. 41, C.N. 2) "Ahmedalli v.

M. D. Lalkaka", Division Bench has observed that "As a rule of practice, whenever a writ is sought challenging the order of a Tribunal, the Tribunal must always be a necessary party to the petition. It is equally clear that all parties affected by that order should also be necessary parties to the petition."

In AIR 1963 S.C. 786 "Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar", Hon'ble 4 Judges of Apex Court in paragraph 12 it is observed that in a writ of certiorari not only the tribunal or authority whose order is sought to be quashed but also parties in whose favour the said order is issued are necessary parties. Thus where in a petition for a writ of certiorari made to the High Court, only ::: Downloaded on - 09/06/2013 17:36:39 ::: 84 the Tribunal whose order was sought to be quashed was made a party but the persons who were parties before the lower Tribunal and in whose favour the impugned order was passed were not joined as parties; it was held that the petition was incompetent and had been rightly rejected by the High Court. Above mentioned Division Bench view in "Ahmedalli v. M. D. Lalkaka"

stands approved here by the Hon'ble Apex Court.

In 1968 Mah.L.J. (NOC) 1--Muhhamad Emanuel vs. Muhammad Hussain, Hon'ble Constitution Bench of Apex Court has held that authorities whose orders are to be quashed by issuing prerogative writs are necessary parties . But if only powers of superintendence under Art. 227 are to be exercised, such tribunal or authority is not a necessary party. The reason for the same as noted by the Hon'ble Apex Court is that if in certiorari proceeding, such tribunal is not party, the adjudication can not bind it and it can avoid contempt of court.

9.1. In M.M.T.C. Ltd. v. Commissioner of Commercial ::: Downloaded on - 09/06/2013 17:36:39 ::: 85 Tax (supra), Hon'ble Apex Court has held that mere nomenclature in petition there that it was under Art. 227 of the Constitution of India was not conclusive and it is nature of controversy involved which is determinative. Pleadings in writ petition, nature of order passed, character and contour of order, directions issued, nomenclature given and the jurisdictional perspective in the Constitution need to be perceived and hyper-

technical approach is to be avoided. This judgment nowhere states that a writ of certiorari can be issued in absence of or without authority passing the impugned order being joined as party. As such an authority was already party there, it does not either expressly note or then change the legal position settled judicially as mentioned above. It, therefore, nowhere lays down that a writ of certiorari can be issued under Art. 226 to a private (only) respondent or then in absence of court/tribunal/authority whose order is assailed before High Court. It does not militate with ratio of the judgment in Shalini Shetty (supra).

9.2. The Division Bench in LPA 150/2010-Kalpesh ::: Downloaded on - 09/06/2013 17:36:39 ::: 86 Hemantbhai Shah vs.Manhar Auto Stores, Amraoti, supra,.

has held that in any dispute between landlord-tenant under Rent Act, writ petition under Art. 226 is not maintainable and challenge to it in High Court has to be only under Art. 227 of the Constitution of India. This is not in consonance with and the ratio of the judgment of Hon'ble Apex Court in Shalini Shetty (supra) where Hon'ble Apex Court reiterates that writ petition under Art. 226 can not be entertained against a private individual in private dispute where no government or like authority is respondent as no relief is claimed against it or unless there is infraction of any statutory provisions or private individual is acting in collusion with statutory authority. It nowhere lays down that in no case writ of certiorari can be issued by High Court to a Court or Tribunal subordinate to it. It does not change the settled law on the subject. Said Division Bench ought to have followed the law as settled not only in M.M.T.C. Ltd. v. Commissioner of Commercial Tax (supra) but also by various other judgments as looked into by Full Bench in Advani Oerlinks (supra). It is also clear that issue of tenability ::: Downloaded on - 09/06/2013 17:36:39 ::: 87 of LPA was not even involved in Shalini Shetty. The second question can be and is answered accordingly here.

10. Once again putting on record the appreciation for hard-work put in by battery of lawyers, We proceed to answer the questions referred to us as under:--

While briefly narrating the events culminating in this reference to Larger Bench, We have noted that the later Division Bench found view of Hon'ble 3 Judge Bench in M.M.T.C. Ltd. v.

Commissioner of Commercial Tax (supra) not supporting the findings reached by Division Bench in Kalpesh Hemantbhai Shah vs.Manhar Auto Stores, Amraoti(supra). Because of analysis of Shalini Shetty by said Division Bench earlier, referring Bench could not itself take the fresh stock of the situation. As We have found no inconsistency in law as laid down in Shalini Shetty and M.M.T.C. Ltd. v. Commissioner of Commercial Tax , it is apparent that question no. 1 and 2 placed before us stand answered accordingly. The Division Bench ought to have looked into not only M.M.T.C. Limited .vs.

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Commissioner of Commercial Tax and ors (supra) but also other binding judgments settling the law in this respect and attempted to answer the controversy before it accordingly.

We now direct the registry to place the LPA 268/2007 before the competent Division Bench for further appropriate consideration in the light of above answers and the Full Bench judgment in Advani Orelinks.

           JUDGE                    JUDGE                     JUDGE    
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     *dragon/GS.






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