Dip Co. Op. Hsg. Society Ltd. Through Purshottam S. Patel v. State Of Gujarat And Others, Gujarat High Court, Judgment, Law, casemine.com

Precedent	Rule or Principle Cited For	Application by the Court
Gujarat State Road Transport Corporation v. Firoze M. Mogal, 2014 (1) GLH 1	Distinction between original writ jurisdiction under Article 226 and supervisory jurisdiction under Article 227; maintainability of Letters Patent Appeal under Clause 15 depends on nature of jurisdiction exercised by Single Judge.	Applied to hold that despite Single Judge’s reference to Article 227, the appeal is maintainable as the jurisdiction exercised was original writ jurisdiction under Article 226.
Jogendrasinhji Vijaysinghji v. State of Gujarat, (2015) 9 SCC 1	Clarified the circumstances under which Letters Patent Appeal is maintainable, emphasizing the nature of jurisdiction exercised and the pleadings.	Followed to determine maintainability of appeal based on nature of jurisdiction and relief granted.
Hari Vishnu Kamath v. Syed Ahmad Ishaque, AIR 1955 SC 233	Writ of certiorari lies to correct jurisdictional errors, not errors of fact; distinction between Articles 226 and 227; necessity of impleading proper parties in writ petitions.	Applied to discuss necessity of impleading tribunals and parties and to explain writ jurisdiction principles.
T.C. Basappa v. T. Nagappa, AIR 1954 SC 440	Writ of certiorari is supervisory, not appellate; issued for jurisdictional errors or breach of natural justice; cannot reweigh evidence.	Applied to emphasize limitations of certiorari jurisdiction and scope of review.
State of Maharashtra v. B.E. Billimoria, (2003) 7 SCC 336	Strict construction of expropriatory statutes; authorities must act within statutory provisions; mandatory nature of notice under Section 10(5) and (6) of ULC Act.	Used to stress statutory compliance in possession-taking and effect of non-compliance.
State of Assam v. Bhaskar Jyoti Sarma, AIR 2015 SC (Supp) 264	Notice under Section 10(5) is mandatory; failure to raise grievance timely leads to waiver; possession-taking process must be valid.	Relied upon to reject appellant’s challenge to possession based on defective notice.
State of Uttar Pradesh v. Nand Kumar Aggarwal, AIR 1998 SC 473	Definition of agriculture in ULC Act; mere revenue record entry insufficient; actual use is decisive; land used for non-agricultural purposes not exempt.	Applied to analyze agricultural nature of land and applicability of ULC Act.
State of Andhra Pradesh v. N. Audikesava Reddy, AIR 2002 SC 5	Master plan prepared subsequent to Act’s commencement is relevant to determine whether land is vacant; partial overruling of earlier precedent.	Followed to hold that revised master plan impacts applicability of ULC Act.
Maneklal Mansukhbhai Co-operative Housing Society Ltd. v. Rajendrakumar Maneklal Shah, (2002) 1 GLH 290	Unregistered cooperative societies cannot hold land or enter contracts; registration is necessary for legal status.	Applied to reject appellant’s claim of land ownership by unregistered society at relevant time.
State of Gujarat v. Maliben Nathubhai, AIR 2017 SC (Supp) 864	Requirement to file declaration under Section 6(1) of ULC Act to challenge orders; failure to do so bars claim.	Applied to hold appellant society had no locus to challenge without filing declaration.
Ritesh Tewari v. State of Uttar Pradesh, (2010) 10 SCC 677	Writ jurisdiction discretionary and supervisory; petitioner must come with clean hands; suppression of material facts disentitles relief.	Relied upon to dismiss appellant’s petition due to suppression and misstatements.
Amar Singh v. Union of India, (2011) 7 SCC 69	Doctrine of estoppel by election; litigants must not take inconsistent stands.	Invoked to criticize appellant’s contradictory claims.
Joint Action Committee of Air Line Pilots Assn. of India v. DG of Civil Aviation, (2011) 5 SCC 435	Doctrine of estoppel by election; parties should not prolong litigation by inconsistent stands.	Applied to emphasize equitable conduct required in litigation.
State of Madhya Pradesh v. Narmada Bachavo Andolan, (2011) 7 SCC 639	Public interest litigants must approach courts with clean hands and objectives; courts balance public and private interest.	Applied to reject writ petition in public interest due to lack of bona fides.
Ashok Kumar Srivastav v. National Insurance Company Ltd., (1998) 4 SCC 361	Doctrine of res judicata applies to writ proceedings; finality of decisions; parties cannot be vexed twice for same cause.	Referred to emphasize finality of prior judgments in related litigation.

J.B. Pardiwala, J.:— Since the issues raised in all the captioned matters are the same and the challenge in the two Letters Patent Appeals is also to the selfsame judgment and order passed by the learned Single Judge, those were heard analogously and are being disposed of by this common judgment and order.

2. For the sake of convenience, the Letters Patent Appeal No. 34 of 2008 is treated as the lead matter.

3. This Appeal under clause 15 of the Letters Patent is at the instance of the original petitioner and is directed against the judgment and order passed by a learned Single Judge of this Court dated 29 October 2007 in the Special Civil Application No. 4430 of 1992, by which the learned Single Judge rejected the petition preferred by the appellant herein, thereby affirming the order passed by the Urban Land Ceiling Tribunal, Ahmedabad.

4. The facts giving rise to this Appeal may be summarised as under:

A. The subject-matter of dispute in the present litigation is a parcel of land bearing Survey No. 314/1&2 situated at the village Sola, Taluka Dascroi, District Ahmedabad. Before the Urban Land (Ceiling and Regulation) Act, 1976 (for short, ‘the ULC Act’) came into force, the subject land was admeasuring 12141 sq. meters. On 11 December 1975, a registered sale-deed was executed by the original owner (Gandabhai Mangalbhai Patel as the ‘Karta’ of Mangaldas Cheladas Patel, HUF) in favour of Shri Harshvardhan Hathising Shah and Shri Mohanlal Tripathi in their capacity as the promoters of the appellant-Society, namely The Deep Cooperative Housing Society Limited, for the sale of the subject land referred to above. A portion of the said land admeasuring 15-Gunthas was not sold by the original owner to Shri Shah and Shri Tripathi. A specific condition was incorporated in the said registered sale-deed dated 11 December 1975 that the land referred to in the sale-deed was agreed to be sold to the promoters of the proposed Deep Cooperative Housing Society Limited, i.e. the appellant herein. Clause (11) of the sale-deed dated 11 December 1975 reads as under:

“11. This land under this document has been determined to be sold to you as promoters of Deep Cooperative Housing Society Ltd. (proposed) and therefore you have acquired right to assign the property under this document i.e. said lands in favour of the said proposed society or the Registered Cooperative Housing Society of the said name.”

B. With the coming into force of the ULC Act, 1976, the proposed Deep Cooperative Housing Society Limited, through one of its promoters, viz. Shri Shah, filed a statement dated 10 September 1976 under Section 6(1) of the ULC Act before the competent authority declaring the land held on behalf of the proposed Society. It was pointed out in the said statement that the land bearing Survey No. 314/1&2 was to be used for the purpose of constructing dwelling units for the members of the Society.

C. On 24 May 1979, an order was passed by the State Government under Section 20 of the ULC Act granting exemption to the land bearing Survey No. 314/1&2 in accordance with the provisions of Chapter III of the ULC Act as the same was agricultural land. Although the order dated 24 May 1979 has been referred to in the order dated 5 March 1988 passed by the competent authority and Deputy Collector, Urban Land Ceiling, Ahmedabad, yet the same is not on record. It is the case of the appellant that despite a request made under the Right to Information Act, 2005, the said exemption order has not been provided till this date by the State Government.

D. On 15 February 1980, the appellant-Society came to be registered under Section 9(1) of the Gujarat Cooperative Societies Act, 1961. It was given registration No. GH/8068.

E. On 5 March 1988, an order came to be passed by the respondent no. 2 herein, i.e. the competent authority and Deputy Collector, Urban Land Ceiling, Ahmedabad, on the form filled up by the original owners declaring 4553 sq. meters of land of Survey No. 314/1&2 as exempted from the provisions of the ULC Act. Such exemption was granted as the land was agricultural land.

F. On 23 June 1989, an order came to be passed by the respondent no. 2, i.e. the competent authority, under Section 9 of the ULC Act declaring 10141 sq. meters of land bearing Survey No. 314/1&2 as the ‘excess vacant’ land. The said order was passed on the statement of the appellant herein filed under Section 6(1) of the ULC Act dated 10 September 1976.

G. It appears that the competent authority and Deputy Collector, Ahmedabad, remained oblivious about the exemption order dated 5 March 1988 passed by it earlier on the form filled up by the original owners under Section 6(1) of the ULC Act. Thus, on one hand, two exemption orders dated 24 May 1979 and 5 March 1988 respectively came to be passed in respect of the subject land, while on the other, a contrary order dated 23 June 1989 came to be passed by the very same authority declaring 10141 sq. meters of the subject land as ‘surplus’.

H. In such circumstances referred to above, the appellant herein went before the respondent no. 3, i.e. the Urban Land Tribunal, by filing an appeal under Section 33 of the ULC Act with a prayer to quash and set-aside the order dated 23 June 1989 passed by the respondent no. 2, competent authority, Ahmedabad.

I. The Urban Land Tribunal, vide its judgment dated 29 January 1991, dismissed the Appeal No. 294 of 1989 filed by the appellant herein. The Tribunal held that on the date of the commencement of the ULC Act, 1976, in the State of Gujarat, i.e. 17 February 1976, the appellant was an unregistered and a proposed Cooperative Housing Society and, therefore, was not entitled to the benefit of Section 19(1)(v) of the ULC Act.

J. The Special Civil Application No. 4430 of 1992 came to be instituted by the appellant herein questioning the legality and validity of the judgment and order dated 29 January 1991 passed by the Urban Land Tribunal, Ahmedabad.

K. On 2 July 1992, the Special Civil Application No. 4430 of 1992 came to be admitted by a learned Single Judge of this Court. The following order was passed:

“Rule. Till further orders, the operation of the impugned order is stayed.”

L. The materials on record reveal that the Special Civil Application No. 4430 of 1992 came to be disposed of by a learned Single Judge of this Court vide order dated 6 May 1999 holding that as the possession of the subject land had not been taken over by the State Government from the appellant, the order dated 23 June 1989 passed by the respondent no. 2, competent authority and Deputy Collector, Urban Land Ceiling, Ahmedabad, stood abated on the coming into force of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, with effect from 22 March 1999.

M. The respondent nos. 1 and 2 herein thought fit to prefer Misc. Civil Application No. 1493 of 1999 on 10 September 1999, seeking review of the order dated 6 May 1999 passed by the learned Single Judge in the Special Civil Application No. 4430 of 1992. The Misc. Civil Application was filed on the premise that the possession of the subject land had been taken over by the State Government on 23 June 1992. However, the Misc. Civil Application seeking review came to be rejected by the learned Single Judge vide order dated 10 September 1999.

N. In the year 2001, the respondent nos. 1 and 2 herein preferred the Letters Patent Appeal No. 984 of 2001 against the judgments and orders passed by the learned Single Judge dated 6 May 1999 and 10 September 1999 respectively in the Special Civil Application No. 4430 of 1992 and the Misc. Civil Application No. 1493 of 1999 respectively.

O. A Division Bench of this Court, vide the judgment and order dated 29 July 2004, allowed the Letters Patent Appeal No. 984 of 2001. As a result, the orders dated 6 May 1999 and 10 September 1999 respectively passed by the learned Single Judge in the Special Civil Application No. 4430 of 1992 and the Misc. Civil Application No. 1493 of 1999 respectively came to be quashed and set-aside. The Special Civil Application No. 4430 of 1992 was remitted to the learned Single Judge for re-adjudication and re-hearing on merits.

P. It appears that on remand of the Special Civil Application No. 4430 of 1992, the appellant herein filed an additional affidavit-in-reply dated 3 October 2005 stating-forth the subsequent events that transpired between 1992 and 2005.

(1) On 24.10.2005, an affidavit-in-reply was filed on behalf of the present respondent no. 2 Competent Authority and Deputy Collector, Urban Land Ceiling, Ahmedabad in Special Civil Application No. 4430/1992.

(2) On 3.12.2005, an affidavit-in-rejoinder was filed by the present appellant in answer to the affidavit-in-reply dated 24.10.2005 filed on behalf of the present respondent no. 2.

(3) In the month of June, 2007, the oral hearing of the Special Civil Application No. 4430/1992 commenced. The rival parties were heard by the learned Single Judge. The hearing concluded on 29.6.2007. After the conclusion of the hearing, an affidavit was filed by the present respondent no. 2 on 9.7.2007 to place on record 3 documents - (i) exemption order dated 13.11.1979 in respect of 15 gunthas of land bearing Survey No. 314/1 of the village Sola, Taluka Daskroi, District Ahmedabad; (ii) the Notification dated 4.5.2001 issued by the State Government showing the zoning of land bearing Survey No. 314/1 & 2 of the village Sola, Taluka Daskroi, District Ahmedabad; and (iii) few extracts of the register maintained by the Postal Department to show that the notice dated 4.5.1992 issued under Sec.10(5) of the Urban Land (Ceiling and Regulation) Act, 1976 was served upon Mr. Harshvadan Hathising Shah and Mr. Mohanlal Umiyashankar Tripathi.

(4) On 12.7.2007, the present appellant filed a counter affidavit in answer to the said affidavit dated 9.7.2007 filed by the present respondent no. 2 in the Special Civil Application No. 4430/1992. The present appellant objected to the act of filing an affidavit after conclusion of the hearing. The present appellant also gave its “without prejudice” answer on merits to the contentions raised by the present respondent no. 2 in the affidavit dated 9.7.2007.

5. The learned Single Judge of this Court, vide judgment and order dated 29 October 2007, rejected the Special Civil Application No. 4430 of 1992 with costs quantified at Rs. 10,000.00.

6. Being dissatisfied with the judgment and order passed by the learned Single Judge, the appellant is here before this Court with the present Appeal.

ISSUES WHICH WERE RAISED BEFORE THE LEARNED SINGLE JUDGE:

7. The following were the issues raised before the learned Single Judge:

(A) The subject land was purchased by the holders as the promoters of the Society. The lands were, therefore, exempt from the application of the ULC Act, 1976.

(B) The possession of the subject land remained with the Society. In view of the repeal of the Act of 1976 by the Repeal Act, 1999, all the proceedings in respect of the subject land stood abated.

(C) The subject land was agricultural in nature and was used for the agricultural purposes. Under the relevant Master Plan, all the lands of village Sola were reserved for the purpose of agriculture. In such circumstances, the lands were neither ‘urban land’ nor ‘vacant land’ within the meaning of the Act of 1976. The provisions contained in the Act of 1976 did not apply to the subject land.

(D) The competent authority had, by its order dated 13 November 1979, accordingly granted exemption to the subject land.

(E) If the subject land was not ‘urban land’ or ‘vacant land’ within the meaning of the Act of 1976, the said status could not be changed by any subsequent action of the State Government.

(F) The mandatory requirement of issuing notice under Section 10(5) of the Act, 1976, to the persons in possession was not complied with. Any action of taking over possession of the excess vacant land as envisaged by Section 10(6) of the Act of 1976 is void, illegal and non-est in the eye of law.

8. None of the contentions referred to above found favour with the learned Single Judge.

9. The contentions referred to above came to be dealt with by the learned Single Judge in the impugned judgment, which reads thus:

“I am unable to agree with the contentions raised by Mr. Patel. The claim that the subject lands were purchased by the aforesaid Harshvadan Shah and Mohanlal Tripathi as the promoters of the Society is fallacious. The sale deed is placed on record of the petition. Evidently, the subject lands were purchased by the aforesaid Harshvadan Shah and Mohanlal Tripathi in their individual capacity and not as the promoters of the Society. The relevant mutation entries nos. 3455, 3456 and 3457 made in the Village Forn No. VI on 15th December, 1975 also recorded the purchase of the subject lands by the aforesaid Harshvadan Shah and Mohanlal Tripathi. The name of the society was entered in the revenue record under mutation entry no. 3845 made on 5th July, 1980. The said entry did record that the subject lands then held by Harshvadan Shah, etc., as the promoter of Dip Cooperative Housing Society, as the said society was registered on 15th February, 1980, on production of certificate of registration and the affidavit, the name of Dip Cooperative Housing Society was entered. It is obvious that the aforesaid recording was not the whole truth. As noted above, prior to 5th July, 1980, the subject lands ran in the name of Harshvadan Shah and Mohanlal Tripathi as individuals and not as the promoters of the Society. Section 19 of the Act of 1976 provided for vacant land to which Chapter-III of the Act did not apply. In other words, it provided for exemption to certain “vacant lands”. Clause (v) thereof referred to, inter alia, “…a housing cooperative society, registered or deemed to be registered under any law relating to cooperative societies for the time being in force.” The Government Circular dated 1st October, 1977 was issued in respect of grant of exemption under Section 20[1] (a) and 20[1](b) of the Act of 1976 to cooperative societies which were not eligible for exemption under Section 19[1] of the Act of 1976. As on the date of the Act, the Society was neither registered nor was it deemed to be a registered housing society. The claim that under Section 19[1] of the Act of 1976, it was exempt from the application of Chapter III of that Act requires to be rejected outright. As to the benefit under the aforesaid Circular dated 1st October, 1977, it should be noted that the exemption under the said Circular could not be and was not meant to be automatic. But, the concerned cooperative housing society was required to ask for exemption under Section 20[1] of the Act of 1976. It is not the case of the Society that it had ever applied for such an exemption. In absence of a request for exemption under Section 20[1] of the Act of 1976, the claim that the subject lands were exempt under the aforesaid Circular dated 1st October, 1977 is misconceived.; is an afterthought and deserves to be rejected. The claim that by order dated 13th November, 1979 made by the competent authority, the agricultural exemption was granted in respect of the subject lands is also misleading. It transpires that the vendors did not sell whole of the lands Survey Nos. 314/1 and 314/2. A part of the said lands admeasuring 15 gunthas was retained by the vendors. Evidently, the aforesaid exemption dated 13th November, 1979 was granted to the vendors in respect of the said 15 gunthas of the land. Otherwise also, if the said exemption were in respect of the subject lands, it could not have been granted to the vendors in 1979 - years after it was sold to the aforesaid Harshvadan Shah and Mohanlal Tripathi. Thus, in any view of the matter, the subject lands were not exempt from the applicability of the Act of 1976.

“Urban land.” was defined in clause (o) of Section 2 of the Act of 1976 to mean - (i) any land situated within the limits of an urban agglomeration and referred to as such in the master plan; or (ii) in a case where there is no mater plan, or where the master plan does not refer to any land as urban land., any land within the limits of an urban agglomeration and situated in any area included within the local limits of a municipality (by whatever name called.), a notified area committee, a town area committee, a city and town committee, a small town committee, a cantonment board or a panchayat, but does not include any such land which is mainly used for the purpose of agriculture.” “Vacant land.” was defined in Clause (q) thereof to mean - “land., not being mainly used for the purpose of agriculture, in an urban agglomeration, but does not include…” Mr. Patel has vehemently argued that the subject lands were agricultural lands and were being cultivated. Under the master plan, all of the lands of village Sola were reserved for agriculture. For that, he has relied upon the abstracts from the village form nos. 7 & 12 and the statement under the master plan issued in respect of the lands of villages of Daskroi Taluka. Against village-Sola, lands of several survey numbers including Survey Nos. 311 till the end are shown to be agricultural lands i.e., the lands of survey nos. 314/1 and 314/2 also are the agricultural lands. It may, however, be noted that the said statement does not disclose the date to which the said statement relates. As against that the State Government has produced copies of the revised master plans sanctioned on 2nd November, 1987 and 4th May, 2001. What is relevant is the revised master plan sanctioned on 2nd November, 1987. Under the said revised master plan, the subject lands were reserved for GSFC i.e., for non-agricultural purpose. If it is believed that on the date of the Act of 1976, the subject lands were situated within the agricultural zone; were not urban land or vacant land as defined in the Act of 1976, atleast since the date of the revised sanctioned plan of 1987, the subject lands became “urban land” or “vacant land” within the meaning of the Act of 1976. As decided by the Hon'ble Supreme Court in the matter of K. Audikesava Reddy (supra), the commencement of the Act of 1976 in respect of the subject lands would be the date on which the subject lands became “vacant land.” within the meaning of the Act of 1976. Thus, on the date of the order of the competent authority, the subject lands were the “vacant lands” within the meaning of the Act of 1976.

The contention that the action of the State Government in taking over possession of the subject lands was without the authority of law and is non-est requires to be rejected. Mr. Patel has submitted that notice as envisaged by Section 10[5] of the Act of 1976 was issued upon the aforesaid Harshvadan Shah and Mohanlal Tripathi, both of them had died pending the proceeding before the competent authority. Obviously, the said persons were not in possession of the subject lands. Admittedly, no notice under Section 10 [5] of the Act of 1976 was issued to the persons then in possession of the subject lands. It is also submitted that the State Government has not proved that the person who allegedly took over possession of the subject lands on 23rd June, 1992 was authorized by the State Government to do so. Notice to hand over possession, issued under Section 10[5] of the Act of 1976, appears to have been issued upon the Society through its office bearers - the above referred Harshvadan Shah and Mohahlal Tripathi. Thus, notice to hand over possession was issued to the Society and not to the individual persons viz., Harshvadan Shah and Mohanlal Tripathi. If the said persons; the alleged promoters of the Society, had died pending the proceeding before the competent authority and the Society had elected other office bearers, it was the duty of the Society to notify the same to the competent authority. It further appears that not only this fact was not brought to the notice of the competent authority, the said fact has not disclosed in Appeal before the Tribunal nor before this Court in the writ petition. It is not open to the Society to allege that due notice to hand over possession of the subject lands under Section 10[5] of the Act of 1976 was not given to it. I am of the view that the notice to hand over possession as envisaged by Section 10[5] of the Act of 1976 was duly served upon Dip Cooperative Housing Society which claims to be in possession of the subject lands. It further appears that the possession of the subject lands was taken over by the Maintenance Surveyor & Deputy Mamlatdar in presence of panch, under the instruction issued by the competent authority. In absence of a specific challenge that the Maintenance Surveyor was not authorized to take over possession under Section 10[6] of the Act of 1976, it must be believed that the Maintenance Surveyor was authorized to take over possession of the subject lands under Section 10[6] of the Act of 1976. The action of the Maintenance Surveyor in entering upon the subject lands and taking over possession of the same in presence of panch cannot be questioned. In above view of the matter, I hold that the subject lands have vested in the State Government and the possession has been taken over on 23rd June 1992 lawfully. If the Society claims that it has continued to hold possession of the subject lands pending the present petition and till the date, the possession of the Society is illegal and amounts to trespass. The reliance placed on the report of the Court Commissioner in a Civil suit or panchnama is of no consequence. Neither the competent authority nor the State Government was party to the said civil suit. As to the proceedings under the Tenancy Act, the finding of the Society being in possession of the subject lands also is of no consequence. Reliance is placed on Village Forms 7 & 12 which too do not seem to be trustworthy. Copies in respect of subject land Survey No. 314/1 produced on the record of the petition show possession of Gandabhai Mangalbhai and others - the vendors of the subject lands, is shown under their cultivation right from the year 1971-72 till 1994-95. In respect of the subject land Survey No. 314/2, the vendor Gandabhai Mangalbhai and others are shown to be in possession and cultivating the said land since the year 1971-72 to 1984-85. Thus, if the revenue record were to be believed, the vendors Gendabhai Mangalbhai and others after selling the subject lands in December, 1975 continued to hold the possession of the subject lands and to cultivate the same till the year 1984-85. Even after 1984-85, the said vendors continued to hold the subject land Survey No. 314/1 and to cultivate the same for another ten years till 1994-95. It is not even the case of the Society that the purchasers of the land - the aforesaid Harshvadan Shah and Mohanlal Tripathi - did not take over possession of the subject lands, or that the Society was not in possession of the subject lands till the year 1985 or 1995. In above view of the matter, the contention that inspite of the order of the competent authority and the appellate tribunal, the Society has continued to hold possession of the subject land; that it was the Society which held the possession of the subject lands on 30th March, 1999 - the date on which the Act of 1976 was repealed by the Act of 1999 and even thereafter, is rejected.

Though it has not been disclosed in the affidavit made by the above referred Purshottambhai Patel, it has come on record in the affidavit made by the competent authority on 24th October, 2005 that pending this petition, though this Court had ordered the parties to maintain status quo in respect of the subject lands, the Society has made construction on some 1200 sqm of the subject lands. In answer to the said contention raised by the competent authority, the Society has made affidavit on 3rd December, 2005. It is not disputed that the Society has constructed jive storeyed commercial building on the site. However, defence has been put-forth that the construction has been made on that part of the land which was allowed to be retained by the Society. The said defence controverted by the competent authority. It is demonstrated by production of maps, etc. that the construction in question is made on the subject lands [excess vacant land] which are acquired under the Act of 1976. Be that as it may, as it is a disputed question of fact, I do not intend to resolve it here. It should be open for the competent authority or the concerned authority to take action against the Society in respect of the alleged illegal construction made by it.

No other contention is raised before me. In view of the above discussion, the petition is dismissed with cost. The cost is quantified at Rs. 10,000/-. Rule is discharged. Interim relief is vacated.”

SUBMISSIONS ON BEHALF OF THE APPELLANT :

10. Mr. Deven Parikh, the learned senior counsel, vehemently submitted that the learned Single Judge committed a serious error in passing the impugned judgment and order. Mr. Parikh would submit that there is overwhelming and clinching materials on record to indicate that at the relevant point of time the lands in question were agricultural lands and were in the agricultural zones in accordance with the development plans. This, according to Mr. Parikh, is an undisputed fact. Mr. Parikh took us through the details of the Master Plan at pages-120 and 123A respectively of the paper-book. According to Mr. Parikh, the same would indicate that when the Act came into force in February 1976, the lands in question were agricultural lands in the agricultural zones. Mr. Parikh would submit that the definition of the terms ‘urban land’ and ‘vacant land’ respectively contained in Section 2(o) and Section 2(q) specifically exclude there from the agricultural land. According to Mr. Parikh, all that is required is that the land must be shown to be an agricultural land in the village forms and must be shown in the agricultural zone in the Master Plan. It is argued that once these two requirements are fulfilled, nothing further is necessary to be looked into. The land would automatically go out of the purview of the ULC Act as being agricultural land. Mr. Parikh once again reiterated that it is not in dispute that at the relevant point of time the lands in question were agricultural and were shown to be so in the Master Plan.

11. Mr. Parikh submitted that indisputably the land was reserved for the GIDC in the year 1987, and in the year 2001, it was in the residential zone. According to Mr. Parikh, by that time the Society in question was registered and was holding the land. The exemption granted to the Society after 1986 is absolute and unconditional. It is argued that once it is shown that the land is an agricultural land, or if not vacant land till 1980, then there can be no question whatsoever of considering it as a vacant land as, after the said date, the registered society held the land. Mr. Parikh would submit that a Cooperative Housing Society holding land is exempt from the ULC in view of Section 19(1)(v) of the Act, 1976. According to Mr. Parikh, the language of Section 19(1)(v) of the Act, 1976, being clear, the exemption is obvious. According to Mr. Parikh, the fact that the appellant was an unregistered society at the relevant point of time would hardly make any difference. It is pointed out that the form in question, i. e. the Form no. 1, came to be filed by the Society. In the Form, it has been clearly stated that the same was being filed as an unincorporated association and as a member society. It has also been stated that the same was being filed as an owner under Section 2 (i). It has also been stated that the land is an agricultural land. Mr. Parikh pointed out that it has been specifically stated in Column No. 15 that “agricultural land is purchased by the Society in the name of the promoters who are agriculturists”. This, according to Mr. Parikh, would indicate that the form in question came to be filed by the Society as an unincorporated body holding the land as an owner. Mr. Parikh invited our attention to a Circular dated 1 October 1977 at page-33 of the paper-book, more particularly, para-1 thereof, issued by the State Government. In the Circular, the State Government clarified that the unregistered cooperative society can hold lands under a sale-deed executed while it was not registered. Mr. Parikh would submit that the State Government cannot make any submission contrary to its Circular.

12. Mr. Parikh would argue that once the society came to be registered and continued to hold the lands in question, the same would be exempt under Section 19(1)(v) of the Act.

13. Mr. Parikh vehemently argued that it is not open for the ULC authorities, while considering the Form no. 1 filed by one individual, to declare the land to be surplus land in the hand of another individual. He pointed out to us the provisions of Section 6(2) of the Act. Section 6(2) of the Act provides that if the competent authority is of the opinion that any person holds, at the commencement of the Act, vacant land in excess of the ceiling limit, then notwithstanding anything contained in sub-section (1), it may serve a notice upon such person requiring him to file within such period, as may be specified in the notice, the statement referred to in sub-section (1).

14. The third and the important limb of Mr. Parikh's submission is with regard to possession. According to Mr. Parikh, on the date of the repeal of the Act, the possession of the subject vacant land was not taken and it has remained with the Society till this date.

15. It is submitted that no genuineness worth the name can be attached to the panchnama and the map dated 23 June 1992. The principal argument of Mr. Parikh is that the case on hand is one of paper panchnama. He pointed out that no entry came to be mutated in this regard in the form no. 7/12 nor there is any proof that the possession was taken. He would argue that for taking possession of the excess vacant land admeasuring 10141 sq. meters, the panchnama and the map must show precisely from which part this portion was culled out. He would argue that there is no signature of the panch witnesses on the map. The materials on record would indicate that none from the Deep Cooperative Housing Society, i.e. the appellant, nor Shri Shah or Shri Tripathi was present. It is alleged that a paper panchnama was drawn sitting in the office without actually visiting the site. It is pointed out that no notice under Section 10(6) was served on anyone at any point of time.

16. Mr. Parikh invited our attention to the following circumstances to make good his argument that the case is one of paper panchnama:

(1) The panchnama drawn in the Regular Civil Suit No. 840 of 1995 indicates the possession of the appellant-Society. It shows the fencing, the gate, one ‘pakka’ hut and the public notice stating that the appellant-Society is the owner of the land. A Watchman by name Raghubhai Bharwad was found staying in the said hut.

(2) The salary slips of the Watchman.

(3) Bore-well constructed by the Society in the year 2000.

(4) The labour bills for erecting fencing.

(5) Material for fencing.

(6) The public notice dated 20 July 1997 published in the Gujarat Samachar claiming possession and ownership of the land.

(7) The notice dated 28 February 2001 taking possession of the land admeasuring 1570 sq. meters from the appellant-Society for the purpose of construction of the S.G. Highway.

(8) The communication/notice offering 80% compensation for the aforesaid acquisition.

(9) It is pointed out that the Society has, till this date, not claimed the said amount.

(10) The aforesaid notice states on behalf of the Society that the Society has handed over the possession of the land in question to the Deputy Executive Engineer in person and has issued possession receipts to that effect.

(11) The private agreement for acquisition entered into between the appellant-Society and the State Government for 262.50 sq. meters from the Survey No. 314/1. The agreement is dated 30 October 2000.

(12) The possession receipt dated 3 October 2000 issued in favour of the appellant-Society for the aforesaid acquisition.

(13) The said acquisition of 262.50 sq. meters of land was for the Gujarat Electricity Board.

17. It is argued that the aforesaid circumstances would go to show that the subject land continued to be of the appellant-Society and it continued to be in possession of the Society. In the Public Interest Litigation, the AUDA has filed its affidavit-in-reply at page-107. In para-4 thereof, it is clarified that as per the draft Town Planning Scheme No. 28 which was published in the Gazette on 25.10.1999, Survey Nos. 314/1 and 314/2 were given O.P.-54 considering 11076 sq. meters. On reconstruction, the Final Plot No. 52 admeasuring 5538 sq. meters was allotted in lieu of the Original Plot No. 54 to the Deep Coop. Housing Society and the remaining 50% was retained by the AUDA. The ‘F’ form in this regard annexed at page-121 again indicates that the Final Plot No. 52 of 5538 sq. meters of land as per the Column No. 8 was given in lieu of the Original Plot No. 54 admeasuring 11076 sq. meters as per the Column No. 5 to the Deep Coop. Housing Society. Furthermore, the part plan for the Survey Nos. 314/1 and 314/2 respectively of the Plot No. 52 is also annexed at page-122. This again is shown as the area which is adjoining to the Sarkhej-Gandhinagar highway. The aforesaid demonstrates beyond a pale of doubt that the alleged panchnama of 1992 does not appear to be genuine. In any case, it is only a paper panchnama without anything more. If the Government had taken the possession of the said land, then the question of giving 5538 sq. meters of land in lieu of 11076 sq. meters of land would never have arose. According to the Government, the Deep Coop. Housing Society had the possession of only 2000 sq. meters at the highest and the remaining was taken over by the Government. This is completely inconsistent with the aforesaid Final Plot and the Town Planning.

18. In the last, Mr. Parikh invited the attention of this Court to page-178 of the paper-book. It is a notification issued under Section 10(1) of the Act. It is issued in context of the appellant-Society. In the schedule below the notification, the name of the Deep Cooperative Housing Society has been stated. The notification under Section 10 proceeds on the footing that the land in question is held and owned by the Society. Even, in Section 10(3) notification at page-180 of the paper-book (vesting of the land in the Government) the schedule indicates that the land is held by the Society.

19. It is argued that a reference to the notice under Section 10(5) of the Act would indicate that the same is not issued to the Society but to the two individuals, namely, Shri Shah and Shri Tripathi, at their respective residential addresses. It is pointed out that the notice under Section 10(5) of the Act dated 4 May 1992 is not even addressed to the Society.

20. Mr. Parikh pointed out that both the persons to whom the notice is said to have been served had passed away long time back. The notices could be said to have been served to dead persons. Rule 5 requires that the notice should be served on all the persons interested. The Society also could be said to be a person interested. It is argued that the notice should have been served on the Society.

