1. The present appellant, who is the respondent before the learned Single Judge, has filed this intra-court appeal against the order dated 29.05.2018
made in WP No.85687/2013 by the learned Single Judge of this Court, allowing the writ petition in part, thereby the order of the District and Sessions
Court holding that the petitioner is a Trustee for five years is set-aside. The further declaration that the only Chairman is entitled to be a Life Trustee
is modified and it is held that the Chairman Smt. Laxmibai and the petitioner having been appointed prior to 29.04.1996 are entitled to hold the office of
the Trusteeship for life as provided under bye law-6 till they are capable of holding the office.
I. FACTS OF THE CASE:
2. The present appellant, who is the petitioner before the learned Principal District and Sessions Judge, Dharwad filed an application under the
provisions of Sections 3 and 7 of the Charitable and Religious Trust Act, 1920 (for short, ‘the Act’) Read with GO No. EKAROP SHASHAN-
CR-72/2003-04 dated 04.06.2005 seeking declaration that the Resolution No.2 dated 24.07.2012 passed in the meeting of the Board of
Trustees/Chairman held on 25.07.2012 for a period of five years from 25.07.2012 to 24.04.2017 as legal one and the Board of Trustees of the
petitioner-Trust namely,
1. Dr.(Smt.) Laxmibai Premanand Patil Chairman
2. Sri. Premanand Veeranagouda Patil Life Trustee
3. Sri. Tayasaheb Bhimagouda Patil Board of Trustee
4. Smt. Amala Gurappa Kadagad Board of Trustee
5. Sri. Ravi Annappa Patil Board of Trustee be accepted/declared that they are lawful Trustees/Board of Trustees of the Public Trust by name
Saradar Veeranagouda Patil, MAHILA VIDYA PEETH, Vidya Nagar, Hubli, bearing registration No.52(DWR), in the interest of justice, the office
bearers nominated and selected in the meeting of the Board of Trustees as held on 24.07.2012 be approved as Chairman, Life Trustee, and Board of
Trustees of Trust contending that the Institution is an ancient institution and founded by dedicated services, honest and sincere efforts of the founder
Trustee Padmashree Saradar Veerangounda Patil, Smt. Nagamma Patil and all other Trustees of the Board. Because of the sincere and hard work of
the members of the Trust, the Trust established educational institutions and was running Balika Ashrama, Primary School, D.Ed. Course, Composite
Junior College, Girls’ hostel, ITI Course, Nursing Course, Degree College, Women’s Hostel etc. From the beginning, the Trust is engaged in
providing better education and is working for the upliftment of all the needy students and working women. The Trust is a prestigious institution having
its own culture and heritage. The Trust is getting its accounts audited year to year from the renowned Chartered Accountant and the likeminded
people who are interested in imparting quality education are included as Trustees of the Institution and there are 4000 students who are getting quality
education from the renowned staff members employed by the Trust.
3. It was further contended that on 16.03.1996 in the meeting of the Management Committee of the Trust, 2 persons i.e. Shri Basant Kumar
Thimmanagouda Patil and Sri. A.V. Patil were inducted as Trustees of the Trust. Thereafter, a change report was submitted by the representatives of
the Trust to effect necessary changes in the PTR maintained by the Assistant Charity Commissioner. This was supported by consent letter by the
newly inducted Trustees. The Assistant Charity Commissioner held enquiry No.346/1996 and after recording the statement of the official of the Trust
passed orders on 10.05.1996, whereby the change report was accepted and necessary directions were issued to include the names of Shri. A.V. Patil
and Basantkumar Patil in the PTR. Subsequently, by resolution dated 29.04.1996, the said persons were included as Trustees for a period of five
years. Things stood thus, on 3.7.2012, Sri. Basantkumar T Patil, submitted his resignation to the Trust and later at the request of the Chairman of Trust
Smt. Laxmibai P. Patil, he withdrew the same and in the meeting held on 24.07.2012, Sri. Premanand Veerangouda Patil was nominated as Life Time
Trustee and three person viz. 1) Tatyasaheb Bhimanagouda Patil, 2) Smt. Amala Gurappa Kadagada and 3) Sri. Ravi Annappa Patil were inducted as
Board of Trustees for a period of five years. Thereafter, on 10.12.2012, it is resolved to get approval of the said proceedings and appointment of the
Trustee by filing a petition before the District and Sessions Judge at Dharwad.
