Kunti Devi W/o Late Balendu Prasad Sharma v. Divisional Commissioner, South Chotanagpur Division
2020-10-06
RAVI RANJAN, SUJIT NARAYAN PRASAD
body2020
DigiLaw.ai
JUDGMENT : 1. The matter has been heard through video conferencing with the consent of the learned counsel for the parties. None of the parties has raised any complaint regarding audio and visual quality. 2. This instant letters patent appeal has been filed against the judgment/order dated 06.04.2018 passed by learned Single Judge of this Court in W.P. (C) No. 135 of 2011, whereby and whereunder the writ petition had been dismissed by affirming the order passed by the Special Officer, Schedule Area Regulation, Ranchi in S.A.R. Case No. 243 of 1990-91, by which the restoration of possession of land appertaining to R.S. Plot No. 191, under Khata No. 34 of Village-Hehal, P.S. No. 203, Ranchi, Police Station-Ranchi was affirmed vide order dated 12.09.1997 passed by the appellate authority, Deputy Commissioner, Ranchi in S.A.R. Appeal No. 47R15/1996-97/DCTR No. 314-R15 of 1996-97 as also affirmed by the revisional authority, the Divisional Commissioner, South Chotanagpur Division, Ranchi vide its order dated 20.12.2010. 3. The appellants/writ petitioners approached to this Court by filing a writ petition under Article 227 of the Constitution of India, assailing the aforesaid orders of restoration of the land in question, which having been dismissed against which the present letters patent appeal has been filed. 4. The instant appeal has been posted today for passing order on interlocutory applications. This Court while hearing the matter on 01.09.2020 had passed an order raising an issue of maintainability of the writ petition since the writ petition has been filed under Article 227 of the Constitution of India and as such, the letters patent appeal would not be maintainable against the order which has been passed under Article 227 of the Constitution of India, but the aforesaid issue of maintainability since was not raised by the office, therefore, the office had been directed to look into the matter. In view thereof, the office has pointed out by placing a report of the Stamp Reporter. The aforesaid report has been perused by the Court and on its perusal it has been found that the instant appeal has been reported to be not maintainable against the order passed by the learned Single Judge under Article 227 of the Constitution of India, in view of the order passed by a Co-ordinate Division Bench of this Court on 13.07.2016 passed in L.P.A. No. 522 of 2004 which has been kept at Flag-X. 5.
Learned counsel for the appellant has submitted that the instant letters patent appeal is maintainable even though the writ petition has been filed under Article 227 of the Constitution of India since according to him the contents of the pleadings is to be seen and not the nomenclature of provision of law. He submits that since the orders impugned before the writ Court were passed by the Revenue Authority, who has been conferred to exercise the quasi judicial power and as such, the writ petition may be treated to be a writ petition under Article 226 of the Constitution of India. He, in support of his submission, has relied upon a judgment of the Hon’ble Apex Court rendered in the case of Sh. Jogendrasinhji Vijaysinghji vs. State of Gujarat and Others, (2015) 9 SCC 1 . 6. Mr. Sachin Kumar, learned AAG-II has objected to such submission. 7. We have heard learned counsel for the parties and perused the materials available on record, more particularly the impugned orders passed by the revenue authorities i.e. Special Officer, Schedule Area Regulation, Original Authority under the Chotanagpur Tenancy Act, 1908, the appellate authority i.e. the Deputy Commissioner, Ranchi and the revisional authority i.e. the Divisional Commissioner, South Chotanagpur Region, Ranchi. 8. Before delving into the matter, we deem it fit and proper to discuss about the scope of Article 226 and 227 of the Constitution of India. Article 226 empowers the High Court to issue, to any person or authority, including the Government (in appropriate cases), directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them High Court is conferred with this power under Article 226 of the Constitution of India for enforcement of any legal right as also the fundamental rights conferred by Part-III of the Constitution or for any other purpose. Article 227 envisages that every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction (except a court formed under a law related to armed forces). The Hon’ble Apex Court in the case of Surya Dev Rai vs. Ram Chander Rai relied on several decisions of the Hon’ble Apex Court, one of which was Umaji Keshao Meshram and Others vs. Smt. Radhikabai and Another, which laid down scope, power and differences between Article 226 and Article 227.