21. Mr. Parikh pointed out something very important from the impugned judgment of the learned Single Judge. In the impugned judgment, the Single Judge took the view that the notice was served to the Society through its promoters. According to Mr. Parikh, if the notice is to be served on the Society, it must be served as provided in Rule 5. It is argued that such finding of the learned Single Judge is contradictory.

22. In such circumstances referred to above, Mr. Parikh prays that there being merit in his Appeal, the same be allowed and the impugned judgment and order passed by the learned Single Judge be quashed and set-aside.

LETTERS PATENT APPEAL NO. 492 of 2014:

23. Mr. Mihir Thakor, the learned senior counsel assisted by Mr. Parthiv Shah appearing for the members of the Society, assisted this Court on the issue of maintainability of the Letters Patent Appeal against the judgment and order passed by the learned Single Judge and also on the issue of possession. By and large, the submissions canvassed by Mr. Thakor are in tune with the submissions canvassed by Mr. Parikh, the learned senior counsel appearing for the Society.

SUBMISSIONS ON BEHALF OF THE STATE :

24. Mr. P.K. Jani, the learned Additional Advocate General appearing for the State Government, has vehemently opposed this Appeal. Mr. Jani would submit that no error, not to speak of any error of law, could be said to have been committed by the learned Single Judge in passing the impugned judgment and order.

25. Mr. Jani has raised a preliminary objection with regard to the maintainability of this Appeal. According to Mr. Jani, this Appeal under clause 15 of the Letters Patent is not maintainable as the learned Single Judge could not be said to have exercised its writ jurisdiction under Article 226 of the Constitution of India while rejecting the petition. Mr. Jani vehemently submitted that a bare perusal of the memo of the petition itself would indicate that the petition is under Article 227 of the Constitution of India invoking the supervisory jurisdiction of this Court. According to Mr. Jani, even in the prayer clause there is no reference of any issue of writ. In the prayer clause, all that has been prayed for is to quash and set-aside the judgment and order passed by the Urban Land Ceiling Tribunal. Mr. Jani pointed out that even the Tribunal has not been impleaded as the party respondent in the main petition. The fact that the Urban Land Ceiling Tribunal, whose order has been impugned in the main petition, has not been impleaded as a party respondent is sufficient to hold that there was no scope for the learned Single Judge to issue any writ under Article 226 of the Constitution of India. Mr. Jani submitted that the very first line of the impugned judgment of the learned Single Judge would indicate that the petition came to be treated by the learned Single Judge as one under Article 227 of the Constitution of India. In such circumstances referred to above, Mr. Jani prays that the Appeal deserves to be dismissed only on the ground of its maintainability. Mr. Jani submitted that without prejudice to his preliminary objection with regard to the maintainability of this Appeal, even otherwise on merits, the appellant has no case. Mr. Jani would submit that broadly the submission canvassed on behalf of the appellant are as under:

(1) The land is agricultural land and hence, clearly beyond the scope of the ULC Act.

(2) The land is owned by a Cooperative Housing Society and is exempt under the provisions of Section 19(1)(v) of the ULC Act.

(3) At the point of time when the Act came to be repealed in 1999, no actual possession of the land was taken.

(4) The taking over of the alleged possession by the State cannot be construed as possession being taken at all in the eye of law.

(5) Without prejudice to the above, various statutory requirements of issuance of notices, etc. in the manner as provided in the statute and the Rules have not been complied with and hence, even if it is presumed that the possession is taken, the same is wrongly taken and can have no value in the eye of law.

26. Mr. Jani would submit that there is no merit in the submission canvassed on behalf of the appellant that at the relevant point of time the subject lands were agricultural in nature and were in the agricultural zone as per the development plans. Mr. Jani would submit that assuming for the moment without admitting that the subject lands were agricultural and were in the agricultural zone as per the development plans, it must be factually established by cogent evidence that the lands were actually used for the purpose of agriculture. Mr. Jani, relying on a decision of the Calcutta High Court in the case of Birajananda Das Gupta v. Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976 and others, reported in AIR 1988 Cal. 8, submitted that even if the land is shown to be an agricultural land in the revenue records, it is within the jurisdiction of the ULC authorities to go into the issue of the land being agricultural land.

27. Mr. Jani would submit that there is nothing on record to indicate as to what type of agricultural operations were being undertaken. He would argue that ‘agriculture’ under the Explanation to clause (o) of Section 2 of the Act has limited meaning. It includes horticulture but does not include cultivation of every type of vegetation or rearing of animals or birds. It is argued that to hold that the land is mainly used for the purpose of agriculture, it is not enough even if the land is entered into the revenue records before the appointed day used for the purpose of agriculture, or even if so entered, the master plan gives purpose of the land other than the agriculture. According to Mr. Jani, simply because the land is entered into the revenue records, would not mean that it is being used mainly for the purpose of agriculture.

28. Mr. Jani vehemently submitted that the Society, before its registration in accordance with law, could not be said to be having any legal status. On the date of the agreement and the sale-deed, the Society was not registered. Inviting the attention of this Court to Section 37 of the Gujarat Cooperative Societies Act, 1961, it is argued that a society on its registration shall be a body corporate with power to acquire, hold and dispose of property and to do all such things as are necessary for the purpose for which it is constituted.

29. Mr. Jani argued that assuming for the moment that the sale-deed was in favour of Mr. Shah and Mr. Tripathi as the promoters of the Society and not in favour of the proposed Society, there is nothing on record to indicate that there was assignment of any rights by Shri Shah and Shri Tripathi as the original promoters of the Society in favour of the Society. In the absence of such assignment, the Society, in the first place, could not have preferred the petition itself challenging the order passed by the Urban Land Ceiling Tribunal.

30. Mr. Jani submitted that all the aforesaid aspects have been very well looked into and discussed by the learned Single Judge and no interference is warranted in that regard in this Appeal.

31. Mr. Jani submitted that all the arguments canvassed on behalf of the appellant with regard to the possession are without any merit. According to Mr. Jani, the submission as regards the taking over of the possession before the repeal of the Act is a disputed question of fact. The same has been looked into by the learned Single Judge and the finding of fact recorded by the learned Single Judge is that the possession was taken over much before the repeal, in accordance with law. In such circumstances, it is argued that the appellate court need not go into such disputed questions of fact. It is argued that the documentary evidence on record in the form of notice under Section 10(5) of the Act, panchnama, map, etc. would indicate that the possession was in fact taken over much before the repeal.

32. Mr. Jani, in support of his aforesaid submissions, has placed reliance on the following decisions:

(1) Ramji Mandir Narsinhji v. Narsinh Nagar Alias Tekri Cooperative Housing Society Limited, (1976) 1 GLR 801;

(2) Maneklal Mansukhbhai Cooperative Housing Soceity Limited v. Rajendrakumar Maneklal Shah, (2002) 1 GLH 290;

(3) State of Uttar Pradesh v. Adarsh Seva Sahkari Samiti Limited, (2016) 12 SCC 493;

(4) Jogendrasinhji Vijaysinghji v. State of Gujarat, (2015) 9 SCC 1;

(5) Vadhere Devabhai Govindji v. Rameshwarpuri Ratanpuri ., 1984 GLH 110;

(6) State of Uttar Pradesh v. Nand Kumar Aggarwal, (1997) 11 SCC 754;

(7) State of Andhra Pradesh v. N. Audikesava Reddy, (2002) 1 SCC 227;

(8) Laxminagar Cooperative Housing Society Through Organisor v. Mamlatdar and Agricultural Land Tribunal, (2005) 3 GLR 2083;

(9) Government of Andhra Pradesh v. J. Sridevi, (2002) 5 SCC 37;

(10) Hindustan Cooperative Housing Building Society Limited v. Registrar, Cooperative Societies, (2009) 14 SCC 302;

(11) Birajananda Das Gupta v. Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976, AIR 1988 Calcutta 8;

(12) Bhikoba Shankar Dhumal v. Mohan Lal Punchand Tathed, (1982) 1 SCC 680;

(13) Maganji Govindji v. Competent Authority and Additional Collector, Urban Land Ceiling, (1993) 2 GLR 1808;

(14) Ganshyambhai Bhikhabhai Mistry v. State of Gujarat, (2013) 2 GLR 1016;

(15) D.R. Somayajulu, Secretary, Diesel Loco Shed and South Eastern Railway House Building Cooperative Society Limited, Visakhapatnam v. Attili Appala Swamy, (2015) 2 SCC 390.

ANALYSIS:

33. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the following questions fall for our consideration:

(1) Whether the Letters Patent Appeal under clause 15 of the Letters Patent Act is maintainable having regard to the preliminary objection raised on behalf of the State that the learned Single Judge exercised his supervisory jurisdiction under Article 227 of the Constitution of India and not the writ jurisdiction under Article 226 of the Constitution of India?

(2) Whether the subject land is agricultural and, therefore, beyond the scope of the ULC Act?

(3) Whether the subject land is exempt under the provisions of Section 19(1)(v) of the ULC Act?

(4) Whether the actual physical possession of the land was taken over by the State respondents before the repeal of the ULC Act?

MAINTAINABILITY OF THE APPEAL:

34. We would like to first deal with the preliminary objection raised on behalf of the State as regards the maintainability of the two Letters Patent Appeals under clause 15 of the Letters Patent Act.

35. A Full Bench of this Court had the occasion to consider the issue at length in the case of the Gujarat State Road Transport Corporation v. Firoze M. Mogal, reported in 2014 (1) GLH 1. One of us, J.B. Pardiwala, J., was one of the members of the Full Bench and the judgment has also been authored by one of us, J.B. Pardiwala, J.

36. After an exhaustive review of the case law, the final conclusion drawn by the Full Bench is as under:

“In view of our aforesaid analysis, we proceed to record our conclusion in seriatim.

i) A power to issue the writ is original and the jurisdiction exercised is original jurisdiction.

ii) Proceedings under Article 226 of the Constitution of India are in exercise of original jurisdiction of the High Court whereas the proceedings initiated under Article 227 of the Constitution are supervisory in nature.

iii) When a writ is issued under Article 226 of the Constitution, it is issued in exercise of its original jurisdiction whether against the Tribunal or inferior Court or administrative authority.

iv) The power exercised under Article 226 of the Constitution is in exercise of original jurisdiction and not supervisory jurisdiction.

v) Exercise of supervisory power and power of superintendence is not to be equated with the original or supervisory jurisdiction.

vi) The learned Single Judge must have exercised original writ jurisdiction as distinguished from appellate jurisdiction, revisional jurisdiction or power of superintendence in order to maintain an appeal under Clause 15 of the Letters Patent.

vii) A writ of certiorari lies in appropriate cases against the order of Tribunal or Court subordinate to the High Court where such a Court, or Tribunal acts not only as an authority of first instance but even if such a Court or Tribunal acts as an appellate or revisional authority provided a case for a writ of certiorari is made out to the satisfaction of the Court concerned. Thus, if an appellate or revisional order of the Court or Tribunal, subordinate to a High Court, suffers from a patent error of law or jurisdiction, the same could be challenged before the High Court with the aid of Article 226 of the Constitution and it could not be said that such an appellate or revisional order of the Court or Tribunal could be challenged with the aid of Article 227 alone.

viii) The High Court, when exercising jurisdiction to issue a writ of certiorari does not act either as a Court of Appeal or that of Revision and it has no power to correct either findings of fact or even errors of law except where the error of law is patent on the face of the record. The sole function of the Court is to correct the persons or Tribunals exercising judicial or quasi-judicial functions when they assume jurisdiction which they do not possess, or when they refuse to exercise jurisdiction which is vested in them by law, or when in the exercise of their jurisdiction they violate principles of natural justice.

ix) The term “original jurisdiction” as contained in Clause 15 of the Letters Patent should be understood in context with the power of the High Court to issue a high prerogative writ like a writ of certiorari under Article 226 of the Constitution of India. It is that original power to issue a writ under Article 226 of the Constitution of India which makes the proceedings original and the exercise of such power will always be original jurisdiction.

x) If the Special Civil Application is described as one not only under Article 226 of the Constitution, but also under Article 227 of the Constitution of India and the Court or the Tribunal whose order is sought to be quashed., is not made a party, the application is not maintainable as one for the relief of certiorari in the absence of the concerned Tribunal or Court as party, but the same may be treated as one under Article 227 of the Constitution of India If the Court or Tribunal is not impleaded as a party respondent in the main petition, then by merely impleading such court or tribunal for the first time in the Letters Patent Appeal will not change the nature and character of the proceedings before the learned Single Judge. By merely impleading such a Court or Tribunal for the first time in the LPA, the appeal could not be said to be maintainable, if the proceedings before the learned Single Judge remained in the nature of supervisory proceedings under Article 227 of the Constitution.

xi) If the learned Single Judge, in exercise of a purported power under Article 227 of the Constitution sets aside the order of Tribunal or Court below and at the same time, the essential conditions for issue of writ of certiorari are absent, no appeal will be maintainable against such order in view of the specific bar created under Clause 15 of the Letters Patent itself and such an order can be challenged only by way of a Special Leave Petition before the Supreme Court.

To put it very explicitly, take a case where a petition is only under Article 227 of the Constitution of India, invoking superintending powers of the High Court and not under Article 226 of the Constitution of India. After examining the matter, if the court finds substance in the petition and sets aside the order of an authority, court or a tribunal, then against such an order, an LPA would not lie on the argument that since the court has set aside the order it has decided the matter on merits having found substance in the same.

To put it in other words, once a petition is under Article 227 of the Constitution of India, and while entertaining such a petition under Article 227 of the Constitution of India, if the court allows a petition by setting aside the order impugned, then against such an order no LPA would lie.

xii) If a learned Single Judge, in exercise of a purported power under Article 227 of the Constitution modifies the order of Tribunal/Authority or Court below and thereby partly allows a petition to a certain extent, then in such circumstances, it could not be said that the Court exercised its certiorari jurisdiction and no appeal will be maintainable against such order in view of the specific bar created under Clause 15 of the Letters Patent itself.

However, if a learned Single Judge, in purported exercise of power under Article 226 of the Constitution of India, issues a writ of certiorari, although the same is not maintainable, an appeal under Clause 15 of the Letters Patent would nevertheless be maintainable against such order.

To put it in other words, take a case where a party on his own invokes supervisory jurisdiction under Article 227 of the Constitution of India., and in such a petition, the Court issues a writ of certiorari, then against such an order an LPA would be maintainable.

To put it explicitly clear, take a case where in a petition neither there is a prayer for issue of a writ of certiorari nor the Tribunal/Authority or Court whose order is impugned is impleaded as a party respondent, and despite such being the position, if the Court proceeds to issue a writ of certiorari, then against such an order an LPA would be maintainable.

xiii) A combined application under both Articles 226 and 227 of the Constitution of India can be entertainable only when the court fees payable for invoking both the provisions have been paid in aggregate. If court fees payable for invoking only one of the Articles 226 and 227 have been affixed, the Court before dismissing the application on that ground may give option to the petitioner to choose only one of such provisions, if he does not pay the balance amount of court fees and the application should be treated accordingly. It is, however, for the Court to decide whether the facts of the case justify invocation of original jurisdiction or it is a fit case for exercising supervisory jurisdiction.

xiv) The facts would justify invocation of the original jurisdiction under Article 226 of the Constitution only if all the requisite conditions for issue of a writ of certiorari are made out by the petitioner and the Court concerned is convinced that the petitioner has been able to point out a serious or a palpable error in the order impugned going to the root of the jurisdiction. In the absence of such a glaring infirmity or an error patent on the face of the record, the party would not be justified in invoking original jurisdiction of the High Court under Article 226 of the Constitution of India for issue of a writ of certiorari.

xv) When a remedy for filing the Revision under Section 115 of the Civil Procedure Code has been expressly barred, then in such a case, a petition under Article 227 of the Constitution of India would lie and not a writ petition under Article 226 of the Constitution of India. When the Parliament has thought jit to restrict the powers under Section 115 of the Code with a definite object, then, under such circumstances an order which is not revisable under Section 115 of the Code of Civil Procedure cannot be challenged by way of filing a Writ Petition under Article 226 of the Constitution invoking extraordinary jurisdiction of the High Court and that too an interlocutory order passed by the Civil Court in a Regular Suit proceedings.”

37. The aforesaid Full Bench decision of this Court was made a subject matter of challenge before the Supreme Court in the Civil Appeal No. 2374 of 2014 and other allied appeals. The decision of the Supreme Court is titled as “Shri Jogendrasinhji Vijaysinghji v. State of Gujarat”. The Full Bench decision of this Court referred to above came to be corrected by the Supreme Court to a certain extent. The Supreme Court ultimately ruled as under:

“17. The next aspect that has to be adverted to is under what situation, a Letters Patent Appeal is maintainable before a Division Bench We repeat at the cost of repetition, we have referred to series of judgments of this Court which have drawn the distinction between Articles 226 and 227 of the Constitution of India and the three Judge Bench in Radhey Shyam (2015 AIR SCW 1849) (supra) has clearly stated that jurisdiction under Article 227 is distinct from jurisdiction under Article 226 of the Constitution and, therefore, a Letters Patent Appeal or an intra court appeal in respect of an order passed by the learned single Judge dealing with an order arising out of a proceeding from a Civil Court would not lie before the Division Bench Thus, the question next arises under what circumstances a Letters Patent Appeal or an intra-court appeal would be maintainable before the Division Bench.

18. In Umaji Keshao Meshram v. Radhikabai and another, 1986 Supp SCC 401 : (AIR 1986 SC 1272), this Court has held thus:

“106. The non obstante clause in Rule 18, namely, “Notwithstanding anything contained in Rules 1, 4 and 17 of this Chapter”, makes it abundantly clear why that rule uses the words “finally disposed of’. As seen above, under Rules 1 and 1 7, applications under Articles 226 and 227 are required to be heard and disposed of by a Division Bench. Rule 4, however, gives power to a single Judge to issue rule nisi on an application under Article 226 but precludes him from passing any final order on such application. It is because a single Judge has no power under Rules 1, 4 and 17 to hear and dispose of a petition under Article 226 or 227 that the non obstante clause has been introduced in Rule 18. The use of the words “be heard and finally disposed of by a single Judge” in Rule 18 merely clarifies the position that in such causes the power of the single Judge is not confined merely to issuing a rule nisi. These words were not intended to bar a right of appeal. To say that the words “finally disposed of mean finally disposed of so far as the High Court is concerned is illogical because Rules 1, 4 and 7 use the words “be heard and disposed of by a Divisional Bench” and were the reasoning of the Full Bench correct, it would mean that so far as the High Court is concerned, when a single Judge hears a matter and disposes it of, it is finally disposed of and when a Division Bench disposes it of, it is not finally disposed of. The right of appeal against the judgment of a single Judge is given by the Letters Patent which have been continued in force by Article 225 of the Constitution. If under the Rules of the High Court, a matter is heard and disposed of by a single Judge, an appeal lies against his judgment unless it is barred either under the Letters Patent or some other enactment. The word “finally” used in Rule 18 of Chapter XVII of the Appellate Side Rules does not and cannot possibly have the effect of barring a right of appeal conferred by the Letters Patent. As we have seen above, an intra-court appeal against the judgment of a single Judge in a petition under Article 226 is not barred while clause 15 itself bars an intra-court appeal against the judgment of a single Judge in a petition under Article 227.

107. Petitions are at times filed both under Articles 226 and 227 of the Constitution. The case of Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1955) 1 SCR 1104 : AIR 1955 SC 233, before this Court was of such a type. Rule 18 provides that where such petitions are filed against orders of the Tribunals or authorities specified in Rule 18 of Chapter XVII of the Appellate Side Rules or against decrees or orders of courts specified in that rule, they shall be heard and finally disposed of by a single Judge. The question is whether an appeal would lie from the decision of the single Judge in such a case. In our opinion, 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 these Articles, in fairness and justice to such party and in order not to deprive him of the 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 the Allahabad High Court in Aidal Singh v. Karan Singh, AIR 1957 All 414 : 1957 All LJ 388 (FB), and by the Punjab High Court in Raj Kishan Jain, v. Tulsi Dass Etc.,, AIR 1959 Punj 291, and Barham Dutt v. Peoples Cooperative Transport Society Ltd., New Delhi, AIR 1961 Punj 24 : ILR (1961) 1 Punj 283, and we are in agreement with it.”

19. Similar view was reiterated in Sushilabai Laxminarayan Mudliyar v. Nihalchand Waghajibhai Shaha, 1993 Supp (1) SCC 11 : (AIR 1992 SC 185), which arose from the High Court of Bombay.

20. In Mangalbhai v. Radhyshyam (Dr), (1992) 3 SCC 448 : (AIR 1993 SC 806), the dismissal of an application for eviction by the Deputy Collector and Rent Controller and its assail in appeal not resulting in success, compelled the landlord to file a writ petition under Articles 226 and 227 of the Constitution of India before the Bombay High Court. Before this Court, an objection was raised with regard to the maintainability of the Letters Patent Appeal. This Court referred to the decision in Umaji Keshao Meshram case (AIR 1986 SC 1272) (supra) and opined as follows:

“6. Applying the correct ratio laid down in Umaji Keshao Meshram case (supra) and perusing the writ petition filed in the present case as well as the order passed by the learned single Judge we are clearly of the view that the present case clearly falls within the ambit of Article 226 of the Constitution. In Umaji Keshao Meshram case (supra) it was clearly held that:

“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 these Articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal the court ought to treat the application as being made under Article 226….”

7. The learned single Judge in his impugned judgment dated December 11, 1987 nowhere mentioned that he was exercising the powers under Article 227 of the “Constitution. The learned single Judge examined the matter on merit and set aside the orders of the Rent Controller as well as the Resident Deputy Collector on the ground that the aforesaid judgments were perverse. The findings of the Rent Controller and Resident Deputy Collector were set aside on the question of habitual defaulter as well as on the ground of bona fide need. Thus in the totality of the facts and circumstances of the case, the pleadings of the parties in the writ petition and the judgment of the learned single Judge leaves no manner of doubt that it was an order passed under Article 226 of the Constitution and in that view of the matter the Letters Patent Appeal was maintainable before the High Court.”

21. In Lokmat Newspapers Pvt. Ltd. v. Shankarprasad ., (1999) 6 SCC 275 : (AIR 1999 SC 2423), the controversy arose from the order passed by the Labour Court which had secured affirmation from the Industrial Tribunal. The said orders were challenged by the respondent therein by filing a writ petition under Articles 226 and 227 of the Constitution of India before the High Court. The Court adverted to the facts and also the order passed by the learned single Judge and in that context ruled:

“As seen earlier, he was considering the aforesaid writ petition moved under Article 226 as well as Article 227 of the Constitution of India. Under these circumstances, it is not possible to agree with the contention of learned counsel for the appellant that the “learned single Judge had refused to interfere only under Article 227 of the Constitution of India when he dismissed the writ petition of the respondent.”

Thereafter, the learned Judges referred to the authority in Umaji Keshao Meshram (AIR 1986 SC 1272) (supra) and ruled:

“The aforesaid decision squarely gets attracted on the facts of the present case. It was open to the respondent to invoke the jurisdiction of the High Court both under Articles 226 and 227 of the Constitution of India. Once such a jurisdiction was invoked and when his writ petition was dismissed on merits, it cannot be said that the learned single Judge had exercised his jurisdiction only under Article 226 (sic 227) of the Constitution of India. This conclusion directly flows from the relevant averments made in the writ petition and the nature of jurisdiction invoked by the respondent as noted by the learned single Judge in his judgment, as seen earlier. Consequently, it could not be said that clause 15 of the Letters Patent was not attracted for preferring appeal against the judgment of the learned single Judge.”

22. In Kishorilal v. Sales Officer, District Land Development Bank, (2006) 7 SCC 496 : (2006 AIR SCW 6126), 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, Cooperative 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. Dealing with the maintainability of the appeal, the two-Judge Bench held that:

“The learned single Judge of the High Court, in our opinion, committed an error in interfering with the findings of fact arrived at by the Board of Revenue. The Division Bench of the High Court also wrongly dismissed the LPA without noticing that an appeal would be maintainable if the writ petition was filed under Articles 226 and 227 of the Constitution of India as was held by this Court in Sushilabai Laxminarayan Mudliyar v. Nihalchand Waghajibhai Shaha, 1993 Supp (1) SCC 11 : (AIR 1992 SC 185).”

23. In Ashok K. Jha v. Garden Silk Mills Ltd., (2009) 10 SCC 584 : (AIR 2009 SC (Supp) 2850), as the factual matrix would reveal, the employees had approached the Labour Court for certain reliefs. The Labour Court on consideration of the facts and law, declined to grant the relief Being dissatisfied., the employees and the Union preferred a joint appeal before the Industrial Court, Surat which set aside the order of the Labour Court and issued certain directions against the employer. The employer called in question the defensibility of the order of the Industrial Court by filing a Special Civil Application under Articles 226 and 227 of the Constitution of India before the High Court of Gujarat. The learned single Judge dismissed the petition. Being aggrieved by the aforesaid order, a Letters Patent Appeal was preferred under clause 15 of the Letters Patent. The Division Bench allowed the appeal and set aside the judgment and order passed by the learned single Judge. A contention was raised before this Court pertaining to maintainability of Letters Patent Appeal under clause 15 of the Letters Patent. R. M. Lodha, J. (as His Lordship then was) speaking for the Court, referred to the authorities in Umaji Keshao Meshram (AIR 1986 SC 1272) (supra), Ratnagiri Distt. Central Coop. Bank Ltd. v. Dinkar Kashinath Watve, 1993 Supp (1) SCC 9, Ramesh Chandra Sankla v. Vikram Cement, (2008) 14 SCC 58 : (AIR 2009 SC 713), and stated thus:

“36. If the judgment under appeal falls squarely within four corners of Article 227, it goes without saying that intra-court appeal from such judgment would not be maintainable. On the other hand., if the petitioner has invoked the jurisdiction of the High Court for issuance of certain writ under Article 226, although Article 227 is also mentioned., and principally the judgment appealed against falls under Article 226, the appeal would be maintainable. What is important to be “ascertained is the true nature of order passed by the single Judge and not what provision he mentions while exercising such powers.

37. We agree with the view of this Court in Ramesh Chandra Sankla (supra) that a statement by a learned single Judge that he has exercised power under Article 227, cannot take away right of appeal against such judgment if power is otherwise found to have been exercised under Article 226. The vital factor for determination of maintainability of the intra-court appeal is the nature of jurisdiction invoked by the party and the true nature of principal order passed by the single Judge.”

24. At this juncture, we think it appropriate to reproduce a passage from Ramesh Chandra Sankla (supra) which has been quoted in Ashok Jha (AIR 2009 SC (Supp) 2850) (supra). In the said case, the two-Judge Bench while dealing with the maintainability of Letters Patent Appeal under clause 15 of the Letters Patent has ruled that:

“47. In our judgment, the learned counsel for the appellant is right in submitting that nomenclature of the proceeding or reference to a particular Article of the Constitution is not final or conclusive. He is also right in submitting that an observation by a single Judge as to how he had dealt with the matter is also not decisive. If it were so, a petition strictly falling under Article 226 simpliciter can be disposed of by a singler Judge observing that he is exercising power of superintendence under Article 227 of the Constitution. Can such statement by a single Judge take away from the party aggrieved a right of appeal against the judgment if otherwise the petition is under Article 226 of the Constitution and subject to an intra-court/Letters Patent Appeal? The reply unquestionably is in the negative”

25. 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 (2015 AIR SCW 1849) (supra) that the Constitu regarded for Constitution. exercised that writ petition can lie only under Article 227 of tion, orders from tribunals cannot always be all purposes to be under Article 227 of the Whether the learned single Judae has 3 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 coexist, 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.

26. The next facet pertains to the impleadment of the Court or Tribunal as a party. The Special Bench has held that even if application is described as one not only under Article 226 of the Constitution, but also under Article 227, the Court or Tribunal whose order is sought to be quashed., if not arrayed as a party, the application would not be maintainable as one of the reliefs of certiorari, in the absence of the concerned Tribunal or Court as a party, cannot be granted. It has also been held that if the Court or Tribunal has not been impleaded as party-respondent in the main writ petition, then by merely impleading such Court or Tribunal for the first time in Letters Patent Appeal would not change the nature and character of the proceeding before the learned single Judge and., therefore, intra-court appeal would not be maintainable. To arrive at the said conclusion, the High Court has referred to Ghaio Mal and Sons v. State of Delhi, AIR 1959 SC 65, Hari Vishnu Kamath (AIR 1955 SC 233) (supra) and relied upon a four Judge Bench judgment in Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue, AIR 1963 SC 786.

27. In Hari Vishnu Kamath (AIR 1955 SC 233) (supra), after referring to the decision in T. C. Basappa (AIR 1954 SC 440) (supra) and quoting a passage from Corpus Juris Secundum, Volume 14, at page 123, which deals with the nature of certiorari, it has been laid down:

“11. The writ for quashing is thus directed against a record., and as a record can be brought up only through human agency, it is issued to the person or authority whose decision is to be reviewed. If it is the record of the decision that has to be removed by ‘certiorari’, then the fact that the tribunal has become ‘functus officio’ subsequent to the decision could have no effect on the jurisdiction of the court to remove the record. If it is a question of issuing directions, it is conceivable that there should be in existence a person or authority to whom they could be issued., and when a ‘certiorari’ other than one to quash the decision is proposed to be issued., the fact that the tribunal has ceased to exist might operate as a bar to its issue. But if the true scope of ‘certiorari’ to quash is that it merely demolishes the offending order, the presence of the offender before the court, though proper, is not necessary for the exercise of the jurisdiction or to render its determination effective.

12. Learned counsel for the first respondent invites our attention to the form of the ‘order nisi’ in a writ of ‘certiorari’, and contends that as it requires the court or tribunal whose proceedings are to be reviewed., to transmit the records to the superior court, there is, if the tribunal has ceased to exist, none to whom the writ could be issued and none who could be compelled to produce the record. But then, if the writ is in reality directed against the record, there is no reason why it should not be issued to whosoever has the custody thereof The following statement of the law in Ferris on the Law of Extraordinary Legal Remedies is apposite:

“The writ is directed to the body or officer whose determination is to be reviewed, or to any other person having the custody of the record or other papers to be certified.”

28. In Ghaio Mal and Sons (AIR 1959 SC 65) (supra), the Court found a specific fact was not brought on record and evasive replies were filed which were wholly unconvincing. In that context, the Constitution Bench, speaking through S. R. Das, C.J. observed,:

“… It is needless to say that the adoption of such dubious devices is not calculated to produce a favourable impression on the mind of the court as to the good faith of the authorities concerned in the matter. We must also point out that when a superior court issues a rule on an application for certiorari it is “incumbent on the inferior court or the quasi-judicial body, to whom the rule is addressed, to produce the entire records before the court along with its return. The whole object of a writ of certiorari is to bring up the records of the inferior court or other quasi-judicial body for examination by the Superior Court so that the latter may be satisfied that the inferior court or the quasi-judicial body has not gone beyond its jurisdiction and has exercised its jurisdiction within the limits fixed by the law. Non-production of the records completely defeats the purpose for which such writs are issued, as it did in the present case before the High Court. We strongly deprecate this attempt on the part of the official respondents to bypass the court.”

29. In Udit Narain Singh Malpaharia (AIR 1963 SC 786) (supra), as the facts would demonstrate the counsel for the respondent therein raised a preliminary objection that the persons in whose favour the Board decided the petition had not been made parties before the High Court. Be it noted., in the said case a country liquor shop was settled in favour of the appellant therein. After expiry of the said licence, it was renewed in his favour in 1962 which was called in question by one Phudan Manjhi before the Deputy Commissioner for substituting his name in place of his father on the basis of the lot drawn in favour of his father. The Deputy Commissioner rejected the same which was assailed by Phudan Manjhi before the Commissioner of Excise who remanded the case to the Deputy Commissioner to consider the fitness of Phudan Manjhi to get the license and to consider his claim on certain parameters. One Bhagwan Rajak, who was not an applicant before the Deputy Commissioner, filed an application before the Commissioner alleging that there should have been fresh advertisement for the settlement of the shop. The Commissioner allowed his application and directed the Deputy Commissioner to take steps for fresh settlement of the shop in accordance with the Rules. The said order was assailed before the Board of Revenue which dismissed the petition and directed that unless the Deputy Commissioner came to a definite conclusion that Phudan Manjhi was unfit to hold licence, he should be selected as a licensee in accordance with Rules. As a result of the said proceedings, the appellant's licence stood cancelled and the Deputy Commissioner was directed to hold a fresh settlement giving preferential treatment to Phudan Manjhi. A writ petition was filed under Article 226 of the Constitution before the High Court for quashment of the said orders and before the writ court neither Phudan Manjhi nor Bhagwan Rajak in whose favour the Board of Revenue had decided was made a party. During the pendency of an appeal before this Court, the Deputy Commissioner had conducted an enquiry and come to the conclusion that Phudan Manjhi was not Jit to be selected for grant of licence and he was waiting for making a fresh settlement. In course of hearing of the appeal, a preliminary objection was raised by the learned counsel for the respondent that as Phudan Manjhi and Bhagwan Rajak who were necessary parties to the writ petition were not made parties, the High Court was justified in dismissing the writ petition in limine. This Court accepted the preliminary objection holding that the law on the subject is well settled that a person who is a necessary party is one without whom no order can be made effectively and a proper party is one in whose absence an effective order can be made but his presence is necessary for complete and final decision on the question involved in the proceeding. After so stating, the four Judge Bench proceeded to deal with the nature of writ of certiorari and reproduced a passage from King v. Electricity Commissioners, (1924) 1 KB 171, which is as follows:

“8 Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs.”

