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Bhikaji Tukaram Jadhav & Others v. State Of Maharashtra & Others
Structured Summary of the Opinion (Letters Patent Appeal)
Factual and Procedural Background
This Letters Patent Appeal was filed against an order dated 10 April 2002 passed by a learned Single Judge in Writ Petition No. 2178 of 2002. The Single Judge rejected the petition, holding that the impugned order did not suffer from any illegality or error apparent on the face of the record, and accepted a statement made on behalf of respondent Nos. 2 and 3 that transit accommodation was ready and available to the petitioner until permanent accommodation was provided.
On admission of the Letters Patent Appeal, respondents Nos. 2 and 3 raised a preliminary objection that the appeal was not maintainable because the original petition had invoked the supervisory jurisdiction of the High Court under Article 227 of the Constitution, and orders under Article 227 are not subject to intra-Court Letters Patent Appeal under Clause 15 of the Letters Patent. The appellants countered that, in substance, the petition had invoked writ jurisdiction under Article 226 and relied on Supreme Court decisions to contend that an LPA was maintainable.
The court heard counsel for the parties, analyzed the pleadings and statutory provisions applicable to eviction and appeals under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 ("the Act"), considered relevant precedents and concluded that the appellants had invoked Article 227; accordingly the Letters Patent Appeal was dismissed as not maintainable. The court also rejected the appellants' prayer for continuation of interim relief, noting availability of transit accommodation and that many persons had already shifted to the transit camp. The court clarified that it did not enter into merits of the underlying dispute.
Legal Issues Presented
- Whether a Letters Patent Appeal is maintainable against an order passed by a Single Judge when the petitioner invoked the supervisory jurisdiction of the High Court under Article 227 of the Constitution.
- Whether the writ petition filed by the petitioners was, in substance, a petition under Article 226 (writ jurisdiction) such that a Letters Patent Appeal would be competent despite an invocation of Article 227 on the face of the petition.
- Whether interim relief previously granted should be continued to enable the appellants to approach the Supreme Court.
Arguments of the Parties
Respondents' Arguments
- The Letters Patent Appeal is not maintainable because the petition before the Single Judge invoked the supervisory jurisdiction of the High Court under Article 227; orders under Article 227 are not subject to intra‑Court Letters Patent Appeal under Clause 15 of the Letters Patent.
- Transit accommodation was ready and available to the petitioners, a statement which had been accepted by the Single Judge, and many persons had already shifted to the transit camp; therefore continuation of interim relief was not justified.
- The Division Bench had previously admitted similar LPAs in L.P.A. Nos. 231/232 of 1999, but the Supreme Court later held such admission to be erroneous and held that Letters Patent Appeals were not maintainable in that context.
Appellants' Arguments
- The appeal was maintainable because, in substance and reality, the petition before the Single Judge invoked writ jurisdiction under Article 226 rather than (or in addition to) supervisory jurisdiction under Article 227.
- The appellants relied on Supreme Court authority (Lokmat Newspapers Pvt. Ltd. v. Shankarprasad) for the proposition that where a petition invokes Articles 226 and 227, a Letters Patent Appeal would be maintainable.
