TaxTMI 
TaxTMI 
2010 (7) TMI 877
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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 defendant had requested the plaintiff to give keys of the two doors to clean the `Sherry' portion. But the said keys were not returned even after 2-3 days and the plaintiff became suspicious and requested the defendant for returning the keys, but in vein. Suspecting some foul play, the plaintiff entered the `sherry' to find that the defendant had placed his items over there and removed the drainage cover which was there in the Sherry. A police complaint was made with regard to the unauthorized possession but nothing happened. The plaintiff then requested the defendant to remove those articles but the request of the plaintiff was not heeded. 5. The defendant/appellant's father is said to have filed a suit for relief of declaration as tenant in the premises and to further restrain the landlord from interfering in the tenanted premises. In the said suit injunctio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t 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 also removed chamber covers and replaced it with tiles. As such it was held that the conduct of the defendants resulted in unhygienic conditions as it was impossible to clean the drains. On behalf of the defendants there was no whisper or challenge to the entire testimony on this point anywhere in the cross-examination. The result of this was nuisance and annoyance to the plaintiff as well as to other occupants of the suit property and this testimony has also not been challenged. 10. An appeal was filed against this order. The First Appellate Court vide its order dated 11.09.08 partly allowed the appeal. The trial Court's judgment was confirmed on the ground of causing waste and damage as contemplated under Section 16 (1) (a) of the Maharashtra Rent Control Act, but the findings of the trial Court on the ground of nuisance and annoyance were set as....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 civil nature. 16. It was urged before this Court that petitions under Article 227 of the Constitution are filed against orders of Civil Court and even in disputes between landlord and tenant. Under the Bombay High Court Rules, such petitions are called writ petitions. 17. This Court is unable to appreciate this submission. First of all this Court finds that the petition which was filed before the High Court was a pure and simple writ petition. It was labeled as Writ Petition No.7926 of 2008 (page 75 of the SLP paper book). 18. In paragraph 6 of the writ petition it had been categorically stated: "That no efficacious remedy is available to the petitioners than the present petition under Article 226 of the Constitution of India. (page 89 of SLP paper book)" 19. In the prayer portion also a writ of certiorari has been prayed for in the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lications 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 application shall set out therein the relief sought and the grounds on which it is sought, it shall he solemnly affirmed or supported by an affidavit In every such application, the applicant shall state whether he has made any other application to the Supreme Court or the High Court in respect of the same matter and how that application has been disposed of. (ii) Applicant to inform Court, if during pendency of an application, the Supreme Court has been approached. If the applicant makes an application to the Supreme Court in respect of the same matter during the pendency of the application in the High Court, he shall forthwith bring this fact to the notice of the High Court filing an affidavit in the case and shall furnish a copy of such affidavit to the other side. (iii) Hearing may be adjourned pending decision by ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 fact of an original or appellate nature. The contention of the learned Advocate General and Mr. Desai is that the matter in dispute, on averments in the petition, must be said to have arisen at any rate, substantially within the limits of Greater Bombay and the petitioner cannot be permitted to avoid the impact of these Rules and choose his own forum by merely quoting Article 227 of the title and prayer clause of the petition, when it is not attracted or by merely making a pretence of the dispute having arisen beyond Greater Bombay by referring to non- existing facts to attract the Appellate Side jurisdiction under Article 226" 26. In paragraph 4 of Jhaman (supra), the High Court further distinguished the nature of proceeding under Article 226 of the Constitution to which, depending upon the situs ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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: "...The power to issue writs was limited to three High courts. The other High Courts in India, however, were created by the Crown under Section 16 of the High Courts Act, 1861 but they had no such power. It is necessary to mention that under Section 45 of the Specific Relief Act, 1877, even the High Courts of Madras, Calcutta and Bombay could not issue the writs of prohibition and certiorari or an order outside the local limits of their original civil jurisdiction." 31. The power to issue writs underwent a sea-change with the coming of the Constitution from 26th January, 1950. Now writs can be issued by High Courts only under Article 226 of the Constitution and by the Supreme Court only under Article 32 of the Constitution. 32. No writ petition can be ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s 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: "107. Powers of High Court with respect to subordinate Courts. - Each of the High courts has superintendence over all High Courts for the time being subject to its appellate jurisdiction, and may do any of the following things, that is to say:- (a) call for returns; (b) direct the transfer of any suit or appeal from any such court any other court of equal or superior jurisdiction; (c) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; (d) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts; and (e) settle tables of fees to be allowed to the sheriff, attorneys and a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e (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. Chief justice Harries in the Full Bench decision in Dalmia (supra) stated the principles on which the High Court can exercise its power under Article 227 very succinctly which, we would better, quote: "6. Though this Court has a right to interfere with decisions of Courts and tribunals under its power of superintendence, it appears to me that that right must be exercised most sparingly and only in appropriate cases. The matter was considered by a Bench of this Court in Manmathanath v. Emperor, AIR 1933 Cal 132. In that case a Bench over which Sir George Rankin C. J. presided held ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cise 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 earlier Constitution Bench in Waryam Singh (supra) about the ambit of High Court's power of superintendence and quoted in Nagendra Nath (supra) the same passage, which has been excerpted above (See paragraph 30, page 413 of the report). 47. The Constitution Bench in Nagendra Nath (supra), unanimously speaking through Justice B.P. Sinha, (as his Lordship then was) pointed out that High Court's power of interference under Article 227 is not greater than its power under Article 226 and the power of interference under Article 227 of the Constitution is limited to ensure that the tribunals ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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 followed in Ahmedabad Manufacturing Calico Ptg. Co. Ltd. vs. Ram Tahel Ramnand and others reported in (1972) 1 SCC 898. 54. In a rather recent decision of the Supreme Court in case of Surya Dev Rai vs. Ram Chander Rai and others, reported in (2003) 6 SCC 675, a two judge Bench of this Court discussed the principles of interference by High Court under Article 227. Of course in Surya Dev Rai (supra) this Court held that a writ of Certiorari is maintainable against the order of a civil Court, subordinate to the High Court (para 19, page 668 of the report). The correctness of that ra....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iorari 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 226 and 227 stand on substantially different footing. As noted above, prior to the Constitution, the Chartered High Courts as also the Judicial Committee of the Privy Council could issue prerogative writs in exercise of their original jurisdiction. [See 1986 (suppl.) SCC 401 at page 469)]. 58. However, after the Constitution every High Court has been conferred with the power to issue writs under Article 226 and these are original proceeding. [State of U.P. and others vs. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion 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 and Courts subordinate to High Court. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high deg....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ty 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 transaction between them was merely colourable, entered into with a view to deprive Jagan Nath of his rights, jurisdiction to issue a writ to or make an order in the nature of mandamus against the appellant might be said to exist in a Court..." 68. These principles laid down by the Constitution Bench in Sohan Lal (supra) have not been doubted so far. 69. Subsequently in some other cases question arose whether writ will lie again....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dication 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 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 (supra) [See paragraph 16 page 282 of the report). Again in State of Rajasthan vs. Bhawani Singh others [1993 Supp. 51 (1) SCC 306] this Court held that a writ petition is not the appropriate forum to declare a person's title to prop....