Lord Justice Slesser in King v. London County Council, (1931) 2 KB 215, (243), dissected the concept of judicial act laid down by Atkin, L.J., into the following heads in his judgment: “Wherever any body of persons (1) having legal authority, (2) to determine questions affecting rights of subjects, and (3) having the duty to act judicially (4) act in excess of their legal authority a writ of certiorari may issue.” It will be seen from the ingredients of judicial act that there must be a duty to act judicially. A tribunal, therefore, exercising a judicial or quasi judicial act cannot decide against the rights of a party without giving him a hearing or an opportunity to represent his case in the manner known to law. If the provisions of a particular statute or rules made thereunder do not provide for it, principles of natural justice demand it. Any such order made without hearing the affected parties would be void. As a writ of certiorari will be granted to remove the record of proceedings of an inferior tribunal or authority exercising judicial or quasi judicial acts, ex hypothesis it follows that the High Court in exercising its jurisdiction shall also act judicially in disposing of the proceedings before it. It is implicit in such a proceeding that a tribunal or authority which is directed to transmit the records must be a party in the writ proceedings, for, without giving notice to it, the record of proceedings cannot be brought to the High Court. It is said that in an appeal against the decree of a subordinate court, the court that passed the decree need not be made a party and on the same parity of reasoning it is contended that a tribunal need not also be made a party in a writ proceeding. But there is an essential distinction between an appeal against a decree of a subordinate court and a writ of certiorari to quash the order of a tribunal or authority: in the former, the proceedings are regulated by the Code of Civil Procedure and the court making the order is directly subordinate to the appellate court and ordinarily acts within its bounds, though sometimes wrongly or even illegally, but in the case of the latter, a writ of certiorari is issued to quash the order of a tribunal which is ordinarily outside the appellate or revisional jurisdiction of the court and the order is set aside on the ground that the tribunal or authority acted without or in excess of jurisdiction. If such a tribunal or authority is not made party to the writ, it can easily ignore the order of the High Court quashing its order, for, not being a party, it will not be liable to contempt. In these circumstances whoever else is a necessary party or not the authority or tribunal is certainly a necessary party to such a proceeding. In this case, the Board of Revenue and the Commissioner of Excise were rightly made parties in the writ petition.”‘

Thereafter, the Court proceeded to lay down thus: “9. The next question is whether the parties whose rights are directly affected are the necessary parties to a writ petition to quash the order of a tribunal As we have seen, a tribunal or authority performs a judicial or quasi judicial act after hearing parties. Its order affects the right or rights of one or the other of the parties before it. In a writ of certiorari the defeated party seeks for the quashing of the order issued by the tribunal in favour of the successful party. How can the High Court vacate the said order without the successful party being before it? Without the presence of the successful party the High Court cannot issue a substantial order affecting his right. Any order that may be issued behind the back of such a party can be ignored by the said party, with the result that the tribunal's order would be quashed but the right vested in that party by the wrong order of the tribunal would continue to be effective. Such a party, therefore, is a necessary party and a petition filed for the issue of a writ of certiorari without making him a party or without impleading him subsequently, if allowed by the court, would certainly be incompetent. A party whose interests are directly affected is, therefore, a necessary party.

10. In addition, there may be parties who may be described as proper parties, that is parties whose presence is not necessary for making an effective order, but whose presence may facilitate the settling of all the questions that may be involved in the controversy. The question of making such a person as a party to a writ proceeding depends upon the judicial discretion of the High Court in the circumstances of each case. Either one of the parties to the proceeding may apply for the impleading of such a party or such a party may suo motu approach the court for being impleaded therein.”

After so stating, the four-Judge Bench referred to English practice as recorded in Halsbury's Laws of England, Vol. 11, 3rd Edn. (Lord Simonds’) and a Division Bench judgment of the Bombay High Court in Ahmedalli v. M.D. Lalkaka, AIR 1954 Bom 33, 34, and a Full Bench decision of Nagpur High Court in Kanglu Baula Kotwal v. Chief Executive Officer, AIR 1955 Nag 49, and summarized thus:

“To summarise: in a writ of certiorari not only the tribunal or authority whose order is sought to be quashed but also parties in whose favour the said order is issued are necessary parties. But it is in the discretion of the court to add or implead proper parties “for completely settling all the questions that may be involved in the controversy either suo motu or on the application of a party to the writ or an application filed at the instance of such proper party.”

30. The High Court, as we find., relied on the aforesaid decision to form the foundation that unless a Court or a Tribunal is made a party, the proceeding is not maintainable. What has been stated in Hari Vishnu Kamath (AIR 1955 SC 233) (supra), which we have reproduced hereinbefore is that where plain question on issuing directions arises, it is conceivable that there should be in existence a person or authority to whom such directions could be issued. The suggestion that non-existence of a tribunal might operate as a bar to issue such directions is not correct as the true scope of certiorari is that it merely demolishes the offending order and hence, the presence of the offender before the Court, though proper is not necessary for the exercise of the jurisdiction or to render its determination effective.

31. In Udit Narain Singh (AIR 1963 SC 786) (supra), the fulcrum of the controversy was non-impleadment of the persons in whose favour the Board of Revenue had passed a favourable order. There was violation of fundamental principles of natural justice. A party cannot be visited with any kind of adverse order in a proceeding without he being arrayed as a party. As we understand in Hari Vishnu Kamath (supra), the seven Judge Bench opined that for issuance of writ of certiorari, a tribunal, for issue of purpose of calling of record, is a proper party, and even if the tribunal has ceased to exist, there would be someone incharge of the tribunal from whom the records can be requisitioned and who is bound in law to send the records. The larger Bench has clearly stated that while issuing a writ of certiorari, the Court merely demolishes the defending order, the presence of the offender before the Court though proper but is not necessary for exercise of jurisdiction. The said finding was recorded in the context of a tribunal.

32. In this context, we may profitably refer to the decision in Savitri Devi (AIR 1999 SC 976) (supra) wherein a three Judge Bench, though in a different context, had observed thus:

“Before parting with this case, it is necessary for us to point out one aspect of the matter which is rather disturbing. In the writ petition filed in the High Court as well as the special leave petition filed in this Court, the District Judge, Gorakhpur and the 4th Additional Civil Judge (Junior Division), Gorakhpur are shown as respondents and in the special leave petition, they are shown as contesting respondents. There was no necessity for impleading the judicial officers who disposed of the matter in a civil proceeding when the writ petition was filed in the High Court; nor is there any justification for impleading them as parties in the special leave petition and describing them as contesting respondents. We do not approve of the course adopted by the petitioner which would cause “unnecessary disturbance to the functions of the judicial officers concerned. They cannot be in any way equated to the officials of the Government. It is high time that the practice of impleading judicial officers disposing of civil proceedings as parties to writ petitions under Article 226 of the Constitution of India or special leave petitions under Article 136 of the Constitution of India was stopped. We are strongly deprecating such a practice.”

33. The High Court after referring to the controversy involved in Savitri Devi (AIR 1999 SC 976) (supra) has opined thus:

“In our opinion, the observations of the Supreme Court pertained to the judicial officers being made parties in the proceedings as against a person, authority or a State being made a party in a petition under Article 226 and a Court or a Tribunal not being so required in a petition under Article 227 of the Constitution of India”

After so stating, the High Court has proceeded to express the view that it is not a binding precedent and thereafter opined.:

“We are of the opinion that although in Hari Vishnu Kamath (supra), the Supreme Court may have observed that the presence of the Tribunal would be proper yet may not be necessary for the exercise of the “jurisdiction or to render its determination effective, but the said principle has been more elaborately explained and made clear by the Supreme Court in Udit Narain (supra) laying down as an absolute proposition of law that no writ could be issued under Article 226 of the Constitution without the Tribunal, whose order is sought to be impugned., is made a party respondent.”

34. As we notice, the decisions rendered in Hari Vishnu Kamath (AIR 1955 SC 233) (supra), Udit Narain Singh (AIR 1963 SC 786) (supra) and Savitri Devi (AIR 1999 SC 976) (supra) have to be properly understood. In Hari Vishnu Kamath (supra), the larger Bench was dealing with a case that arose from Election Tribunal which had ceased to exist and expressed the view how it is a proper party. In Udit Narain Singh (supra), the Court was really dwelling upon the controversy with regard to the impleadment of parties in whose favour orders had been passed and in that context observed that tribunal is a necessary party. In Savitri Devi (supra), the Court took exception to courts and tribunals being made parties. It is apposite to note here that propositions laid down in each case has to be understood in proper perspective. Civil courts, which decide matters, are courts in the strictest sense of the term. Neither the court nor the Presiding Officer defends the order before the superior court it does not contest. If the High Court, in exercise of its writ jurisdiction or revisional jurisdiction, as the case may be, calls for the records, the same can always be called for by the High Court without the Court or the Presiding Officer being impleaded as a party. Similarly, with the passage of time there have been many a tribunal which only adjudicate and they have nothing to do with the lis. We may cite few examples; the tribunals constituted under the Administrative Tribunals Act, 1985, the Custom, Excise and Service Tax Appellate Tribunal, the Income Tax Appellate Tribunals, the Sales Tax Tribunal and such others. Every adjudicating authority may be nomenclatured as a tribunal but the said authority(ies) are different that pure and simple adjudicating authorities and that is why they are called the authorities. An Income Tax Commissioner, whatever rank he may be holding, when he adjudicates, he has to be made a party, for, he can defend his order. He is entitled to contest. There are many authorities under many a statute. Therefore, the proposition that can safely be culled out is that the authorities or the tribunals, who in law are entitled to defend the orders passed by them, are necessary parties and if they are not arrayed as parties, the writ petition can be treated to be not maintainable or the court may grant liberty to implead them as parties in exercise of its discretion. There are tribunals which are not at all required to defend their own order, and in that case such tribunals need not be arrayed as parties. To give another example:— in certain enactments, the District Judges function as Election Tribunals from whose orders a revision or a writ may lie depending upon the provisions in the Act. In such a situation, the superior court, that is the High Court, even if required to call for the records, the District Judge need not be a party. Thus, in essence, when a tribunal or authority is required to defend its own order, it is to be made a party failing which the proceeding before the High Court would be regarded as not maintainable.

35. 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 (2015 AIR SCW 1849) (supra).”

38. The Supreme Court summarized its conclusion in Paragraph-36 as under:

“36. In view of the aforesaid analysis, we proceed to summarise our conclusions as follows:

(A) Whether a Letters Patent Appeal would lie against the order passed by the learned single Judge that has travelled to him from the other tribunals or authorities, would depend upon many a facet. The court-fee payable on a petition to make it under Article 226 or Article 227 or both, would depend upon the Rules framed by the High Court.

(B) The order passed by the civil court is only amenable to be scrutinized by the High Court 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 (supra), no writ can be issued against the order passed by the civil court and, therefore, no Letters Patent Appeal would be maintainable.

(C) The writ petition can be held to be not maintainable if a tribunal or authority that is required to defend the impugned order has not been arrayed as a party, as it is a necessary party.

(D) Tribunal being or not being party in a writ petition is not determinative of the maintainability of a Letters Patent Appeal.”

39. What is important to be noticed in the decision of the Supreme Court in the case of Jogendrasinhji Vijaysinghji [supra] is the dictum laid therein that 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 these Articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal the Court ought to treat the application as being made under Article 226 of the Constitution of India. The second important dictum as laid by the Supreme Court is that a statement by a learned Single Judge that he/she had exercised power under Article 227 would not take away the right of appeal against such judgment, if the power is otherwise found to be exercised under Article 226 of the Constitution of India. The third principle explained is that it would depend upon the nature, contour and character of the order and the obligation would be upon 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 writ jurisdiction under Article 226 or supervisory jurisdiction under Article 227 of the Constitution of India. The appeal Court 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. Bearing in mind the aforesaid three principles of law discernible from the decision of the Supreme Court referred to above, we need to consider whether the two appeals before us are maintainable or not. While deciding this question, we should also also keep in mind the dictum as laid by the Supreme Court in the case of Himalayan Cooperative Group Housing Society v. Balwan Singh [supra]. We take notice of the fact that Himalayan Cooperative Group Housing Society v. Balwan Singh [supra] has been rendered by a Bench of three Judges.

40. The first and the foremost thing which needs to be noted is that in the two petitions; one, preferred by the Society, and another, preferred by the members of the Society, the subject matter of challenge is an order passed by the Urban Land Ceiling Tribunal under the provisions of the ULC Act and the Rules framed thereunder. The Land Ceiling Tribunal exercised its appellate jurisdiction while passing the impugned order, upholding the declaration of the excess vacant land under the provisions of the Act. The prayer in the two petitions is to set-aside the order passed by the Tribunal. Indisputably, the petition has been styled as one under Article 227 of the Constitution of India. The question is, having regard to the contents and the prayer thereunder, being one requiring the exercise of the supervisory jurisdiction only, whether the petitions could have been treated as petitions filed under Article 227 of the Constitution of India only?

41. In the aforesaid context, we quote the relevant observations made by the Supreme Court in the case of Himalayan Cooperative Group Housing Society [supra] thus:

“15. The issues that would arise for consideration and decision are:

(a) What is the jurisdiction of the Court while dealing with a petition filed under Articles 226 and 227 of the Constitution of India?

(b) whether the Jcounsel appearing for an appellant-Society could make concession for or on behalf of the appellant-Society without any express instructions/authorisation in that regard by theSociety?

(d) Since the subject-matter of the concession made by the counsel was not the issue before the Writ Court,

“whether the same would bind the appellant-Society and its members?

16. 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 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 the case of Jaisingh v. Municipal Corporation of Delhi (2010) 9 SCC 385: (2010 AIR SCW 5968). The Court has stated:

“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…”

17. The scope and extent of power of the Writ Court in a petition filed under Articles 226 and 227 of the Constitution came up for consideration before three-Judge Bench of this Court in the recent case of Radhey Shyam v. Chhabi Nath, Civil Appeal No. 2548 of 2009, (reported in 2009 AIR SCW 4006). This Court observed that the Writ of Certiorari under Article 226 though directed against the orders of a 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 purview of the scope of supervisory jurisdiction under Article 227, the jurisdiction of the Court under Article 226 could be invoked.

18. 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 petition(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.

42. Thus, the observations of the Supreme Court as contained in the paragraph 18 aforesaid are quite pertinent. The observations suggest that even if the petition is styled or labelled as a writ-petition under Article 226 of the Constitution, if the content and the prayers thereunder being one requiring exercise of supervisory jurisdiction only, the same could be treated as a petition filed under Article 227 of the Constitution only. Such observations of the Supreme Court are in tune with the statement as contained in paragraph 106 of the Umaji's Case [supra], “where the facts justify a party in filing an application under both the Articles assumes importance”. To put it in other words, the dictum as laid in the aforesaid decision of the Supreme Court is that the right of appeal cannot, therefore, be availed of merely by filing a petition under Articles 226 and 227 respectively of the Constitution unless the requisite conditions are fulfilled. The filing of a petition under Article 226 or both under Articles 226 and 227 cannot be left solely to the pleasure of a party. The option in this regard is duly controlled, regulated and guided by the facts involved and the grievance arising there from.

43. However, this by itself may not be sufficient to take the view that the present appeals are not maintainable.

What is the meaning of the word ‘writ’ and what is ‘a writ of certiorari’?

44. A plain dictionary meaning of the word ‘writ’ is as under:

“a form of written command to act or not act in some way”

45. As per Law Lexicon ‘writ’ is explained as under:

“in general is the king's precept, in writing under seal, issuing out of some court, to the sheriff, or other person, and commanding something to be done touching a suit or action, or giving commission to have it done (terms de la ley : 1 Inst. 73) also a writ is said to be a formal letter of king's sealed with a seal, directed to some judge, officer, or minister, etc., at the suit or plaint of a subject, requiring to have a thing done, for cause briefly expressed, which is to be discussed in the proper court, according to law (Tomlins Law Dic.) a written command, precept, or formal order issued by a court, directing or enjoying the person or persons to whom it is addressed to do or refrain from doing some act specified therein.”

46. As per the Black's Law Dictionary, the term writ has been explained as under:

“a court's written order, in the name of a state or other competent legal authority, commanding the addressee to do or refrain from doing some specified act.”

‘WRIT OF CERTIORARI’:

47. ‘Certiorari’ is a Latin word being the passive form of the word ‘certiorare’ meaning ‘informed’ and occurred in the original Latin words of the writ which translated read ‘we being desirous for certain reasons, that the said record should by you be certified to us’. ‘Certiorari’ was essentially a royal demand for information; the King wishing to be certified of some matter, orders that the necessary information be provided for him. A certiorari is an original writ issuing out of a Chancery or King's Bench, directed in the King's name, to the Judges or officers of inferior courts, commanding them to return the record of a cause pending before them, with a view to provide the party speedy justice or such other justice as he shall assign to determine the cause.

48. Professor De Smith gives an interesting historical background of this writ. Initially, it was essentially a royal demand for information. The King would wish to be certified of some matter and direct that necessary information be provided to him. The King issued numerous such writs. The people frustrated with the judicial process in the courts increasingly sought remedy from the King himself in the form of a royal writ. This resulted in interventions in the judicial process and, in due course, the remedy by way of writ was issued by the King's Court rather than the King himself. Eventually, writs came to be issued in standard forms. Prof. De Smith points out that the writ system has a “hint of paradox” since certiorari which was initially an executive command aimed at avoiding judicial proceedings became the central mechanism for judicial control of executive action.

49. The essential features of a writ of certiorari including a brief history have been very exhaustively explained by His Lordship B.K. Mukherjea, J. in T.C. Basappa v. T. Nagappa, reported in AIR 1954 SC 440. The Court held that a writ in the nature of certiorari could be issued in ‘all appropriate cases and in appropriate manner’ so long as the broad and fundamental principles were kept in mind. Those principles were delineated as follows:

“In granting a writ of certiorari, the superior court does not exercise the powers of an appellate tribunal It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous, but does not substitute its own views for those of the inferior tribunal. The supervision of the superior court exercised through writ of certiorari comes on two points : one, is the area of inferior jurisdiction and the qualifications and conditions of its exercise, and another, is the observations of law in the course of its exercise. Certiorari may lie and is generally granted when a court has acted without or in excess of its jurisdiction.”

50. Relying on T.C. Basappa (supra), the constitution Bench of the Supreme Court in the case of Hari Vishnu Kamath (supra), laid down the following propositions as well established:

(1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior court or tribunal acts without jurisdiction or in excess of it, or fails to exercise it.

(2) Certiorari will also be issued when the court or tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice.

(3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of such exercise of powers would be that the court will not review the findings of facts reached by the inferior court or tribunal, even if they be erroneous.

51. The Court explained that a court which has jurisdiction over a subject matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy if a superior court were to rehear the case on the evidence and substitute its own finding in certiorari.

52. In Syed Yakoob v. K.S. Radhakrishnan, reported in AIR 1964 SC 477, His Lordship P.B. Gajendragadkar, CJ., speaking for the constitution Bench, placed the matter beyond any position of doubt by holding that the writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals. The observations of the court in para 7 are worth taking note of:

“7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised.”

53. In Surya Dev Rai v. Ram Chandra Rai, reported in (2003) 6 SCC 675, a bench of two Judges held that the certiorari jurisdiction though available should not be exercised as a matter of course. The High Court would be justified in refusing the writ of certiorari if no failure of justice had been occasioned. In exercising the certiorari jurisdiction, the procedure ordinarily followed by the High Court is to command the inferior court or tribunal to certify its record or proceedings to the High Court for its inspection so as to enable the High Court to determine, whether on the face of the record the inferior court has committed any of the errors as explained by the Supreme Court in Hari Vishnu Kamath (supra) occasioning failure of justice.

54. From the aforesaid, it could be said in terms of a jurisdictional error that want of jurisdiction may arise from the nature of the subject matter so that the inferior court or tribunal might not have the authority to enter on the inquiry. It may also arise from the absence of some essential preliminary, or from the absence of jurisdictional fact. Where the jurisdiction of a body depends upon a preliminary finding of fact in a proceeding for a writ of certiorari, the court may determine, whether or not that finding of fact is correct. The reason is that by wrongly deciding such a fact, the court or tribunal cannot give itself the jurisdiction.

55. In Anisminic Limited v. Foreign Compensation Commission, reported in (1969) 2 AC 147, the House of Lords has given a very broad connotation to the concept of ‘jurisdictional error’. It has been laid down in Anisminic that a tribunal exceeds jurisdiction not only at the threshold when it enters into an inquiry which it is not entitled to undertake, but it may enter into an enquiry within its jurisdiction in the first instance and then do some thing which would deprive it of its jurisdiction and render its decision a nullity. In the words of Lord Reid:

“But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive.”

56. So far as the errors of law are concerned, a writ of certiorari could be issued if an error of law is apparent on the face of the record. To attract the writ of certiorari, a mere error of law is not sufficient. It must be one which is manifest or patent on the face of the record. Mere formal or technical errors, even of law, are not sufficient, so as to attract a writ of certiorari. As reminded by the Supreme Court time and again, this concept is indefinite and cannot be defined precisely or exhaustively and so it has to be determined judiciously on the facts of each case. The concept, according to the Supreme Court in K.M. Shanmugam v. SRVS (P) Ltd., reported in AIR 1963 SC 1626, ‘is comprised of many imponderables… it is not capable of precise definition, as no objective criterion could be laid down, the apparent nature of the error, to a large extent, being dependent upon the subjective element.’ A general test to apply, however, is that no error could be said to be apparent on the face of the record if it is not ‘self-evident’ or ‘manifest’. If it requires an examination or argument to establish it, if it has to be established by a long drawn out process of reasoning, or lengthy or complicated arguments, on points where there may considerably be two opinions, then such an error would cease to be an error of law. (see: Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale, reported in AIR 1960 SC 137)

57. However, in our opinion, such a test should not be applied in a straitjacket formula and may fail because what might be considered by one Judge as an error self-evident, might not be considered so by another Judge.

58. At this stage, it may not be out of place to remind ourselves of the observations of the Supreme Court in Syed Yakoob (supra) on this point.

“Where it is manifest or clear that the conclusion of law recorded by an inferior court or tribunal is based on an obvious misinterpretation of the relevant statutory provision, or something in ignorance of it, or may be even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. Certiorari would also not lie to correct mere errors of fact even though such errors may be apparent on the face of the record. The writ jurisdiction is supervisory and the court exercising it is not to act as an appellate court. It is well settled that the writ court would not re-appreciate the evidence and substitute its own conclusion of fact for that recorded by the adjudicating body, be it a court or a tribunal A finding of fact, howsoever erroneous, recorded by a court or a tribunal cannot be challenged in proceedings for certiorari on the ground that the relevant and material evidence adduced before the court or the tribunal was insufficient or inadequate to sustain the impugned finding.

It is also well settled that adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the tribunal and these points cannot be agitated before the writ court.”

59. In the aforesaid context, it will be profitable for us to refer to the decision of the Supreme Court in the case of Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union, reported in AIR 2000 SC 1508. The Supreme Court observed as under:

“The findings of fact recorded by a fact finding authority duly constituted for the purpose and which ordinarily should be considered to have become final, cannot be disturbed for the mere reason of having been based on materials or evidence not sufficient or credible in the opinion of the writ court to warrant those findings had any right, as long as they are based upon such materials which are relevant for the purpose or even on the ground that there is yet another view which can be reasonably and possibly undertaken.”

60. However, we may clarify that findings of fact based on ‘no evidence’ or purely on surmises and conjectures or which are perverse could be challenged by way of a certiorari as such findings could be regarded as an error of law.

61. Thus, from the various decisions referred to above, we have no hesitation in reaching to the conclusion that a writ of certiorari is a high prerogative writ and should not be issued on mere asking. For issue of a writ of certiorari, the party concerned has to make out a definite case for the same and is not a matter of course. To put it pithily, certiorari shall issue to correct errors of jurisdiction, that is to say, absence, excess or failure to exercise and also when in the exercise of undoubted jurisdiction, there has been illegality. It shall also issue to correct an error in the decision or determination itself, if it is an error manifest on the face of the proceedings. By its exercise, only a patent error can be corrected but, not also a wrong decision. It should be well remembered at the cost of repetition that certiorari is not appellate but only supervisory.

62. A writ of certiorari being a high prerogative writ is issued by a superior court in respect of the exercise of judicial or quasi-judicial functions by another authority, when the contention is that the exercising authority had no jurisdiction or exceeded the jurisdiction. It cannot be denied that the tribunals or the authorities concerned in this batch of Appeals had the jurisdiction to deal with the matter. However, the argument would be that the tribunals had acted arbitrarily and illegally and that they had failed to give proper findings on facts and the circumstances of the case. We may only say that while adjudicating a writ-application for a writ of certiorari, the court is not sitting as a court of appeal against the order of the tribunals to test the legality thereof with a view to reach a different conclusion. If there is any evidence, the court will not examine whether the right conclusion is drawn from it or not. It is a well established principle of law that a writ of certiorari will not lie where the order or decision of a tribunal or authority is wrong in matter of facts or on merits. (see: R. v. Nat Bell Liquors Ltd., (1922) 2 AC 128 (PC))

63. We may quote with profit a decision of the Supreme Court in the case of Satyanarayan Laxminarayan Hegde (supra) to understand the true purport and meaning of an error apparent on the face of the record or an error which could be termed as self-evident. The facts of that case were as below:

64. The respondent made an application in the Revenue Court of the Mamlatdar of Sirsi praying for the delivery of possession of property which the appellant was on that date possessing as the tenant under him on the basis of a ‘Mulegeni’ deed executed by the respondent's predecessor-in-interest in favour of the appellant's predecessor-in-interest. The case was governed by the Bombay Tenancy and Agricultural Lands Act, 1948, and one of the questions in controversy was whether before applying for the delivery of possession, it was incumbent upon the respondent to have given a notice terminating the tenancy. The Mamlatdar made an order for possession in favour of the respondent. The Collector allowed the appeal and set aside the order of the Mamlatdar. The Bombay Revenue Tribunal, to whom the matter was taken up on appeal, held that as the respondent had failed to terminate the tenancy by notice before instituting the action for ejectment, he was not entitled to entertain the application for recovery of possession.

65. Thereafter, the respondent made an application to the High Court of Bombay under Article 227 of the Constitution of India for the quashing of the order of the Revenue Tribunal and the Collector and for the restoration of the order of the Mamlatdar. The High Court was of the opinion that the Tribunal had committed an error which was apparent on the face of the record in holding that an order of possession could not be made unless a notice terminating the tenancy had been given before the institution of the proceeding and it issued a writ of certiorari quashing the order of the Tribunal and restoring that of the Mamlatdar.

66. An appeal was filed against the order of the High Court and the Hon'ble Supreme Court reversed that order on the ground that the alleged error in the judgment of the Bombay Revenue Tribunal, namely that an order for possession should not be made unless a previous notice required by Section 14 of the Bombay Tenancy and Agricultural Lands Act, 1948, had been given, was not an error apparent on the face of the record so as to be capable of being corrected by a writ of certiorari and the following observations were made by the Hon'ble Court:

“An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established., it has to be established., by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ.

Article 227 of the Constitution corresponds to Section 107 of the Government of India Act, 1915. However wide it may be than the provisions of Section 115 of the Code of Civil Procedure, it is well established that the High Court cannot, in exercise of its power under that section, assume appellate powers to correct every mistake of law.

Where there is no question of assumption of excessive jurisdiction or refusal to exercise jurisdiction or any irregularity or illegality in the procedure or any breach of any rule of natural justice, but, if anything, it may merely be an erroneous decision which error, not being apparent on the face of the record, cannot be corrected by the High Court in revision under Sec. 115 of the Code of Civil Procedure or under Article 227 of the Constitution.”

67. We may also quote with profit one more decision of the Supreme Court explaining the true scope of issue of writ of certiorari and what is an error apparent on the face of the record, which could be corrected by issue of a high prerogative writ like certiorari. In the case of Ebrahim Aboobakar v. Custodian General of Evacuee Property, New Delhi, reported in AIR 1952 SC 319, the Supreme Court made the observations in paras 13 and 14, which we quote below:

“13. The remaining three questions canvassed before us, unless they are of such a nature as would make the decision of the respondent dated the 13th May 1950 a nullity, cannot be the subject-matter of a writ of ‘certiorari’. It is plain that such a writ cannot be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong. Indeed, it must be shown before such a writ is issued that the authority which passed the order acted without jurisdiction or in excess of it or in violation of the principles of natural justice. Want of jurisdiction may arise from the nature of the subject-matter, so that the inferior court might not have authority to enter on the inquiry or upon some part of it. It may also arise from the absence of some essential preliminary or upon the existence of some particular facts collateral to the actual matter which the court has to try and which are conditions precedent to the assumption of jurisdiction by it. But once it is held that the court has jurisdiction but while exercising it, it made a mistake, the wronged party can only take the course prescribed by law for setting matters right inasmuch as a court has jurisdiction to decide rightly as well as wrongly. The three questions agitated before us do not seem to be questions which bear upon the jurisdiction of the court of appeal, or its authority to entertain them.

14. It was contended that no court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which the limit of its jurisdiction depends and that the questions involved in the appeal before the respondent were collateral to the merits of the case. As pointed out by Lord Esher, M. R., in ‘Reg v. Incometax Commissioners’, (1888) 21 QBD 313, the formula enunciated above is quite plain but its application is often misleading. The learned Master of the Rolls classified the cases under two categories thus:

“When an inferior court or tribunal or body which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. ‘But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists, as well as the jurisdiction’, on finding that it does exist, to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. ‘In the second of the two cases I have mentioned it is erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the am facts’, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends’; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.”’

The tribunal constituted to hear appeals under section 24 has been constituted in these terms:

“Any person aggrieved by an order made under section 7, section 16, section 19 or section 38 may prefer an appeal in such manner and within such time as may be prescribed:

(a) to the Custodian, where the original order has been passed by a Deputy or Assistant Custodian;

(b) to the Custodian General, where the original order has been passed by the Custodian, an Additional Custodian or an Authorized Deputy Custodian.”

Like all courts of appeal exercising general jurisdiction in civil cases, the respondent has been constituted an appellate court in words of the widest amplitude and the legislature has not limited his jurisdiction by providing that such exercise will depend on the existence of any particular state of facts. Ordinarily, a court of appeal has not only jurisdiction to determine the soundness of the decision of the inferior court as a court of errorbut by the very nature of things it has also jurisdiction to determine any points raised before it in the nature of preliminary issues by the parties. Such jurisdiction is inherent in its very constitution as a court of appeal. Whether an appeal is competent, whether a party has ‘locus standi’ to prefer it, whether the appeal in substance is from one or another order and whether it has been preferred in proper form and within the time prescribed., are all matters for the decision of the appellate court so constituted. Such a tribunal falls within class 2 of the classification of the Master of the Rolls. In these circumstances it seems to us that the order of the High Court of Punjab that a writ of certiorari’ could not issue to the respondent quashing the order of the 13th May 1950 was right. We are further of the opinion that none of the contentions raised has any merit whatsoever.”

68. The Supreme Court in Parry and Co. Limited v. Commercial Employees Association, AIR 1952 SC 179, held:

“No certiorari is available to quash a decision passed with jurisdiction by an inferior tribunal on the mere ground that such a decision is erroneous. The High Court cannot, under Article 226 of the Constitution exercise powers of an appellate Court and correct what it considers to be an error in the decision of the inferior tribunal”

69. In another case, the Supreme Court held:

“A certiorari cannot be granted to quash the decision of the appellate tribunal on these points on the ground that the decision is wrong ‘Ebrahim Aboobakar v. The Custodian General of Evacuee Property’, 1952 Mad WN 502 (SC).”

70. It is, therefore, clear that in all findings on matters of fact and interpretation of law except in cases of defective jurisdiction, the decision of the tribunal must be deemed to be final.

71. The position is authoritatively summed up in Halsbury's Laws of England Vol. IX in para 1492 where it is laid down thus:

“Where proceedings are regular upon their face and the Magistrate had jurisdiction, the superior Court will not grant the Writ of Certiorari on the ground that the court below has misconceived a point of law. When the Court below has jurisdiction to try a matter it cannot be deemed to exceed or abuse its jurisdiction merely because it incidentally misconceives a statute or admits illegal evidence or convicts without evidence. No Writ will be granted on the ground that the decision is wrong in matters of fact and the Court will not hear evidence impeaching the decision on facts.”‘

72. Similarly, in the case reported in ‘Colonial Bank of Australasia v. Willan’, (1874) LR 5 PC 417, it is observed by their Lordships thus: “The question is whether the inferior court has jurisdiction to enter upon the enquiry and not whether there has been miscarriage of the procedure in the course of enquiry.” At page 443 of the same case, the learned Judges observed “An adjudication by a Judge having jurisdiction over the subject-matter is, if no defect appears on the face of it, to be taken as conclusive of facts stated therein.” The case in (1874) LR 5 PC 417 has been approvingly cited by Fazl Ali, J. who held ‘Brij Raj Krishna v. S.K. Shaw and Brothers’, AIR 1951 SC 115 that an error of law does not constitute an error of jurisdiction and that a wrong decision on facts or law cannot be questioned in a civil court.

73. It being open to the tribunals to come to one or the other conclusion on the materials before them, it cannot by any means be said that the decisions are incorrect so as to attract the extraordinary jurisdiction for interference by a writ of certiorari. In a Kings Bench decision in R. v. Brighton and Area Tribunal, (1950) 1 All England Reporter 948, Lord Goddard, CJ. observed that:

“As the tribunal had observed all the formalities of the Act, had offended against none of its provisions or against the regulations made under it, there was no ground for holding that the tribunal's determination was not in accordance with law and therefore the motions for Certiorari and Mandamus should be refused.”