- The appellants also relied on Kanhaiyalal Agrawal v. Factory Manager (and other authority cited) for principles relating to when intra‑Court appeals may lie depending on whether a Single Judge exercised jurisdiction under Article 226 or Article 227.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Lokmat Newspapers Pvt. Ltd. v. Shankarprasad (1999) 6 SCC 275 | Where a petition is filed invoking Articles 226 and 227, a Letters Patent Appeal would be maintainable. | The court acknowledged this authority as supporting the appellants' submission but found it inapposite on the facts because the petition in the present case had invoked Article 227 (supervisory jurisdiction) and no plea was made that Article 226 had been mistakenly invoked. |
| Kanhaiyalal Agrawal v. Factory Manager, Gwalior Sugar Company Ltd. (2001) 9 SCC 609 | The Division Bench observed that an intra‑Court appeal lies if a Single Judge exercises jurisdiction under Article 226 but not if he exercises jurisdiction under Article 227; if a Single Judge does not state under which provision he decided the matter and the facts justify both Articles 226 and 227, the matter may be considered in appeal. | The court referred to paragraph 6 of this decision and noted the stated principles, but observed it was unnecessary to examine that aspect in detail in view of Lokmat Newspapers and the facts of the present case. |
| Umaji Keshao Meshram v. Radhikabai (1986 Supp SCC 401 : AIR 1986 SC 1272) | One of the leading decisions cited on the point that Letters Patent Appeal is not maintainable when the writ petition is properly under Article 227. | The court relied on this and other Supreme Court authorities to support the proposition that a Letters Patent Appeal would not lie against an order passed where the Single Judge exercised supervisory jurisdiction under Article 227. |
| Durga Shankar Mehta v. Raghuraj Singh (A.I.R. 1954 S.C. 520) | The term "Tribunal" (used in Articles 227 and 136) includes adjudicating bodies with judicial, as distinguished from administrative or executive, functions. | The court used this authority to support its interpretation of "Tribunal" and to treat the Commissioner/Competent Authority as a tribunal subject to supervisory jurisdiction under Article 227. |
| Engineering Mazdoor Sabha v. Hind Cycles Ltd. (A.I.R. 1963 S.C. 874) | Use of nomenclature "Tribunal" is not decisive; some "tribunals" (e.g., "Domestic Tribunal") may not fall within supervisory jurisdiction under Article 227. | The court relied on this principle to explain that classification depends on statutory framework and functions, not merely on nomenclature. |
| Indira Sohanlal v. Custodian Of Evacuee Property, Delhi & Others (A.I.R. 1956 S.C. 77) | Certain authorities (Commissioner for Religious Endowments, Custodian of Evacuees Property, Excise Authorities, etc.) have been held to be Tribunals subject to High Court superintendence under Article 227. | The court cited such authorities to show that comparable bodies have been treated as tribunals subject to supervisory jurisdiction, supporting the proposition that the Commissioner under the Act is similarly reviewable under Article 227. |
| Baradakanta Mishra Ex-Commissioner Of Endowments v. Shri Bhimsen Dixit (1973) 1 SCC 446 : A.I.R. 1972 S.C. 2466 | Another authority holding certain officers/authorities to be "Tribunals" subject to supervisory jurisdiction under Article 227. | The court cited this as part of the body of authority demonstrating that statutory adjudicatory authorities can be subject to High Court superintendence. |
| A.V. D'Costa v. Divisional Engineer, G.I.P. Railway (A.I.R. 1955 S.C. 412) | Payment of wages authority held to be a "Tribunal" for the purposes of supervisory jurisdiction. | Used to illustrate that various adjudicatory authorities exercising judicial functions have been treated as tribunals subject to Article 227. |
| Division Bench order in L.P.A. Nos. 231 & 232 of 1999 (admission on 5 Oct 1999) and subsequent Supreme Court leave (5 Jan 2001) | The Division Bench admitted Letters Patent Appeals despite the rule regarding non‑maintainability where petitions are under Article 227; the Supreme Court granted leave and held that such admission was erroneous and Letters Patent Appeals were not maintainable. | The court cited this episode as an example where the Division Bench's admission of LPAs was reversed by the Supreme Court, reinforcing the principle that LPAs are not maintainable against orders under Article 227. |
Court's Reasoning and Analysis
The court's analysis proceeded in a stepwise manner, grounded in the text of the petition, statutory provisions, and relevant case law:
- Identification of the invoked jurisdiction: The court examined the writ petition (paragraph 13 and the prayer in paragraph 19) and concluded that the petitioners had invoked the supervisory jurisdiction of the High Court under Article 227. That invocation was explicit in the petition.
- Maintainability principle: The court recalled the established principle — supported by Supreme Court decisions — that a Letters Patent Appeal is not maintainable against an order where the Single Judge has exercised supervisory jurisdiction under Article 227. Clause 15 of the Letters Patent and binding precedents were relied upon to underscore this principle.
- Appellants' contrary plea (Article 226 in substance): The court addressed the appellants' contention that, in substance, Article 226 had been invoked. It observed that the appellants did not plead before the Single Judge that Article 226 had been mistakenly invoked nor did they argue that in the memorandum of the LPA. Therefore, the court found no basis to treat the petition as one under Article 226.
