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TMI Blog2012 (10) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... andra 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? 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. 1851/1995Ramchandra 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 Colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eference, 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 nevertheless affirmed that the nature of relief sought for 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra). 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 2009AIR 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oard 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 976Savitri 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 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 Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recedent 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 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 paragrap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner, Dairy Development is pressed into service to 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 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' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (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 694Siddharam 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 Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eping 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. (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 longdrawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules the fact remains that the parameters for exercise of jurisdiction under Article226 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imits 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 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 judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also in paragraph 60 page 419 of Rupa Ashok Hurra (supra). Nowhere even any whisper of a divergence from the ratio in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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." 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 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 tenabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur 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 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 similar 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 43A 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleadings in 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 ." 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. Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 210 Amar Singh v. Union of India, and (2011) 1 SCC 694Siddharam 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teriam. 19. In Quinn v. Leathem Earl of Halsbury, L.C. stated: (All ER p. 7 GH) "... 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dhusudan 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 statutory provisions or private individual is acting in collusion w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 crossobjection 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) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 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 (petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agraph 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shalini Shetty. The second question can be and is answered accordingly here. 10. Once again putting on record the appreciation for hardwork 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. 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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