74. The purpose of certiorari, as we understand, is only to confine the inferior tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non-exercise or the illegal assumption of it and not to correct errors of finding of fact or interpretation of law committed by them in the exercise of powers vested in them under the statute. The accepted rule is that where a Court has jurisdiction it has a right to decide every question which crops up in the case and whether its decision is correct or otherwise, it is bound to stand until reversed by a competent Court. The Supreme Court in G. Veerappa Pillai v. Raman & Raman Ltd. and Raman Ltd., 1952 7 DLR (SC) 220 observed:

“such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases, when the subordinate tribunals or bodies or officers act wholly without jurisdiction or in excess of it or in violation of natural justice or refuse to exercise jurisdiction vested in them or there is an error on the face of the record and such act, omission, error or excess has resulted in manifest injustice. However expensive the jurisdiction may be, it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide “what is the proper view to be taken or otherwise to be made.”

75. Having given more than a fair idea of what is a writ of certiorari and when the court would be justified in issuing a writ of certiorari, we shall now proceed to examine the power of the High Court to issue a writ of certiorari.

Power of the High Court under Article 226 of the Constitution of India to issue a Writ of Certiorari:

76. Articles 226 and 227 of the Constitution of India are placed in juxtaposition. Marginal note of Article 226 of the Constitution of India is ‘power of High Courts to issue certain writs’.

“Article 226. Power of High Courts to issue certain writs. (1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.”

77. Article 227 of the Constitution of India follows immediately after Article 226. Its marginal note is ‘power of superintendence over all courts by the High Court’.

“Article 227. Power of superintendence over all courts by the High Court. (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.”

78. At the very outset, what strike one is that there are two separate Articles in the Constitution dealing with two distinct matters, one, which is described in the marginal note as the power to issue writs and which is dealing in Article 226 of the Constitution, and the other, which is differently described in the marginal note as the power of superintendence and which is dealing in Article 227 of the Constitution. The very fact that the Constitution contains two separate provisions in respect of two powers which are described differently in two separate Articles, which stand next door to each other, would indicate that the framers of the Constitution must have contemplated two separate and distinct powers and that the power to issue writ was considered by them as a power distinct and separate from the power of superintendence.

79. The word ‘superintendence’ is not used in Article 226 of the Constitution at all. Similarly, the word ‘writs’ is not referred to in Article 227 of the Constitution at all.

80. The analysis of the two Articles would also bare out a conclusion that the power conferred under them are distinct and separate. A perusal of Article 227 of the Constitution would indicate that the power of superintendence conferred on the High Court is a power that is confined to courts and tribunals in relation to which it exercises jurisdiction. On the other hand, the power conferred on the High Court under Article 226 is not a power that is confined to courts and tribunals, but it extends to any person or authority including, in appropriate cases, any Government within the territorial jurisdiction of the High Court.

81. Under Article 226 of the Constitution, therefore, the High Court can issue writs, orders or directions not only to courts or tribunals over which it has power of superintendence, but also to other persons and authorities including the Government over which it has no power of superintendence.

82. Furtherthepower of superintendenceunder Article 226 ofthe Constitution of India is a dual power. Itcomprises not onlyjudicial but also administrative control over bodies over which it is exercised. On the other hand, in the power contemplated under Article 226 of the Constitution of India, the conception of administrative control over bodies over which it is exercised is conspicuous by its absence. A control is confined to the judicial aspect only. The relationship contemplated in the former case is both judicial and administrative, whereas in the later case it is only judicial.

83. In the aforesaid context, we may profitably refer to a recent pronouncement of the Supreme Court in the case of Shalini Shyam Shetty v. Rajendra Shankar Patil, reported in 2010 AIR SCW 6387, wherein the Supreme Court in details has explained the distinction between the two Articles i.e. 226 and 227 of the Constitution of India. The Supreme Court observed that the power to issue writs underwent a sea-change with the coming of the Constitution from 26 January 1950. Now writs can be issued by the High Courts only under Article 226 of the Constitution of India, and by the Supreme Court, only under Article 32 of the Constitution of India. The Bench proceeded to observe that no writ petition can be moved under Article 227 of the Constitution of India nor can a writ be issued under Article 227 of the Constitution of India. Therefore, a petition filed under Article 227 of the Constitution of India cannot be called a writ petition. This is clearly the Constitutional position. In para 54 of the decision, the Supreme Court also observed as under:

“54. In a rather recent decision of the Supreme Court in case of Surya Dev Rai v. Ram Chander Rai, reported in (2003) 6 SCC 675 : (AIR 2003 SC 3044 : 2003 AIR SCW 3872), 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 ratio was doubled by another Division Bench of this Court in Radhey Shyam v. Chhabi Nath [(2009) 5 SCC 616] : (2009 AIR SCW 4006) and a request to the Hon'ble Chief Justice for a reference to a larger Bench is pending. But insofar as the formulation of the principles on the scope of interference by the High Court under Article 227 is concerned., there is no divergence of views.”

84. In para 57, the Supreme Court observed that Articles 226 and 227 of the Constitution of India stood on a substantially different footing. 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.

85. In para 58, the Supreme Court observed that after the Constitution, every High Court has been conferred with the power to issue writs under Article 226 of the Constitution of India, and those are original proceedings.

86. In paras 60 and 61, the Supreme Court made the following observations:

“60. Another distinction between these two jurisdictions is that under Article 226, High Court normally annuls or quashes an order or proceeding but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior Tribunal should have made. {See Surya Dev Rai (AIR 2003 SC 3044 : 2003 AIR SCW 3872) (supra), para 25 page 690 (of SCC) : (Para 25 of AIR, AIR SCW) and also the decision of the Constitution Bench of this Court in Hari Vishnu Kamath v. Ahmad Ishaque, [AIR 1955 SC 233, para 20 page 243].

61. Jurisdiction under Article 226 normally is exercised where a party is affected but power under Article 227 can be exercised by the High Court suo motu as a custodian of justice. In fact, the power under Article 226 is exercised in favour of persons or citizens for vindication of their fundamental rights or other statutory rights. Jurisdiction under Article 227 is exercised by the High Court for vindication of its position as the highest judicial authority in the State. In certain cases where there is infringement of fundamental right, the relief under Article 226 of the Constitution can be claimed ex debito justiciae or as a matter of right. But in cases where the High Court exercises its jurisdiction under Article 227, such exercise is entirely discretionary and no person can claim it as a matter of right. From an order of a Single Judge passed under Article 226, a Letters Patent Appeal or an intra-Court Appeal is maintainable. But no such appeal is maintainable from an order passed by a Single Judge of a High Court in exercise of power under Article 227. In almost all High Courts, Rules have been framed for regulating the exercise of jurisdiction under Article 226. No such rule appears to have been framed for exercise of High Court's power under Article 227 possibly to keep such exercise entirely in the domain of the discretion of High Court.”

87. In para 62, the Supreme Court thereafter proceeded to lay down principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution of India. They are as under:

“(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 down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (AIR 1954 SC 215) (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the Tribunals and Courts subordinate to it, ‘within the bounds of their authority’.

(f) In order to ensure that law is followed by such Tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of Tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the Tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar v. Union of India, reported in (1997) 3 SCC 261 : (AIR 1997 SC 1125 : 1997 AIR SCW 1345) and therefore abridgement by a Constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation 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 degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality.”

88. In para 64, the Supreme Court observed that a writ petition was a remedy in public law which might be filed by any person but the main respondent should be either the Government, Governmental agencies or a State or instrumentalities of a State within the meaning of Article 12. Private individuals cannot be equated with State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. Under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ would be issued must have some statutory or public duty to perform.

89. Thus, from the above, it is clear that the power to issue a writ of certiorari flows from Article 226 of the Constitution of India only.

90. Although in Shalini Shyam Shetty (supra), the Supreme Court, in para 58, has very clearly stated that the powers to issue writs under Article 226 are original proceedings, yet we would like to elaborate the same by referring to few more decisions of the Supreme Court rendered earlier in point of time, which makes it clear that a Single Judge of a High Court, when exercises powers under Article 226 of the Constitution of India, he exercises extraordinary original jurisdiction (what may be called for convenience-sake, as constitutional jurisdiction) and this jurisdiction is distinct from revisional jurisdiction and appellate jurisdiction of a High Court.

91. In Ahmedabad Manufacturing and Calico Printing Company v. Rarnfahel, reported in AIR 1972 SC 1598, the Supreme Court pointed out in para 12 at p. 1603 as under:

“Art.227 of the Constitution no doubt, does not confer on the High Court power similar to that of an ordinary court of appeal. The material part of this Article substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 except that the power of superintendence has been extended by this article to Tribunals as well, Section 107 according to preponderance of judicial opinion clothed the High Courts with a power of judicial superintendence apart from and independently of the provisions of the other laws conferring on them revisional jurisdiction. The power under Art.227 of the Constitution 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: see Waryam Singh v. Amarnath, 1954 SCR 565 : (AIR 1954 SC 215). At this stage we consider it proper to refer to some of the judicial pronouncements by this Court with regard to the right of appeal under Art. 133 from interlocutory orders Under Art.226 of the Constitution it may in this connection be pointed out that the High Court does not hear an appeal or a revision; that Court is moved to interfere after bringing before itself the record of a case decided by or pending before court, a tribunal or an authority, within its jurisdiction. A decision in the exercise of this extraordinary jurisdiction which finally disposes of the proceedings is a final order, in an original proceeding, an appeal or a revision on the other hand is generally considered to be a continuation of the original suit or proceeding and in a case, where the High Court deals with an appeal of a revision finality for the purpose of Article 133 must attach to the whole of the matter so that after the decision of the High Court the matter is not a live one.”

92. Dua, J. further observed in Para. 13 at p. 1604:

“As such power under Art.227 may also be exercised suo motu. In the present case Art.227 appears to us to have been used in effect as a substitute for Art.226 for seeking a direction in nature of a writ for quashing the orders of the subordinate tribunals. At least it appears that the proceeding before the High Court was so treated by all concerned. We should, however, not be understood to express our approval of the use of Article 227 for seeking relief by way of writs or directions in the nature of writs for which purpose Art.226 is expressly and in precise language designed. From that point of view if otherwise the High Court, while disposing of a petition under Art.227, finally settles some points affecting the rights of the parties then to that extent the impugned order may be considered to operate as a final order just as an order made under Art. 226 would.”

93. In Election Commission v. Venkat Rao, reported in AIR 1953 SC 210, the Supreme Court pointed out in para 6 at p. 212 as under:

“Turning now to the question as to the powers of a High Court under Art.226, it will be noticed that Art.225 continues to the existing High Courts the same jurisdiction and powers as they possessed immediately before the commencement of the Constitution. Though there had been some conflict of judicial opinion on the point, it was authoritatively decided by the Privy Council in Ryots of Garabandho v. Zamindar of Parlakimedi, AIR 1943 PC 164 that the High Court of Madras the High Courts of Bombay and Calcutta were in the same position had no power to issue what were known as high prerogative writs beyond the local limits of its original civil jurisdiction, and the power to issue such writs within those limits was derived by the Court as successor of the Supreme Court which had been exercising jurisdiction over the Presidency Town of Madras and was replaced by the High Court established in pursuance of the Charter Act of 1861. The other High Courts in India had no power to issue such writs at all.

In that situation, the makers of the Constitution, having decided to provide for certain basic safeguards for the people in the new set up which they called fundamental rights, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and, finding that the prerogative writs, which the Courts in England had developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they conferred., in the State's sphere, new and wide powers on the High Courts of issuing directions, orders or writs primarily for the enforcement of fundamental rights, the power to issue such directions, etc. for any other purpose’ being also included with a view apparently to place all the High Courts in this country in somewhat the same position as the Court of King's Bench in England. But wide as were the powers thus conferred., a twofold limitation was placed upon their exercise. In the first place, the power is to be exercised ‘throughout the territories in relation to which it exercises jurisdiction’ that is to say, the writs issued by the Court cannot run beyond the territories subject to its jurisdiction. Secondly, the person or authority to whom the High Court is empowered to issue such writs must be ‘within those territories’, which clearly implies that they must be amenable to its jurisdiction either by residence or location within those territories.”

94. Patanjali Sastri, C.J. further observed in para 7 at p. 213:

“Such limitation is indeed a logical consequence of the origin and development of the power to issue prerogative writs as a special remedy in England. Such power formed no part of the original or the appellate jurisdiction of the Court of King's Bench As pointed out by Prof. Hodsworth (History of English Law Vol. I, p. 212) these writs had their origin in the exercise of the King's prerogative power of superintendence over the due observance of the law by his officials and tribunals, and were issued by the Court of King's Benchhabeas corpus, that the King may know whether his subjects mere lawfully imprisoned or not; certiorari, that he may know whether any proceedings commenced against them are conformable to the law, mandamus, to ensure that his officials did such acts as they were bound to do under the law, and prohibition to oblige the inferior tribunals in his realm to function within the limits of their respective jurisdiction. See also the introductory remarks in the judgement in AIR 1943 PC 164. These writs were thus specifically directed to the persons or authority against whom redress was sought and were made returnable in the Court issuing them and, in case of disobedience, were enforceable by attachment for contempt. These characteristics of the special form of remedy rendered it necessary for its effective use that the persons or authorities to whom the Court was asked to issue these writs should be within the limits of its territorial jurisdiction.”

95. In State of Uttar Pradesh v. Vijay Anand, reported in AIR 1963 SC 946 (a reference of which could be found in Shalini (supra) at para 58), the Supreme Court in para 9 at p.915 of the reported observed as under:

‘Article 226 confers a power on a High Court to issue the writs, orders, or directions mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. This is neither an appellate nor a revisional jurisdiction of the High Court. Though the power is not confined to the prerogative writs issued by the English Courts, it is modelled on the said writs mainly to enable the High Courts to keep the sub ordinate tribunals within bounds. Before the Constitution, the chartered High Courts, that is, the High Courts at Bombay, Calcutta and Madras, were issuing prerogative writs similar to those issued by the King's Bench Division, subject to the same limitations imposed on the said writs. In Venkatarathnam v. Secy. of State, ILR 53 Mad 979 : (AIR 1930 Mad 896), a Division Bench of the Madras High Court consisting of Venkatasubba Rao and Madhavan Nair, JJ. held that the jurisdiction to issue a writ of certiorari was original jurisdiction. Ryots of Garabandho v. Zamindar of Parlakimedi, AIR 1938 Mad 722, another Division Bench of the same High Court, consisting of Leach, C.J., and Madhavan Nair, J., considered the question again incidentally and came to the same conclusion and held that a writ of certiorari is issued only in exercise of the original jurisdiction of the High Court. In M. Ramayya v. State Of Madras AIR 1952 Mad 300, a Division Bench, consisting of Govinda Menon and Ramaswami Gounder, JJ., considered the question whether the proceedings under Article 226 of the Constitution are in exercise of the original jurisdiction or revisional jurisdiction of the High Court; and the learned Judges held that the power to issue writs under Art.226 of the Constitution is original and the jurisdiction exercised is original jurisdiction. In Hamid Hasan v. Banwarilal Roy, (1947) 2 Mad LJ 32 at p. 35 : (AIR 1947 PC 90 at p. 93), the Privy Council was considering the question whether the original civil jurisdiction which the Supreme Court of Calcutta possessed over certain classes of persons outside the territorial limits of that jurisdiction has been inherited by the High Court. In that context the Judicial Committee observed:

‘It cannot be disputed that the issue of such writs is a matter of original jurisdiction.’

It is therefore, clear from the nature of the power conferred under Art.226 of the Constitution and the decisions on the subject that the High Court in exercise of its power under Art.226 of the Constitution exercises original jurisdiction, though the said jurisdiction shall not be confused with the ordinary civil jurisdiction of the High Court. This jurisdiction, though original in character as contrasted with its appellate and revisional jurisdiction, is exercisable throughout the territories in relation to which it exercises jurisdiction and may, for convenience, be described as extraordinary original jurisdiction. If that be so, it cannot be contended that a petition under Art.226 of the Constitution is a continuation of the proceedings under the Act.”‘

96. In Tata Engineering and Locomotive Company Limited v. The Assistant Commissioner of Commercial Taxes, reported in AIR 1967 SC 1401, the Supreme Court observed in para 8 at p.1403 as under:

“The power and jurisdiction of the High Court under Art.226 of the Constitution has been the subject of exposition from this Court. That it is extraordinary and to be used sparingly goes without saying. In spite of the very wide terms in which this jurisdiction is conferred the High Courts have rightly recognised certain limitations on this power. The jurisdiction is not appellate and it is obvious that it cannot be a substitute for the ordinary remedies at law. Nor is its exercise desirable if facts have to be found on evidence. The High Court, therefore, leaves the party aggrieved to take recourse to the remedies available under the ordinary law if they are equally efficacious and declines to assume jurisdiction to enable such remedies to be bypassed.”

97. The aforenoted decisions make the position of law as clear as a noonday that when a learned Single Judge of a High Court exercises power under Article 226 of the Constitution of India, he exercises extraordinary original jurisdiction and this jurisdiction is distinct from revisiona! jurisdiction and appellate jurisdiction of the High Court. The proceedings before the learned Single Judge under Article 226 of the Constitution of India would remain original proceedings and the words of the Section should be understood to mean, exercise of powers under Article 226 of the Constitution of India, which is always original.

98. The Full Bench of this High Court in the case of G.S.R.T.C. [supra], while explaining the true meaning and purport of the term ‘original jurisdiction’ in context with the right to file an appeal against the judgment of the learned Single Judge passed in exercise of original jurisdiction under Clause 15 of the Letters Patent, has observed in Paragraphs 106 to 168 as under:

“106. Having understood the nature of the proceedings under Article 226 of the Constitution of India and the power of the Court to issue writ, the time has now come to understand the true meaning and purport of the term ‘original jurisdiction’ in context with the right to file an appeal against the judgment of the learned Single Judge passed in exercise of original jurisdiction under Clause 15 of the Letters Patent.

Clause 15 of the Letters Patent vis-a-vis the term ‘original jurisdiction’:

107. Clause 15 of the Letters Patent of this High Court provides:

“And we do further ordain that an appeal shall lie to the said High Court of Judicature at Bombay from the judgement (not being a judgement passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to S.108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court, from a judgement of one Judge of the said High Court or one Judge of any Division Court, pursuant to S.108 of the Government of India Act, made on or after the first day of Feb. 1929 in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgement declares that the case is a fit one for appeal; but that the right of appeal from other judgements of Judges of the said High Court of such Division Court shall be to us, or heirs or successors in our or their Privy Council, as hereinafter provided.”

108. An analysis of the provisions of Clause 15 of the Letters Patent makes it clear that no appeal lies against any one of the following categories of judgements;

(1) judgement passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court;

(2) order made in the exercise of revisional jurisdiction; and

(3) a sentence or order passed or made in exercise of the power of superintendence under the provisions of S.107 of the Government of India Act (1915), or in the exercise of criminal jurisdiction.

109. Clause 15 of the Letters Patent provides for an appeal against the judgment of a single Judge of the High Court; and if an order passed by a learned single Judge amounts to a “judgment”, an appeal would lie unless the appeal is specifically barred as falling under one or the other of the three categories which have been set out herein above.

110. A Division Bench of the Calcutta High Court in Sukhendu v. Hare Krishna, reported in AIR 1953 Calcutta 636 had the occasion to trace the entire history of the Letters Patent of the Calcutta High Court. The Letters Patent of the Bombay High Court which applies to our High Court as well, are on the same lines as the Letters Patent of the Calcutta High Court. His Lordship Das, J., speaking for the Division Bench in that case, pointed out that a difference of opinion arose between different High Courts as to whether an appeal would lie from the judgment of a learned Judge of any one of three High Courts viz. High Courts of Madras, Bombay and Calcutta sitting singly in a Civil Revision case. In consequence of the divergence of opinion between the different High Courts on the question whether an appeal lay under Cl. 15 of the Letters Patent against a judgment of a single Judge exercising powers of revision, the Letters Patent came to be amended on March 11, 1919, by substituting the words “not being an order made in exercise of revisional jurisdiction and not being a sentence or order passed or made in exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, 1915, or in the exercise of criminal jurisdiction” for the words “not being a sentence or order passed or made in any criminal trial.”

111. The Letters Patent was further amended on December 9, 1927; and the words ‘‘pursuant to S.108 of the Government of India Act” were substituted for the words ‘‘pursuant to Section 13 of the said recited Act”. The meaning of the expression ‘‘pursuant to S.108 of the Government of India Act” came to be considered by the Special Bench of the Calcutta High Court in Chairman, Budge Municipality v. Mongru Mia, AIR 1953 Cal 433. It was a case arising out of an application under Art.226 of the Constitution. It was observed by the learned Chief Justice of the Calcutta High Court in that case that by virtue, first, of S.38(1) of the Interpretation Act, 1889, which applied to the Government of India Act, 1935, and then of Section 8 of the General Clauses Act which applied to the Constitution, the reference to S.108 of the Government of India Act in Cl. 15 of the Letters Patent must be construed as reference to Art.225 of the Constitution. After the amendment of the Letters Patent which came into force on March 11, 1919, it was specifically provided that no appeal lay against an order of a learned single Judge made in exercise of revisional jurisdiction and again no appeal lay under clause 15 of the Letters Patent against a decision of a learned single Judge of the High Court if the order was passed by him in exercise of the power of superintendence under the provisions of S.107 of the Government of India Act, 1915 or in the exercise of criminal jurisdiction.

112. At this stage, it must be made clear that the power which the High Court exercises under Art.227 of the Constitution is a power of judicial superintendence over subordinate Courts and Tribunals situated within the State, such a power of judicial superintendence was, for the first time, conferred upon the High Courts by the Indian High Courts Act, 1861. Subsequently, the power was conferred by Section107 of the Government of India Act, 1915 and Section 224 of the Government of India Act, 1935. The Supreme Court in Waryam Singh v. Amarnath, AIR 1954 SC 215 has held that the power under Art.227 was a power of judicial superintendence available not only against the decisions of subordinate Courts but also against decisions of all Tribunals functioning within the State over which the High Court exercised jurisdiction.

113. In Revaben (supra), the Division Bench of this Court explained the definition of the term ‘original jurisdiction’ as jurisdiction to consider a case in the first instance. A court's power to hear and decide a matter before any other court can review the matter. In Revaben (supra), the Court also considered the meaning of the term ‘original jurisdiction’ as explained in Advanced Law Lexicon, 3rd Edition 2009 by P. Ramanatha Aiyar, which states that courts of original jurisdiction are those in which an action has its first source or existence and which do not take jurisdiction of it by appeal. A court where an action is initiated and first heard.

114. By placing reliance on the term ‘original jurisdiction’ as explained by the different authors, the court took the view that once an original order passed by an authority in the first instance is challenged before the appellate authority and the original order gets merged with the appellate authority's order and if such order of the appellate authority is challenged by way of a writapplication under Article 226 of the Constitution of India, the Court could not be said to be exercising original jurisdiction because the original order was further tested by the appellate authority and., therefore, it could not be said that the High Court took cognizance of the matter in the first instance.

115. In our opinion, there is an error to a certain extent in the decision of the Division Bench in the case of Revaben (supra) so far as the interpretation of the term ‘original jurisdiction’ is concerned.

116. The term ‘original jurisdiction’ as contained in Clause 15 of the Letters Patent should be understood in context with the power of the High Court to issue a prerogative writ like a writ of certiorari under Article 226 of the Constitution of India. We have already explained the nature of the proceedings under Article 226 of the Constitution of India. We have shown, relying on various decisions of the Supreme Court, that the proceedings are always original.

It is that original power to issue writ under Article 226 of the Constitution of India which makes the proceedings original and the exercise of such power will always be original jurisdiction.

In the aforesaid context, we may refer to the term ‘original’ as explained in Black's Law Dictionary, 6th Edition. The term ‘original’ as defined in Black's Law Dictionary, 6th Edition, is as under:

“Original. Primitive; first in order; bearing its own authority, and not depriving authority from an outside source; as original jurisdiction, original writ, etc. As applied to documents, the original is the first copy or archetype; that from which another instrument is transcribed, copied or imitated…”

117. According to the Corpus Juris Secundum, Volume 67, under the English practice, writs were divided into two classes, original and judicial. The technical meaning that the term ‘‘original writ” had in the practice of England does not exist in American jurisdictions. It has been said that a capias is an original judicial writ, and certiorari has been held to be original in nature. According to the Judicial Officers Law Lexicon, Second Edition by Justice C.K. Thakkar, original writ was the beginning or foundation of a real action at Common Law. It was a mandatory letter issuing out of the Common Law, or ordinary jurisdiction of the Court of Chancery, under the Great Seal, and in the sovereign's name addressed to the sheriff of the country where the injury was committed, containing a summary statement of the cause of complaint, and requiring him to command the defendant to satisfy the claim, and., on his failure to comply, then to summon him to appear in one of the superior Courts of Common Law. A writ of certiorari was issued not ex debito justitiae, but ex mera gratia., and were some times denominated discretionary writs.

118. Since the issue revolves around a writ of certiorari, we must consider the observations of Viscount Simon in Ryots of Garabandho v. Zamindar of Parlakimedi, AIR (30) 1943 P.C. 164, which is reproduced below:

“The ancient writ of certiorari in England is an original writ which may issue out of a superior Court requiring that the record of the proceedings in some cause or matter pending before an inferior court should be “transmitted into the Superior Court to be there dealt with. The writ is so named because, in its original Latin form, it required that the King should be certified of the proceedings to be investigated, and the object is to secure by the exercise of the authority of as. Superior Court, that the jurisdiction of the inferior tribunal should be properly exercised. This writ does not issue to correct purely executive acts, but, on the other hand, its application is not narrowly limited to inferior Courts in the strictest sense. Broadly speaking, it may be said that if the act done by the inferior body is a judicial act, as distinguished from being a ministerial act, certiorari will lie. The remedy in point of principle, is derived from the superintending authority which the Sovereigns Superior Courts, and in particular the Court of Kings Bench, possess an exercise over inferior jurisdiction. This principle has been transplanted to other parts of the Kings dominions and operates, within certain limits, in British India.”

119. We want to lay stress on the sentence beginning with the words “the remedy in point of principle etc. etc.” It is thus, clear that it was in exercise of the power of superintendence which the Superior Courts possessed over inferior jurisdictions that the writ was issued. If there is no supervisory or other similar jurisdiction in a Court, it is difficult to see how it can issue a writ of certiorari. Such jurisdiction is conferred upon the High Courts in this country by Article 226 of the Constitution and the power to issue a writ of certiorari is in exercise of that jurisdiction.

120. If Article 226 and 227 of the Constitution is read closely, it suggests that the High Court can, in discharge of its function as a Court of law, pass any order which it considers proper and such an order shall apply to every person or authority which would include a Court or the Tribunal or in appropriate cases to any Government within the State, for which the High Court is established and no person or authority of the Government, within that State, can put himself or itself outside the reach of the High Court and that the High Court will be the judge of the character and quality of the order as also of the form, which it might take.

121. Since we are on the issue of original jurisdiction, a thought has come to our mind that what could be our answer if there would have been an argument before us that the High Court of Gujarat has no original jurisdiction, and, therefore, it cannot issue any writs.

122. It is true that this High Court has no original civil or criminal jurisdiction. But what we have to consider is whether such a jurisdiction is necessary for the issue of writs. In Penugonda Venkataratnam v. Secretary Of State For India In Council AIR (17) 1930 Mad 896, Venkatasubba Rao, J. made the following observations:

“I must guard myself against being understood that the term original jurisdiction in this context connotes “that the writ cannot be issued outside the limits of the city. This is not the sense in which that expression is used. The jurisdiction in exercise of which the writ is granted is original as contmsted with appellate. This jurisdiction termed Original is not to be confused with original civil jurisdiction mentioned in cl. 12. Letters Patent. The last mentioned jurisdiction can be exercised by its very nature within certain local limits.

But the jurisdiction possessed by the High Court in the matter of certiorari is supervisory or corrective and on the English analogy extends over all inferior tribunals amenable to its authority. (vide p. 902).

(Note: Venkatarathnam (supra) has been relied and quoted with approval by the Supreme Court in Vijay Anand (supra).”

123. In the same case, the observations of Wallis, C.J., in Chief Commissioner of Income Tax v. North Anantpur Gold Mines, Ltd., AIR (8) 1921 Mad 524 are quoted, which being pertinent to the present discussion, are reproduced here. His Lordship observes:

“Now the issuing of the writ of mandamus to secure the performance of a public duty where no adequate remedy existed by action or otherwise was, it seemed to me clearly an exercise of original jurisdiction. It was a proceeding originating in the court issuing it, and might be directed in a proper case to any class of public officer, executive or judicial.”

His Lordship further observes:

“Having regard to these alternatives it must be held that in India this Court's power to issue the writs of certiorari falls within its original jurisdiction as distinguished from its appellate or other jurisdiction and it is in this sense that the expression ‘original jurisdiction’ is used in S.110, Govt. of India Act.”

Odgers in his ‘Commentary on the Common Law of England’ (1911, page 1020) states as follows:

“Even among Courts of Record a distinction came to be recognised as soon as the ascendancy of the King's Court was established over local tribunal Courts of record were divided into Superior and Inferior Courts of Record., the latter being so called because, like courts not of Records, their proceedings are subject to the supervisor of the High Court of Justice or some other Superior Court. This supervision is exercised by means of various writs, of which the writs of mandamus, certiorari and prohibition are the most important.”

Hammond in his ‘Concise Legal History of England’ writes thus:

“Furthermore, the king's Bench not only exercised its criminal jurisdiction and the civil jurisdiction which it “took from the Court of Common Pleas, but it took to superintending the workings of the inferior courts throughout the country. At one time it even tried to exercise a supervision over the court of Exchequer, but this proved unsuccessful; but the inferior courts it did very effectively control by means of the following writs, which are often spoken of as the ‘prerogative writs’ namely, Mandamus, Prohibition, Certiorari and Error.”

124. Thus, the authorities clearly indicate that the writs are not issued in the exercise of original civil or criminal jurisdiction but in the exercise of supervisory jurisdiction and that the term ‘original jurisdiction’ is used in the sense that the writs originate in the High Court. (see Reghunath Keshav Khadilkar v. Pouna Municipality, AIR 1945 Bombay 7)

125. In our opinion, while considering the scope of appeal under Clause 15 of the Letters Patent Act, what is necessary to be taken into consideration is the order of the learned Single Judge passed under Article 226 of the Constitution of India in exercise of its original jurisdiction and not the order passed by a court or tribunal of the first instance in exercise of its original jurisdiction. The expression ‘in exercise of original jurisdiction’ should be understood in the constitutional context and not otherwise.

126. In the aforesaid context, we may quote with profit a Full Bench decision of the Madhya Pradesh High Court in the case of Manoj Kumar v. Board of Revenue, reported in AIR 2008 Madhya Pradesh 22. The observations made in paras 65 and 66 of the report are as under:

“65. We have already analysed the distinction between the original and supervisory jurisdiction. If the entire provision is scrutinised in a purposive manner it is clear that the Legislature has intended to make a distinction between an order passed in exercise of original jurisdiction under Article 226 of the Constitution and an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution. It has to be borne in mind that the power of the High Court under Article 226 of the Constitution are not confined to prerogative writs inasmuch as it can issue directions, orders, writs and can mould the relief to meet the peculiar requirements. The powers conferred on the High Court under the said Article is of wide expanse. In Director of Settlements, A.P. v. M.R. Apparao, (2002) 4 SCC 638 : (AIR 2002 SC 1598) it has been held that the power under Article 226 is essentially a power upon the High Court for issuance of high prerogative writs for enforcement of fundamental rights as well as non-fundamental or ordinary legal rights, which may come within the expression for any other purposes’. The powers of the High Courts under Article 226 though are discretionary and no limits can be placed upon their discretion they must be exercised along the recognized lines and subject to certain self imposed restrictions. It is a constitutional power conferred on the High Court to see no man is subject to injustice by violation of law. In exercise of this Article the High Court is expected to erase injustice and not to make justice a byproduct.

66. When the provision has made two distinctions and the legislative intendment is clear, such intention is to be understood in accord with the view expressed by the Apex Court. When the Legislature has used the terms ‘in exercise of original jurisdiction’ and ‘supervisory jurisdiction’ it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. That is the purpose of the said provision and if the Section is understood in entirety it is clear as day.”

127. Thus, there is no gainsaying that the power to issue writ is original and the jurisdiction exercised is original jurisdiction. Proceedings under Article 226 of the Constitution of India are in exercise of the original jurisdiction of the High Court, whereas proceedings initiated under Article 227 of the Constitution of India are supervisory in nature. When a writ is issued under Article 226 of the Constitution of India, it is issued in exercise of original jurisdiction, whether against a tribunal of the first instance or an appellate tribunal or a tribunal exercising revisional powers conferred under a particular statute. The exercise of supervisory power and power of superintendence is not to be equated with the original or supervisory jurisdiction.

128. The Division Bench in Revaben's case (supra) also placed reliance on a five Judge Bench decision of the Karnataka High Court in the case of Gurushanth Pattedar v. Mahaboob Shahi Kulburga Mills, Gulburga, reported in AIR 2005 Karnataka 377, to understand the meaning of the term ‘original jurisdiction’.

129. In the Full Bench decision of the Karnataka High Court, the question was with regard to the interpretation of Section 4 of the Karnataka High Court Act, 1961, which provides for appeals from decision of a Single Judge of a High Court in the exercise of original jurisdiction of the High Court. Section 4 of the Act, 1961 has been reproduced in the report, which reads as under:

“4. Appeals from decisions of a single Judge of the High Court : An appeal from a judgment, decree or sentence passed by a single Judge in the exercise of the original jurisdiction of the High Court under this Act or under 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.”

130. The Bench took the view that the right of appeal had been provided under Section 4 of the Act against a judgment or order of a learned Single Judge only if it was passed in the exercise of the original jurisdiction of the High Court and not otherwise. The Bench explained that the word ‘jurisdiction’ would mean the power to hear and determine a case and the phrase ‘original jurisdiction’ was one in which the action had its origin and would also mean that the litigation should have been brought originally in that court. It proceeded further to observe that in order to know as to when the court exercises original jurisdiction, it would have to be found out in each case whether the issues raised in the petition arose for adjudication for the first time before the High Court or they had already been raised and adjudicated by any court or tribunal subordinate to it.