- Character of the statutory authority and availability of supervisory jurisdiction: The court analyzed the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971. It noted that Section 33 confers eviction powers on the Competent Authority and that the proviso requires affording a reasonable opportunity to occupants before eviction — indicating compliance with principles of natural justice. Section 35 makes orders under the Act appealable to the Administrator. On this statutory matrix, the court concluded that the authorities exercise quasi‑judicial functions and that the Commissioner/Competent Authority can legitimately be termed a "Tribunal" subject to supervisory jurisdiction under Article 227.
- Applicability of precedents: The court surveyed decisions delineating that the label "Tribunal" is not conclusive; instead, the functions and statutory framework determine whether an adjudicatory body is a "Tribunal" for Article 227 purposes. It applied those principles to hold that the Commissioner here was a tribunal within the scope of Article 227 supervision.
- Interim relief request: The appellants asked for continuation of earlier ad interim relief to enable them to approach the Supreme Court. The court rejected this request on facts presented: transit accommodation was stated to be ready and available (a statement accepted earlier by the Single Judge), and approximately 150 persons had already shifted to the transit camp. On that factual footing the court refused to continue interim relief, expressly noting that it was not deciding merits.
- Conclusion on maintainability and disposal: Because the petitioners had rightly invoked Article 227 and the Single Judge had exercised superintendence, the court concluded the Letters Patent Appeal was not maintainable and dismissed it on that ground alone. Consequentially, the connected civil application did not survive and was disposed of.
Holding and Implications
Holding: The Letters Patent Appeal is DISMISSED on the ground of non‑maintainability because the writ petition before the Single Judge invoked the supervisory jurisdiction under Article 227 and the Single Judge exercised that jurisdiction.
Implications:
- The direct effect is that the appellants' Letters Patent Appeal is dismissed and the related civil application is disposed of.
- The court refused to continue interim relief previously granted; the appellants were not granted further interim protection to enable approach to the Supreme Court, on the factual finding that transit accommodation was available and many persons had already shifted to it.
- The court expressly clarified that it did not enter into the merits of the underlying eviction dispute; the dismissal is limited to the procedural ground of non‑maintainability of the LPA. The opinion relies upon existing Supreme Court authority rather than purporting to lay down a new precedent beyond applying settled principles.
Order direction: Parties to be given copies of this order duly authenticated by the Sheristedar of the Court. Final disposition recorded as "Appeal dismissed."
Per C.K Thakker, C.J:— This Letters Patent Appeal is filed against an order passed by the learned Single Judge on 10th of April, 2002 in Writ Petition No. 2178 of 2002. The said order reads thus:
“The impugned order does not suffer from any illegality or error apparent on the face of the record. Hence petition is rejected. On behalf of respondent Nos. 2 and 3, learned Counsel makes a statement that the transit accommodation is ready and this transit accommodation is available to the petitioner; till such time the permanent accommodation comes up. Statement is accepted.
Petition is disposed of accordingly.”
2. We have heard the learned Counsel for the parties. When the matter was placed for admission hearing, a preliminary objection was taken by the learned Counsel for respondents Nos. 2 and 3 that Letters Patent Appeal is not maintainable inasmuch as the petition filed by the petitioners (present appellants) was under Article 227 of the Constitution. When the petitioners themselves had invoked supervisory jurisdiction of this Court under Article 227 of the Constitution and an order was passed, such an order would not be subject to intra-Court appeal under Clause 15 of the Letters Patent.
3. The learned Counsel for the respondents invited our attention to paragraph 13 of the writ petition wherein it was stated that being aggrieved by the order dated 11th December, 2001, passed by the Additional Collector, Bombay, the petitioners approached this Court under Article 227 of the Constitution of India on several grounds raised in the petition. In paragraph 19 (prayer clause), a prayer was made that this Court be pleased to call for records and proceedings and on perusal thereof, to pass an appropriate order setting aside the order passed by the Commissioner in appeal.