4. Thereafter, the petitioner-present appellant filed a petition in Misc. C. No.131/2012 under Sections 3 and 7 of the Act, before the learned Principal
District and Sessions Judge, Dharwad, for the reliefs sought therein.
II. FINDING OF THE DISTRICT COURT:
5. The learned District and Sessions Judge after hearing both the parties by the order dated 19.08.2013 allowed the petition in part and approved the
meeting held on 25.07.2012 electing five trustees including the Chairman Smt. Laxmibai and the respondent Basantkumar’s appointment as one of
the Trustees for five years is declared as valid one and the order except the Chairman Smt. Laxmibai, the tenure of the remaining trustees including
P.V. Patil is restricted to five years and the same is legal and valid. Hence, the present respondent filed WP No.85687/2013 (GM-R/C) before the
learned Single Judge challenging the order dated 19.08.2013 made in Misc. C. No.131/2012 on the file of the learned Principal District and Sessions
Judge, Dharwad.
6. The learned Single Judge of this Court after hearing both the parties, by the impugned order dated 29.05.2018, allowed the petition in part holding
that the respondent/petitioner as a Trustee for a period of five years is set-aside. The further declaration that only the Chairman is entitled to be a Life
Trustee is modified and it is held that the Chairman Smt. Laxmibai and the petitioner-present respondent having been appointed prior to 29.04.1996 are
entitled to hold the office of Trusteeship for life as provided under bye-law 6 till they are capable of holding office. Hence, the present appeal is filed
by the appellant.
III. ARGUMENTS ADVANCED BY THE LEARNED SENIOR COUNSEL FOR THE PARTIES:
7. We have heard the learned Senior Counsel for the parties to the lis on the maintainability of the appeal raised by the learned Senior Counsel for the
respondent.
8. Sri. S.S. Naganand, the learned senior counsel appearing on behalf of the appellant contended that the learned Single Judge of this Court has
exercised the power of the original jurisdiction under Articles 226 and 227 of the Constitution of India and modified the order passed by the District
Court and granted new relief which was not sought in the original petition filed before the District Court or in the prayer sought in the writ petition.
Therefore, the writ appeal is maintainable before this Court under the provisions of Section 4 of the Karnataka High Court Act, 1961. He would
further contend that admittedly, the appellant appointed the respondent as Trustee for a period of five years, the same was rightly approved by the
learned District and Sessions Judge exercising his power under Sections 3 and 7 of the Act and the same is reversed by the learned Single Judge of
this Court and granted altogether new relief. Though the writ petition filed before the learned Single Judge is under Articles 226 and 227 of the
Constitution, but the learned Single Judge of this Court exercised his power while passing the impugned order under Article 226 of the Constitution.
Therefore, the writ appeal is maintainable before this Court.
9. In support of his contentions, the learned senior counsel for the appellant has relied upon the following judgments:
i) Mavji C. Lakum Vs. Central Bank of India (2008) 12 SCC 726
ii) State of M.P. Vs. Visan Kumar Shiv Charan Lal (2008) 15 SCC 233
iii) M.M. T.C. Ltd. Vs. Commissioner of Commercial Tax (2009)1 SCC 8
iv) Ashok K. Jha Vs. Garden Silk Mills Ltd. (2009) 10 SCC 584
v) Mohammad Yunus Vs. Mohd. Mustaqim AIR 1984 SC 38
vi) Shalini Shyam Shetty and Anr. V. Rajendra Shankar Patil (2010) 8 SCC 329
vii) Jogendrasinhji Vijaysinghji Vs. State of Gujarat and Anr. (2015) 9 SCC 1
10. Per contra, Sri. M.T. Nanayya, the learned senior counsel appearing for the respondent contended that the writ petition filed before the learned
Single Judge by the respondent against the order passed by the learned District and Sessions Judge dated 19.08.2013 made in Misc. C. No.131/2012,
therefore, the learned Single Judge of this Court proceeded to pass the impugned order exercising his powers only under Article 227 of the
Constitution of India. Therefore, the present appeal is not maintainable. He would further contend that the learned Single Judge of this Court has not
exercised his original jurisdiction under Article 226 of the Constitution of India. Though the writ petition is filed under both Articles 226 and 227 of the
Constitution of India, but the learned Single Judge has exercised his power under supervisory jurisdiction of Article 227 of the Constitution of India by
setting aside the order passed by the District and Sessions Judge. Therefore, the writ appeal is not maintainable.