131. In our opinion, the Full Bench of the Karnataka High Court was in substance considering a question, whether an order passed by a learned Single Judge in a petition filed under Article 227 of the Constitution of India was appealable or not under Section 4 of the Act, 1961. The Bench, in our opinion, had no occasion to address the issue of original jurisdiction in the context with which we have considered in the present case.

132. Whether the court could have been said to have issued a writ of certiorari or not, would depend on the facts of the case including the nature of the final order which the court may pass in the petition including the form of notice or Rule Nisi issued to the respondents.

133. In a given case although a petition may be styled as one under Article 226 of the Constitution of India for issue of a writ of certiorari, but if the court finds that no case for issue of a writ of certiorari has been made out, then in such circumstances, the court may simply revise the order in exercise of power under Article 227 of the Constitution of India and decide the petition. In such circumstances, naturally, the Appeal under Clause 15 of the Letters Patent would not lie. Therefore, the test which has been laid down by the Full Bench of the Karnataka High Court to ascertain, whether the court exercised original jurisdiction or not, could at best be termed as one of the tests to ascertain the true nature of the power exercised by the court.

134. The Division Bench in Revaben's case (supra) also placed reliance on the decision of the Supreme Court in the case of Ramesh Chandra Sankhla v. Vikram Cement, reported in AIR 2009 SC 713, to fortify its view that if the original order gets merged with the appellate order and if such an appellate order is challenged before the High Court under Article 226 of the Constitution of India, then such proceedings would cease to be original proceedings and would remain in the nature of supervisory proceedings. It appears that in Ramesh Chandra Sankhla (supra), the order which was passed by the Labour Court was carried further before the Industrial Court. Although the Supreme Court held that the nomenclature of the proceedings or reference to a particular Article of the Constitution of India was not final or conclusive because an observation by a learned Single Judge as to how he has dealt with the matter was also not decisive, had it been so, a petition strictly falling under Article 226 of the Constitution of India simplicitor could be disposed of by a learned Single Judge observing that he had exercised power of superintendence under Article 227 of the Constitution of India. The Supreme Court observed that such a statement by a learned Single Judge would not take away from the party aggrieved, a right of appeal against the judgment, if otherwise a petition was under Article 226 of the Constitution of India and subjected to an intra court/LPA.

135. However, the Supreme Court in para 33 of the report proceeded to observe that on the facts and in the circumstances of the case the petitions which were instituted by the company and decided by a Single Judge of a High Court were not original proceedings under Article 226 of the Constitution of India.

136. Such observations of the Supreme Court, in our opinion, should not be construed to convey that only because the order of the Labour Court was confirmed further by the Industrial Court and it was the order of the Industrial Court which was made the subject matter of challenge, the proceedings automatically ceased to be original. If a case for a writ of certiorari is made out even to get the order of the Industrial Court passed in appeal set-aside, then in such circumstances, the petition under Article 226 of the Constitution of India could definitely be said to be maintainable.

137. In the aforesaid context, we may also refer with profit to a five Judge Bench decision of the Supreme Court in State Of U.P v. Mohammad Nooh ., reported in AIR 1958 SC 86. In the said case, the Supreme Court observed that the existence of adequate legal remedies was not per se a bar to the issue of certiorari, and in an appropriate case, it would be the duty of the superior court to issue a writ of certiorari to correct the errors of inferior court or tribunal called upon to exercise judicial or quasi judicial functions. The Bench made the following observations in para 11 as under:

“11. On the authorities referred to above it appears to us that there may conceivably be cases and the instant case is in point where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent and loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice, which cannot be obliterated or cured on appeal or revision. If an inferior Court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court's sense of fair play the superior Court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the Court or tribunal of first instance, even if an appeal to another inferior Court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what a ex facie was a nullity for reasons aforementioned. This would be so all the more if the tribunals holding the original trial and the tribunals hearing the appeal or revision were merely departmental tribunals composed of persons belonging to the departmental hierarchy without adequate legal training and background and whose glaring lapses occasionally come to our notice. The superior Court will ordinarily decline to interfere by issuing certiorari and all we say is that in a proper case of the kind mentioned above it has the power to do so and may and should exercise it. We say no more than that.”

138. At this stage, we may clarify one thing that the view expressed by the Supreme Court in Mohammad Nooh's case (supra) to the effect that the court should exercise the power to issue a writ of certiorari all the more if the tribunals holding the original control and the tribunals hearing the appeal or revisionf were merely the departmental proceedings composed of persons belonging to the departmental hierarchy without adequate legal training and background and whose glaring lapses occasionally come to the notice of the court, did not find favour with a seven Judge Bench decision in the case of S.S Rathore v. State Of Madhya Pradesh ., reported in AIR 1990 10.

139. To a limited extent, the Supreme Court in S.S. Rathore (supra), held that the distinction adopted in Mohammad Nooh's case between the court and the tribunal, being appellate or the revisional authority, was one without any legal justification. The Court proceeded to observe that the powers of adjudication ordinarily vested in courts were being exercised under the law by tribunals or other constitutional authorities. That being the position, the Court found no justification for the distinction between the courts and tribunals in regard to the principle of merger. However, so far as the power of the Court to issue a writ of certiorari even against an appellate order is concerned has not been disturbed in any manner by the Supreme Court in S.S. Rathore's case (supra).

140. Thus, in the overall view of the matter, we hold that the view taken by the Division Bench of this Court in Revaben's case (supra) that a writ of certiorari would lie only against the order of a tribunal or a court, where such court or tribunal acts as an authority of first instance, but it will not be maintainable if such court or tribunal acts as an appellate or revisional authority, needs to be revised.

141. At the cost of repetition, we may state that once any authority or person as contained in Article 226 of the Constitution of India includes a court or a tribunal, then there is no reason why the appellate tribunal should be kept out of a writ of certiorari. Further, when all other conditions for issue of a writ of certiorari are found by the court while examining the order passed by the appellate tribunal, then the court would be well justified in exercising its power under Article 226 of the Constitution of India for a writ of certiorari. However, this would all depend on the individual facts and circumstances of each case.

142. At the same time, we also clarify that the decision of the Full Bench of this Court in Dilavarsinh (supra) should not be understood as laying down an absolute proposition of law that the petition challenging the order of appellate tribunal or even the tribunal of the first instance has to be necessarily treated as a petition under Article 226 of the Constitution of India in every case.

(I) Whether this Court under Article 226 of the Constitution, after annulling the order by granting a writ of certiorari, can modulate its order so as to grant an appropriate relief

143. The issue whether the High Court under Article 226 of the Constitution, after quashing the order by granting a writ of certiorari can modulate its order so as to grant appropriate relief was considered by a Division Bench of the Bombay High Court in the case of Mahomed Usman Rahimtoola v. Labour Appellate Tribunal, Bombay, reported in AIR 1952 Bombay 443 (1). His Lordship Chagla, C.J. took the view that when the Court issues the high prerogative writ of certiorari, it directs the judicial tribunal, against which it is acting, to transmit the record to the Court, and if necessary to quash the order which the Tribunal has passed. In issuing the writ the Court does not act as a Court of appeal and., therefore, cannot exercise the power of remanding the matter to the lower Court, which power is exercisable only by a Court acting as an appellate Court. The Court is only concerned with the question as to whether the Tribunal exercising judicial functions has, or has not acted without jurisdiction or whether in the exercise of its jurisdiction it has contravened the principles of natural justice. If it has acted without jurisdiction, or if it has contravened the principles of natural justice, then the jurisdiction of this Court is to quash the order without jurisdiction or in contravention of the principles of natural justice. There, the power of the High Court stops. It has no power to go further and to direct the Tribunal to hear the matter again or to deal with that matter in a manner directed by the High Court. It would be left to the Tribunal whether to hear the matter again or not. But that is a matter on which the High Court cannot give any direction.

144. It appears that the Supreme Court in Surya Dev Rai (supra) has also taken the same view that 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 may simply annul or quash the proceedings and then do no more. The Court proceeded further to observe that in exercise of supervisory jurisdiction under Article 227 of the Constitution of India, 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, may be, by way of guiding the inferior court or the 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 the tribunal should have made. The Court concluded stating that the jurisdiction under Article 226 of the Constitution was capable of being exercised on a prayer made by or on behalf of the party aggrieved, whereas the supervisory jurisdiction was capable of being exercised suo motu as well.

145. There is no doubt that if we apply the principle on which a writ of certiorari is issued, then the power with the Court is to annul the decision and do no more. However, should this principle be applied mechanically or to put it in other words in stricto senso. Let us take an instance where a litigant comes to this Court for the issue of a writ of certiorari alleging that he has been dismissed from service illegally and that the Tribunal before whom the termination was challenged, has also confirmed the order of dismissal without giving any opportunity of hearing, thereby violating the principles of natural justice and a gross error of law has been committed by the Tribunal. To put it in other words, that there was a failure to exercise jurisdiction or there was an excess in exercising jurisdiction, but that the quasi-judicial tribunal has acted in violation of the principles of natural justice or in violation of the statutory rules governing it, and has caused harm to him by wrongfully terminating his services. In the aforesaid context, for a writ of certiorari, should the Court contend itself by merely quashing the order by which termination was provided for? In other words, will it be a correct approach at the end of the Court to the problem for any and every case where a writ of certiorari is prayed for, the jurisdiction of the Court under Article 226 comes to an end as soon as the impugned order is quashed.

146. The question which we are posing for our consideration is whether such a view would be denuding the vital power conferred upon the High Court under Article 226 of the Constitution. We would like to give two simple illustrations:

Take a case where the High Court reaches to a conclusion after being fully satisfied that the order passed by the Tribunal confirming the dismissal of the petitioner from service is palpably wrong, and holding so, issues a writ of certiorari quashing the same. The question that is bothering us is that what would happen thereafter. Who will order reinstatement of the petitioner in service with back-wages or without back-wages or with all consequential benefits, or partial benefits? Now, take a case where the High Court annuls the decision on the ground that no opportunity was given to the petitioner of hearing and that there was a gross violation of the principles of natural justice. If the Court finds that the order was passed in gross violation of the principles of natural justice, then according to the decision of the Supreme Court in the case of T.C. Basappa (supra) and Hari Vishnu Kamath (supra), a writ of certiorari could be issued to annul the issue. What next would follow? After annulling the decision how would the Tribunal proceed? Whether the Tribunal would again rehear the matter after giving opportunity of hearing to the petitioner or it would just keep quiet? In such circumstances, what would be the remedy available with the petitioner? Whether the petitioner should come back to the High Court with a fresh petition praying for a writ of mandamus?

147. These are the few questions which we need to answer, more particularly having regard to the present day scenario. We are conscious of the fact that in no circumstances while issuing a writ of certiorari, the Court can modify the order, meaning to say, substitute its own order with that of the Tribunal. If the Court has done so, then it necessarily has to be under Article 227 of the Constitution in exercise of the superintending powers and not in exercise of the power to issue writ under Article 226 of the Constitution.

148. The point which we want to drive at is that in exceptional cases like the instances which we have given above, the Court at times may have to issue a writ of mandamus along with a writ of certiorari. We clarify that this has to be in exceptional case only where the justice demands the Court to exercise such power. Consequential relief is ancillary to the main relief That is why it is called consequential. The main relief that is sought for in a writ of certiorari is that a quasi-judicial tribunal has either failed to exercise its jurisdiction vested in it, or has acted in excess of it and the order has caused some harm to the petitioner and he seeks the relief accordingly. Therefore, consequential order has always to be made if the occasion demands in the interest of justice and the power to grant the main relief would., unless the contrary intention is somewhere expressed., implies the power to grant consequential relief At this stage, we may state that the expression “for any other purpose” as contained in Article 226 of the Constitution assumes importance.

149. In the aforesaid context, we may quote with profit the observations of the Supreme Court in the case of Chingleput Bottlers v. Majestic Bottling Company, reported in (1984) 3 SCC 258. In that case, the Supreme Court had the occasion to consider whether along with a writ of certiorari a writ of mandamus could also be issued in a particular set of facts.

The Supreme Court made the following observations, which in our opinion, answers the question which we have posed for our consideration.

“15. It is true that sometimes it is prudent to couple a writ of certiorari with a writ of mandamus to control the exercise of discretionary power. The following illuminating passages from De Smith's Judicial Review of Administrative Action 4th Edn. at pp. 341 and 544 pithily sum up the function of a writ of mandamus:

“It is now open to a court when granting certiorari to remit the matter to the authority with a direction to reconsider and to decide in accordance with the findings of the court. Apart from this, the role of the courts is limited to ensuring that discretion has been exercised according to law. If, therefore, a party aggrieved by the exercise of discretionary power seeks an order of mandamus to compel the authority to determine the matter on the basis of legally relevant considerations, the proper form of the mandamus will be one to hear and determine according to law; though by holding inadmissible the considerations an which the original decision was based the court may indirectly indicate the particular manner in which the discretion ought to be exercised. In practice the frontier between control of legality and control of the actual exercise of discretion remains indeterminate, for the courts are sometimes observed to cross the boundaries that they have set to their own jurisdiction.”

******

“The duty to observe these basic principles of legality in exercising a discretion is, unlike the “duty” to apply the law correctly to findings of fact, prima facie enforceable by mandamus. Hence where an authority has misconceived or misapplied its discretionary powers by exercising them for an improper purpose, or capriciously, or on the basis of irrelevant considerations or without regard to relevant considerations, it will be deemed to have failed to exercised its discretion or jurisdiction at all or to have failed to hear and determine according to law, and mandamus may issue to compel it to act in accordance. with the law.”

Professor H. W. R. Wade in his Administrative Law, 5th Edn. at p. 638 also defines the purpose of a writ of mandamus in these words:

“Mandamus is often used as an adjunct to certiorari. If a tribunal or authority acts in a matter where it has no power to act at all, certiorari will quash the decision and prohibition will prevent further unlawful proceedings. If there is power to act, but the power is abused (as by breach of natural justice or error on the face of the record), certiorari will quash and mandamus may issue simultaneously to require a proper rehearing. An example is Board of Education v. Rice (1911) AC 179 cited elsewhere; the Board's decision was ultra vires since they had addressed their minds to the wrong question; consequently it was quashed by certiorari and the Board were commanded by mandamus to determine the matter according to law, i.e. within the limits indicated by the House of Lords.”

150. A five-Judge Bench decision of the Madras High Court in the case of Southern Roadways Private Limited v. P. Mathew Rai Veeraswami (died.) M. Dhanapalan, reported in AIR 1964 Madras 194, has also explained the power of the court in a given case to issue a writ of mandamus after annulling the order by issue of a writ of certiorari. We may quote with profit the following observations of the Full Bench of the Madras High Court as under:

“15. A power to remand is an incident though such power can exist only by virtue of a statute of an appellate jurisdiction; obviously, a writ issued in the exercise of an original jurisdiction possessed by the court, cannot either amount to or be likened with an order of remand. That this is the true position has been held by this court in W. A. Nos. 138 to 142 of 1957, where Rajamannar, C.J. delivering the judgment of the court observed:

“This court in the exercise of its jurisdiction under Art. 226 of the Constitution does not act as a court of appeal with reference to a subordinate court; nor does it exercise revisional jurisdiction in respect of such a court. All that this court does is to examine the order of the inferior tribunal to see if there is any defect of jurisdiction or any manifest error of law or any contravention of the rules of natural justice or such other vitiating circumstance. If it finds any, then this court will quash the order. As we have pointed out, a quashing of the order of an appellate tribunal may lead to a rehearing of the appeal. But that is not because this court directs the Tribunal to do so.”

From this it would therefore follow, that when a writ of certiorari is issued quashing the order of an inferior authority, the superior court can be regarded as having completely disposed of the matter. A fortiori, in a case where it dismisses an application for the Issue of a writ. In the former case where the Tribunal is improperly seized of the matter and its order alone is improper, the result of the writ will be to render the matter before the tribunal as still available for disposal. This view conforms to what has been laid down by Denning, L.J. in R. v. Northumberland Compensation Appeal Tribunal, 1952 1 KB 338 at p. 354 where that eminent Judge observed:

“The decision must be quashed and the Tribunal will then be able to hear the case again and give the correct decision.”

In a later case, namely R. v. Medical Appeal Tribunal 1957 1 QB 574 at p. 586 that learned Judge expressed the same idea when he said:

“The order must issue to quash the declaration of the medical appeal tribunal of 13th June 1956. There is no need for a mandamus because the tribunal will no doubt consider the claim afresh and come to a right decision on it.”

It is not, however, a mere option in the Tribunal to do so. It will be its statutory duly to take up the application before it and rehear the same N.S. Sattar Sahib v. State Of Madras, ILR 1952 Mad 351 : (AIR 1952 Mad 605).

16. Under the English law, the issue of a writ of certiorari has, generally speaking, only the effect of quashing the impugned order. A party, therefore, not unoften applies in that country for the issue of a writ of certiorari to quash the order and along with it for a mandamus directing the rehearing, the rehearing being consequent on the quashing. But, as pointed out in Basappa v. Nagappa, 1955 1 SCR 250 : (AIR 1954 SC 440) and Mahaboob Sheriff v. Mysore State Transport Authority Bangalore AIR 1960 SC 32, the High Courts in this country are not trammelled by the technicalities of the English procedure. It will be competent for such courts, in appropriate cases, to give directions to the Tribunal, even after quashing the order. But the existence of such a power in those courts does not alter the essential character of the proceedings, which will be the same as in England. In the earlier case cited above, Mukherjea, J. describing the effect of the issue of a writ of certiorari observed:

“The offending order or proceeding, so to say, is put out of the way as one which should not be used to the detriment of any person.”

From the foregoing, it will be seen that whenever there is an order under Art. 226 quashing the proceedings before a Tribunal, which has the effect of reopening the proceedings before it, such reopening of the controversy is not because the order issuing the writ is in the nature, of a remand a remand being the peculiar feature of the appellate jurisdiction; but for the reason there is no valid order of the tribunal concluding the controversy between the parties. Secondly, as we have indicated earlier, the subject matter in controversy in the proceedings taken out for the issue of a writ and that which had been adjudicated upon by the Tribunal are distinct. The writ is, and can be, issued under Art. 226 of the Constitution for purposes of enforcing any one or more of the fundamental rights guaranteed under the Constitution; or, for other purposes, like quashing the order of a statutory Tribunal when it had exceeded its jurisdiction or where its order is palpably wrong or one reached contrary to the rules of natural justice. It has, therefore, been held that the existence of a right will be the foundation to the exercise of the jurisdiction of the High Court under Art. 226; See The State Of Orissa v. Madan Gopal Rungta., 1952 SCR 28 : (AIR 1952 SC 12).

To put it in a different way Art. 226 confers power of judicial control on the superior courts to enforce the guaranteed rights under the Constitution, to ensure that the statutory authorities are kept within the bounds of their authority and thus to maintain the rule of law enshrined in our Constitution. A right to obtain a writ is a valuable constitutional right given to an aggrieved party, the issue thereof being regulated by certain well accepted principles. That right is, as we said., distinct from the one which can form the subject-matter of controversy before the Tribunal, The superior court cannot adjudicate on the matter entrusted for adjudication by the Tribunal under the statute, except for the limited purpose of seeing whether a writ should or should not issue. It goes without saying that the Tribunal will have no jurisdiction like the one conferred on the High Court under Art. 226 of the Constitution.

151. We are of the opinion that in a given case having regard to the peculiar facts and circumstances and envisaging a situation which may crop up like the instances which we have narrated above, it would be the duty of the concerned advocate to see that there are appropriate pleadings in the petition in that context and an appropriate relief is also prayed for in the petition.

152. In the aforesaid context, we may quote with profit the observations of the Supreme Court in the case of Prabodh Verma v. State of Uttar Pradesh, reported in (1984) 4 SCC 251, made in para 37 of the report:

“37. The fact that the High Courts and a fortiori this Court have power to. Mould the reliefs to meet the requirements of each case does not mean that the draftsman of a writ petition should not apply his mind to the proper relief which should be asked for and throw the entire burden of it upon the Court. An advocate owes a duty to his client as well as to the court a duty to his client to give of his best to the case which he had undertaken to conduct for his client and a duty to assist the court to the utmost of his skill and ability in the proper and satisfactory administration of justice. In our system of administration of justice the courts have a right to receive assistance from the Bar and it is the duty of the advocate who drafts a writ petition or any other pleading to ask for appropriate reliefs.”

153. We should not be understood as laying down a proposition of law that in all cases the Court will have the power to mould the relief or grant any consequential relief while issuing a writ of certiorari under Article 226 of the Constitution. Such exercise of power at the end of the Court should be very rare and with great care and circumspection. It is only when the occasion demands and the Court finds that the matter should not be left by just annulling the decision, then in such circumstances, the Court may issue further orders in the form of a writ of mandamus.

154. We are also supported in taking the aforesaid view by a Division Bench decision of the Calcutta High Court in N.R. Mukherjee v. Arnold Hartman Just, reported in AIR 1961 Cal 95. In the said decision of the Calcutta High Court, we find reference of the Bombay High Court decision in the case of Mahomed Usman Rahimtoola (supra), which we have referred to above. The Calcutta High Court, after discussing the facts of the Bombay High Court decision, made the following observations:

“6. Sinha, J. has directed that the Tribunal should come to a conclusion upon evidence to be adduced by the parties on the question whether the firm indulges “in business which is not strictly the business of a Chartered Accountant. The respondent firm has filed a cross-objection against that part of the order and in support of that cross-objection it has been contended that in a proceeding under Art. 226 for a Writ of Certiorari, this Court does not act as a Court of appeal and cannot therefore exercise the power of remanding a matter to the inferior Tribunal. Reliance has been placed for this proposition upon a decision of the Bombay High Court in the case of Mahomed Usman v. Labour Appellate Tribunal, AIR 1952 Bom 443. That decision undoubtedly supports the contention of the respondent firm.

7. With respect, I venture to think that the decision of the Bombay High Court relied upon by Mr. Ginwalla proceeds upon a narrow view of the powers of this Court in a proceeding under Art. 226. Under that Article the High Court has the power of not only issuing Writs in the nature of Mandamus, Certiorari etc. but also the further power of issuing, directions or orders upon a subordinate Tribunal. If in consequence of a Writ of Certiorari the subordinate Tribunal is required to take further steps in accordance with law, there is nothing to prevent the High Court from issuing such directions. The direction given by Mr. Justice Sinha upon the Tribunal to determine the question upon further evidence is, in my opinion, consequential to the Writ of Certiorari issued by him. Such a direction is all the more necessary in view of our decision that both the Tribunal and Mr. Justice Sinha were in error in issuing a Writ of Certiorari on a part of the issue raised by the parties. As a result of our decision the so-called interim award as well as the order of Mr. Justice Sinha issuing the Writ of Certiorari is quashed and the only thing that remains is the reference made by the State of West Bengal under Sec. 10 of the Industrial Disputes Act on the 1st July, 1955. The Tribunal will now have have to adjudicate on that reference, a Writ of Mandamus will certainly lie against the Tribunal directing it to proceed according to law. Reference may be made in this connection to the decision in the case of R. v. Medical Appeal Tribunal, (1957) 1 Q.B. 574, where it has been laid down that if the record of a case is incomplete, a Court issuing a high prerogative writ is not precluded from sending the matter back for the record to be completed…”

155. We also find that somewhat similar view has been taken by a three Judge Bench decision of the Supreme Court in the case of Gujarat Steel Tubes Limited v. Gujarat Steel Tubes Mazdoor, reported in (1980) 2 SCC 593. The observations of the Supreme Court made in paras 78, 79 and 146 supports the view which we have taken. Paras 78, 79 and 146 are reproduced below:

“78. Dual jurisdictional issues arise here which have been argued at some length before us. The position taken up by Sri Sen was that the High Court could not, am under Article 226, direct reinstatement, and even if it felt that the arbitrator had gone wrong in refusing reinstatement, the court could not only demolish the order and direct the arbitrator to reconsider the issue. What belonged, as a discretionary power, to a tribunal or other adjudicatory body, could not be wrested by the writ court. To put it pithily, regarding the relief of reinstatement, the arbitrator could but would not and the High Court would but could not. (We will deal later with the point that the arbitrator had himself no power under Section 11A of the Act but did have it in view of the vide terms of reference.)

79. The basis of this submission, as we conceive it, is the traditional limitations woven around high prerogative writs. Without examining the correctness of this limitation, we disregard it because while Article 226 has been inspired by the royal writs its sweep and scope exceed hidebound British processes of yore. We are what we are because our Constitution-framers have felt the need for a pervasive reserve power in the higher judiciary to right wrongs under our conditions. Heritage cannot hamstring nor custom constrict where the language used is wisely wide. The British paradigms are not necessarily models in the Indian Republic. So broad are the expressive expressions designedly used in Article 226 that any order which should have been made by the lower authority could be made by the High Court. The very width of the power and the disinclination to meddle, except where gross injustice or fatal illegality and the like are present, inhibit the exercise but do not abolish the power.

146. In the second chapter of our sum-up, the first thing we decide is that Article 226, however restrictive in practice, is a power wide enough, in all conscience, to be a friend in need when the summons comes in a crisis from a victim of injustice; and, more importantly, this extraordinary reserve power is unsheathed to grant final relief without necessary recourse to a remand. What the tribunal may, in its discretion, do, the High Court too, under Article 226, can, if facts compel, do. Secondly, we hold that the award suffers from a fundamental flaw that it equates an illegal and unjustified strike with brazen misconduct by every workman without so much as identification of the charge against each, the part of each, the punishment for each, after adverting to the gravamen of his misconduct meriting dismissal. Passive participation in a strike which is both illegal and unjustified does not ipso facto invite dismissal or punitive discharge. There must be active individual excess such as masterminding the unjustified aspects of the strike, e.g. violence, sabotage or other reprehensible role. Absent such gravamen in the accusation, the extreme economic penalty of discharge is wrong An indicator of the absence of such grievous guilt is that the Management, after stating in strong terms all the sins of the workmen, took back over 400 of them as they trickled back slowly and beyond the time set, with continuity of service, suggestive of the dubiety of the inflated accusations and awareness of the minor role of the mass of workmen in the lingering strike. Furthermore, even though all sanctions short of punitive discharge may be employed by a Management, in our current conditions of massive unemployment, low wages and high cost of living, dismissal of several hundreds, with disastrous impact on numerous families, is of such sensitive social concern that, save in exceptional situations, the law will inhibit such a lethal step for the peace of the industry, the welfare of the workmen and the broader justice that transcends transient disputes. The human dimensions have decisional relevance. We hold the discharge orders, though approved by the arbitrator, invalid.”

(J) Maintainability of the intra court appeal under Clause 15 of the Letters Patent against the judgment of the learned Single Judge passed in exercise of the original jurisdiction to issue a writ under Article 226 of the Constitution of India.

156. In the earlier part of our judgment, we have explained the meaning of the term “writ” as well as “writ of certiorari”. We have also quoted Clause 15 of the Letters Patent under which an appeal lies from a decision of the Single Judge to a Division Bench of this Court. We have also explained the term “original jurisdiction” in the context with the constitutional provisions, more particularly Article 226 of the Constitution of India.

157. Under the Letters Patent, various jurisdictions are conferred upon the High Court. Broadly classified, they are Ordinary Original Civil jurisdiction, Extraordinary Original Civil jurisdiction, Appellate jurisdiction from subordinate Courts, Jurisdiction as to Infants and Lunatics, Insolvency jurisdiction, Criminal jurisdiction, Testamentary jurisdiction and Matrimonial jurisdiction.

158. We are concerned with the original jurisdiction of this Court to issue a high prerogative writ in exercise of the power under Article 226 of the Constitution.

159. After the decision of the Supreme Court in the case of Umaji Keshao Mehram (supra), which is considered as one of the leading judgments on this point of maintainability of intra Court appeal, no further discussion in this regard is necessary because the issue is such that there would be no end to the debate. During the course of the hearing of the reference, we have gone through the decision of the Supreme Court in Umaji's case (supra) at length. We would like to quote few paras of the said decision, which are relevant for our purpose:

“99. We are afraid., the Full Bench has misunderstood the scope and effect of the powers conferred by these Articles. These two Articles stand on an entirely different footing. As made abundantly clear in the ‘earlier part of this judgment, their source and origin are different and the models upon which they are patterned are also different. Under Article 226 the High Courts have power to issue directions, orders and writs to any person or authority including any Government. Under Article 227 every High Court has the power of superintendence over all Court and Tribunals throughout the territory in relation to which it exercises jurisdiction. The power to issue writs is not the same as the power of superintendence. By no stretch of imagination can a writ in the nature of habeas corpus or mandamus or quo warranto or prohibition or certiorari be equated with the power of superintendence. These are writs which are directed against persons, authorities and the State. The power of superintendence conferred upon every High Court by Article 227 is a supervisory jurisdiction intended to ensure that subordinate Courts and Tribunals act within the limits of their authority and according to law….

100. Under Article 226 an order, direction or writ is to issue to a person, authority or the State. In a proceeding under that Article the person, authority or State against whom the direction, order or writ is sought is a necessary party. Under Article 227, however, what comes up before the High Court is the order or judgment of a subordinate Court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate Court or tribunal has acted within its authority and according to law. A series of decisions of this Court has firmly established that a proceeding under Article 226 is an original proceeding and when it concerns civil rights, it is an original civil proceeding.

101. Clause15 of the Letters Patent of the Bombay High Court gives in such a case a right of intra-Court appeal and, therefore, the decision of a single Judge of that High Court given in a petition under Article 226 would be appealable to a Division Bench of that High Court.

102. It is equally well-settled in law that a proceeding under Article 227 is not an original proceeding.

103. The result is that an intra-Court appeal does not lie against the judgment of a single Judge of the Bombay High Court given in a petition under Art. 228 by reason of such appeal being expressly barred by Clause 15 of the Letters Patent of that High Court.

106. Rule 18 provides that where such petitions are filed against orders of the tribunals or authorities specified in Rule 18 of Chapter XVII of the Appellate Side Rules or against decrees or orders of Courts specified in that Rule, they shall be heard and finally disposed of by a single Judge. The question is whether an appeal would lie from the decision of the single Judge in such a case. In our opinion, where the facts justify a party in filing an application either under Article 226 and 227 of the Constitution and the party chooses to file his application under both these Articles, in fairness and justice to such party and in order not to deprive him of the 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.”

160. Thus, Clause 15 of the Letters Patent provides for an appeal from the judgment of the Court of the original jurisdiction to the High Court in its appellate jurisdiction. Powers of the High Court under Articles 226 and 227 of the Constitution of India are distinct, separate and operate in different fields, even if in some cases, result to be achieved is the same. Proceedings under Article 226 are original in nature. However, the High Court under Article 227 exercises the powers of superintendence over the subordinate Courts and the Tribunals.

161. The powers contemplated by the Constitution makers under Articles 226 and 227 appear to be different. The former is described as the power to issue certain writs, orders or directions. The latter is described as the power of superintendence. There are two separate articles in the Constitution next door to each other dealing with these powers. The power under Article 226 is only judicial. The power under Article 227 is both judicial and administrative. The power under Article 226 is exercised on the application of a party and for the enforcement of a legal right.

The power under Article 227 can be exercised suo motu by the Court as the custodian of all the justice within the limits of its territorial jurisdiction and for the vindication of its position as such.

The power under Article 227 is a power that can be exercised only over courts and tribunals. On the other hand., the power under Article 226 is a power that can be exercised not only over courts and tribunals but also over other bodies like the Government.

162. Prior to the Constitution, the power to issue writs could not be considered to be a branch of the power of superintendence because the power of superintendence possessed by the High Courts did not carry with it the power to issue writs. Even under the Constitution, the power of superintendence is treated as a power divorced from the power to issue writs. This is borne out by the fact that the Supreme Court possesses the power to issue writs, yet it does not possess the power of superintendence.

163. It is thus explicit according to us that there cannot be interchangeability between the jurisdiction of the High Court under Articles 226 and 227 even if occasionally the ultimate result to be achieved may be same or similar in nature. One cannot be substantiated for other.

164. Proceedings under Article 226 are original in nature. Aggrieved party can canvass grievance relating to infringement of the civil right. In these proceedings, the wrong doer may be a person or an authority and is a necessary party, since has a right to support, justify or defend the act complained of.

165. In contra distinction, the proceedings under Article 227 are supervisory and superintending in nature. The High Court thereunder exercises the jurisdiction to ascertain and confirm whether the Court or Tribunal has discharged its function within its jurisdiction and according to law. Such Court or Tribunal when they have adjudicated a dispute relating to the contractual right between the parties are not necessary party in a proceeding under Article 227. They have no obligation to defend their orders impugned in the proceedings wherein the aggrieved party claims a relief to quash the same. Such Courts or Tribunals cannot claim to be aggrieved due to quashing of their orders or can legitimate make complaint for non-joinder in a proceeding under Article 227.

166. When such a decision of the learned Single Judge would be amenable to a challenge under Clause 15 was a question before the Supreme Court in Umaji's case (supra). The Supreme Court answered the same in para 106 of the report. The Supreme Court has laid down that the appeal, lies under Clause 15 on fulfilling, according to us the following conditions:

(a) The facts involved must warrant filing of petition under Articles 226 and 227;

(b) The party accordingly filing the petition under both the Articles and

(c) Substantial portion of the impugned judgment of the learned Single Judge must be in exercise of the power under Article 226.

167. The right of appeal cannot, therefore, be availed of merely by filing a petition under Article 226 and 227 of the Constitution unless other conditions are fulfilled. Even otherwise, filing of a petition under Article 226 or both under Article 226 and 227 cannot be left solely to the pleasure of a party. The option in this regard is duly controlled, regulated and guided by the facts involved and the grievance arising there from.

