2012 (10) TMI 681 - HC - Indian Laws

Rent Act - whether various decisions of Apex Court are inconsistent - Writ petition under Article 226 - maintainability The power to issue a writ of certiorari and the supervisory jurisdiction - binding precedent - interpretation of various decisions of apex court - petition against an order of Single Judge passed in a petition under Articles 226 and 227 of the Constitution of India. 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. - Petition against an order of Single Judge passed in a petition under Articles 226 and 227 of the Constitution of Indi 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. 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. 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 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. 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 (LPA) 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. No inconsistency in law as laid down in Shalini Shyam Shetty .vs. Rajendra Shankar Patil and M.M.T.C. Ltd. v. Commissioner of Commercial Tax.

Summary

Issues Involved:
1. Whether the Division Bench was bound to follow the view of the Supreme Court in M.M.T.C. Limited vs. Commissioner of Commercial Tax and others (2009) 1 SCC 8 instead of Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010) 8 SCC 329.
2. Whether the Division Bench should have held that a Letters Patent Appeal (L.P.A.) is tenable against an order of a Single Judge passed in a petition under Articles 226 and 227 of the Constitution in a landlord-tenant dispute.

Issue-wise Detailed Analysis:

Issue 1: Following Supreme Court Precedents
The primary question was whether the Division Bench was required to follow the Supreme Court's view in M.M.T.C. Limited, decided by a three-judge bench, over Shalini Shyam Shetty, decided by a two-judge bench. The High Court emphasized that when faced with conflicting views from larger and smaller benches of the Supreme Court, the High Court must follow the larger bench's decision as per the rule of law and practice laid down in State of U.P. vs. Ram Chandra Trivedi - AIR 1976 SC 2547.

The judgment in M.M.T.C. Limited held that the nature of the relief sought and the controversy involved determine the applicable Article of the Constitution, not merely the nature of the parties. The larger bench in M.M.T.C. Limited affirmed that a writ petition under Article 226 is maintainable in certain circumstances, even in private disputes, thereby supporting the tenability of an L.P.A. against an order passed under Articles 226 and 227.

Issue 2: Tenability of L.P.A. in Landlord-Tenant Disputes
The Division Bench in L.P.A. No. 150/2010 had held that a dispute between landlord and tenant could only be entertained under Article 227, thus barring an L.P.A. However, the High Court noted that this view was inconsistent with the Supreme Court's ruling in M.M.T.C. Limited, which allowed for the maintainability of a writ petition under Article 226 in similar circumstances.

The Full Bench in Advani Oerlikon Ltd. vs. Machindra Govind Makasare & Ors. (2011) clarified that jurisdictional errors or errors resulting in miscarriage of justice committed by subordinate courts or tribunals could be corrected under Article 226, and thus, an L.P.A. would be maintainable if the facts justified invoking Article 226. The Full Bench also emphasized that the true nature of the order passed by the Single Judge determines the maintainability of the appeal, not merely the nomenclature of the petition.

Conclusion:
The High Court concluded that the Division Bench in L.P.A. No. 150/2010 erred in not considering the larger bench decision in M.M.T.C. Limited and should have recognized the tenability of an L.P.A. against an order passed under Articles 226 and 227. The principles laid down in Shalini Shyam Shetty did not alter the established law that writ petitions under Article 226 could be entertained in certain private disputes, especially where jurisdictional errors were involved. The High Court directed that the L.P.A. 268/2007 be placed before a competent Division Bench for further consideration in light of these findings and the Full Bench judgment in Advani Oerlikon Ltd.