4. The learned Counsel for the appellants, on the other hand, submitted that an appeal is maintainable as, in substance and in reality, the writ jurisdiction under Article 226 of the Constitution was invoked by the petitioners. For the above submission, reference was made by the Counsel to a decision of the Apex Court in (Lokmat Newspapers Pvt. Ltd. v. Shankarprasad)1, 1999 (4) Bom. C.R (S.C) 322 : (1999) 6 SCC 275. The Supreme Court in that case observed that where a petition is filed under Articles 226 and 227 of the Constitution, Letters Patent Appeal would be maintainable. There, a contention was raised on behalf of the appellant that the writ petition filed by the respondent (original petitioner) in the High Court was in substance under Article 227 of the Constitution of India and appeal was not competent. The Supreme Court, however, considering the facts of the case and the petition which was filed by the petitioner in the High Court, observed that the petitioner had invoked Articles 226 and 227 of the Constitution. Letters Patent Appeal was, therefore, maintainable.
5. Reliance was also placed on a recent decision of the Apex Court in (Kanhaiyalal Agrawal v. Factory Manager, Gwalior Sugar Company Ltd.)2, (2001) 9 SCC 609, and in particular, paragraph 6 thereof. In that case, writ appeals were dismissed by the Division Bench of the High Court holding that they were not maintainable as they arose out of proceedings under Article 227 of the Constitution which was revisional in nature. The Court, after referring leading decisions on the point, observed that an intra-Court appeal would lie if a Single Judge exercises jurisdiction under Article 226 of the Constitution but if he exercises jurisdiction under Article 227, an appeal would not be competent. The Court stated:
“But with an explanation that if the Single Judge of the High Court in considering the petition under Article 226 or 227 does not state under which provision he has decided the matter and where the facts justify filing of petition both under Article 226 and Article 227 and a petition so filed is dismissed by the Single Judge on merits, the matter may be considered in its proper perspective in an appeal.”
6. It may, however, be stated that the Court observed that it was wholly unnecessary to examine that aspect of the matter in view of declaration of law in Lokmat Newspapers.
7. In the instant case, the appellants were petitioners before the learned Single Judge. They invoked supervisory jurisdiction of this Court under Article 227 of the Constitution. If it is so, obviously, an intra-Court appeal would not lie. It is clear from the language of Clause 15 of the Letters Patent applicable to this Court. The point is also covered by several decisions of the Supreme Court including a leading one in (Umaji Keshao Meshram v. Radhikabai)3, 1986 Supp SCC 401 : A.I.R 1986 S.C 1272. It is not even the case of the appellants-petitioners that they had mistakingly invoked Article 227 though in substance and in reality, it was a petition under Article 226 of the Constitution. No such plea was raised by them before the learned Single Judge when the writ petition was filed nor even such a case is pleaded in the memorandum of Letters Patent Appeal. Even otherwise also, in our considered opinion, in the facts and circumstances and keeping in view the relevant provisions of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (hereinafter referred to as “the Act”), the petitioners could have invoked Article 227 of the Constitution by making a prayer that the High Court may exercise supervisory jurisdiction.
8. In pursuance of slum rehabilitation scheme, an order of eviction had been passed by the Competent Authority. Section 33 of the Act confers power of eviction on the Competent Authority. It states that where such authority is satisfied, either upon a representation from the owner of a building or upon other information in its possession that the occupants of the building have not vacated it in pursuance of any order or direction issued or given by the authority, the authority shall, by order, direct the eviction of the occupants from the building in such manner and within such time as may be specified in the order, and for the purpose of such eviction, may use or cause to be used such force as may be necessary. The proviso to the said section enacts that before making any order under the said section, the Competent Authority shall have to afford a reasonable opportunity to the occupants of the building to show-cause why they should not be evicted therefrom. Thus before passing an order of eviction, the Competent Authority is bound to comply with the principles of natural justice and fair-play as mandated by the legislature. The orders passed under section 33 have been made appealable under section 35 of the Act which provides that any person aggrieved by any notice, order or direction issued or given by the Competent Authority may appeal to the Administrator within the period prescribed therein.
