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2001 DIGILAW 669 (MP)

Resham Bai v. Devram alias Devaji

2001-09-07

A.K.GOHIL, DEEPAK VERMA

body2001
ORDER 1. This is an appeal preferred under clause 10 of the Letters Patent, against the order passed by learned Single Judge on 12.4.2001 in WP No. 514 of 1995, whereby, the present appellant had challenged two orders, one passed by Sub-Divisional Officer (hereinafter 'the SDO') and another confirmed in appeal by Collector. 2. At the outset, learned counsel appearing for respondents submitted that this appeal would not be maintainable under clause 10 of the Letters Patent, as the appellant's petition, even though preferred under Articles 226 and 227 of the Constitution of India, but, essentially it was only under Article 227 of the Constitution of India and was also treated as such by learned Single Judge. Thus, at the threshold we have heard the learned counsel for parties on the question of maintainability of the appeal. We were taken through the averments made in the writ petition filed by the present appellant under Article 226/227 of the Constitution of India. Learned counsel for appellant has tried to make out a very fine distinction to contend as to in what cases the petition can be treated under Article 226 and in what cases it can be treated under Article 227 and, thirdly, in what cases it can be treated petition under both, Articles 226 and 227 of the Constitution of India. It has been contended that since prayer was for quashment of the orders passed by SDO and confirmed in appeal by Collector, therefore, same could have been done only by issuing writ of certiorari. 3. On the other hand, learned senior counsel Shri B.L. Pavecha appearing for respondents contended that by no stretch of imagination, the petition filed by appellant could be treated one under Article 226 but was rightly treated as one, preferred under Article 227 of the Constitution of India as the learned Single Judge had only exercised the supervisory jurisdiction to examine correctness, propriety and validity of the two orders passed by SDO and confirmed by Collector in appeal. 4. Before we deal with the issue of maintainability, it is desirable to give basic and necessary facts. Short facts necessary for deciding the said question are mentioned hereinbelow: 5. 4. Before we deal with the issue of maintainability, it is desirable to give basic and necessary facts. Short facts necessary for deciding the said question are mentioned hereinbelow: 5. Respondents No.1 and 2 herein filed an application under section 5 of the M.P. Samaj Ke Kamjor Vargon Ke Krishi Bhumi-Dharakon Ka Udhar Dene Walon Ke Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, 1976 (Act No.3 of 1977) (for short 'Adhiniyam of 1976'), before the SDO claiming therein that the sale deed executed by them in favour of petitioner, would fall within the prohibited transaction of loan, therefore, the same be declared null and void. On consideration of submissions as advanced before SDO, their application was rejected. Feeling aggrieved by the said order, respondents No. 1 and 2 herein carried the same to Collector by filing an appeal. The appeal was also rejected. Feeling further aggrieved, they preferred MP No. 345/92 in the High Court of M.P. at Indore Bench. The High Court was pleased to set aside the two orders and was further pleased to remand the matter to SDO for recording of evidence and disposal of the application of respondents No. 1 and 2 in accordance with law. 6. After remand, parties led evidence and the matter was heard again by SDO. This time he was pleased to allow the application filed by respondents No.1 and 2 and held therein that the transaction fell within prohibited transaction of loan and set aside the sale deed executed in favour of the present appellant and further directed that possession be handed over to respondents No. 1 and 2. This time, this order was challenged by the present appellant by filling an appeal to the Collector. The appeal also met the fate of dismissal. The appellant thereafter preferred a petition, describing it to be under Article 226/227 of the Constitution of India, in the High Court of M.P., Indore Bench. Learned Single Judge treated it to be one filed under Article 227 of the Constitution and rejected the same. It is this order which is being sought to be challenged in this Letters Patent Appeal under clause X. 7. We have accordingly perused the record and heard learned counsel for parties on the question of maintainability. Learned Single Judge treated it to be one filed under Article 227 of the Constitution and rejected the same. It is this order which is being sought to be challenged in this Letters Patent Appeal under clause X. 7. We have accordingly perused the record and heard learned counsel for parties on the question of maintainability. Even though this question crops up for consideration of this Court on several occasions quite frequently, but no clear-cut line can be drawn as to where learned Single Judge has exercised jurisdiction under Article 226 and where it has exercised under Article 227, or in which cases the same has been exercised under both the Articles. It has been held by Supreme Court, that it is to be considered from facts mentioned in the petition and reliefs claimed, to hold if it would be under Art. 226 or under Art. 227. 