The Hon’ble Apex Court in the case of Surya Dev Rai vs. Ram Chander Rai relied on several decisions of the Hon’ble Apex Court, one of which was Umaji Keshao Meshram and Others vs. Smt. Radhikabai and Another, which laid down scope, power and differences between Article 226 and Article 227. The first and foremost difference between the two articles is that proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. The Hon’ble Apex Court in the case of Surya Dev Rai (supra) has been pleased to conclude that under Article 226 of the Constitution, writ is issued for correcting gross errors of jurisdiction, i.e. when a subordinate court is found to have acted: (i) without jurisdiction, by assuming jurisdiction where there exists none. (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction. (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified and thereby occasioning failure of justice. Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. The Hon’ble Supreme Court, through this judgment, brought all the subordinate judicial bodies under the ambit of Article 226 of the Constitution of India. The judgment rendered in the case of Surya Dev Rai (supra) fell for consideration before the three Judges Division Bench of the Hon’ble Apex Court in the case of Radhey Shyam and Another vs. Chhabi Nath and Others, (2015) 5 SCC 423 in order to consider the correctness of law laid down therein. The Hon’ble Apex Court has laid down, which reads here under as: “This Court unfortunately discerns (with Surya Dev Rai vs. Ram Chander Rai) that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also, in a case of money decree and in various other cases where disputed questions of property are involved, writ Courts are entertaining such disputes.
Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also, in a case of money decree and in various other cases where disputed questions of property are involved, writ Courts are entertaining such disputes. In some cases, the High Courts, in a routine manner, entertain petitions under Article 227 over such disputes and such petitions are treated as writ petitions. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals, writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226.” It is thus, evident that there is difference in between Article 226 and Article 227. While under Article 226, there is privilege of issuance of prerogative writs whereas the provision of Article 227 is to be exercised in the matter of judicial orders passed by the court of civil jurisdiction or the Tribunals. 9. In the light of the aforesaid ratio laid down, the admitted fact herein is that the writ petition has been filed under Article 227 of the Constitution of India, assailing the orders passed by the revenue authorities in pursuance to the power conferred under the provision of Chotanagpur Tenancy Act to exercise power of original authority, appellate authority and the revisional authority.
Admittedly, the order passed by the revenue authority cannot be said to be a judicial order, rather it is in exercise of the quasi judicial power and hence the application would not lie under Article 227 of the Constitution of India as has been held in the judgment rendered in the case of Radhey Shyam and Another vs. Chhabi Nath and Others, the power conferred under Article 227 is supervisory in nature and when the order has been passed by the revenue authority in the capacity of quasi judicial functionary, the same if questioned before the High Court, can be tested by the High Court in exercise of power conferred under Article 226 of the Constitution of India. Thus, the question would be whether merely by giving wrong nomenclature of provision of law in the instant case, jurisdiction of Article 227 can be conferred? The similar issue fell for consideration before the Hon’ble Apex Court in the case of Sh. Jogendrasinhji Vijaysinghji vs. State of Gujarat and Others, (2015) 9 SCC 1 , wherein the issue fell for consideration, as to whether a party on his own invoke supervisory jurisdiction under Article 227 of the Constitution of India and in such a petition, the Court issues writ of certiorari, then, in such a situation, against the impugned order a letters patent appeal would be maintainable. The Hon’ble Apex Court in Sh. Jogendrasinhji Vijaysinghji vs. State of Gujarat and Others, (2015) 9 SCC 1 at paragraph 30 has held as under: “30. From the aforesaid pronouncements, it is graphically clear that maintainability of a letters patent appeal would depend upon the pleadings in the writ petition, the nature and character of the order passed by the learned Single Judge, the type of directions issued regard being had to the jurisdictional perspectives in the constitutional context. Barring the civil court, from which order as held by the three-Judge Bench in Radhey Shyam that a writ petition can lie only under Article 227 of the Constitution, orders from tribunals cannot always be regarded for all purposes to be under Article 227 of the Constitution. Whether the learned Single Judge has exercised the jurisdiction under Article 226 or under Article 227 or both, needless to emphasise, would depend upon various aspects that have been emphasised in the aforestated authorities of this Court.
