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TMI Blog2010 (7) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... J. 1. Leave granted. 2. This appeal has been filed by the original defendant challenging the judgment and order dated 09.02.2009 of the Bombay High Court rendered in the Writ Petition filed under Article 226 of the Constitution of India. The High Court dismissed the writ petition in view of concurrent finding of two lower courts and High Court thought that no interference in exercise of its writ jurisdiction is warranted. 3. The facts of the case are that the respondent/plaintiff filed a suit for eviction on the grounds of breach of terms of tenancy, damage to the property as well as causing nuisance and annoyance to the plaintiff and the other occupants. As per the plaintiff the original defendant was the tenant in respect of Room No.3 (hereinafter as suit premises) and was paying monthly rent of Rs.20/- including the water charges and excluding the electricity charges. The case of the plaintiff is that only the suit premises was let out though the original tenant was allowed to use a covered space of 10'x 4', but the same was for common usage and for access to W.C and water tap along with the other tenants. 4. Plaintiff claims that somewhere in January 2000, the defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t being settled. It was noted that admittedly the plaintiff has no documentary evidence to prove that the defendants had encroached and occupied the sherry portion of the suit property. But it was observed that there is corroborative evidence in this behalf in the form of NC Slip Exhibit `G' which shows that the complaint was filed immediately after the plaintiff learnt about this unlawful possession. Reliance was also placed on paragraph 10 of the examination-in-chief of the D.W.1 which supports the plaintiff's version. 8. It was held that the defendants admit that at some point prior to the filing of the present suit the `sherry portion' was in the occupation of the deceased defendant. This has to be read in the light of the fact that the aforesaid portion was never let out to the deceased defendant. As such the occupation of the deceased defendant over the said portion was unlawful as he had no right to occupy the same. 9. Further reference was made to the suit filed by the appellant's father wherein an injunction order was passed in his favour. It was after the said injunction order that the defendants had demolished the wall in the sherry and constructed a door. They had a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... version of plaintiff is not challenged seriously it cannot be concluded that the plaintiff has established his case. The Appellate Court set aside the finding of the trial Court on this ground only but confirmed the finding on other grounds of eviction. 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 civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been provided under the said Rules is that petitions under Article 227 filed in respect of certain category of cases will be heard by a Division Bench hearing writ petitions. That is merely indicative of the forum where such petitions will be heard. 23. Chapter XVII of the Rules deals petitions under Articles 226 and 227 and applications under Article 228 and rules for issue of writs and orders under those Articles. In Chapter XVII, Rules 1 to 16 deal with petitions under Article 226 of the Constitution. 24. Rule 17 deals with application under Articles 227 and 228. If a comparison is made between Rule 1 of Chapter XVII and Rule 17 of the same Chapter it will be clear that petitions under Article 226 and those under Article 227 are treated differently. Both these Rules are set out one after the other: 1. (i) Applications for issue of writs, directions, etc. under Article 226 of the Constitution Every application for the issue of a direction, order or writ under Article 226 of the Constitution shall, if the matter in dispute is or has arisen substantially outside Greater Bombay, be heard and disposed of by a Division Bench to be appointed by the Chief Justice. The applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions. 25. The distinction between the two proceedings also came up for consideration before the Bombay High Court and in the case of Jhaman Karamsingh Dadlani vs. Ramanlal Maneklal Kantawala (AIR 1975 Bombay 182) the Bombay High Court held: 2. This High Court since its establishment in 1862 under the Letters Patent has been exercising original as well as appellate jurisdiction and its functioning is regulated by 'the Bombay High Court (Original Side) Rules, 1957' and 'Rules of the High Court of Judicature at Bombay, Appellate Side, 1960' (hereinafter referred to respectively as 'O. S. Rules' and 'A. S. Rules'). Rules also provide for disposal of petitions under Articles 226 and 227 of the Constitution. Supervisory jurisdiction of the High Court under Article 227 of the Constitution is exclusively vested in a Bench on the Appellate Side and jurisdiction of either of the two wings of this Court under Article 226, however, depends upon whether the matter in dispute arises substantially in Greater Bombay or beyond it, the same being exercisable by the original Side in the former case and by the Appellate Side in the latter case. This is not made dependent on the matter being in fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Article 226, either the original side or the appellate side rules, depending on the situs of the cause of action, will apply. 28. Therefore High Court rules treat the two proceedings differently in as much as a proceeding under Article 226, being an original proceeding, can be governed under Original Side Rules of the High Court, depending on the situs of the cause of action. A proceeding under Article 227 of the Constitution is never an original proceeding and can never be governed under Original Side Rules of the High Court. 29. Apart from that, writ proceeding by its very nature is a different species of proceeding. 30. Before the coming of the Constitution on 26th January, 1950, no Court in India except three High Courts of Calcutta, Bombay and Madras could issue the writs, that too within their original jurisdiction. Prior to Article 226 of the Constitution, under Section 45 of the Specific Relief Act, the power to issue an order in the nature of mandamus was there. This power of Courts to issue writs was very truncated and the position has been summarized in the law of writs by V.G. Ramchandran, Volume 1 (Easter Book Company). At page 12, the learned author observed: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of equal or superior Jurisdiction, and shall have Power to make and issue General Rules for regulating the Practice and Proceedings of such Courts, and also to prescribe Forms for every Proceeding in the said Courts for which it shall think necessary that a form be provided, and also for keeping all Books, Entries, and Accounts to be kept by the officers, and also to settle Tables of Fees to be allowed to the Sheriff, Attorneys, and all Clerks and Officers of Courts, and from Time to Time to alter any such Rule or Form or Table; and the Rules so made, and the Forms so framed, and the Tables so settled, shall be used and observed in the said Courts, provided that such General Rules and Forms and Tables be not inconsistent with the Provisions of any law in force, and shall before they are issued have received the Sanction, in the Presidency of Fort William of the Governor-General in Council, and in Madras or Bombay of the Governor in Council of the respective Presidencies. 