11. In support of his contentions, the learned senior counsel for the respondent has relied upon the following judgments:
i) Radhey Shyam Vs. Chhabi Nath reported in (2015) 5 SCC 423.
ii) Himalayan Coop. Group Housing Soceity Vs. Balwan Singh, (2015) 7 SCC 373.
IV. POINTS FOR DETERMINATION:
12. In view of the above rival contentions urged by the learned Senior Counsel for the parties, the points that arise for consideration in this appeal are:
i) Whether the learned Single Judge has exercised his power under original jurisdiction under Article 226 or supervisory jurisdiction under 227 of the
Constitution of India?
ii) Whether the present appeal filed under Section 4 of the Karnataka High Court Act, 1961, is maintainable against the impugned order passed by the
learned Single Judge of this Court?
V. DETERMINATION/CONSIDERATION
13. We have given our thoughtful consideration to the arguments advanced by the learned senior counsel for the parties and perused the entire appeal
papers carefully.
14. The controversy between the parties in the present appeal is as to:
 “Whether the proceedings before the learned Single Judge was initiated in exercise of original jurisdiction under Article 226 of the Constitution of
India or the proceedings in exercise of supervisory jurisdiction under Article 227 of the Constitution of India?â€
15. The present respondent who filed the writ petition before the learned Single Judge both under Articles 226 and 227 of the Constitution of India was
to quash the order dated 19.08.2013 passed in Misc.131/2012 on the file of the Prl. and District Sessions Judge, Dharwad, wherein the learned Prl.
District and Sessions Judge had allowed the petition filed by the present appellant under the provisions of Sections 3 and 7 of the Charitable and
Religious Trust Act, 1920 approving the meeting held on 25.07.2012 in part holding the appointment of the respondent as one of the Trustees for five
years was declared as valid one and further declared that except the Chairman Smt.Laxmibai, the tenure of the remaining Trustees including PW-
1/P.V.Patil, was restricted for five years and the same is legal and valid.
Though, the learned Single Judge allowed the writ petition in part, set aside the order passed by the District Court holding the respondent as a Trustee
for five years and further modified the declaration that only the Chairman is entitled to a Life Trustee and held that the Chairman Smt.Laxmibai and
the petitioner/the present respondent having been appointed prior to 29.04.1996 were entitled to hold office of a Trusteeship for life as provided by
bye-law 6 till they are capable of holding the office.
16. The pleadings of the writ petition clearly depicts that the adjudication sought is based on the points already adjudicated upon by the District Court
while exercising its powers under the provisions of Section 3 and 7 of the Charitable Religious Trust Act, 1920. The issue raised in the present writ
petition was:
“Whether the order impugned is legally sustainable or not?â€
17. In the impugned order, the learned Single Judge has opined that the Court below has not addressed itself to any of the admissions elicited in the
course of cross-examination. The admissions have been elicited by confronting the witnesses with the documents before the Court. Further, has
recorded a finding that the Court below has chosen to reject the case of the petitioner only on the ground that the petitioner has not elected to
challenge the entry in the register and hence, it has held that the entry being final, it is not open for the petitioner to contend otherwise. This finding per
se is incorrect and factually wrong as the said entry has already been called in question by the respondent-Trust itself in its application dated
30.07.2001.