Whether the learned Single Judge has exercised the jurisdiction under Article 226 or under Article 227 or both, needless to emphasise, would depend upon various aspects that have been emphasised in the aforestated authorities of this Court. There can be orders passed by the learned Single Judge which can be construed as an order under both the articles in a composite manner, for they can co-exist, coincide and imbricate. We reiterate it would depend upon the nature, contour and character of the order and it will be the obligation of the Division Bench hearing the letters patent appeal to discern and decide whether the order has been passed by the learned Single Judge in exercise of jurisdiction under Article 226 or 227 of the Constitution or both. The Division Bench would also be required to scrutinise whether the facts of the case justify the assertions made in the petition to invoke the jurisdiction under both the articles and the relief prayed on that foundation. Be it stated, one of the conclusions recorded by the High Court in the impugned judgment pertains to demand and payment of court fees. We do not intend to comment on the same as that would depend upon the rules framed by the High Court.” It is evident from the aforesaid ratio as has been quoted hereinabove, while deciding the maintainability of the letters patent appeal, the Court is to decide the issue of maintainability on the basis of the pleadings of the writ petition made before the learned Single Judge. 10. We, accordingly, have proceeded to examine the pleadings of the writ petition vis-a-vis the impugned orders and found therefrom that writ petition has been filed for quashing of the order dated 11.07.1996 passed by the Special Officer, S.A.R. Ranchi in S.A.R. Case No. 243 of 1990-91, order dated 12.09.1997 passed by the Deputy Commissioner, Ranchi in S.A.R. Appeal No. 47R15/1996-97/DCTR No. 314-R15 of 1996-97 and the order dated 20.12.2010 passed by the Divisional Commissioner, South Chotanagpur Division, Ranchi in Ranchi Revenue Revision No. 323 of 1997, who are the revenue authorities having been conferred with special power under the Chotanagpur Tenancy Act, 1908. Admittedly, they are the revenue authorities under the provision of Chotanagpur Tenancy Act and as such, the order passed by such revenue authorities cannot be said to be an order passed by a court or Tribunal.
Admittedly, they are the revenue authorities under the provision of Chotanagpur Tenancy Act and as such, the order passed by such revenue authorities cannot be said to be an order passed by a court or Tribunal. Therefore, the pleadings of the writ petition suggest that actually powers of the writ Court as conferred under Article 226 of the Constitution of India has been invoked by the writ petitioner. 11. We have perused the order passed by the Division Bench of this Court in L.P.A. No. 522 of 2004, wherein the maintainability of the appeal has been tested on the basis of the fact arising therein pertaining to issue as to whether the letters patent appeal will lie against the order passed by the District Judge as an appellate authority under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the Act, 1971), wherein a Division Bench of this Court has held that such order can be challenged under Article 227 of the Constitution of India and in that circumstances Letters Patent Appeal will not lie. We have scrutinized the aforesaid order on the basis of the factual aspects involved in this case and are of the view that herein the order passed by the revenue authorities, in the capacity of quasi-judicial authority, have been assailed before the writ Court and as such the same cannot be treated to be a judicial order, therefore, even if herein the writ petition has been filed under Article 227 of the Constitution of India but in view of the pleading of the writ petition, the same will be treated to be filed under Article 226 of the Constitution of India in view of the judgment of Hon’ble Apex Court rendered in the case of Jogendrasinhji Vijaysinghji vs. State of Gujarat and Others (supra) and in such circumstances, the judgment rendered by the Division Bench of this Court in L.P.A. No. 522 of 2004 will not be applicable. 12. Accordingly, we are of the considered view that the instant appeal is maintainable. 13. Accordingly, the office is directed to list this case under the appropriate heading on 20.10.2020.