168. This is the reason why the phrase as contained in para 106 of Umajis case (supra) “where the facts justify a party in filing an application” assumes importance. A party will be justified in filing a writ-application under Article 226 of the Constitution only if all the requisite conditions for a writ of certiorari are made out and the Court is satisfied that the petitioner has made out a case for issue of a writ of certiorari. Once again at the cost of repetition, when we say all conditions for issue of writ of certiorari, means;

(i) certiorari will be issued for correcting errors of jurisdiction;

(ii) certiorari will also be issued when the Court or the Tribunal acts illegally in the exercise of its undoubted jurisdiction; as and when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice;

(iii) the Court issuing a writ of certiorari acts in exercise of its original jurisdiction and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or the Tribunal, even if they be erroneous; and

(iv) an error in the decision or determination itself may also be amenable to a writ of certiorari, if it is a manifest error apparent on the face of the proceedings i.e. when it is based on clear ignorance or disregard to the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision.”

99. Thereafter, in Paragraphs-169 to 172, the Full Bench observed as under:

“169. Mr. Thakore, the learned senior advocate appearing for the appellants in one of the appeals is quite justified in submitting that even when the grievance in a given set of facts involved can suitably and adequately be redressed under Article 227, the party could not be said to be acting wholly without justification in filing or styling the petition under Article 226 of the Constitution. If the facts otherwise justify the party in invoking Article 226 of the Constitution for issue of a high prerogative writ like writ of certiorari, then he could not be told that his remedy lies in challenging the order under Article 227 of the Constitution because under Article 227, the Court can not only annul the decision, but can also issue ancillary directions or even substitute the order with the order of the Tribunal.

170. In our opinion, it would be open to the Court while dealing with a petition filed under Article 226 and./or 227 of the Constitution to determine whether the facts justify the party in filing the petition under Article 226 and./or under Article 227 of the Constitution. In the same manner, it would also be open for the Letters Patent Bench to consider whether the facts justify the party in filing the petition under Article 226 and 227 of the Constitution of India.

171. We have to bear in mind, as observed by the Supreme Court, that these two Articles stand on entirely different footing and operate in a different field. They cannot as such mutually be exchanged by twisting, even if the result to be achieved or relief claimed may be analogous. The right of appeal under Clause 15 cannot, therefore, be said to have been vested., merely by styling a petition under Article 226 or both under Articles 226 and 227 and./or by articulating the prayer clause with a claim of a writ of certiorari. The same can be invoked only on fulfilling the conditions laid down by the Supreme Court as discussed above.

172. On the question of maintainability of appeal under Clause 15, the court should be guided by the dictum laid down by the Supreme Court in Umaji's case (supra). The court cannot afford to be generous in making the right available to the parties. Claiming relief under and amenability of the authority whose decision is impugned to the jurisdiction under Article 226 do not settle the nature of proceedings. It solely depends according to the acidic test laid down by the Supreme Court, first, on the facts involved., and secondly, the nature of jurisdiction that could be exercised by the Single Judge. The scope of Clause 15 cannot be permitted to dwindle according to the mechanics adopted by the parties. The right to appeal under Clause 15 is to be settled as guided by the Supreme Court according to the nature of the grievance arising from the facts involved in the case.”

100. In paragraph 176, the Full Bench suggested few tests that may be applied for the purpose of ascertaining whether the facts justify the filing of the petition either under Article 226 or under Article 227 of the Constitution. We quote the tests as laid down by the Full Bench.

(i) the first and foremost test that must be applied is the pleadings in the writ petition. This is clear from the observations of the Apex Court in the case of Mangalbhai v. Radhey Shyam, (1992) 3 SCC 448, wherein at para 6 of the judgment, the Apex Court has observed that where in the totality of the facts and circumstances of the case, the pleadings of the parties in the writ petition and the judgment of the Single Judge leave no manner of doubt that it was an order passed under Article 226 of the Constitution, a Letters Patent Appeal would be maintainable. Similar observations are to be found in Sushilabhai's case, reported in AIR 1992 SC 185, where a reference is made in para 3 of the judgment to the ground taken in the writ petition, if unmistakably go to show that it was a petition under Article 226, the Letters Patent appeal would be maintainable.

(ii) the second test would be the approach and the observations of the Single Judge as to whether he was exercising the power under Article 226 or under Article 227. The Apex Court held this in para 6 of its judgment in Mangalbhai's case (supra) and similar observations are to be found in Sushilabhai's case (supra) in paras 3 and 4 of its judgment. However, we clarify that this would not be the sole consideration because the nomenclature of the proceeding or reference to a particular article of the Constitution in the judgment may not be final or conclusive. As observed by the Supreme Court in Ramesh Chandra (supra), if it were so, a petition strictly falling under Article 226 of the Constitution simplicitor can be disposed of by a Single Judge observing that he was exercising power of superintendence under Article 227 of the Constitution. At this stage, it is necessary for us to state that the learned Single Judge should clarify, whether any case for a writ of certiorari has been made out by the petitioner as prayed for and if the answer is no, then the learned Single Judge should assign reasons in brief as to why no case for a writ of certiorari has been made out. Such reasons in brief would make the task of the LPA bench relatively easier in deciding whether the LPA is maintainable or not.

(iii) the third factor which is relevant and most important is whether the person, authority or State against whom the writ is sought, was made a party, which is the requirement of a petition under Article 226 of the Constitution, unlike a petition under Article 227 of the Constitution, where the Court or the Tribunal is not required to be made a party. This test emerges from the observations of the apex Court in Umaji's case (supra). We clarify that in the case of Savitri Devi (supra), the apex Court has disapproved the pmctice of the judicial officers being impleaded as respondents in the petitions filed in the High Court, and the Special Leave Petitions filed in the apex Court. The observations made by the Supreme Court should be understood to unburden the judicial officers being made parties in proceedings as against the persons, authority or a State being required to be made as party in a petition under Article 226 and the Court or a Tribunal not being so required in a petition under Article 227 of the Constitution.

(iv) the fourth factum would be the relief prayed for in the petition. Where the relief prayed for is for issuance of writ in the nature of certiorari, such writ would normally be issued in exercise of powers under Article 226 of the Constitution where such writs are directed against the person, authority or the State. Where however, the reliefs prayed for are in exercise of powers of superintendence conferred upon every High Court under Article 227 of the Constitution, which is a supervisory jurisdiction intended to ensure that the subordinate Courts and the Tribunals act within the limits of the authority and according to law, the exercise of jurisdiction would be under Article 227. This particular test emerges from the observations made in para 99 of the judgment in Umaji's case (supra);

(v) the fifth factor is whether the jurisdiction invoked in the petition irrespective of the lable mentioned in the title of the petition was primarily of original nature, in which case it would be a petition under Article 226 of the Constitution, or whether it was invoked in the nature of supervisory jurisdiction in which case it would be under Article 227 of the Constitution. The observations to this effect are found in para 100 of the decision of the Supreme Court in Umaji's case (supra) where there is a reference to some Privy Council decisions also.

(vi) The sixth test to be applied should be the real nature of the order or the principal relief granted by the Court. Where substantial part of the order is under Article 226 of the Constitution, the mere fact that in the final order the Court gives ancillary direction which may burden to Article 227 of the Constitution out not to deprive the party of a writ of appeal under Clause 15 of the Letters Patent. This test emerges from para 106 of the decision of the Supreme Court in Umaji's case (supra).

101. In our opinion, the sixth test as regards the real nature of the order or the principal relief granted by the Court is a very important test to determine whether the petition in substance was treated by the learned Single Judge as one under Article 226 of the Constitution of India or under Article 227 of the Constitution of India. We would like to elaborate this test only with a view to explain that the final order or the principal relief will govern the maintainability of the Letters Patent Appeal under Clause 15 of the Letters Patent.

102. Ordinarily, in each and every petition, whether the facts justify or otherwise, there is a prayer for issue of a writ of certiorari. However, as discussed in the earlier part of our judgment that by merely praying for a writ of certiorari, the petition which is otherwise under Article 227 of the Constitution will not become automatically a writ application under Article 226 of the Constitution. When a petition praying for a writ of certiorari is taken up for hearing by the learned Single Judge, three courses are open to the Court,

(i) hear the counsel appearing for the petitioner and dismiss the same in limine having not found any substance in the petition;

(ii) the Court may find some prima facie case to issue Notice to the other side and after hearing both the side decides the matter one way or the other; and

(iii) the Court may find an error apparent on the face of the record and may issue Rule Nisi.

103. In our opinion, if the court finds no substance in the petition and dismisses the petition in limine thereby confirming the order passed by any authority, Tribunal or a Court, then in such circumstances it could be said that the court did not find any case for issue of a writ of certiorari and against such an order no Letters Patent Appeal would lie.

104. At this stage, we may clarify that the test no. (iii) did not find favour with the Supreme Court in the case of Sh. Jogendrasinhji Vijaysinghji [supra]. In Jogendrasinhji Vijaysinghji [supra], the Supreme Court took the view that the writ-petition can be held to be maintainable even if the tribunal is not impleaded as a party respondent in the petition.

105. Ultimately, we need to keep in mind the observations of the Supreme Court in Jogendrasinhji Vijaysinghji [supra] that whether a Letters Patent Appeal would lie against the order passed by the learned Single Judge that has travelled to him from the other tribunals or authorities, would depend upon many facet. At the same time, we should also bear in mind the observations of the Supreme Court in the case of Himalayan Cooperative Group Housing Society [supra] that even if the petition is styled as one under Article 226 of the Constitution, if the contents and prayers thereunder require only exercise of supervisory jurisdiction, then the same could be treated as a petition filed under Article 227 of the Constitution of India only.

106. The adjudication of the issue whether the two Appeals before us are maintainable or not, may remain incomplete, if we fail to make a reference of a Full Bench decision of the Bombay High Court in the case of Advani Oerlikon Ltd. v. Machindra Govind Makasare, rendered in the Letters Patent Appeal No. 261 of 2005, decided on 17 March, 2011, wherein Hon'ble Justice Dr. D.Y Chandrachud [as His Lordship then was], speaking for the Full Bench, after an exhaustive review of various decisions of the Supreme Court starting from Basappa's case [supra], laid down the following principles of law:

“Re: 1 : It is not a correct proposition in law that this Court cannot correct jurisdictional errors or errors resulting in miscarriage of justice committed by authorities which are subordinate to it by invoking powers under Article 226 of the Constitution.

Re: 2 : It is not a correct proposition in law that jurisdictional errors or errors resulting in miscarriage of justice committed by subordinate Courts/Tribunals can only be corrected by this Court in exercise of powers under Article 227 of the Constitution. The writ of certiorari can be issued under Article 226 of the Constitution where the subordinate Court or Tribunal commits an error of jurisdiction. Where the subordinate Court or Tribunal acts without jurisdiction or in excess of it or fails to exercise jurisdiction, that error of jurisdiction can be corrected. Moreover when the Court or tribunal has acted illegally or improperly such as in breach of the principles of natural justice the writ of certiorari is available under Article 226.

Re: 3 : Where the facts justify the invocation of either Article 226 or Article 227 of the Constitution to correct a jurisdictional error or an error resulting in a miscarriage of justice committed by authorities subordinate to this Court, there is no reason or justification to deprive a party of the right to invoke the constitutional remedy under Article 226 of the Constitution.

Re: 4 : It is open to the Court while dealing with a petition filed under Articles 226 and./or 227 of the Constitution or a Letters Patent Appeal under Clause 15 of the Letters Patent arising from the judgment in such a petition to determine whether the facts justify the party in filing the petition under Article 226 and./or 227 of the Constitution.

Re: 5 : The cause title, the averments and prayers in the petition can be taken into account while deciding whether the petition is one under Article 226 and./or 227 of the Constitution.

Re: 6 : If the petitioner elects to invoke Article 226 and./or 227 of the Constitution and the facts justify such invocation, a Letters Patent Appeal against the order of the Learned Single Judge would be maintainable even though the Single Judge has purported to exercise jurisdiction only under Article 227 of the Constitution. The fact that the Learned Single Judge has adverted only to the provisions of Article 227 of the Constitution would not bar the maintainability of such an appeal. The true test is whether the facts justify the invocation of Articles 226 and 227 and this has to be determined on the facts of each case having due regard to (i) the nature of the jurisdiction invoked; (ii) the averments contained in the petition; (iii) the reliefs sought; and (iv) the true nature of the principal order passed by the Single Judge. The true nature of the order passed by the Single Judge has to be determined on the basis of the principal character of the relief granted. The fact that an ancillary direction has been issued under Article 227 of the Constitution would not dilute the character of an order as one with reference to Article 226. What has to be ascertained is the true nature of the order passed by the Single Judge and not what provision is mentioned while exercising this power.

Re: 7 : Where a petition is filed under Articles 226 and 227 of the Constitution and the facts justify the filing of such a petition, it is not lawful for the Court to hold that jurisdictional errors or errors resulting in a miscarriage of justice committed by the subordinate Courts or Tribunals can be corrected only by exercising powers under Article 227 (and that the mentioning of Article 226 is redundant), thus depriving the party of a right of appeal under Clause 15 of the Letters Patent.

Re: 8 : When a petition is filed under Articles 226 and 227 of the Constitution and the facts justify the filing of such a petition, it is not open to the Court to hold that Article 226 need not have been invoked., on the ground that Article 227 is clothed with the power to grant the same relief thus depriving the party of a right to elect or choose a remedy.

Re: 9 : In a situation where a petition is filed under Article 227 of the Constitution and judgment is rendered in favour of the Petitioner, recourse to an appeal under Clause 15 of the Letters Patent is not barred to the Respondent before the Single Judge merely on the ground that the petition was under Article 227.”

107. In the last two paragraphs of the judgment, the Full Bench observed as under:

“21. In State of Madhya Pradesh v. Visan Kumar Shiv Charanlal (supra), the appeal before the Division Bench was filed by the Respondent to the proceedings before the Single Judge in a petition which had been instituted under Article 227. Accepting the submission that a nomenclature is of no consequence and it is the nature of the reliefs sought and the controversy involved which determine which Article is applicable, the Supreme Court held that the appeal before the Division Bench was maintainable. A similar position arose in the decision of the Supreme Court in M.M.T.C. v. Commissioner of Commercial Tax (supra). The Division Bench of the High Court had held that since the petition before the Single Judge was under Article 227 of the Constitution, an appeal at the behest of the Respondent to the petition was not maintainable. The Supreme Court held that the High Court was not justified in holding that the Letters Patent Appeal was not maintainable since the High Court did not consider the nature of the controversy and the prayers involved in the Writ Petition.

22. Consequently, when a petition which is filed before the Single Judge invokes Article 227 of the Constitution and a decision is rendered in favour of the Petitioner, it is open to the Respondent to demonstrate before the Division Bench in appeal that the nature of the controversy, the averments contained in the petition, the reliefs sought and the principal character of the order of the Learned Single Judge would support the maintainability of the appeal on the ground that the facts justify the invocation of both Articles 226 and 227 of the Constitution. Whether that is so will be determined by the Division Bench on the circumstances of each case.”

108. Having gone through the pleadings in the petition filed by the Society, more particularly, the grounds urged therein and also the reliefs prayed for in the petition, we are inclined to hold that the appeals are maintainable. We are not inclined to dismiss the two appeals preferred under Clause 15 of the Letters Patent Act on the ground that the learned Single Judge treated the petition as one under Article 227 of the Constitution and rejected the same. In other words, the learned Single Judge thought fit not to interfere with the order passed by the Tribunal in exercise of his supervisory jurisdiction under Article 227 of the Constitution of India.

109. Once again at the cost of repetition, we reiterate that when the petition came to be filed in the year 1992, the subject matter of challenge was only the order passed by the Tribunal. In 1999, when the ULC Act came to be repealed the entire scenario changed and with it, the legal considerations also drastically changed. In such circumstances, an additional affidavit came to be filed which became a part of the original petition, and in the additional affidavit, the issues with regard to the possession, the land being agricultural in nature, the land being exempt under Section 19(1)(v) of the Act, came to be raised.

110. All these aspects ultimately were argued before the learned Single Judge and the learned Single Judge has also dealt with all such aspects in his impugned judgment and order. This could not have been done so by the learned Single Judge in exercise of his supervisory jurisdiction alone under Article 227 of the Constitution of India. The learned Single Judge, while addressing himself to the aforesaid issues, could be said to have exercised his writ jurisdiction under Article 226 of the Constitution of India.

111. In such circumstances referred to above, we hold that the two Appeals before us are maintainable. The preliminary contention raised by the State is hereby overruled.

112. Having answered the preliminary contention as above, we now proceed to deal with the other issues.

ISSUE OF POSSESSION:

113. We propose to deal with the issue of possession at length.

114. Before adverting to the rival submissions canvassed on either side, we must look into the provisions of Sections 3 and 4 of the Urban Land (Ceiling and Regulations) Repeal Act, 1999, which reads as under:

“Section 3. Savings - (1) The repeal of the principal Act shall not affect—

(a) the vesting of any vacant land under sub-section (3) of Section 10, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority;

(b) the validity of any order granting exemption under sub-section (1) of Section 20 or any action taken thereunder, notwithstanding any judgment or any Court to the contrary;

(2) Where—

(a) any land is deemed to have vested in the State Government under sub-section (3) of Section 10 of the Principal Act but possession of which has not been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority; and

(b) any amount has been paid by the State Government with respect to such land, then such land shall not be restored unless the amount paid, if any, has been refunded to the State Government.”

“Section 4. Abatement of legal proceedings.— All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of this Act, before any Court, Tribunal or any authority shall abate:

Provided that this section shall not apply to the proceedings relating to Sections 11, 12, 13 and 14 of the principal Act insofar as such proceedings are relatable to the land., possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority.”

115. Ordinarily, the High Court, in exercise of its writ jurisdiction under Article 226 of the Constitution of India or supervisory jurisdiction under Article 227 of the Constitution of India, would not enter into the arena of disputed questions of fact. However, in view of the provisions of Repeal Act, before proceeding to adjudicate the matter on merits, it is essential or rather important to ascertain as to whether after the coming into force of the Repeal Act, the proceeding before the Court survives or has abated. It is in this context that the issue as to whether the possession has been taken over or not is required to be gone into.

116. Insofar as the issue as regards the abatement of the present proceedings is concerned, it is the case of the respondents that the procedure prescribed under the Act had been duly followed. The notice under sub-section (5) of Section 10 had been issued on 4 May 1992 and the same had been duly served upon the Society and after expiry of the notice period, the possession of the subject land had been duly taken over in the presence of the two panchas on 23 June 1992. Hence, according to the State, the possession of the subject land having been taken over prior to the coming into force of the Repeal Act, the proceedings would not abate.

117. On the other hand, the case of the appellants is that what has been highlighted by the State is nothing but a paper panchnama. At this stage, we would like to highlight something very important. We would like to reproduce the averments made in the additional affidavit filed on behalf of the petitioners, more particularly, on the issue of possession.

118. We quote thus:

“(D) Possession of land of Survey No. 314/1&2 has not been taken over by the State Government or any person duly authorized by the State Government in this behalf as on 22.3.1999.

i) The land in question has been purchased by the petitioner society on 11.12.1975. Since the said date, the land in question has been under the ownership, possession and control of the present petitioner. At no stage, has possession of the said land been taken by any person competent so to do. In support of the aforesaid, the following facts may be noted:

ii) In the year 1995, some dispute had arisen with regard to the said land owing to which, the present petitioner had filed Civil Suit No. 840 of 1995 in the Court of the learned Civil Judge (Senior Division) at Ahmedabad. In light of the said proceedings, the Court had appointed one Commissioner who, upon site inspection, had observed that the land in question is bound by barbed wire fencing and that there is iron gate to entertain the land. Further that, there is a room made with pucca construction and that there is a Board specifically stating that the land in question is in possession and ownership of Dip Cooperative Housing Society Limited, the petitioner herein. There is also a mention of care-taker residing on the land whose name is Raghubhai Shanabhai Bharwad. The panchnama was made in the presence of both the parties to the said suit.

iii) I further state that barbed fencing around the said land has also been repaired and maintained from time to time.

iv) Furthermore, the said Raghubhai Shanabhai Bharwad is the care-taker of the petitioner society since number of years. Representative copies of some of the vouchers issued by him which are also reflected in the books of account of the petitioner society.

v) As a matter of fact, some other person was trying to deal with the land in question and in light whereof, a public notice was issued in Gujarat Samachar dated 20.7.1997 declaring that the petitioner is the owner and is in possession of the land in question and that no person should deal with any other person but the petitioner herein with regard to the said land.

vi) Furthermore, a portion of the land in question has recently been acquired for the purpose of widening of Sarkhej-Gandhinagar Highway. Relevant copies of documents in this regard as well as agreement to hand over possession are collectively annexed. A perusal thereof will show that the land in question was clearly in possession of the petitioner society and possession thereof was given by the petitioner to the concerned authorities even for the purpose of acquisition for widening the said road.

vii) Furthermore, I state that various proceedings had been initiated under the provisions of the Bombay Tenancy and Agricultural Lands Act, more particularly under section 84-C of the said Act. These proceedings before the various revenue authorities with regard to the land in question were:

(a) Ganot (Tenancy) Case No. 108/97 before the Mamlatdar and ALT, Ahmedabad.;

(b) Tenancy Appeal No. 77/99 and Ganot (Tenancy) Revision No. 15/98 before the Dy. Collector, Revenue (Appeals);

(d) Ganot (Tenancy) Appeal No. 102/01 before the Prant Officer and Dy. Collector, Viramgam.

All the above-mentioned proceedings stand disposed of as on today. In none of the above proceedings, was the possession of the petitioner society over the subject land ever question or disputed.

viii) Furthermore, heirs of the person from whom the petitioner had purchased the land have filed Civil Suit No. 36 of 1997 in the Court of the learned Civil Judge (Senior Division), Ahmedabad with regard to the said land also.

ix) The aforesaid facts demonstrate beyond any doubt that throughout the relevant period., ownership, possession and control of the said land both de facto and de jure was with the present petitioner and at no point of time has such possession been taken away by any competent officer of the State Government, as is alleged by the respondent in the present petition.

x) I further state that the present petitioner has never been issued any notice or any communication from any officer or authority to the effect that possession of the land in question is taken and hence, the petitioner should not deal with the same or use the said land in any manner. The petitioner has, thus, been in possession of the said land ever since purchase thereof At no point of time, has its possession ever been taken as is clear from the facts stated hereinabove.

xi) I, therefore, state that the very basic allegation in the present petition that possession of the said land is taken away by the State Government is clearly erroneous.

xii) In view of the matter, I state that the alleged panchnama is fabricated and is not a panchnama in the eye of law. Such panchnama can have little value even otherwise. I further state that no officer of the Government has visited the said land for the purpose of taking any measurement or for the purpose of doing any act which can even remotely be suggested as an act for taking possession of the said land. Again the said panchnama alleged to have been made is made by a person who has clearly no authority in the eye of law.”

119. We shall now highlight in what manner the aforesaid averments made in the additional affidavit came to be rebutted by the State respondent.

120. Our endeavour is to show that none of the aforesaid averments made on oath on behalf of the appellants came to be rebutted or controverted at any point of time in its true perspective.

121. We shall first look into the affidavit-in-reply dated 24 October 2005. This is the first reply in point of time duly affirmed by the Deputy Collector and Competent Authority, Urban Land Ceiling, Ahmedabad. We quote the relevant observations thus:

“4. It is submitted that one Harshvardhan Hathising and Mohanlal Umiyashankar Promoter of Dip Co-operative Society Ltd. (proposed) had filled in form no. 1 under Section 6(1) of Urban Land (Ceiling and Regulation) Act 1976, declaring survey no. 314/1 and 314/2 admeasuring 13657 Sq. Mtrs. After verification of the said forms on 30/7/1986, the competent authority had issued Draft Statement under section 8(3) of the Act to declare land admeasuring 12657 Sq. Mtrs. of Survey No. 314/1 and 314/2 excess vacant land. The said Draft Statement was also served upon the aforesaid to declarants. Despite the same no representation were received by the Competent Authority. The competent authority therefore, proceeded further and issued an order under section 8(4) of the Act on 31/5/1989 declaring land admeasuring 10141 Sq. Mtrs. as excess vacant land out of survey No. 314/1 and 314/2 of Village Sola. In the said order, it was made clear that the petitioner should produce the demarcation plan of the land, which it intends to surrender to the State Government as excess vacant. However, no such demarcation plan was ever produced by the petitioner society before the competent authority. The competent authority issued final statement under Section 9 of the Act on 23/6/1989.

5. It is submitted that thereafter 19/8/1989 the competent authority had issued notification under section 10(1) of the Act, which was subsequently published in the Official Gazette. The petitioner herein had approached the Urban Land Tribunal by filing appeal under section 33 of the Act, challenging the order of the competent authority dated 23/6/1989. The said appeal came to be dismissed by the learned Tribunal vide its judgment and order dated 29/1/1991. Thereafter the competent authority had issued notification under section 10(3) of the Act on 28/2/1992 vesting the land in question in the State Government. The said notification was subsequently published in the Official Gazette. Thereafter the competent authority issued notice under section 10(5) on 4/5/1992 of the Act to the declarants to hand over the possession of the land in question within 30 days from receipt of the notice. The said notice was served upon the said declarants by registered post A.D. Thereafter the competent authority had issued notice under section 10(6) of the Act indicating that the possession of the land in question shall be taken over on 23/6/1992. The said notice was also served upon the declarants. Pursuant to the said notice the possession of the land in question was taken over on behalf of the State Government on 23/6/1992 and the necessary Panchnama regards the same was also prepared.

6. It is submitted that the present petition came up for hearing before the Hon'ble Court on 6/5/1999. The Hon'ble Court recorded that the possession of the land in question is taken over from the petitioner and therefore, the proceedings as regards the same have abetted. Since, as recorded earlier, the possession of the land in question was taken over on 23/6/1992, the respondent herein preferred Misc. Civil Application No. 1493 of 1999 pointing out to the Hon'ble Court that the possession of the land in question was already taken over and therefore, the proceedings had not abetted as held by the Hon'ble Court in its order dated 6/5/1999. The said Misc. Civil Application also came to be dismissed by the Hon'ble Court vide its judgment order dated 10/9/1999. Being aggrieved and dissatisfied with the said order, the respondent herein preferred Letters Patent Appeal No. 984/2001 for challenging the said order. In the said Letters Patent Appeal, the Hon'ble Court vide its order dated 28/12/2001 was pleased to grant status quo qua the land in question. The said Letters Patent Appeal ultimately came to be allowed by the Hon'ble Court vide its judgment and order dated 29/7/2004 and the present petition was remanded back to the learned Single Judge for deciding the same on merits. It is pertinent to note that one Natvarbhai Gandabhai had preferred Special Civil Application No. 4885 of 2002 inter alia contending that the petitioner herein is making construction on the land in question in contravention of an order of the status quo granted by this Hon'ble Court.

7. It is submitted that Maintenance Surveyour of ULC had visited the place of the questioned land and given his report dated 21/1/2003 and as per his report, the construction has been made on the questioned land in which the Hon'ble High Court has given status quo order in Letters Patent Appeal No. 984 of2001. I further say that jive storied building has been constructed on the land area of 1200 square meters as well as shops have been constructed in the Satyamev-2 Complex.

8. It is submitted that in the said petition, it was a case of the present petitioner that it was making the construction in the land, which was granted to it as retainable and not in the land which was declared as excess vacant land. It is pertinent to note that out of the land which was retainable by the petitioner, admeasuring 1267 sq. meters was already acquired for the purpose of the Gandhinagar-Sarkhej Highway and petitioner herein has also claimed compensation as regards the same and therefore, the petitioner was only holding land admeasuring 733 sq. meters and therefore, there was no question of making the construction in question in the retainable land.

9. It is submitted that vide order dated 10/3/2003 on Special Civil Application No. 4885 of 2002, the Hon'ble Court had directed respondent herein to prepare the sketch showing the exact position and measurement of entire land admeasuring 12141 sq. meters along with the portion on which the construction is being made. Pursuant to the said direction of the Hon'ble Court, respondent herein had caused the measurement to be carried out through the District Inspector of Land Records, Ahmedabad and on the said measurement it was found that the construction was being put up on the land which was declared as excess vacant land and the possession of which had already been taken over on behalf of the State Government. Over and above this, the petitioner herein have issued an advertisement for sale of ofice/shops premises situated in the building namely Satyamev-II which is alleged to have been constructed in violation of the order of the status quo, in daily newspaper namely Divya Bhaskar dated 16/10/2005.”

122. We shall now look into the second reply duly affirmed by the Deputy Collector and Competent Authority dated 9 July 2007. The same reads thus:

“4. I say that the petitioner has not made any exemption application under section 20 of the Urban Land (Ceiling and Regulation) Act, 1976. I say that the State Government vide order dated 13th November 1979 granted exemption under section 20 of the Act of the land bearing survey no. 314/1 admeasuring only 0.15 guntha situated at Sola, Taluka : Daskroi to Mr. Gandabhai Mangalbhai, Bababhai Mangalbhai, Dayabhai Mangalbhai and Natwarbhai Gandabhai. I say that the Survey No. 314/1 is totally admeasuring 1 acre 5 guntha Out of that only 0.15 guntha was exempted under section 20 of the Act and remaining disputed land is not exempted under section 20 of the Act. In the circumstances, the arguments made by the petitioner that the whole area of survey no. 314/1 and survey no. 314/2 is exempted under section 20 of the Act is not correct.

5. I say that the land bearing survey no. 314 situated at Sola was reserved for GSFC under the revised development plan of the Ahmedabad Urban Development Authority vide notification dated 2nd November 1987 by the State Government. Thereafter again in 1997 the Ahmedabad Urban Development Authority had prepared a revised development plan and the same was published in the Government Gazette, Part-II dated 29th November 1997 and converted the land to restricted resident zone. Thereafter vide notification dated 4th May 2001 the same land was redesignated as Residential Zone-I Use.

6. I say that in the affidavit-in-reply filed earlier, the Competent Authority has not produced the acknowledgement receipt of the notice dated 4th May 1992 issued under 10(5) of the Act showing that the notice is served to the concerned person. I say that the same was served to the concerned person by registered post AD, which is clear from the book of the postal department.”

123. We shall once again look into the circumstances pointed out by the appellants as regards the issue of possession.

“(i) The Panchnama drawn in the Regular Civil Suit No. 840/1995 indicates the possession of the Deep Cooperative Housing Society. It shows fencing and gate and one pacca hut and the public notice saying that the Deep Coop. Housing Society is the owner. The Watchman of the Society viz. Raghubhai Bharwad was found staying in the said hut.

(ii) Watchman's salary slips.

(iii) Bore Well made in the year 2000 by the society.

(iv) Labour bills for fencing.

(v) Material for fencing.

(vi) Public notice dated 20.7.1997published in the Gujarat Samachar claiming possession and ownership of the land.

(vii) Notice dated 28.2.2001 taking possession of 1570 square meters of land from the Deep Coop. Housing Society for the S.G. Highway.

(viii) Communication/notice offering 80% compensation for the above acquisition. However, Deep Coop. Housing Society has yet not claimed the said amount.

(ix) The said notice states on behalf of the Deep Coop. Housing Society that the Deep Coop. Housing Society has handed over the possession of the land in question to the Deputy Executive Engineer in person and he has issued the possession receipts to this effect.

(x) The private agreement for acquisition executed between the Deep Coop. Housing Society and the State Government for 262.50 square meters from the Survey No. 314/1. Agreement dated 30.10.2000.

(xi) The possession receipt dated 3.10.2000 issued in favour of the Deep Coop. Housing Society for the aforesaid acquisition. The said acquisition of 262.50 square meters of land is for the Gujarat Electricity Board.

(xii) The aforesaid demonstrates beyond a shadow of doubt that in the Civil Courts as well as Governmental proceedings, even after 1992, the land continued to be accepted to be of the Deep Coop. Housing Society and also continued to be in their possession.

(b) In the Public Interest Litigation (PIL), the AUDA has filed its affidavit-in-reply. In para-4 thereof it is clarified that as per the draft Town Planning Scheme No. 28 which was published in the Gazette on 25.10.1999, the Survey Nos. 314/1 and 314/2 were given O.P.-54 considering 11076 square meters. On reconstruction, the final plot no. 52 admeasuring 5538 square meters was allotted in lieu of the Original Plot No. 54 to the Deep Coop. Housing Society and the remaining 50% was retained by the AUDA. The ‘F’ form in this regard again shows the Final Plot No. 52 admeasuring 5538 square meters of land as per Column No. 8 was given in lieu of the Original Plot No. 54 admeasuring 11076 square meters as per the Column No. 5 to the Deep Coop. Housing Society.

(c) Furthermore, the part plan for the Survey Nos. 314/1 and 314/2 of Plot No. 52 again is shown as the area which is adjoining to the Sarkhej-Gandhinagar highway.

(d) The aforesaid demonstrates beyond a pale of doubt that the alleged panchnama of 1992 does not appear to be genuine. In any case, it is only a paper panchnama without anything more. If the Government had taken over the possession of the said land, then the question of giving 5538 square meters of land in lieu of 11076 square meters of land would never arise. According to the Government, the Deep Coop. Housing Society had only the possession of 2000 square meters at the highest and the remaining was taken over by the Government. This is found to be inconsistent with the aforesaid Final Plot and Town Planning.”

124. Sub-sections (5) and (6) of Section 10 of the Act, which are relevant for the purpose of the present petition, read as under:

“10. Acquisition of vacant land in excess of ceiling limit.—

(5) Where any vacant land is vested in the State Government under sub-section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorized by the State Government in this behalf within thirty days of the service of notice.

(6) If any person refuses or fails to comply with an order made under sub-section (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorised by such State Government in this behalf and may for that purpose use such force as may be necessary.”

