(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA) 1. The appellant has called into question, oral order dated 05.11.2009 of learned Single Judge of this Court in Special Civil Application No. 11339 of 2009, wherein it is clearly stated at the outset that, the petitioner, the appellant herein, had not pressed the petition with respect to the prayers in terms of paras 7 (B) (C) and (D), and hence, the petition was confined to prayer in terms of para 7(A). It is further observed in the impugned order that there were concurrent findings of fact with respect to the tenancy right of the tenant by all the authorities inclusive of the Gujarat Revenue Tribunal, was not required to be considered by the Court in exercise of power under Article 227 of the Constitution. Accordingly, the petition was dismissed.
2. In view of the recent Division Bench decision of this Court (Coram: S.J.Mukhopadhyay, CJ. as His Lordship then was and J.B.Pardiwala, J.) in Gustadji Dhanjisha Buhariwala and anr. Vs. Nevil Bhamansha Buhariwala and ors. [2011 (2) GLH 147], learned counsel was heard on the aspect of maintainability of the appeal under Clause 15 of the Letters Patent. It was submitted by learned counsel Ms. P.J.Joshi, appearing for the appellant, that the order impugned before learned Single Judge was unreasonable and perverse and the petitioner had expressly invoked Articles 226 and 227 of the Constitution, on the basis that the powers of the High Court under Article 226 of the Constitution were required to be exercised in the facts of the case. Learned counsel relied upon decision of the Apex Court in Shahu Shikshan Prasarak Mandal and anr. Vs. Lata P. Kore and Ors [2009 (1) GLH 417] to submit that where the substantial part of the order sought to be appealed against is under Article 226, it was wrong to hold that appeal was not maintainable against the order of learned Single Judge. It was pointed out from the quotation in the said judgement, from Umaji Keshao Meshram and Ors. Vs. Radhikabai [1986 Suplement SCC 401] that in the opinion of the Supreme Court, where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution and the party chooses to file his application under both the Articles in fairness and justice to such party and in order not to deprive him of valuable right of appeal, the Court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order the Court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under Clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226. Such was the view taken by Allahabad High Court in Aidal Singh Vs. Karan Sing [AIR 1957 All 414] by the Puna High Court in Raj Kishan Jain Vs. Tulsi Das [AIR 1959 Punj. 291] and Barham Dutt Vs. Peoples' Co- operative Transport Societ Ltd. Vs. New Delhi [AIR 1961 Punj 241]. It was further pointed out that in Mavji C. Lakum Vs. Central Bank of India [2008 (7) SCALE 32], the Apex Court had noted that the writ petition clearly mentioned on the very first page that it was being filed under Article 226 of the Constitution and the prayer in para 15 of the petition was as under:
“ That by appropriate writ, direction and order, the impugned order of Industrial Tribunal (Central) Rajkot at Annexure B be quashed and/or set aside”.
All these suggested that the petition was not only under Article 227 of the Constitution but there was specific mention of Article 226. In the case before the High Court, apart from the fact that petition was labelled under Article 226, it was clear that the grounds raised in the petition suggested that the petition was not only under Article 227 but also under Article 226 of the Constitution. After reading the petition, the Apex Court was convinced that the contentions raised and the facts stated in the petition justified the respondent in filing an application both under Articles 226 and 227 of the Constitution.
3. However, the recent decision of Division Bench of this Court in Gustadji (Supra.) has, after elaborate discussion and reference to all the relevant judgements cited before it including Shahu Shikshan Prasarak Mandal (Supra.), held, inter alia as under:
“56. The sum and substance of our discussion and findings recorded in the Judgment can be now summarized as under :
(1) to (4) ... ... ...
(5) Where law provides the provision of Appeal and the same is decided by the judicial authority or where there is a scope for judicial scrutiny by the subordinate at the top, the petition challenging such order would be covered under Article-227 of the Constitution.
(6) Where a petition is filed, both under Articles-226 and 227 of the Constitution, it will have to be considered whether the point raised in the petition arose for adjudication for the first time before the High court. If the challenge in the petition is with respect to the point already adjudicated upon by the subordinate court, then, it will have to be held that the supervisory jurisdiction of the High court was invoked and not the original.
(7) The cause title, averments and the prayers in the petition can be taken into account while deciding whether the petition is one under Article-226 and 227 of the Constitution. This has to be determined on the facts of each case having regard to -
i) nature and the jurisdiction invoked;
ii) the averments contained in the petition;
iii) the reliefs sought; and
iv) most importantly, the true nature of the principal order passed by the learned Single Judge. The true nature of the order passed by the learned Single Judge has to be determined on the basis of true character of the relief granted. By merely labeling the petition under Article-226 and by praying for Writ of Certiorari it cannot be said that the facts justify the party to invoke the extraordinary jurisdiction of the High court under Article-226 of the Constitution of India.
(8) As held by the Supreme Court in the case of Radhe Shyam V/s. Chhabi Nath reported in (2009) 5 SCC -616, orders and proceeding of the Judicial Courts subordinate to the High Court are not amenable to the writ jurisdiction of the High Court under Article- 226 of the Constitution, more particularly, when the orders are passed in Suit proceeding in a contest between two private parties.
(9) Writ Petition is a remedy in public law which may be filed by any person but the main respondent should be either Government, Governmental agency or a State or instrumentalities of the State within the meaning of Article-12. Private individuals cannot be equated with State or instrumentality of the State. All the respondents in a writ petition cannot be private parties. High Court can issue Writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform.
(10) In a petition for relief under Article-226 of the Constitution, the Court/Tribunal whose order is impugned in the petition must be made a party to the petition so that the writ sought from the Court can go against the Court/Tribunals, but if the petition is for relief under Article-227 of the Constitution, it is well settled that the Courts/Tribunals whose order impugned in a petition, need not be a party in the writ petition. By entertaining the petition under Article-227 of the Constitution, the High Court exercise its power of superintendence, which is analogous to the revisional jurisdiction.”
4. The law on the point of maintainability of letters patent appeal having been settled by this Court in the aforesaid terms and there being no ground to take a different view, the present appeal is found and held to be not maintainable, and hence, rejected without entering into merits, if any, of the contentions on other aspects; with no order as to costs.
[D.H.WAGHELA, J.]
[N.V.ANJARIA, J.]
JYOTI