18. The learned Single Judge at paragraph 19 has recorded that it is only on 29.04.1996, a Resolution came to be passed by the Board whereby the
Office of the Trusteeship of life was converted into an office of fixed tenure of five years. Hence, the induction of the petitioner on 16.03.1996 was
under the unamended Clause 6 which provided only for appointment on life time basis. The learned Single Judge proceeded to pass the impugned
order based on the pleadings, evidence of PW-1, DW-1 and Exs.P.1 to 18, Exs.D.1 to 14 relied upon by the Prl. District and Sessions Judge,
Dharwad. Though the writ petition came to be filed both under Articles 226 and 227 of the Constitution of India, a careful reading of the order passed
by the learned Single Judge clearly depicts that the challenge made in the writ petition was with respect to the points that were already adjudicated
upon by the District Court. Therefore, the first point raised in the present appeal has to be answered by holding that the learned Single Judge invoked
the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India and not the original jurisdiction under Article 226 of the
Constitution of India.
19. In order to decide the maintainability of the present appeal, it is worthwhile to rely upon provisions of Section 4 of the High Court Act, 1961, under
which the present appeal is filed reads as under:
“4. Appeals from decisions of a single Judge of the High Court
An appeal from a judgment, decree, order or sentence passed by a single Judge in the exercise of the original jurisdiction of the High court under this
Act or under any law for the time being in force, shall lie to and be heard by a Bench consisting of two other Judges of the High Court.â€
20. A careful reading of the said provision makes it clear that an appeal from a judgment or decree or order or sentence passed by a Single Judge in
“the exercise of the original jurisdiction†of the High Court or under any law for time being in force shall lie to and be heard by the bench
consisting of two Judges of the High Court. It means that an appeal shall lie to and be heard by a bench consisting of two other judges of the High
Court against an order/judgment passed by the learned Single Judge in exercise of original jurisdiction based on the points raised in the writ petition
that arose for adjudication for the first time before the High Court and not the points already adjudicated upon the sub-ordinate court or Tribunal.
Then, definitely it will be a supervisory jurisdiction under Article 227 of the Constitution of India.
21. If the provisions of Section 4 of the High Court Act, 1961, is examined, it becomes apparent that Section 4 does not provide for an appeal against
the judgment or order passed by a learned Single Judge of this Court in a petition under Article 227 of the Constitution of India and that an appeal will
lie only if a judgment or order is passed in a petition under Article 226 of the Constitution of India. Where a petition is filed both under Articles 226 and
227 of the Constitution of India, it will have to be considered whether the points raised in the petition arose for adjudication for the first time before the
High Court. If the challenge in a petition is with respect to the points already adjudicated upon as has been done in the present case by the District
Court exercising the powers under the provisions of Sections 3 and 7 of the Charitable and Religious Trust Act, 1920, then it has to be held that
supervisory jurisdiction of the High Court was invoked and not original jurisdiction.
22. A Full Bench of this Court in the case of G.PATTEDAR VS. MAHABOOB SHAHI KULBARGA MILLS (Full Bench presided over by Five
Judges) reported in (AIR 2005 KAR 377) considering the provisions of Articles 226 and 227 of the Constitution of India read with Section 4 of the
High Court Act, at paragraphs 5, 12 and 13 has held that Section 4 of the High Court Act provides for an intra Court appeal only against the order of
the learned Single Judge passed in exercise of its original jurisdiction and against any order passed under Article 227 in exercise of supervisory
jurisdiction, the appeal is not maintainable under Section 4 of the High Court Act.
23. On a close scrutiny of the impugned order dated 29.05.2018 passed by the learned Single Judge in W.P.No.85687/2013, we have no hesitation in
taking a view that true nature and substance of the order of the learned Single Judge was to exercise power under Article 227 of the Constitution of
India. There is no indication of the Court having exercised powers under Article 226 of the Constitution of India as such. Indeed, the learned Single
Judge has opined in the judgment by fairly noting the fact that the writ petition filed by the respondent was under Articles 226 and 227 of the
Constitution of India. The learned Single Judge in the entire order reiterating the pleadings, issues and both oral and documentary evidence adjudicated
before the learned District Judge has proceeded to pass the impugned order which clearly depicts that the learned Single Judge has exercised the
power under Article 227 of the Constitution of India.