125. On a plain reading of the aforesaid provisions, it is apparent that the statute contemplates giving an opportunity to the landholder or any person in possession of the excess vacant land to surrender or deliver possession thereof to the State Government and for this purpose provides for giving notice in writing, ordering such person to surrender or deliver the possession of such lands. It is only when pursuant to such notice, such person refuses or fails to comply with an order under sub-section (5) within a period of thirty days of the service of notice, that the competent authority is required to take over the possession of the vacant land and for that purpose may use force, if necessary. Therefore, the provisions of sub-section (6) are to be resorted to only when there is refusal or noncompliance of an order under sub-section (5) of section 10 of the Act within the prescribed period.

126. In the State of Maharashtra v. B.E. Billimoria, (2003) 7 SCC 336, the Apex Court has in the context of the Urban Lands (Ceiling and Regulation) Act, 1976 held that the said Act being an ex-proprietary legislation is required to be construed strictly. The Apex Court has in the case of Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111, in the context of the Gujarat Town Planning and Urban Development Act, 1976 held thus:

“The statutory interdict of use and enjoyment of the property must be strictly construed. It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the said Act are only creature of statute. They must act within the four corners thereof.”

127. Thus, applying the principle of strict construction with the dictum of the aforesaid decision, the authorities are required to act strictly in accordance with the statutory provisions. Thus, when sub-section (5) of Section 10 mandates giving notice of an order under the said sub-section to the person in possession, the same is required to be complied with in its true letter and spirit. Considering the nature of the rights involved, mere issuance of notice without service thereof, cannot be said to be due compliance with the provisions of the statute. Besides, the provisions of sub-section (6) of Section 10 can be resorted to only if the person fails to comply with an order under sub-section (5) thereof, within a period of thirty days of service of notice. Hence, possession cannot be taken over under Section 10(6) of the Act, unless a period of thirty days from the date of service of notice has elapsed. In absence of service of notice under sub-section (5) of Section 10, there will be no starting point for calculating the period of thirty days. In other words time will not start running, hence the question of taking over possession under sub-section (6) of Section 10 of the Act, would also not arise.

128. In the aforesaid context, the decision of the Supreme Court, in the case of Hari Ram (supra) needs to be looked into. In the said case, the Supreme Court dealt with the same issue i.e. deemed vesting of the surplus land under Section 10(3) of the Urban (Ceiling and Regulations) Act, 1976. The matter was from Allahabad. The Supreme Court explained the concept of voluntary surrender, peaceful dispossession and forceful dispossession. We may quote the relevant observations:

“37. Requirement of giving notice under subsections (5) and (6) of Section 10 is mandatory. Though the word ‘may’ has been used therein, the word ‘may’ in both the subsections has to be understood as “shall” because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of nonissue of notice under subsection (5) or subsection (6) of Section 11 is that it might result the land holder being dispossessed without notice, therefore, the word ‘may’ has to be read as ‘shall’.”

“39. Above mentioned directives make it clear that subsection (3) takes in only de jure possession and not de facto possession, therefore, if the land owner is not surrendering possession voluntarily under subsection (3) of Section 10, or surrendering or delivering possession after notice, under Section 10(5) or dispossession by use of force, it cannot be said that the State Government has taken possession of the vacant land.”

“40. The scope of Act 33 of 1976 came up for consideration before this Court on few occasions, reference may be made to certain judgments, even though there has been no elaborate discussion of the provision of the Act and its impact on the Repeal Act. Reference may be made to Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P. [(2000) 6 SCC 325], Ghasitey Lal Sahu v. Competent Authority, Under the Urban (Ceiling and Regulation Act, 1976), U.P. (2004) 13 SCC 452, Mukarram Ali Khan v. State of Uttar Pradesh [(2007) 11 SCC 90] and Vinayak Kashinath Shilkar v. Deputy Collector and Competent Authority (2012) 4 SCC 718.”

“Effect of the Repeal Act 41 Let us now examine the effect of Section 3 of the Repeal Act 15 of 1999 on subsection (3) to Section 10 of the Act. The Repeal Act 1999 has expressly repealed the Act 33 of 1976. The Object and Reasons of the Repeal Act has already been referred to in the earlier part of this judgment. Repeal Act has, however, retained a saving clause. The question whether a right has been acquired or liability incurred under a statute before it is repealed will in each case depend on the construction of the statute and the facts of the particular case.”

129. Thus, the dictum, as laid by the Supreme Court in Hari Ram (supra), is that where the possession of the subject land has not been taken over by the State Government or by any person duly authorised by the State Government in this behalf or by the competent authority, the proceedings under the Act would not survive and mere vesting of the vacant land with the State Government by operation of law, without actual possession, is not sufficient. To put it in other words, the mere paper possession would not save the situation for the State Government unless the State is able to establish by cogent evidence that actual physical possession of the entire land was taken over by evicting each and every person from the land.

130. The proposition of law that mere paper possession is not sufficient to vest the land in the State has been explained by the Supreme Court in Raghbir Singh Sehrawat v. State of Haryana [2012 AIR SCW 240]. This was a case under the Land Acquisition Act, 1894. The Supreme Court, while allowing the appeals and declaring the acquisition illegal, observed that the taking of possession means the actual possession. Paper possession is not sufficient to vest the land in the State. The Supreme Court noticed various revenue entries recorded in the revenue records which showed that the crops were grown on the different acquired land said to have been taken over. The Court noticed that the State had not questioned the genuineness and correctness of the entries contained in the revenue records. The Supreme Court also took notice of the fact that it was neither pleaded nor any evidence had been produced before the Court to show that the occupant of the land had unauthorisedly taken possession of the land after its acquisition.

131. One stock argument available with the State in this type of cases is that the question whether the actual physical possession of the disputed land had been taken over or not is a seriously disputed question of fact, which the High Court should not adjudicate or determine in exercise of its writ jurisdiction. As a principle of law, there need not be any debate on such a proposition, but by merely submitting that it is a seriously disputed question of fact, the same by itself will not become a question of fact. To put it in other words, having regard to the materials on record, which falsifies the case of the State Government, then such materials should not be overlooked or ignored by the Court on the principle that the issue with regard to taking over of the actual physical possession would be a disputed question of fact.

132. Normally, the disputed questions of fact are not investigated or adjudicated by this Court while exercising powers under Article 226 of the Constitution of India. But the mere existence of the disputed question of fact by itself does not take away the jurisdiction of this Court in granting appropriate relief to the petitioner. In a case where the Court is satisfied like the case at hand that the facts are disputed by the respondents merely to create a ground for the rejection of the writ petition on the ground of disputed question of fact, it is the duty of the Court to reject such contention and to investigate the disputed facts and record its finding if the particular facts of the case like the one at hand was required in the interest of justice.

133. There is nothing in Article 226 of the Constitution to indicate that the High Court in these proceedings is debarred from holding such an inquiry. The proposition that a petition under Article 226 must be rejected simply on the ground that it cannot be decided without determining the disputed question of fact is not warranted by any provisions of law nor by any decision of the Supreme Court. A rigid application of such proposition or to treat such proposition as an inflexible rule of law or of discretion will necessarily make the provisions of Article 226 wholly illusory and ineffective. Obviously, the High Court must avoid such consequences.

134. In the aforesaid context, a reference is made to the decision of the Supreme Court in the case of State of Orissa v. Dr. (Miss) Binapani Dei [AIR 1967 SC 1269]. In paragraph 6 at p. 1270 of the said judgment, their Lordships of the Supreme Court has been pleased to hold as follows:

“Under Art. 226 of the Constitution the High Court is not precluded from entering upon a decision on questions of fact raised by the petition. Where an enquiry into complicated questions of fact arises in a petition under Art. 226 of the Constitution before the right of an aggrieved party to obtain relief claimed may be determined., the High Court may in appropriate cases decline to enter upon that enquiry and may refer the party claiming relief to a suit. But the question is one of discretion and not of jurisdiction of the Court.”

135. The Supreme Court in the case of Gunwant Kaur v. Bhatinda Municipality [AIR 1970 SC 602] observed as follows:

“The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavitinreply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine. The High Court is not deprived of its jurisdiction to entertain a petition under Art.226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Art.226 the High Court has jurisdiction to try issues both of fact and law. Exercise of jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made, dispute sought to be agitated., or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons.”

136. The Supreme Court in Om Prakash v. State Of Haryana . No. 2542 of 1969 decided on 16th March 1970 (SC) observed as follows:

“The two judgments referred to by the High Court proceeded on the ground that the High Court would not in deciding a petition for a writ under Art.226 of the Constitution enter upon disputed questions of fact. But whether in the present case there are disputed questions of fact of such complexity as would render it inappropriate to try in hearing a writ petition is a matter which has never been decided. There is no rule that the High Court will not try issues of fact in a writ petition. In each case the Court has to consider whether the party seeking relief has an alternative remedy which is equally efficacious by a suit, whether refusal to grant relief in a writ petition may amount to denying relief, whether the claim is based substantially upon consideration of evidence oral and documentary of a complicated nature and whether the case is otherwise fit for trial in exercise of the jurisdiction to issue high prerogative writs.”

137. The Supreme Court in Kavalappara Kottarathil Kochunni v. State of Madras [AIR 1959 SC 725] took the view that assuming that there are seriously disputed questions of fact that by itself is not sufficient to throw away an application under Clause (2) of Article 32 of the Constitution. At pages 734 and 735 S. R. Das, C. J. on behalf of himself, and N. H. Bhagwati, B. P. Sinha and K. Subba Rao, JJ. observes as follows:

“Clause (2) of Article 32 confers power on this Court to issue directions or orders or writs of various kinds referred to therein. This Court may say that a particular writ asked for is or is not appropriate or it may say that the petitioner has not established any fundamental right or any breach thereof and accordingly dismiss the petition. In both cases this Court decides the petition on merits. But we do not countenance the proposition that, on an application under Article 32, this Court may decline to entertain the same on the simple ground that it involves the determination of disputed questions of fact or on any other ground. If we were to accede to the aforesaid contention of learned counsel, we would be failing in our duty as the custodian and protector of the fundamental rights. We are not unmindful of the fact that the view that this Court is bound to entertain a petition under Article 32 and to decide the same on merits may encourage litigants to file many petitions under Article 32 instead of proceedings by way of a suit. But that consideration cannot, by itself, be a cogent reason for denying the fundamental right of a person to approach this Court for the enforcement of his fundamental rights which may, prima facie, appear to have been infringed. Further, questions of fact, can and very often are dealt with on affidavits. In Chiranjitlal Chowdhury v. Union of India, 1950 SCR 869 : (AIR 1951 SC 41), this Court did not reject the petition in limine on the ground that it required the determination of disputed questions of fact as to there being other Companies equally guilty of mismanagement. It went into the fact on the affidavit and held., inter alia, that the petitioner had not discharged the onus that lay on him to establish his charge of denial of equal protection of the laws. That decision was clearly one on merits and is entirely different from a refusal to entertain the petition at all. In Kathi Raning Rawat v. State Of Saurashtra ., 1952 SCR 435 : (AIR 1952 SC 123), the application was adjourned in order to give the respondent in that case an opportunity to adduce evidence before this Court in the form of an affidavit. An affidavit was filed by the respondent setting out facts and figures relating to an increasing number of incidents of looting, robbery, dacoity, nosecutting and murder by marauding gangs of dacoits in certain areas of the State in support of the claim of the respondent State that ‘the security of the State and public peace were jeopardised and that it became impossible to deal with the offences that were committed in different places in separate Courts of law expeditiously.’ This Court found no difficulty in dealing with that application on evidence adduced by affidavit and in upholding the validity of the Act then under challenge. That was also a decision on merits, although there were disputed questions of fact regarding the circumstances in which the impugned Act came to be passed. There were disputed questions of fact also in the case of Ramkrishna Dalmia v. S. R. Tendolkar, J. AIR 1958 SC 538. The respondent State relied on the affidavit of the principal Secretary to the Finance Ministry setting out in detail the circumstances which led to the issue of the impugned notification and the matters recited therein and the several reports referred to in the said affidavit. A similar objection was taken by learned counsel for the petitioners in that case as has now been taken. It was urged that reference could not be made to any extraneous evidence and that the basis of classification must appear on the face of the notification itself and that this Court should not go into disputed questions of fact. This Court overruled that objection and held that there could be no objection to the matter brought to the notice of the Court by the affidavit of the Principal Secretary being taken into consideration in order to ascertain whether there was any valid basis for treating the petitioners and their Companies as a class by themselves. As we have already said, it is possible very often to decide questions of fact on affidavits. If the petition and the affidavits in support thereof are not convincing and the Court is not satisfied that the petitioner has established his fundamental right or any breach thereof, the Court may dismiss the petition on the ground that the petitioner has not discharged the onus that lay on him. The Court may, in some appropriate cases, be inclined to give an opportunity to the parties to establish their respective cases by filing further affidavits of by issuing a commission or even by setting the application down for trial on evidence, as has often been done on the Original Sides of the High Courts of Bombay and Calcutta, or by adopting some other appropriate procedure. Such occasions will be rare indeed and such rare cases should not, in our opinion, be regarded as a cogent reason for refusing to entertain the petition under Article 32 on the ground that it involves disputed questions of fact.”

138. A Division Bench of the Allahabad High Court in the case of Shanti Devi w/o Late Rajendra Singh v. Office of Insurance Ombudsman, Zonal Manager, LIC of India and Divisional Office [2008 AIR (All) 72] has explained the very same principles of law. Amitava Lala, J. (as His Lordship then was) observed as under:

“2. Before entering into the dispute, we have to consider the scope and ambit of the writ jurisdiction as it has been held in Life Insurance Corporation of India v. Asha Goel (Smt.), (2001) 2 SCC 160. Supreme Court held that the determination of the question under the writ jurisdiction will depend on consideration of several factors, like, whether a writ petitioner is merely attempting to enforce his/her contractual rights or the case raises important questions of law and constitutional issues; the nature of the disputed raised.; the nature of inquiry necessary for determination of the dispute etc. The matter is to be considered in the facts and circumstances of each case. While the jurisdiction of the High Court to entertain a writ petition under Article 226 of the Constitution can not be denied altogether, Court must bear in mind the selfimposed restriction consistently followed by High Courts all these years after the constitutional power came into existence in not entertaining writ petitions filed for enforcement of purely contractual rights and obligations which involve disputed question of facts.

3. According to us, the Insurance Act, 1938 with the latest amendment is a beneficial piece of legislation. Therefore, if a benefit which the petitioner is legally entitled has been refused, Court cannot enter upon the arena to render equitable justice. The Court of equity can not shut out the eyes taking plea that there is mere or bare disputed question of fact. The disputed question of fact ipso facto can not be ground for rejection unless or until it is proved beyond the doubt before Court of equity under Article 226 of the Constitution of India that the dispute is such that can not be resolved by the writ jurisdiction at all. If we place factum of case within the guidelines of the Supreme Court in Asha Goel (AIR 2001 SC 549) (supra), we shall have no doubt in our mind that the writ jurisdiction can be invoked in the circumstances.”

139. There is a specific averment, or rather, an allegation in the petition that the proceedings either under Section 10(5) or under Section 10(6) of the Act was never taken. As indicated above, this specific allegation has not been specifically denied in the counter affidavit. All that has been highlighted is that the notice was dispatched. This dispatch of notice is sought to be evidenced by the postal register. As indicated above, the record reveals that the notice under Section 10(5) of the Act was issued against the dead persons. The fact that the two promoters, namely Shri Shah and Shri Tripathi, were dead and gone much before the issue of notice under Section 10(5) of the Act has not been denied by the State. In such circumstances, the notice under Section 10(5) of the Act, even if believed to have issued, was void and would not give any power to the respondent to seek or takeover the possession of the subject land. Possession on paper is a symbolic possession and the word ‘possession’ used in clause (a) of sub-section (2) of Section 3 of the Repeal Act, 1999, would mean the actual physical possession and not the symbolic possession. In the case on hand, as found from the pleadings, there is no assertion by the State that the possession was actually handed over by the members of the Society in pursuance to the notice under Section 10(5) of the Act or that any proceedings were taken under Section 10(6) of the Act for taking over the possession. An illegal act is not recognized in law and has to be ignored unless specifically required under the statute to be reckoned with. There is nothing on record to indicate that the State Government is in actual physical possession of the surplus land except alleging that the possession has been taken. Secondly, the possession of surplus land, on notice given under Section 10(5) of the Act, is to be surrendered by the land owner voluntarily in pursuance to the said notice. If the land owner does not surrender the possession in pursuance to the aforesaid notice, ‘the Act’ contemplates taking possession by force and coercing the land owner under Section 10(6) of the Act. If the possession is taken in an extraordinary manner (‘process not recognized in law’) i.e. without resorting to the provisions contemplated under Section 10(5) or Section 10(6) of the Act, then the possession will be irrelevant and of no consequence so far as the applicability of the Repeal Act is concerned. The Repeal Act shall have no effect on the principal Act if the possession of the surplus land was not taken as contemplated in the principal Act. The Repeal Act clearly talks about the possession being taken under Section 10(5) or Section 10(6) of the Act. It is a statutory obligation on the competent authority or State to take possession as permitted in law. It is to be well-appreciated that in case the possession is purported to have been taken under Section 10(6) of the Act, still the court is required to examine, whether ‘taking of such possession’ is valid or invalidated on any of the considerations in law. If the court finds that one or more grounds exists, which show that the process of possession though claimed under Section 10(5) or Section 10(6) of the Act is unlawful or vitiated in law, then such possession will have no recognition in law and it will have to be ignored and treated as of no legal consequence. The possession envisaged under Section 3 of the Repeal Act, 1999, is de facto and not de jure only. It has been vociferously argued by Mr. Jani, the learned Additional Advocate General, that the land has been mutated in the name of the State, therefore, the same cannot be said to be the land of the appellant-Society. It is a settled position of law that mutation in the revenue records does not confer any title. Mere ‘mutation’ of entry in favour of the State/other persons in the revenue records is irrelevant/inconsequential so far as the applicability of Section 3 of the Repeal Act, 1999, is concerned.

140. It is equally well-settled that mere vesting of ‘land declared surplus’ under the Act without resuming ‘de facto possession’ is of no consequence and the land holder shall be entitled to the benefit of the Repeal Act. There is not an iota of material to show that steps were taken by the State respondent to take physical/de facto possession of the surplus land on the spot.

141. In the aforesaid context, we may refer to a Division Bench decision of the Allahabad High Court in the case of Ram Singh v. State of U.P., reported in (2013) 99 ALR 330, wherein the Allahabad High Court has observed as under:

“Voluntary Surrender

28. The “vesting” in sub-section (3) of section 10, in our view, means vesting of title absolutely and not possession though nothing stands in the way of a person voluntarily surrendering or delivering possession. The Court in Maharaj Singh v. State of UP, while interpreting section 117(1) of U.P. Zamindari Abolition and Land Reform Act, 1950 held that “vesting” is a word of slippery import and has many meaning and the con-text controls the text and the purpose and scheme project the particular semantic shade or nuance of meaning. The Court in Rajendra Kumar v. Kalyan (Dead) By Lrs..) by L.Rs. held as follows:

“We do find some contentious substance in the contextual facts, since vesting shall have to be a “vesting” certain. “To vest, generally means to give a property in.” (Per Brett, L.J. Coverdale v. Charlton, Stroud's Judicial Dictionary, 5th Edn. Vol. VI.) Vesting in favour of the unborn person and in the contextual facts on the basis of a subsequent adoption after about 50 years without any authorization cannot however but be termed to be a contingent event. To “vest”, cannot be termed to be an executor devise. Be it noted however, that “vested.” does not necessarily and always mean “vest in possession” but includes “vest in interest” as well.”

29. We are of the view that so far as the present case is concerned., the word “vesting” takes in every interest in the property including de jure possession and., not de facto but it is always open to a person to voluntarily surrender and deliver possession, under section 10(3) of the Act.

30. Before we examine sub-section (5) and sub-section (6) of section 10, let us examine the meaning of sub-section (4) of section 10 of the Act, which says that during the period commencing on the date of publication under sub-section (1), ending with the day specified in the declaration made under sub-section (3), no person shall transfer by way of sale, mortgage, gift or otherwise, any excess vacant land, specified in the notification and any such transfer made in contravention of the Act shall be deemed to be null and void. Further, it also says that no person shall alter or cause to be altered the use of such excess vacant land. Therefore, from the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made in sub-section (3), there is no question of disturbing the possession of a person, the possession, therefore, continues to be with the holder of the land.

Peaceful dispossession

31. Sub-section (5) of section 10, for the first time, speaks of “possession” which says where any land is vested in the State Government under sub-section (3) of section 10, the competent authority may, by notice in writing, order any person, who may be in possession of it to surrender or transfer possession to the State Government or to any other person, duly authorized by the State Government.

32. If de facto possession has already passed on to the State Government by the two deeming provisions under sub-section (3) to section 10, there is no necessity of using the expression “where any land is vested.” under sub-section (5) to section 10. Surrendering or transfer of possession under sub-section (3) to section 10 can be voluntary so that the person may get the compensation as provided under section 11 of the Act early. Once there is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing under sub-section (5) to section 10 to surrender or deliver possession. Sub-section (5) of section 10 visualizes a situation of surrendering and delivering possession, peacefully while sub-section (6) of section 10 contemplates a situation of forceful dispossession.

Forceful dispossession.

33. The Act provides for forceful dispossession but only when a person refuses or fails to comply with an order under sub-section (5) of section 10. Sub-section (6) to section 10 again speaks of “possession” which says, if any person refuses or fails to comply with the order made under sub-section (5), the competent authority may take possession of the vacant land to be given to the State Government and for that purpose, force - as may be necessary can be used. Sub-section (6), therefore, contemplates a situation of a person refusing or fails to comply with the order under sub-section (5), in the event of which the competent authority may take possession by use of force. Forcible dispossession of the land, therefore, is being resorted only in a situation which falls under sub-section (6) and not under sub-section (5) to section 10. Sub-sections (5) and (6), therefore, take care of both the situations, i.e., taking possession by giving notice that is “peaceful dispossession” and on failure to surrender or give delivery of possession under section 10(5), than “forceful dispossession” under sub-section (6) of section 10.

34. Requirement of giving notice under sub-sections (5) and (6) of section 10 is mandatory. Though the word “may” has been used therein, the word “may” in both the sub-sections has to be understood as “shall” because a Court charged with the task of enforcing the statute needs to decide the consequences that the Legislature intended to follow from failure to implement the requirement. Effect of non-issue of notice under sub-section (5) or sub-section (6) of section 11 is that it might result the land holder being dispossessed without notice, therefore, the word “may” has to be read as “shall”.

39. The mere vesting of the land under sub-section (3) of section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.3.1999. State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section (5) of section 10 or forceful dispossession under sub-section (6) of section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of section 3 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of section 3 of the Repeal Act.

40. We, therefore, find no infirmity in the judgment of the High Court and the appeal is, accordingly, dismissed so also the other appeals. No documents have been produced by the State to show that the respondents had been dispossessed before coming into force of the Repeal Act and hence, the respondents are entitled to get the benefit of section 3 of the Repeal Act. However, there will be no order as to costs.”

31. It is a matter of common notice and also matter of record that large number of cases which earlier came before this Court and were decided and even at present also on getting the record it is clear that proceedings are either without any notice on the land holders or after the notice to the dead person or after the notice but not the proper service stating the name of the witnesses and their details and in most of the cases proceedings did not progress after the notice under section 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976 and if there is notice under section 10(6) of the Act it again do not contain proper service with the name/identity of the witnesses. For taking Dakhal document demonstrates the authority signing the paper is not competent. The emphasis on the word ‘actual physical possession’ has some special meaning and thus that rules out the paper possession and it is for this reason it has been said that mere entry will not reflect taking of actual physical possession.

32. We can safely assume that nobody is going to leave the possession just on mere asking by a notice under section 10(5) of the Act. It is highly improbable to accept and believe that a notice under section 10(5) of the Act is given and the person proceeds to surrender and deliver the possession to the State or to a person duly authorized.

33. The Law Courts has always expected the strict proof of taking possession under the Rural Ceiling also having found it to be a confiscatory law. The land owned by any person might be coming down from the time of their ancestors will be so easily and conveniently surrendered as is being stated by the State in the counter-affidavit is a matter of surprise. The factum of actual possession which has a vital role on the right of Landholder certainly has to be actual physical possession and that too in accordance with law and therefore that permits a big room of inquiry in all respect and the Court having not found any positive material and any overt act to show dispossession of the land.-holder has to lean in their favour and thus in view of the repeal of the Urban Land (Ceiling and Regulation) Act, 1976 a person having continued in possession will continue with his rights.

34. The Court feels that after imposition of ceiling on agricultural land by the State Government and its success in getting the land and its distribution to the weaker class the demand for imposing of ceiling on urban properties was also felt with the growing population and for orderly development of the urban areas and also to take measures to regulate social control over the resources of urban land besides other allied purposes. After lapse of reasonable time for various kind of pressures and we do not exactly know the object but primarily for the reasons stated in the Repeal Act the Urban Land (Ceiling and Regulation) Repeal Act, 1999 came into force.

35. It is to be observed that all the decided cases on the point have interpreted the possession as ‘actual physical possession’ and not only pa-per/symbolic. There being no specific provision for taking over possession of the surplus land direction was issued named as ‘U.P. Urban Land Ceiling (Taking of Possession, Payment of Amount and Allied Matters) Directions, 1983. For payment of compensation and procedure for taking possession of the vacant land and its manner has been dealt in great detail in the decision given by this Court in the case of Ram Chandra Pandey (supra).

36. If we read the relevant provisions of the U.P. Urban Land (Ceiling and Regulation) Act, 1976 and U.P. Urban Land (Ceiling and Regulation) Repeal Act, 1999 then it will be clear that mere vesting of the land declared surplus under the Act without taking de facto possession is of no consequence and land holder shall be entitled to the benefit of Repeal Act. The effect of the Repeal Act is further clear that if the land owner remains in physical possession then irrespective of his land being declared surplus and/or entry being made in favour of the State in Revenue Records, he will not be divested of his rights. Even if compensation is received that also that will not dis-entitle him to claim the benefit if compensation is refundedd, provided he is in actual physical possession. Payment of compensation has no co-relation with the taking of actual physical possession as with the vesting of land compensation becomes payable which can be paid without taking actual physical possession.

37. It is not to be emphasised again and again that irrespective of vesting of land the State or the competent authority authorizes by the State is to establish taking of actual physical possession from the landholders, after fol-lowing due procedure and therefore, in all the cases there has to be a verification about continuance of actual physical possession as claimed by the land.-holder or its taking over as claimed by the State as provided in law and it is accordingly rights of the parties are to be governed.

38. In view of the aforesaid discussions and examination of various aspects in various judgments it is clear that if proceedings have started by sending notice against the dead person at any stage then that will not divest the land.-holder of his rights. There has to be proper service as provided under section 10(5) of the Act. There has to be proper service under section 10(6) of the Act. Required procedure has to be followed. Possession is to be taken by the competent authority. Possession has to be actual physical and not symbolic. Mere change in the entry is also not the enough proof of dis-possession. The effect of the Repeal of the Principal Act is so clear and loud which permits the rights with the landholders if actual physical possession has not been taken over by the State or by any person duly authorized by the State Government in its be-half after due notice and service in accordance with law.”

142. The propositions of law governing the issue of possession in context with Sections 10(5) and 10(6) respectively of the ULC Act, 1976 read with Section 3 of the Repeal Act, 1999 may be summed up thus:

[1] The Repeal Act clearly talks about the possession being taken under Section 10(5) or Section 10(6) of the Act, as the case may be.

[2] It is a statutory obligation on the competent authority or the State to take possession as permitted in law.

[3] In case the possession is purported to have been taken under Section 10(6) of the Act, the Court is still obliged to look into whether “taking of such possession” is valid or invalidated on any of the considerations in law.

[4] The possession envisaged under Section 3 of the Repeal Act, 1999 is de facto and not de jure only.

[5] The mere vesting of “land declared surplus” under the Act without resuming “de facto possession” is of no consequence and the land holder is entitled to the benefit of the Repeal Act.

[6] The requirement of giving notice under sub-sections (5) and (6) of Section 10 is mandatory. Although the word “has been used therein”, yet the word “may” in both the sub-sections has to be understood as “shall” because a Court is obliged to decide the consequences that the legislature intended to follow from the failure to implement the requirement.

[7] The mere vesting of the land under sub-section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrnder of vacant land before 18 March 1999.

[8] The State has to establish by cogent evidence on record that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section (6) of Section 10 or forceful dispossession under sub-section (6) of Section 10.

143. In view of the aforesaid discussion, we have no hesitation in coming to the conclusion that the possession still remains with the Society and the same was never taken over by the State respondents at the relevant point of time in accordance with law as asserted by the State respondents.

144. We find it very difficult to endorse the line of reasoning adopted by the learned Single Judge on the issue of possession and the notice purported to have been issued under Section 10(5) of the Act. On the face of the findings recorded by the learned Single Judge, it could be said that they are contradictory in nature.

LAND BEING AGRICULTURAL:

145. We shall now deal with the third question, i.e. with regard to the surplus land being agricultural and, therefore, the provisions of the ULC Act would not be applicable.

146. At the relevant point of time, the lands in question were agricultural land and were in the agricultural zone as per the development plans. When the Act came into force in February 1976, the lands in question were agricultural lands in agricultural zone.

147. The definition of the urban land and the vacant land contained in Section 2-O and Section 2-Q respectively specifically excludes therefrom the agricultural land. As per the provisions thereof, all that is required is that the land must be shown to be agricultural land in the village forms and must be shown in the agricultural zone in the master plan. It is argued in the first place that once these two requirements are satisfied, nothing further is required to be looked at. The land would automatically go out of the purport of the U.L.C. Act as being agricultural land. It is reiterated that it is not disputed that at the relevant point of time, the lands in question were agricultural land and were shown to be so in the master plan.

148. It has been further argued by the State that it must factually be shown that the lands were actually used for the purpose of agriculture. It is submitted that the learned Single Judge permitted the appellants to raise such an issue before it. At no stage, has the State taken such objection or raised any such argument before the learned Single Judge. The State cannot raise for the first time at this stage.

149. Without prejudice to the aforesaid, it is submitted that even otherwise, the facts on record themselves show that the land in question is actually used for the purpose of agriculture. A reference may be made to the Village Form No. 7/12 pertaining to the lands. The same show that throughout the relevant period, various kinds of crops have been grown in the said lands. This demonstrates beyond doubt that the lands were actually used for the purpose of agriculture throughout the relevant period.

150. It is submitted that the ‘Pahani Patrak’ portion, i.e. the portion of Form No. 12 is a well-established manner of demonstrating cultivation on the lands which is used day in and day out in the courts and revenue proceedings. In this context, attention is drawn to the Collector's Manual of the Revenue Department in the context of ‘Pahani Patrak’ to demonstrate how the said ‘Pahani Patrak’ is made by a detailed procedure by actually going on site and checking the cultivation. It is submitted that this is more than sufficient and ample proof of the fact that the agricultural operations were actually carried out during the relevant time. Even in the proceedings by the U.L.C., the ‘Pahani Patrak’ have been accepted as means to demonstrate the actual cultivation on the lands. It is otherwise impossible to retrospectively to show the cultivation.

151. In the aforesaid context, we may refer to a Division Bench decision of the Bombay High Court in the case of Dr. Sathyanarayan Ramjila Mehadia v. State of Maharashtra, reported in 1990 Mh. L.J. 1039. We quote the relevant observations thus:

“6. In considering the first contention raised on behalf of the petitioner, it is necessary to consider the definition of the expression ‘urban land’ given in section 2(o) of the Urban Land Ceiling Act. According to the said definition, the urban land means any land situated within the limits of an urban agglomeration and referred to as such in the master plan; or in a case where there is no master plan, or where the master plan does not refer to any land as urban land, any land within the limits of an urban agglomeration and situated in any area included., within the local limits of a municipality or any other local authority.

6-A. However, the land which is mainly used for the purposes of agriculture is excluded from the definition of the expression ‘urban land’. What is meant by ‘agricultural land’ is given in the Explanation in the definition of the expression ‘urban land’, which connotation is also applicable to the definition of the expression ‘vacant land’ given in section 2(q) of the Urban Land Ceiling Act. Perusal of the Explanation in section 2(o) of the said Act shows that clauses (A) and (B) of the said definition make it an artificial definition in the sense that various restrictions are placed before the land can be said to be used mainly for the purposes of agriculture. As per clause (C) of the Explanation it is not enough that the land should be used for the purposes of agriculture as given in clause (A) of the said explanation. Clause (C) provides that the land shall not be deemed to be mainly used for the purpose of agriculture if the land has been specified in the master plan for a purpose other than agriculture.

7. As pointed out earlier, the suit land was converted into non-agricultural land by the order of the learned Sub-Divisional Officer dated 18-7-1963, referred to above. Naturally, therefore, it is not recorded in the revenue or the land records as an agricultural land. The requirement of clause (B) of the Explanation that the land must be entered in the revenue or land records before the appointed day for the purpose of agriculture is not thus satisfied in the instant case. It is, however, submitted on behalf of the petitioner that after the permission was granted by the Sub-Divisional Officer the land was not actually put to the non-agricultural use thereafter and the said permission had thereafter lapsed in view of rule 4(c) of the Maharashtra Land Revenue (Conversion of Use of land and Non-Agricultural Assessment) Rules, 1969, which came into force with effect from 25-7-1969. It may be seen that the M.P. Land Revenue Code was repealed when the Maharashtra Land Revenue Code, 1966 (for short the M.L.R. Code) came into force with effect from 15-8-1967 under which the aforesaid Rules about conversion of agricultural lands for non-agricultural purposes were framed. According to the learned counsel for the petitioner clause (c) of rule 4 of the aforesaid Rules requires that the agricultural land which is allowed to be converted for the non-agricultural use, must be put to such non-agricultural use within one year from the date of the order made by the Collector granting such permission, failing which, unless the said period is extended by the Collector from time to time, the permission granted shall be deemed to have lapsed. The submission thus is that since the suit land was not put to non-agricultural use, even within one year after the said rules came into force, the permission for non-agricultural use must be deemed to have lapsed.