9. In our opinion, therefore, the authorities are exercising quasi judicial functions. The Commissioner, therefore, in our considered opinion, can legitimately be termed “Tribunal” subject to the supervisory jurisdiction of this Court under Article 227 of the Constitution. Once this position is conceded, obviously, it cannot be said that the petitioners could not have invoked Article 227 by making a prayer to this Court to exercise power of Superintendence. If it is so, Letters Patent Appeal would not lie.
10. Though Article 227 (as also Article 136) of the Constitution uses the expression “Tribunal”; the said term has not been defined therein. It, however, includes within its sweep, all adjudicating bodies with judicial as distinguished from administrative or executive functions. Vide (Durga Shankar Mehta v. Raghuraj Singh)4, A.I.R 1954 S.C 520.
11. It is settled law that the use of nomenclature “Tribunal” is not decisive and the Court will have to consider in the light of the statutory provisions with which it is called upon to consider the case as to whether an adjudicating authority can be said to be “Tribunal” and is subject to supervisory jurisdiction of Article 227 of the Constitution. Thus, on the one hand, ‘Domestic Tribunal’ though has been described as “Tribunal”, does not fall within the supervisory jurisdiction of the High Court under Article 227 vide (Engineering Mazdoor Sabha v. Hind Cycles Ltd.)5, A.I.R 1963 S.C 874, Durga Shankar Mehta v. Raghuraj Singh, A.I.R 1954 S.C 520; Commissioner for Religious Endowments, Custodian of Evacuees Property, Excise Authorities, etc., have been held to be Tribunals subject to power of Superintendence by the High Court vide (Indira Sohanlal v. Custodian Of Evacuee Property, Delhi & Others)6, A.I.R 1956 S.C 77; (Baradakanta Mishra Ex-Commissioner Of Endowments v. Shri Bhimsen Dixit.)7, (1973) 1 SCC 446 : A.I.R 1972 S.C 2466. Likewise, a payment of wages authority has been held Tribunal vide (A.V D'Costa v. Divisional Engineer, G.I.P Railway)8, A.I.R 1955 S.C 412.
12. The learned Counsel for respondents Nos. 2 and 3 also invited our attention to an order dated October 5, 1999 passed by the Division Bench of this Court in L.P.A Nos. 231 and 232 of 1999, wherein it was observed that the Court was aware of the fact that against an order of a learned Single Judge in a petition under Article 227, no Letters Patent Appeal would lie. But the Court admitted the appeals as a similar matter was admitted and was pending. The Counsel stated that the order of admission of Letters Patent Appeals was challenged by the respondents. On January 5, 2001, leave was granted by the Supreme Court and after hearing the learned Counsel for the parties, the Apex Court held that letters patent appeals were not maintainable and the Division Bench committed an error of law in entertaining them. Accordingly the Letters Patent Appeals were ordered to be disposed of.
13. In the facts and circumstances, in our opinion, since the appellants-petitioners had rightly invoked the jurisdiction of this Court under Article 227 of the Constitution and the learned Single Judge had exercised power of Superintendence, the Letters Patent Appeal is not maintainable and the same deserves to be dismissed on that ground alone.
14. Finally, the learned Counsel for the appellants prayed that ad interim relief granted earlier may be continued for some time so as to enable the appellants to approach the Apex Court. The prayer is strongly objected on behalf of respondent Nos. 2 and 3. It was stated that after the scheme was framed, about 150 persons have shifted to transit camp made available for them. Only the appellants are objecting to the scheme and continued to occupy the site. It was also stated that even before the learned Single Judge, a statement was made which has been incorporated in the order passed by the learned Single Judge, extracted hereinabove by us, that transit accommodation is ready and will be made available to the petitioners and the said statement was accepted by the Court. Even today, the transit accommodation is available, stated the learned Counsel.
15. In view of the above fact, in our opinion, the prayer for continuation of interim relief cannot be granted and is hereby rejected. We may, however, clarify that we have not entered into merits of the matter and the appeal is dismissed only on the ground of non-maintainability. In view of the dismissal of the letters patent appeal, civil application does not survive and is disposed of accordingly.
16. Parties be given copy of this order duly authenticated by the Sheristedar of this Court.
17. Appeal dismissed.
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