VI. DICTUMS OF THE APEX COURT RELIED UPON
24. In the very judgment relied upon by the learned counsel for the appellant in the case of JOGENDRASINHJI VIJAYSINGHJI VS. STATE OF
GUJARAT AND OTHERS reported in [(2015) 9 SCC 1], the Hon’ble Apex Court at paragraphs 25 and 30 has held as under:
“25. In Kishorilal v. District Land Development Bank and Others, a recovery proceeding was initiated by the respondent-Bank therein and the land
mortgaged to the Bank were sold. An appeal preferred before the Joint Registrar, Co-operative Societies was dismissed and a further appeal was
preferred before the Board of Revenue which interfered with the order passed by the Joint Registrar. The order passed by the Board of Revenue was
called in question by the District Land Development Bank, which was allowed by the learned Single Judge. A letters patent appeal was preferred
challenging the order of the learned Single Judge which opined that the order passed by the learned Single Judge was not maintainable as he had
exercised the jurisdiction under Article 227 of the Constitution of India.
26. xxx xxx xxx
27. xxx xxx xxx
28. xxx xxx xxx
29. xxx xxx xxx
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. 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 scrutinize 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.â€
25. The Hon’ble Apex Court in the case of RADHEY SHYAM VS. CHHABI NATH reported in [(2015) 5 SCC 423) (THREE JUDGES) at
paragraphs 22 to 27 has held as under:
“22. We may now come to the judgment in Surya Dev Rai. Therein, the appellant was aggrieved by denial of interim injunction in a pending suit
and preferred a writ petition in the High court stating that after the CPC amendment by Act 46 of 1999 w.e.f. 1-7-2002, remedy of revision under
Section 115 was no longer available. The High Court dismissed the petition following its Full Bench Judgment in Ganga Saran to the effect that a writ
was not maintainable as no mandamus could issue to a private person. The Bench considered the question of the impact of CPC amendment on
power and jurisdiction of the High Court to entertain a writ of certiorari under Article 226 or a petition under Article 227 to involve power of
superintendence. The Bench noted the legal position that after CPC amendment revisional jurisdiction of the High Court against interlocutory order
was curtailed.
23. The Bench then referred to the history of writ of certiorari and its scope and concluded thus: (Surya Dev Rai case, SCC pp.687-90, paras 18-19 &
24-25)
18. Naresh Shridhar Mirajkar case was cited before the Constitution
Bench in Rupa Ashok Hurra case and considered. It has been clearly held: (i) that it is a well-settled principle that the technicalities associated with
the prerogative writs in English law have no role to play under our constitutional scheme; (ii) that a writ of certiorari to call for records and examine
the same for passing appropriate orders, is issued by a superior court to an inferior court which certifies its records for examination; and (iii) that a
High Court cannot issue a writ to another High Court, nor can one Bench of a High Court issue a writ to a different Bench of the High Court; much
less can the writ jurisdiction of a High Court be invoked to seek issuance of a writ of certiorari to the Supreme Court. TheHigh Courts are not
constituted as inferior courts in our constitutional scheme.
19. Thus, there is no manner of doubt that the orders and proceedings of a judicial court subordinate to the High Court are amenable to writ jurisdiction
of the High Court under Article 226 of the Constitution.
* * *
24. The difference between Articles 226 and 227 of the Constitution was well brought out in Umaji Keshao Meshram v. Radhikabai [1986 Supp. SCC
401]. 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. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act,
1915 excepting that the power of superintendence has been extended by this article to tribunals as well. Though the power is akin to that of an
ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the
subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases
occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to
exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a
manner which tantamounts to overstepping the limits of jurisdiction.
25. Upon a review of decided cases and a survey of the occasions, wherein the High Courts have exercised jurisdiction to command a writ of
certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the
distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become customary with the
lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some
judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the
two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an
original jurisdiction and in this sense it is akin to appellate, revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the
proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction,
may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction, the High Court may not only quash or set
aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant,
maybe, by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided
by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of
the impugned decision, as the inferior court or tribunal should have made.
Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the
supervisory jurisdiction is capable of being exercised suo motu as well.â€
24. It is the above holding, correctness of which was doubted in the referring order already mentioned above.
25. It is true that this Court has laid down that technicalities associated with the prerogative writs in England have no role to play under our
constitutional scheme. There is no parallel system of King's Court in India and of all the other courts having limited jurisdiction subject to the
supervision of the King's Court. Courts are set up under the Constitution or the laws. All the courts in the jurisdiction of a High Court are subordinate
to it and subject to its control and supervision under Article 227. Writ jurisdiction is constitutionally conferred on all the High Courts. Broad principles
of writ jurisdiction followed in England are applicable to India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of
Tribunals or authorities or courts other than judicial courts. There are no precedents in India for the High Courts to issue writs to the subordinate
courts. Control of working of the subordinate courts in dealing with their judicial orders is exercised by way of appellate or revisional powers or power
of superintendence under Article 227. Orders of the civil court stand on different footing from the orders of authorities or Tribunals or courts other
than judicial/civil courts. While appellate or revisional jurisdiction is regulated by the statutes, power of superintendence under Article 227 is
constitutional. The expression ""inferior court"" is not referable to judicial courts, as rightly observed in the referring order in paras 26 and 27 quoted
above.
26. The Bench in Surya Dev Rai also observed in para 25 of its judgment that distinction between Articles 226 and 227 stood almost obliterated. In
para 24 of the said judgment distinction in the two articles has been noted. In view thereof, observation that scope of Article 226 and 227 was
obliterated was not correct as rightly observed by the referring Bench in Para 32 quoted above. We make it clear that though despite the curtailment
of revisional jurisdiction under Section 115 CPC by Act 46 of 1999, jurisdiction of the High Court under Article 227 remains unaffected, it has been
wrongly assumed in certain quarters that the said jurisdiction has been expanded. Scope of Article 227 has been explained in several decisions
including Waryam Singh and another vs. Amarnath,, Ouseph Mathai vs. M. Abdul Khadir], Shalini Shyam Shetty vs. Rajendra Shankar Patil and
Sameer Suresh Gupta vs. Rahul Kumar Agarwal. In Shalini Shyam Shetty, this Court observed: (SCC p.352, paras 64-67)
64. However, this Court unfortunately discerns 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. 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.
65. 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.
66. We may also observe that in some High Courts there is a tendency of entertaining petitions under Article 227 of the Constitution by terming them
as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev and in view of the recent amendment to Section
115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section
115 CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding the High Court's power
of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.
67. As a result of frequent interference by the Hon'ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times
criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of
justice. This Court hopes and trusts that in exercising its power either under Article 226 or 227, the Hon'ble High Court will follow the time honoured
principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest courts of justice
within their jurisdiction will adhere to them strictly.
(emphasis supplied)
27. 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.â€
26. The said judgment has been reiterated in the subsequent judgment in Jogendrasinhji Vijaysinghji’s case supra.
27. Considering the provisions of Articles 226 and 227 of the Constitution of India in the case of HIMALAYAN CO-OP. GROUP HOUSING
SOCIETY VS. BALWAN SINGH AND OTHERS reported in [(2015) 7 SCC 373] relying upon the earlier judgment in the case of Radhey Shyam
Vs. Chhabi Nath reported in (2015) 5 SCC 423, has held at paragraphs 15 to 17 as under:
“15. The first issue need not detain us for long. It is the stand of the learned counsel for the respondents, that, since the Writ Petition that was filed
was both under Articles 226 and 227 of the Constitution of India, the Court apart from examining the merits of the Writ Petition could also issue
incidental and ancillary directions to do complete justice between the parties litigating before it. We do not agree. The issue in our view is no more
debatable in view of the decision of this Court in Jai Singh. vs. Municipal Corporation of Delhi (2010) 9 SCC 385. The Court has stated: (SCC p.390,
para 15)
“15. …we may notice certain well- recognised principles governing the exercise of jurisdiction by the High Court under Article 227 of the
Constitution of India. Undoubtedly the High Court, under this article, has the jurisdiction to ensure that all subordinate courts as well as statutory or
quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to
ensure that they act in accordance with the well- established principles of law. The High Court is vested with the powers of superintendence and/or
judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this article is, in some ways, wider than the
