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2017 DIGILAW 723 (MP)

Babulal v. Rajveer Singh

2017-05-25

S.A.DHARMADHIKARI, SHEEL NAGU

body2017
JUDGMENT 1. The present intra Court filed under section 2(1) of M.P. Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 (hereinafter referred as “ Act of 2005”) assails the final order dated 10.2.2017 passed in Writ Petition No.5970/2016 whereby the learned Single Judge while exercising the power of superintendence under Article 227 of the Constitution of India has allowed the petition and set aside the order of Board of Revenue dated 5.8.2016 after holding that application of petitioner under section 250 of the M.P. Land Revenue Code, 1959 (hereinafter referred to as ' the Code, 1959') was filed within the limitation period of two years as prescribed in section 250(1-a)(b) of the Code. 2. The argument of the learned counsel for the parties are heard solely on the question of maintainability of this writ appeal as it is objected by the learned counsel for the respondent that no appeal under section 2(1) of 2005 Act lies against the order passed under Article 227 of Constitution of India. 3. Learned counsel for the respondent in support of the objection has placed reliance on the decision of Dr. Jaidev Siddha (Dr.) v. Jaiprakash Siddha and others [ 2007(3) JLJ 151 = 2007(3) MPLJ 595 para 17] and Vijay Chaudhary v. Smt. Vimlabai and others [ 2011(III) MPWN 75 ] and contends that since no writ was sought to be issued and the petition in question was also titled as being under Article 227 and also that the tenor of the pleadings merely sought exercise of supervisory jurisdiction of the learned single Judge, the impugned order that has been passed is under Article 227 and not under Article 226 and, therefore, statutory bar under section 2(1) of 2005 Act comes into play against the appellant thereby rendering this appeal not maintainable. It is further submitted that the writ Court has not decided upon any of the rights and liabilities of the rival parties but has merely adjudicated as to whether the impugned order was passed within the jurisdictional limits of the authorities or not. 4. Per Contra, learned counsel for the appellant submits that the learned Single Judge has exercised its original writ jurisdiction by issuing the writ of certiorari though not specifically asked for in the relief clause of the petition. 4. Per Contra, learned counsel for the appellant submits that the learned Single Judge has exercised its original writ jurisdiction by issuing the writ of certiorari though not specifically asked for in the relief clause of the petition. It is further submitted by the appellant that quashment of order of the Board of Revenue (Annexure P-1) and order of SDO (Annexure P-3) was sought in the petition which essentially is a kin to asking for writ of certiorari. Thus, it is submitted that merely because the petition in question was titled as inter alia being under Article 227 the power exercised by the writ Court was actually and essentially under Article 226 and not under Article 227. 5. The issue as to whether the order passed by the learned Single Judge is under Articles 226 or 227 is no more res integra. The Full Bench decision in the case of Manoj Kumar v. Board of Revenue [ 2008(1) JLJ 76 (SB)= (2008)1 MPLJ 152 ] and the recent decision in the case of Radhey Shyam and another v. Chhabi Nath and others [ (2015)5 SCC 423 ], which has been followed by the apex Court in the case of Himalayan Coop. Group Housing Society v. Balwan Singh and others [ (2015)7 SCC 373 ]. Paragraphs 16 to 20 of the Himalayan Coop. Group (supra), are being reproduced below for convenience and ready reference :- “16. The scope and extent of power of the writ Court in a petition filed under Articles 226 and 227 of the Constitution came up for consideration before a three-Judge Bench of this Court in the recent case of Radhey Shyam v. Chhabi Nath [ (2015)5 SCC 423 ]. This Court observed that the writ of certiorari under Article 226 though directed against the orders of an inferior Court would be distinct and separate from the challenge to an order of an inferior Court under Article 227 of the Constitution. The supervisory jurisdiction comes into play in the latter case and it is only when the scope and ambit of the remedy sought for does not fall in the purview of the scope of supervisory jurisdiction under Article 227, the jurisdiction of the Court under Article 226 could be invoked. 17. The supervisory jurisdiction comes into play in the latter case and it is only when the scope and ambit of the remedy sought for does not fall in the purview of the scope of supervisory jurisdiction under Article 227, the jurisdiction of the Court under Article 226 could be invoked. 17. In the present case, what was challenged by the members of the society was an order passed by the Registrar and the revisional authority under the provisions of the Act and the Rules framed thereunder. The prayer was to set aside the orders passed by the authorities below. Even if the said petition(s) were styled as a petition under Article 226, the content and the prayers thereunder being ones requiring exercise of supervisory jurisdiction only, could be treated as petitions filed under Article 227 of the Constitution only. 18. Having said so, we will now consider the issues that fall for our consideration and decision in the present appeals. 19. In the present case, the subject-matter of the petitions was the orders passed by the Registrar and the revisional authority under the provisions of the Act and the Rules framed thereunder. The Registrar and the revisional authority in their order have considered the validity of the expulsion of the respondents from the membership of the appellant society for having defaulted in paying the principal amount to the appellant society. The Registrar and the revisional authority have recorded a concurrent finding that despite notice and repeated opportunities to deposit the required amounts to the appellant society, the respondents have continued to be in default and hence, the said authorities have confirmed the resolution passed by the appellant society expelling the respondents from the membership of the appellant society. The writ Court, in the impugned judgment and order, has also reached the conclusion that since the respondents had defaulted in paying the principal amount to the appellant society, the appellant society was justified in expelling them from the membership of the appellant society and hence, confirmed the orders passed by the authorities below. 20. The writ Court after considering the merits of the case has come to the conclusion that the expulsion of the respondents from the appellant society was justified. 20. The writ Court after considering the merits of the case has come to the conclusion that the expulsion of the respondents from the appellant society was justified. Having said so, in our view, the Court ought not to have issued the impugned directions merely because a request was made by the learned counsel appearing for the respondents herein. The same would hold true even if a concession was made by the counsel for the appellant society. The Court, while exercising its powers under Article 227 of the Constitution of India, ought to have confined itself to the subject matter and the issues raised by the parties in the writ petition. The digression of or expansion of the supervisory jurisdiction under Article 227 of the Constitution of India, would open precarious flood-gates of litigation should the limitation on the supervisory jurisdiction not be observed mindfully.” 6. In the case of Himalayan Cooperative Group (supra), before the apex Court the factual matrix disclosed that High Court of Delhi adjudicated a challenge to the order of the revisional authority under the relevant statute governing the Cooperative Societies by which the order of the Registrar expelling the respondents therein from the membership of the appellant society was upheld. In this factual backdrop, the apex Court held that though the petition in question before Delhi High Court was titled as under Articles 226 and 227 but since the High Court was exercising supervisory jurisdiction over the Tribunal (Revisional Authority under the Cooperative Statute) the nature of the power exercised by the High Court was under Articles 227 and not under Article 226. 7. In the instant case, the challenge before the learned Single Judge was to the order of the Board of Revenue which is a statutory Tribunal established under the Code, 1959. More so there was no prayer made under relief clause in the writ petition for issuance of any of the five prerogative writ under Article 226 of the Constitution of India and, therefore, the power exercised by the learned Single Judge was under Article 227 of the Constitution of India and not under Article 226. 8. Having so held (supra), the present writ appeal in view of the statutory bar contained under section 2(i) 2005 Adhiniyam is not maintainable and is thus dismissed as such with no cost.