36. Then in the Government of India Act, 1915 Section 107 continued this power of superintendence with the High Court. Section 107 of the Government of India Act, 1915 was structured as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Allahabad High Court in Sukhdeo Baiswar vs. Brij Bhushan Misra and others in AIR 1951 Allahabad 667. 39. The history of Article 227 has also been traced by this Court in its Constitutional Bench judgment in Waryam Singh and another vs. Amarnath and another [AIR 1954 SC 215]. In paragraph 13 at page 217 of the report this Court observed: ...The only question raised is as to the nature of the power of superintendence conferred by the article . 40. About the nature of the power of superintendence this Court relied on the Special Bench judgment delivered by Chief Justice Harries in Dalmia Jain Airways Limited vs. Sukumar Mukherjee (AIR 1951 Calcutta 193). 41. In paragraph 14 page 217 of Waryam Singh (supra) this Court neatly formulated the ambit of High Court's power under Article 227 in the following words: This power of superintendence conferred by article 227 is, as pointed out by Harries C.J., in `Dalmia Jain Airways Ltd. v. Sukumar Mukherjee', AIR 1951 Cal 193 (SB) (B), to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. 42. Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them with almost similar provisions of Article 227 of the Constitution. 45. The learned judge considered the power of the High Court under Article 227 to be plenary and unfettered but at the same time, in paragraph 15 at page 792 of the report, the learned judge held that High Court should be cautious in its exercise. It was made clear, and rightly so, that the power of superintendence is not to be exercised unless there has been an (a) unwarranted assumption of jurisdiction, not vested in Court or tribunal, or (b) gross abuse of jurisdiction or (c) an unjustifiable refusal to exercise jurisdiction vested in Courts or tribunals. The learned judge clarified if only there is a flagrant abuse of the elementary principles of justice or a manifest error of law patent on the face of the record or an outrageous miscarriage of justice, power of superintendence can be exercised. This is a discretionary power to be exercised by Court and cannot be claimed as a matter or right by a party. 46. This Court in its Constitution Bench decision in the case of Nagendra Nath Bora another vs. Commissioner of Hills Division and Appeals, Assam others (AIR 1958 SC 398) followed the ratio of the earlie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in (1986) 4 SCC 447. The decision in Chandavarkar (supra) is based on the principle of the Constitution Bench judgments in Waryam Singh (supra) and Nagendra Nath (supra) discussed above. 52. To the same effect is the judgment rendered in the case of Laxmikant Revchand Bhojwani and another vs. Pratapsingh Mohansingh Pardeshi reported in (1995) 6 SCC 576. In paragraph 9, page 579 of the report, this Court clearly reminded the High Court that under Article 227 that it cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principle of law and justice (see page 579-580 of the report). 53. Same views have been taken by this Court in respect of the ambit of High Court's power under Article 227 in the case of Sarpanch, Lonand Grampanchayat vs. Ramgiri Gosavi and another, reported in AIR 1968 SC 222, (see para 5 page 222-234 of the report) and the decision of this Court in Jijabai Vithalrao Gajre vs. Pathankhan and others reported in (1970) 2 SCC 717. The Constitution Bench ratio in Waryam Singh (supra) about the scope Article 227 was again followe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes 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 above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the 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. 57. Articles 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der passed by a Single Judge of a High Court in exercise of power under Article 227. In almost all High Courts, rules have been framed for regulating the exercise of jurisdiction under Article 226. No such rule appears to have been framed for exercise of High Court's power under Article 227 possibly to keep such exercise entirely in the domain of the discretion of High Court. 62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The eviction of Jagan Nath was in contravention of the express provisions of Section 3 of the Public Premises (Eviction) Act. His eviction, therefore, was illegal. He was entitled to be evicted in due course of law and a writ of mandamus could issue to or an order in the nature of mandamus could be made against the Union of India to restore possession of the property to Jagan Nath from which he had been evicted if the property was still in the possession of the Union of India. The property in dispute, however, is in possession of the appellant. There is no evidence and no finding of the High Court that the appellant was in collusion with the Union of India or that he had knowledge that the eviction of Jagan Nath was illegal. Normally, a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an order is made against a person directing him to do some particular thing, specified in the order, which appertains to his office and is in the nature of a public duty (Halsbury's Laws of England Vol. 11, Lord Simonds Edition, p. 84). If it had been proved that the Union of India and the appellant had colluded, and the transactio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, even 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 vs. 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]. 75. In coming to the aforesaid conclusion in Hanif (supra), this Court referred to the Constitution Bench decision in T.C. Basappa vs. T. Nagappa and another [AIR 1954 SC 440]. 76. Following the aforesaid principles in Hanif (supra), this Court in M/s. Hindustan Steel Limited, Rourkela vs. Smt. Kalyani Banerjee and others [(1973) 1 SCC 273] held that serious questions about ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. 80. We may also observe that in some High Courts there is tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev (supra) and in view of the recent amendment to Section 115 of the Civil Procedure Code by Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 of CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding High Court's power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law. 81. As a result of frequent interference by Hon'ble High Court either under Article 226 or 227 of the 54 Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice. 82. This Court hopes and trusts that in exercising its power either under Article 226 or 227, Hon'ble High Court will follow the time honoured pri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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