power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well-known adage that greater the power,
greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and
circumspection. The exercise of jurisdiction must be within the well- recognised constraints.â€
(emphasis supplied)
16. The scope and extent of power of the Writ Court in a petition filed under Article 226 and 227 of the Constitution came up for consideration before
three Judge Bench of this Court in the recent case of Radhey Shyam and Anr 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. 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
petitions(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.â€
28. While considering similar issue under Articles 226 and 227 with regard to the maintainability of the writ appeal in a latest judgment of the
Hon’ble Apex Court in the case of LIFE INSURANCE CORPORATION OF INDIA VS. NANDINI J.SHAH reported in AIR 2018 SC 1197
(presided by three judges) considering the earlier judgments relied upon by both learned Senior Counsel for the appellant and the learned Senior
Counsel for the respondent in the case of Radhey Shyam Vs. Chhabi Nath and Jogendrasinhji Vijaysinghji Vs. State of Gujarat, the Hon’ble Apex
Court at paragraphs 51 to 55 has held as under:
“51. In the case of Radhey Shyam (AIR 2015 SC 3269 supra) decided by a three-Judge Bench, this Court after analyzing all the earlier decisions
on the point, restated the legal position that in cases where judicial order violated the fundamental right, the challenge thereto would lie by way of an
appeal or revision or under Article 227, and not by way of writ under Article 226 and Article 32. The dictum in paragraphs 25, 27 and 29 of this
decision is instructive. The same read thus:
“25. It is true that this Court has laid down that technicalities associated with the prerogative writs in England have no role to play under our
constitutional scheme. There is no parallel system of King's Court in India and of all other courts having limited jurisdiction subject to supervision of
King's Court. Courts are set up under the Constitution or the laws. All courts in the jurisdiction of a High Court are subordinate to it and subject to its
control and supervision under Article 227.
Writ jurisdiction is constitutionally conferred on all High Courts. Broad principles of writ jurisdiction followed in England are applicable to India and a
writ of certiorari lies against patently erroneous or without jurisdiction orders of Tribunals or authorities or courts other than judicial courts. There are
no precedents in India for the High Courts to issue writs to subordinate courts. Control of working of subordinate courts in dealing with their judicial
orders is exercised by way of appellate or revisional powers or power of superintendence under Article 227. Orders of civil court stand on different
footing from the orders of authorities or Tribunals or courts other than judicial/civil courts. While appellate or revisional jurisdiction is regulated by
statutes, power of superintendence under Article 227 is constitutional. The expression ""inferior court"" is not referable to judicial courts, as rightly
observed in the referring order in paras 26 and 27 quoted above.
26. xxx xxx xxx
27. 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.
28. xxx xxxx xxx
29. Accordingly, we answer the question referred as follows:
29.1 Judicial orders of civil court are not amenable to writ jurisdiction under Article
226 of the Constitution;
29.2 Jurisdiction under Article 227 is distinct from jurisdiction under Article 226.
29.3 Contrary view in Surya Dev Rai is overruled.
(emphasis supplied)
52. Similar view has been expressed in Jogendrasinhji (AIR 2015 SC 3623, para 25) (supra). In this decision, it has been held that the order passed by
the Civil Court is amenable to scrutiny only in exercise of jurisdiction under Article 227 of the Constitution of India and no intra court appeal is
maintainable from the decision of a Single Judge. In paragraph 30 of the reported decision, the Court observed thus:
“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
(AIR 2015 SC 3269) (supra) 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. 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 scrutinize 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.â€
In the concluding part of the reported judgment in paragraph 44, the Court observed thus:
“44. We have stated in the beginning that three issues arise despite the High Court framing number of issues and answering it at various levels. It
is to be borne in mind how the jurisdiction under the letters patent appeal is to be exercised cannot exhaustively be stated. It will depend upon the
Bench adjudicating the lis how it understands and appreciates the order passed by the learned Single Judge.
There cannot be a straight-jacket formula for the same. Needless to say, the High Court while exercising jurisdiction under Article 227 of the
Constitution has to be guided by the parameters laid down by this Court and some of the judgments that have been referred to in Radhey Shyam
(supra).â€
53. In paragraph 45.2 of the same judgment, the Court authoritatively concluded that an order passed by a Civil Court is amenable to scrutiny of the
High Court only in exercise of jurisdiction under Article 227 of the Constitution of India, which is different from Article 226 of the Constitution and as
per the pronouncement in Radhey Shyam (AIR 2015 SC 3269) (supra), no writ can be issued against the order passed by the Civil Court and,
therefore, no letters patent appeal would be maintainable.