8. After critically examining the writ petition of the appellant and reliefs claimed therein, we are of the considered opinion that this petition of the appellant has to be treated as one filed under Article 227 of the Constitution only. Thus, learned Single Judge was absolutely right in holding it to be only under Article 227 of the Constitution. 9. Appellant had made a prayer in her petition before learned Single Judge for quashment of the appellate order passed by Collector and the application filed by respondent No.1 and 2 herein before SDO be dismissed with costs. This clearly shows that there was no prayer for issuance of writ of certiorary made by the petitioner. Thus, it could be only treated as a petition under Article 227 of the Constitution, which learned Single Judge has rightly held so. 10. We are fortified in our view by a series of judgments rendered by this Court from time to time; to quote : reported in 1997(1) JLJ 155 [Indore Dugdha Sangh and another v. K.P. Singh and another]; 1998(2) JLJ 49 = 1998(1) MPLJ 196 [State of M.P. and others v. Yankappa and another] and 1999(1) JLJ 173 [Abdul Raheem Khan v. MPSRTC and others]. All the aforesaid judgments have been pronounced by Division Bench of this Court. All the aforesaid judgments have been pronounced by Division Bench of this Court. In the matter of Abdul Raheem (supra), para 14, which met approval of other brother Judge of Division Bench, is being quoted hereinbelow: "So far as the nature of petition, whether it is filed under Articles 226 and 227, is concerned, it will depend upon the frame of the petition and the relief sought. Normally, whenever any writ is filed for setting aside the order of the Tribunal, then this is done in exercise of power under Article 227 of the Constitution of India because all the Tribunals in territorial jurisdiction of the High Court are subject to superintendence of the High Court. Therefore, whenever a writ petition is filed against the order passed by the Labour Court or Industrial Court or Board of Revenue or any other Tribunals, then such kind of petitions are under Article 227 of the Constitution of India only because the High Court exercises the power of superintendence over those Tribunals. Simply because in some cases, additional relief is sought and it is styled under Article 226 of the Constitution, that will not be decisive of the matter, but looking to the nature of petition, if it is against the order passed by the Tribunal, then such petition shall be treated to be as petition against Article 227 and the Court shall exercise its superintendence power under Article 227 except where vires of any enactment is challenged. But, in the frame of the petition, if it is only to challenge the order of the Tribunal, then irrespective of the fact that it referred to Article 226, this will be a petition under Article 227 and the learned Single Judge will only exercise the power under Article 227 of the Constitution of India." 11. Considering the ratio decidendi of other two cases, we have no doubt in our mind that in substance, petition filed by appellant was rightly treated by learned Single Judge as one filed under Article 227 of the Constitution. 12. In this view of the matter, we find that no Letters Patent Appeal would be maintainable against such an order, as has been held by the Supreme Court in a series of judgments; to quote, kindly see: AIR 1986 SC 1272 [Umaji Keshao Meshram and others v. Smt. Radhikabai and another]; 1993 Supp. 12. In this view of the matter, we find that no Letters Patent Appeal would be maintainable against such an order, as has been held by the Supreme Court in a series of judgments; to quote, kindly see: AIR 1986 SC 1272 [Umaji Keshao Meshram and others v. Smt. Radhikabai and another]; 1993 Supp. (1) SCC 9 [Ratnagiri District Central Cooperative Bank Ltd. v. Dinkar Kashinath Watve and others]; 1993 Supp. (1) SCC 11 [Sushilabai Laxminarayan Mudliyar and others v. Nihalchand Waghajibhai Shah a and others] and (1999) 6 SCC 275 [Lokmat Newspapers Pvt. Ltd. v. Shankarprasad]. Thus, we find ourselves unable to entertain this appeal as it has been preferred by the appellant against an order passed by learned Single Judge exercising jurisdiction conferred on him under Article 227 of the Constitution. Thus, appeal fails and is dismissed with no order as to costs. 13. At this stage, learned counsel for appellant submitted that interim order passed by this Court be allowed to continue for further period of two months, so as to enable the appellant to approach Supreme Court. 14. Admittedly, after execution of sale deed in her favour, appellant is in possession which has not been disputed by respondents. Thus, this prayer appears to be reasonable. The interim order of stay passed by this Court on 10.5.2001 is directed to continue for further period of two months from today subject to appellant furnishing an undertaking in this Court within a period of ten days that in case no stay is granted within the aforesaid period by the Apex Court, then she will hand over peaceful and vacant possession of the land to the respondents. 15. Appeal stands dismissed.