54. In the impugned judgment, the Division Bench merely went by the decisions of the Delhi High Court and its own Court in Nusli Neville Wadia
[2010 (4) AIR BOM. R. (NOC) 397] (supra) and Prakash Securities Pvt. Ltd. (supra). We do not find any other analysis made by the Division Bench
to entertain the Letters Patent Appeal, as to in what manner the judgment of the learned Single Judge would come within the purview of exercise of
powers under Article 226 of the Constitution of India. Absent that analysis, the Division Bench could not have assumed jurisdiction to entertain the
Letters Patent Appeal merely by referring to the earlier decisions of the same High Court in Nusli Neville Wadia and Prakash Securities Pvt. Ltd.
55. In other words, the Division Bench of the Bombay High Court ought to have dismissed the Letters Patent Appeal filed by the respondents as not
maintainable. In that event, it was not open to the Division Bench to undertake analysis on the merits of the case as has been done in the impugned
judgment. That was impermissible and of no avail, being without jurisdiction. Indeed, that will leave the respondents with an adverse decision of the
learned Single Judge dismissing their Writ Petition No.4337 of 2012 vide judgment dated 14.08.2012, whereby the eviction order passed by the Estate
Officer dated 05.12.2011 and confirmed by the City Civil Court on 03.04.2012 has been upheld.â€
In view of the above, it is clear that the impugned order has been passed by the learned Single Judge in exercise of powers under Article 227 of the
Constitution of India and therefore, the present appeal filed under Section 4 of the High Court Act, is not maintainable.
29. Admittedly, in the present case, the order dated 19.08.2013 passed by the learned Prl. District and Sessions Judge exercising the powers under the
provisions of Sections 3 and 7 of the Charitable and Religious Trust Act, 1920, was the subject matter of W.P.No.85687/2013 before the learned
Single Judge. The learned Single Judge based on the pleadings, both oral and documentary evidence placed before the learned Prl. District and
Sessions Judge, has proceeded to adjudicate the writ petition in respect of the points already adjudicated by the judicial orders of the Civil Court, not
amenable to writ jurisdiction under Article 226 of the Constitution of India and therefore, the second point raised in the writ appeal has to be answered
in negative holding that the present appeal under Section 4 of the High Court Act, 1961, is not maintainable against the impugned order passed by the
learned Single Judge under Article 227 of the Constitution of India.
30. The judgments relied upon by the learned counsel for the appellant in the cases of MAVJI C.LAKUM VS. CENTRAL BANK OF INDIA
reported in [(2008) 12 SCC 726], STATE OF MADHYA PRADESH AND OTHERS VS. VISAN KUMAR SHIV CHARAN LAL reported in
[(2008) 15 SCC 233), M.M.T.C.LIMITED VS. COMMISSIONER OF COMMERCIAL TAX AND OTHERS reported in [(2009) 1 SCC 8],
ASHOK K.JHA AND OTHERS VS. GARDEN SILK MILLS LIMITED AND ANOTHER reported in [(2009) SCC 584] and MOHAMMAD
YUNUS VS. MOHD. MUSTAQIM reported in [AIR 1984 SC 38) stated supra are earlier judgments and they have no application to the facts and
circumstances of the present case.
31. The judgment in the case of SHALINI SHYAM SHETTY VS. RAJENDRA SHANKAR PATIL reported in [(2010) 8 SCC 329] and
JOGENDRASINHJI
VIJAYSINGHJI VS. STATE OF GUJARAT reported in [(2015) 9 SCC 1] have been considered in the case of RADHEY SHYAM VS. CHHABI
NATH reported in [(2015) 5 SCC 423) and LIFE INSURANCE CORPORATION OF INDIA VS. NANDINI J.SHAH reported in AIR 2018 SC
1197 already stated supra.
VII. CONCLUSION
32. In view of the aforesaid reasons, the writ appeal filed under the provisions of Section 4 of the High Court Act, against the order passed by the
learned Single Judge exercising powers under Article 227 of the Constitution of India is not maintainable. Accordingly, appeal is dismissed at the stage
of admission.