8. We do not think that the above contention raised on behalf of the petitioner is well-founded. Perusal of section 336 of the M.L.R. Code which repeals the M.P.L.R. Code shows that as per clause (a) of its proviso anything duly done under the Act repealed is not affected by such repeal. When the permission was granted to the petitioner as per the relevant rules under the M.P.L.R. Code, which did not prescribe any such restriction, the action taken under the Rules was complete and it could not, therefore, be affected by the conversion of use of the land rules framed under the M.L.R. Code. What we have further to see is that according to rule 4 of the above referred conversion of the use of the land rules all the conditions referred to therein are required to be incorporated in the permission granted by the authority. Since no such condition is incorporated in the permission granted in the Order of the learned Sub-Divisional Officer dated 18-7-1983, the provisions of rule 4(c) of the aforesaid conversion rules cannot be attracted in the instant case. Moreover, even assuming that the permission has lapsed as urged on behalf of the petitioner, still the suit lands cannot be said to be used mainly for the purpose of agriculture, because as required by clause (b) of the Explanation in the definition of the expression ‘urban land’ the said land is not recorded in the revenue or the land records as an agricultural land.

9. It is next urged that at any rate, after the Development Plan was sanctioned by the State Government under the Town Planning Act in which the suit land was included in the green zone for the purposes of agriculture, the said permission must be deemed to have lapsed and the said land must be held to be an agricultural land. In our view, although the effect of the inclusion of the suit land for the purposes of agriculture in the Development Plan would not permit the petitioner to carry out any non-agricultural activity upon the said land, it cannot be said that the said land stands converted into non-agricultural land. In any view of the matter, it cannot be held that the suit land is used mainly for the purpose of agriculture within the meaning of the said expression given in the said section 2(o) of the Act. The above contention raised on behalf of the petitioner thus deserves to be rejected.

10. Turning now to the second contention raised on behalf of the petitioner, what has to be seen is what the first clause in the definition relating to ‘vacant land’ means, in particular the expression ‘construction of a building’ used therein. As already stated in the Development Plan sanctioned by the State Government under the Town Planning Act, the suit land is included in the green zone for the purposes of agriculture. The question which has, therefore, to be considered is whether it is permissible under the building regulations to have construction of a building in the land which is shown for the purposes of agriculture. The expression “master plan”, which is defined in section 2(h) of the Act means in relation to an area within an urban agglomeration or any part thereof the plan (by whatever name called) prepared under any law for the time being in force or in pursuance of an order made by the State Government for the development of such area or part thereof and providing for the stages by which such development shall be carried out. In our State, we have already the Town Planning Act referred to by us above whose purpose is to plan development and use of the land in the regions established for that purpose and to prepare Development Plans for the said purpose. It is in accordance with the elaborate procedure laid down under the Town Planning Act that the Development Plan in the urban area of the city of Nagpur i.e. the municipal limits of the city of Nagpur is prepared and sanctioned by the Government on 30-7-1976, as referred to above. The said Development Plan is thus the master plan within the definition of the expression ‘master plan’ given in section 2(h) of the Urban Land Ceiling Act.

11. It is pertinent to see that the expression ‘building’ as such is not defined under the Urban Land Ceiling Act. However, the expression ‘building, regulations’ is defined in section 2(b) of the said Act, which means the regulations contained in the master plan, or the law in force governing the construction of buildings. It may be seen that the Master Plan prepared for the urban area i.e. the municipal limits of the city of Nagpur, contains the Building Regulations and the Development Control Rules sanctioned by the State Government vide Government Resolution dated 3-6-1976. The expression ‘building’ is defined in rule 1(D)(iii) of the said Rules and the expression “zoning regulation” is defined in rule 1(b)(v) of the said Rules. The expression ‘building’ therein is no doubt very wide. However, what we are concerned with is the definition of the expression “zoning regulation”. It is a regulation other than one contained in the above rules or the regulations, made under clause (h) of section 90 of the Nagpur Improvement Trust Act, 1936.

12. The Nagpur Improvement Trust has in accordance with the provisions of section 90(h) of the Nagpur Improvement Trust Act, 1936, framed building bye-laws called the Building Bye-laws and Development Control Rules. Bye-law No. 14.1 of the above Bye-laws of the Nagpur Improvement Trust shows the classification of the lands for various purposes. The said classification is as under:

“1) Residential Zone — Purely residential (R1):

— Residential with shop Lines at Ground Floor (R2);

2) Commercial Zone — Local Commercial Area (C1)

— District Commercial Area (C2)

3) Industrial Zone — Service Industries (I1)

— General Industries (I2)

— Special Industries (I3)

4) Green Zone:

5) Special Reservations.

Bye Law No. 6 and in particular relevant for our purpose is bye-law No. 6, 7 which gives the uses which are permitted in the ‘Green Zone’ as under:

“GREEN ZONE”

The following uses shall be permitted in Green-Zone:—

i. All agricultural uses except stabling of buffaloes on a commercial scale subject to a limit of 10 cattle per hector, providing the accessory building, tents, pigsties and stables

ii. Garden and Polutry Farms not more than 500 sq. mt. per hector.

iii. Forestry

iv. Golf Clubs and links

v. Public parks, private play fields, summer camps for recreation of all types.

vi. Race tracks and shooting ranges.

13. Perusal of the above bye-law No. 6, 7 permitting uses in the Green Zone would show that for the purpose of agricultural uses, certain accessory building, tents, pigsties and stables are permissible construction in the green zone. What is material to be seen from the above bye-laws is the bye-law No. 14.4.1 which provides that where use of a site is specifically designated on the Development Plan, it shall be used only for the purpose so designated. It is this provision of the bye-law No. 14.4.1 read with the master plan which shows the reservation of the suit lands for the agricultural purposes which is pressed into service on behalf of the petitioner in the submission that no construction of building is permissible under the Building Regulations upon the land shown for agricultural purposes in the Green Zone. Apart from it, the provisions of the Town Planning Act also are relied upon to show that if the land is reserved for any particular purpose, it cannot be used for any other purpose unless in accordance with the procedure laid down under the Town Planning Act, the Development Plan is modified and such purpose is changed.

14. It is clear that the construction of a building as such upon the land covered by the green zone area which is reserved for the purposes of agriculture is not permissible. However, for the purpose of agriculture some construction is permissible as laid down in the bye-law No. 6.7 of the bye-laws of the Nagpur Improvement Trust, Nagpur, referred to above. It is in this context that we have to determine what the expression “building” used in clause (i) of the definition of the expression ‘vacant land’ under section 2(q) of the Urban Land Ceiling Act means. As we have pointed out, the said expression is not defined in the above Act.

15. In construing a statute or a statutory provision, it is necessary to bear in mind the rule of construction that “the key to the opening of every law is the reason and the spirit of the law it is the animus imponentis, the intention of the law-maker expressed in the law itself, taken as a whole and hence, to arrive at the true meaning of any particular phrase in a statute, that particular phrase is not to be viewed detached from the context meaning by this as well the title and the preamble as the purview or enacting part of the statute”, as laid down by Lord Somervilla, J. in AG. v. HRH Prince Exnest Augustus, (1957) 1 All. ER 49) p. 61, which is itself based upon the above observations of Sir John Nichooll, J. in Brett v. Brett, (4) (1826) 3 Add. 210 at P. 216. It is pertinent to see that Sir John Nichooll, J. has attached special importance to the preamble in the above case. Similarly, Chief Justice Dyer, J. has also observed in the case of Stowel v. Lord Zough, (1569) 1 Plowe 353 at P. 369 that the preamble is a key to open the minds of the makers of the Act, and the mischief which they intended to redress. It is thus well settled that the preamble being a part of an enactment is an admissible aid to construction.

16. As regards the use of the statement of objects and reasons in the construction of statutes, it is held by S.R. Das, J. in the case of State of W.B. v. Subodh Gopal Bose (AIR 1954 SC 92) that although the statement of objects and reasons is not admissible as an aid to construction, it is admissible for ascertaining the conditions prevailing at the time which actuated the sponsor of the Bill to introduce the same and the extent and urgency of the evil which he sought to remedy. Similar view is expressed by the Supreme Court in the case of State Of W.B. v. Union Of India (AIR 1963 SC 1241) and Utkal C.P.J. (P.) Ltd. v. State of Orissa (1987 Supp SCC 751 : AIR 1987 SC 2310). However, in C.T. Shans, J.S.D. Baijal ((1988) 1 SCC 507: AIR 1988 SC 603), it is observed by the Supreme Court in para 24 of its judgment that the objects and reasons of the Act are to be taken into consideration and not the debates in Parliament on the Bill. Be that as it may, bearing the above principles of construction in mind, we proceed to consider the question of interpretation of the word “building” in clause (1) of the definition of the expression “vacant land”, given in section 2(q) of the Urban Land Ceiling Act.

17. The statement of objects and reasons as well as the preamble of the Urban Land Ceiling Act would show that it is enacted with a view to preventing the concentration of urban land in the hands of a few persons and profiteering therein and with a view to bringing about an equitable distribution of land in urban agglomerations to subserve the common good. It is with this view in mind that according to the objects and reasons of the Urban Land Ceiling Act as well as its preamble, the said Act provides for imposition of a ceiling limit upon the vacant land in urban agglomeration, for the acquisition of land above the ceiling limit, to regulate the construction of buildings on such land, and the matters connected therewith.

18. It is clear from the above statement of objects and reasons and the preamble of the Urban Land Ceiling Act that the construction of the buildings upon the vacant land is sought to be regulated thereunder with a view to subserve the common good which object is reinforced by section 23(4) of the Urban Land Ceiling Act, which deals with the question of disposal of surplus vacant land acquired by the State under the above Act. It may be seen that sections 23 and 24 of the above Act deal with the question of disposal of the surplus vacant land acquired by the State. Although sub-sections (1), (2) and (3) of section 23 deal with the industrial purpose, in the case of Bhimsinghji v. Union of India ((1981) 1 SCC 166 : AIR 1981 SC 234) in which the validity of section 23 was inter alia challenged, it is held that sub-sections (1), (2) and (3) of section 23 are enabling and not compulsive and the disposal of the excess vacant land must, therefore, be strictly governed by the mandate of sub-section (4) of section 23, subject to this, that in a given case such land may be allotted to any person for any purpose relating to, or in connection with, any ‘industry’ or for the other purposes mentioned in sub-section (1) of section 23. The object of disposal of the surplus land is thus to subserve the common good which object is in consonance with the Directive Principles of State Policy enshrined in Article 39(b) and (c) of the Constitution of India. Although not as any aid to construction, it can incidentally be seen that the above purpose of utilisation of surplus land is reflected in the guidelines, issued by the Central Government on 23-12-1976 (see paras 3 and 4 thereof and the guidelines issued by the State Government in its G.R. dated 20-2-1984).

19. All the above discussion shows that the intention of the Urban Land Ceiling Act is to acquire such lands which could be used for the construction of buildings for the above purposes. If the land is reserved for an agricultural purpose or say for parks and playgrounds under the master plan i.e. the Development Plan sanctioned under the Town Planning Act, it is clear that such land cannot be used for the above purposes. It is, therefore, clear that such land is not intended to be acquired as surplus land by bringing it within the definition of the expression “vacant land” given in section 2(q) of the Act for which purpose clause (i) is inserted in the said definition.

20. Looking to the above scheme of the Urban Land Ceiling Act, when the major part of any urban land which is reserved for agricultural purposes in green zone is not available for the above purpose of construction of buildings thereon to subserve the common good., in our view, only because under the Building Regulations some construction is permissible of a structure ancillary to the main purpose of agriculture, it would not mean that such land in the green zone is not mainly used for the purpose of agriculture, as required by the exclusive clause in section 2(o) of the Urban Land Ceiling Act and is thus not outside the purview of the definition of the expression ‘Urban Land.’ given therein. What is required by the exclusion clause in section 2(o) is that the land should be mainly used for the purpose of agriculture. For the above view, we also draw assistance from the first proviso to clause (B) in the Explanation to the definition of the expression “Urban Land” given in section 2(o) of the Urban Land Ceiling Act. Perusal of the said proviso would show that farm house on agricultural land is not included within the meaning of the expression “building” in regard to which the land upon which any building is standing is not said to be mainly used for the purpose of agriculture even though such land is entered in the land or the revenue records for the purpose of agriculture.

21. In our view, the construction of some structure incidental to the purpose such as agriculture, playgrounds, parks etc. are not such constructions which would show that upon such land construction of building as envisaged by clause (i) of the definition of the expression “vacant land” given in section 2(q) of the Urban Land Ceiling Act, is permissible. What has to be seen is the main purpose. If the main purpose does not permit construction of a building, then such a land is excluded under clause (i) of section 2(q) of the aforesaid Act. It may incidentally be seen that as per guidelines issued by the Central Government vide its letter No. 1/243/76 U.C.U. dated 19 November 1976, it has been clarified in para 4 that under section 2(q)(i), what is really excluded from the definition of the term ‘vacant land’ relates to areas which are to be maintained as open space like green zone, park, playgrounds etc. In other words, the clarification refers to lands where no construction is permissible under any regulations contained in the master plan or the law in force governing the construction of building. It is thus clear that the areas in the green zone are to be excluded from the definition of the expression “vacant land”, under section 2(q)(i) of the Urban Land Ceiling Act.

22. We may now refer to some of the relevant decisions upon the construction of clause (i) of section 2(q) of the Urban Land Ceiling Act. We first refer to the recent decision of the Supreme Court in State of Gujarat v. Purushottamdas Ramdas Patel, (1988) 1 SCC 132 : AIR 1988 SC 220. The Supreme Court has held in the said case that in order to exclude land from the definition of‘vacant land.’ it should be shown that it is land on which construction of a building is not permissible under the building regulations applicable to the area in which such land is situated. It has further held that the question whether a piece of land is a vacant land or not does not depend upon the fact whether a prudent man would put up a building on that land or not after the issue of a notification under section 4(1) of the Land Acquisition Act, 1894. In the facts of the said case, the Supreme Court has held that it cannot be said that the construction of a building was not permissible upon the land in question in the said case. The Supreme Court has overruled the decision of the Delhi High Court in the case of Smt. Shanti Devi v. Competent Authority, AIR 1980 Delhi 106, in which it was held that the land which was sought to be acquired by issuance of a notification under section 4 of the Land Acquisition Act, and upon which thereafter the construction was not permissible stood excluded from the definition of the expression “vacant land.” as such land fell under clause (i) of the said definition in section 2(q).

23. The Supreme Court has approved the view taken by the Full Bench of this Court in the case of Prabhakar Narhar Pawar v. State of Maharashtra, 1984 Mh L.J. (F.B.) 63 : AIR 1984 Bom. 122, and the relevant passage from the said judgment is reproduced in para 11 of the Judgment of the Supreme Court. The Full Bench of this Court has held in the above case that for application of clause (i) in section 2(q) of the Urban Land Ceiling Act, there must either be complete prohibition for construction activity by development plan, or master plan or there must already be a sanctioned plan or a plan submitted for approval on the date of commencement of the Act on the basis of which land on which a building cannot be constructed under section 2(q)(i) could be definitely ascertained. In the said case exemption was claimed in respect of the 2/3rd of the land upon which construction was not permissible according to regulations of the Local Authority which permitted construction only upon 1/3rd of the land. The Full Bench of this Court had negatived the contention that the said 2/3rd land stood excluded by virtue of clause (i) of section 2(q) of the Urban Land Ceiling Act. The view is that unless the construction is impermissible under the laws in force about construction of buildings, clause (i) of section 2(q) would not be attracted.

24. In the decision of the Supreme Court cited supra, the view of the Full Bench of the Allahabad High Court in the case of State of U.P. v. Radha Raman Agarwal, AIR 1987 Allahabad 272 is also upheld by the Supreme Court. The Full Bench of the Allahabad High Court in para 11 of its judgment has held that clause (i) of section 2(q) refers to the land on which construction of a building is not permissible at all either under the building regulations or under the master plan which prohibition is absolute as in the case of The land covered by green belt area or the plot reserved for green park or playground. The Full Bench has in para 18 of the judgment referred to the classification referred to above by us given by the Central Government under section 2(q)(i) of the Urban Land Ceiling Act about the open space like green park, playground etc. being excluded from the purview of the definition of the expression “vacant land” given in section 2(q) of the Urban Land Ceiling Act. It is thus clear to us that the land which is reserved for agricultural purposes in green zone under the master plan i.e. the Development Plan is excluded under clause (i) of section 2(q) of the Urban Land Ceiling Act.

25. Lastly, we may also refer to the decision of the Supreme Court in the case of State of U.P. v. L.J. Johnson, (1983) 4 SCC 110 : AIR 1983 SC 1303, in which after referring to the objects of the Urban Land Ceiling Act in para 7 of its judgment, the Supreme Court has observed in para 8 that the Act governs only urban vacant lands or lands which contain buildings or dwelling units or out-houses and the areas set apart in compliance with the respective bye-laws computing the ceiling area applicable to the towns, and territories concerned. In referring to the scheme of the Urban Land Ceiling Act it has observed in para 1 7 that any land situated in an urban area where the entire area is covered by land on which it is not permissible to raise a building will not be deemed to be vacant land within the meaning of section 2(q) because, according to the Supreme Court such land in an urban area cannot be used for building purposes but being vacant falls beyond the purview of the aforesaid Act.

26. In the light of the object of enactment of the Urban Land Ceiling Act, the above decisions and the relevant provisions referred to by us, the contention raised on behalf of the petitioner that the suit land which is included in the green zone for agricultural purposes is excluded under clause (i) of the definition of the expression “vacant land.” in section 2(q) of the Urban Land Ceiling Act has to be upheld. The suit land being not vacant land within the meaning of section 2(q) of the Urban Land Ceiling Act, has to be excluded in determining the surplus land of the petitioner. The impugned orders are, therefore, illegal and without jurisdiction and are liable to be set aside.”

SECTION 19(1)(v) OF THE ACT 1976:

152. The above takes us to consider the last question, whether the Society is exempt under the provisions of Section 19(1)(v) of the Act. Section 19(1)(v) of the Act reads thus:

“19. Chapter not to apply to certain vacant lands.— (1) Subject to the provisions of sub-section (2), nothing in this Chapter shall apply to any vacant land held by—

(i) to (iv) xxx xxx xxx

(v) any co-operative society, being a land mortgage bank or a housing co-operative society, registered or deemed to be registered under any law relating to co-operative societies for the time being in force:

Provided that the exemption under this clause, in relation to a land mortgage bank, shall not apply to any vacant land held by it otherwise than in satisfaction of its dues;”

153. The plain reading of the aforesaid provision would indicate that even an unregistered body is a ‘person’. The liability to file a form under Section 6 is of all persons holding the land in excess of the ceiling area. Therefore, it is clear that an unregistered body is recognized by the Act to be a person as being entitled to hold the land and is also required to file Form No. I under Section 6. This is irrespective of general law. Form No. 1 in the present case is filed by the Society. It clearly states that it is filed as an unincorporated Association and as a member society. It also states that it is being filed as an owner under Section-I. It also states that the land is an agricultural land. The form further states that the nature of interest in the land is an owner. In Annexure A, it is specifically stated in Column No. 15 that “agricultural land is purchased by the society in the name of the promoters who are agriculturists.” The aforesaid demonstrates beyond a pale of doubt that the form in question is filed by the society as an unincorporated body holding the land as an owner. The respondents have relied upon various decisions to the effect that under the general law, an unincorporated society cannot hold the land or enter into a contract. It is submitted that when the law specifically applicable to the issue recognizes an unincorporated body holding the lands, such judgments are of no assistance at all. As a matter of fact, the Circular dated 1 October, 1977 at page-33 and, more specifically, para-1 thereof issued by the State Government itself recognizes that the unregistered cooperative society can hold lands under a sale deed executed while it was not registered. It is settled law that the State Government cannot make an argument against its own circular. In light of the aforesaid, there can be obviously no question of the society having no locus when the Act requires such a society to file a form and when, in fact, the orders in the present case have been passed pursuant to the form filed by the society itself. In the aforesaid context, it may be clarified that as a for-sure, after 1980 once the society was registered and continues to hold the lands in question, exempt under Section 19(1)(v), would clearly be applicable. It is again reiterated that the form in the present case is filed by none other than the society itself and the mandate the society was registered, all the requirements for claiming exempt under Section 19(1)(v) stood set aside. The only relevant period, therefore, is one from February-1976 i.e. commencement of the Act till 1980, the date of registration. In the aforesaid context, the Circular of October-1977 and, more specifically, para-1 clearly comes to the rescue of the petitioners. Paras-2 to 5 are in the case of the instances of registered society whereas, para 1 precisely applies to the facts of the present case i.e. lands held under a registered deed before 28.01.1976 by an unregistered society. In the present case, the sale deed is dated 11/12/75 under which the present unregistered society then held the lands. Now, para-2 of the Circular specifically provides that in all such cases falling under Paras-2 to 5, an application for exemption will have to be made to the Government. However, in the cases falling in category-1, the exemption is automatic and all that the society is required to do is to get itself registered with the Registrar. Clearly, therefore, the present unregistered society which held the lands under the sale deed dated 11/12/75 prior to 28.01.1976 when it got registered on dated 15.02.1980 would completely satisfy the circular and would be entitled to exemption thereunder. The State Government had relied upon circular dated 2 May 1980 and Circular dated 30.03.1984 to state that the October 1976 Circular has been rescinded. The Circular dated 2 May 1980 is for a completely different purpose and has no connection to the present case. While withdrawing 1977 Circular by the Circular dated 30.03.1984, in the last para-4, the application of rescission is only made prospectively. Clearly, therefore, as in this case, once the exempt was automatically available prior to 1984, then 1984 Circular does not retrospectively take away the said exempt. Hence, October-1976 Circular would grant immediate exempt to the unregistered society in the present case once it was registered as it held the lands under a registered sale deed prior to 28.01.1976. Without prejudice to the aforesaid, it is again reiterated that irrespective of the aforesaid exempt under Section 19(1)(v), for the period from 28.01.1976, i.e. commencement of the Act, to 15.02.1980, the date of registration of the society, the lands were agricultural lands on which agricultural operations were carried out, the lands in question were also in the green zone on which, construction of a building cannot take place. In either case, these lands are not urban lands or are not vacant lands. In addition to the aforesaid arguments based on Section 19(1)(v), this addition aspect would also take the lands completely out of the Urban Land Ceiling.

154. We have threadbare gone through all the decisions relied upon on behalf of the State. Each of the case-laws is based on the peculiar facts of the particular case and, in our opinion, none of the decisions relied upon saves the situation for the State.

155. In view of the aforesaid discussion, we hold that the impugned judgment and order passed by the learned Single Judge is not sustainable in law.

156. In the result, both the Appeals succeed and are hereby allowed. The selfsame judgment rendered by the learned Single Judge is hereby quashed and set-aside. The Special Civil Application No. 4430 of 1992 is hereby allowed. The impugned judgment and order passed by the Urban Land Ceiling Tribunal is hereby quashed and set-aside.

157. There is one connected Public Interest Litigation we need to look into.

WRIT PETITION (PIL) NO. 243 OF 2012:

158. The writ-applicant claiming to be a public spirited citizen has preferred this petition in public interest with the following prayers:

“(a) Your Lordships may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction in the nature of mandamus directing the respondents Nos. 1 & 2 herein to immediately verify the status of all the lands or urban area, which were declared as excess under the ULC Act, 1976 and be further pleased to direct to remove the encroachments thereon.

(b) Pending admission, hearing and/or final disposal of this petition, Your Lordships may be pleased to direct the respondents Nos. 1 & 2 herein to restrain the remaining respondents from developing and/or carrying on construction on Survey No. 314/1 and 314/2 of village Sola, Taluka Dascroi, District Ahmedabad situated on Sarkhej - Gandhinagar Highway, which has been declared as excess land by the competent Authority under the ULC Act and which came to be confirmed by this Hon'ble High Court.

(c) Such other and further relief as this Hon'ble Court may deem just, fit and expedient be granted in favour of the petitioner.”

159. A coordinate bench of this Court, to which one of us J.B. Pardiwala, J. was a party, passed the following order dated 9 September 2014:

“The case of the petitioner is that vast piece of land bearing survey No. 314/1 and 314/2 of village Sola, Taluka Daskroi, District Ahmedabad, situated on Sarkhej-Gandhinagar Highway, opposite to High Court building formed part of the excess vacant land of the original owners and which was so declared by the authorities under the Urban Land Ceiling Act. By virtue of the judgment of the Urban Land Tribunal dated 29th January 1991, such dispute regarding the land bearing survey No. 314/1 and 314/2 admeasuring 12141 sq. mtrs. came to an end. Counsel for the petitioner pointed out that the learned Single Judge of this Court also dismissed the writ petition filed by one Deep Cooperative Housing Society challenging such judgment of the Tribunal by the judgment dated 29th/30th October, 2007 in Special Civil Application No. 4430 of 1992. It is stated that though LPA has been filed by the said petitioner being LPA No. 34/2008, and is pending, so far no stay has been granted by the appellate Court. In the meantime, according to the petitioner, not only the said Deep Cooperative Housing Society in breach of the order of status quo appeared to have constructed a commercial building of 1200 sq. meters on the subject land, but other buildings put up by the respondent No. 4 Siddhi Infrabuild Private Ltd. have also come into existence on the said land. According to the petitioner, such development of the land is wholly unauthorized and no building permission could have been granted by the AUDA. If any permission was granted., the same is wholly irregular since the land forms part of the excess vacant land so declared under the ULC Act and therefore vests in the Government.

Today when the matter was taken up for hearing, nobody appeared for the respondent No. 3 Deep Cooperative Housing Society and the respondent No. 4, Siddhi Infrabuild Private Ltd. Counsel for the AUDA, the respondent No. 6, was unable to state under which circumstances, the said respondents or anyone else was granted permission for construction.

Under the circumstances, the respondent No. 6 is directed to file an affidavit stating whether any permission for development of the land and for construction of the building was granted either to the respondent No. 3 or to the respondent No. 4 or anyone else on any part of land bearing survey No. 314/1 and 314/2 and if so, under what circumstances? Full details of the nature of the applications filed by such entities for such permission, the orders passed by the authorities, including the nature of internal considerations of files on such applications will be presented before the Court along with such affidavit.

If on the next date of hearing, we do not get sufficient clarity in the matter from the AUDA and no further assistance is rendered by the respondents Nos. 3 and 4, we may consider sealing of the premises constructed on the said land.

S.O. to 16.09.2014.”

160. In response to the aforesaid directions issued by this Court, the respondent no. 6 filed an affidavit, stating as under:

“2. I respectfully say that by way of the captioned Public Interest Litigation, the petitioner has prayed for issuance of writ of mandamus, directing the respondent Nos. 1 and 2 to verify the status of all the lands or urban area which were declared as excess under the Urban Land Ceiling Act, 1976 and has further prayed for direction to remove the encroachment from the lands in question.

3. I respectfully say that this Hon'ble Court was kind enough to pass an order dated 9.9.2014 directing respondent No. 6 AUDA to file an affidavit indicating as to whether any permission for development of the land and for construction of the building was granted either to the Deep Cooperating Housing Society Ltd. i.e. respondent No. 3 or to the Siddhi Infrabuild Pvt. Ltd. i.e. respondent No. 4 herein or anyone else on any part of land bearing survey No. 314/1 and 314/2 and if so, under what circumstances. This Hon'ble Court was kind enough to direct AUDA i.e. respondent No. 6 herein to furnish the following details:

(i) Nature of the applications filed by respondent No. 3 Society and respondent No. 4 for development permission.

(ii) Orders passed by the authorities i.e. AUDA including the nature of internal consideration of files on such applications.

Re: Town Planning Scheme No. 28 (Ghatlodia-Sola-Chandlodia)

4. I respectfully say that the dispute in the captioned writ petition is with respect to the land bearing survey Nos. 314/1 and 314/2 of village Sola, Taluka Daskroi, admeasuring 12141 sq. meters (‘the lands in question’ for short). I respectfully say that respondent No. 6 AUDA declared its intention for preparing a draft Town Planning Scheme No. 28 (Ghatlodia-Sola-Chandlodia) which came to be published in the Official Gazette on 25.10.1999 and during the preparation of the said Town Planning Scheme No. 28, the land in question of above referred Survey Nos. 314/1 and 314/2 was given Original Plot No. 54 consisting 11,076 sq. mtrs. (1971 sq. meters + 9105 sq. meters = 11076 sq. meters) of land. On reconstitution Final Plot No. 52 consisting of 5,538 sq. mtrs. was allotted in lieu of said Original Plot No. 54 to Deep Cooperative Housing Society i.e. respondent No. 3 and remaining land was retained by AUDA towards 50% deduction for the purpose of infrastructure including roads, reservation, etc. It is pertinent to note that the draft Town Planning Scheme No. 28 (Ghatlodia-Sola-Chandlodia) is pending consideration with the State Government.

Re: Development Permission with respect to land bearing Survey Nos. 314/1 and 314/2 in favour of respondent No. 3 i.e. Deep Cooperative Housing Society.

5. I respectfully say that respondent No. 3 i.e. Deep Cooperative Housing Society was the owner of the land bearing survey No. 314/1, admeasuring 3036 sq. meters approximately, and land bearing survey No. 314/2 admeasuring 9105 sq. meters as per village form No. 7/12 for the year 2001. I reiterate and respectfully say that while preparing the Draft Town Planning Scheme, in the redistribution form, the aforesaid land bearing survey Nos. 314/1 and 314/2 was given Original Plot No. 54 admeasuring 1971 sq. meters and 9105 sq. meters (1971 sq. meters + 9105 sq meters = 11076 sq. meters) respectively. I respectfully say that the aforesaid Original Plot No. 54 was reconstituted as a Final Plot No. 52 by effecting 50% deduction, with the result, the Deep Cooperative Housing Society Ltd. i.e. respondent No. 3 was given 5,538 sq. meters of land. Annexed hereto and collectively marked as Annexure-R-2 (Colly.) are the copies of the Form F and Part Plan of Final Plot No. 52.

6. I respectfully say that in the year 2001, the Deep Cooperative Housing Society Ltd. i.e. respondent No. 3, wde an application dated 24.12.2001, submitted an application seeking development permission under the provisions of sections 27, 34 and 49 of the Gujarat Town Planning and Urban Development Act, 1976 portraying itself as the owner of the property. Alongwith the application, Deep Cooperative Housing Society Ltd., the respondent No. 3 has submitted copies of revenue record including Village Form No. 7/12 dated 11.10.2001 for the year 2001. The respondent No. 3 and other private persons were reflected as the owners of the land bearing Survey No. 314/1 (3336 sq. meters) while Deep Cooperative Housing Society Ltd., i.e. the respondent No. 3 was shown as a sole owner of land bearing Survey No. 314/2, admeasuring 9105 sq. meters. Annexed hereto and collectively marked as Annexure-R-3 (Colly.) are copies of the application form for development permission alongwith its annexures (Except the plans only with a view not to burden the record of the captioned petition). However, I crave leave to refer to and rely upon all the maps at the time of hearing of the petition.

7. I respectfully say that upon scrutiny of the aforesaid application for development permission, it was found that there were certain wantings on the part of Deep Cooperative Housing Society Ltd., i.e. respondent No. 3 and thus, respondent No. 6 AUDA, vide its letter dated 23.1.2002, called for certain information by further directing respondent No. 3 to produce the documents as indicated in the aforesaid letters dated 23.1.2002 and 18.2.2002. Annexed hereto and collectively marked Annexure-R-4 (Colly.) are copies of the letters dated 23.1.2002 and 18.2.2002 issued in Form D under Rule 10. In compliance of the said letters, Deep Cooperative Housing Society Ltd, i.e. the respondent No. 3 filed affidavits dated 21.1.2002 and 29.1.2002 inter-alia pointing out that the petition No. 4430/1992 filed by Deep Cooperative Housing Society, i.e. respondent No. 3 has been ordered to be abated on 6.5.1999, followed by rejection of Misc. Civil Application No. 1493 of 1999 (for Review). It has been further stated on oath that the Letters Patent Appeal has not been admitted and is pending simpliciter. I respectfully say that Deep Cooperative Housing Society Ltd., i.e. respondent No. 3 had undertaken that in the event, if the respondent No. 3 does not succeed before the Hon'ble High Court and if the Hon'ble Court directs resumption of the land, Deep Cooperative Housing Society Ltd., i.e. the respondent No. 3 will abide by the said order. Annexeed hereto and collectively marked Annexure-R-5 (Colly.) are copies of the affidavits dated 21.1.2002 and 29.1.2002.

8. I respectfully say that in compliance of the wantings indicated in the aforesaid two letters dated 23.1.2002 and 18.2.2002 addressed by respondent No. 6 AUDA, Deep Cooperative Housing Society Ltd., i.e. respondent No. 3 submitted certain documents viz. Village Form No. 7/12 dated 18.3.2002. Annexed hereto and marked as Annexure-R-6 is a copy of the Village Form No. 7/12 dated 18.3.2002 to substantiate that Deep Cooperative Housing Society Ltd., i.e. respondent No. 3 is owner of both the Survey Nos. 314/1 and 314/2. It is pertinent to note that in the subsequently submitted 7/12 form the total measurement of land bearing Survey No. 314/1 was to an extent of 1766 sq. meters (3336 -1570). It may be noted that 1570 sq. meters of land was acquired under the provisions of the Land Acquisition Act, 1894 for the purpose of widening of Sarkhej-Gandhinagar Highway.

9. I respectfully say that keeping in view the aforesaid affidavits and other documents, the concerned Planning Assistant submitted a report to Assistant Town Planner on 12.2.2002 for appropriate decision in the matter. I respectfully say that when the file was under process the Assistant Town Planner, on 14.2.2002 received two objections, both dated 21.12.2001 from power of attorney holders of Shri Natvarbhai Gandabhai Patel and Shri Kazi Ruknudin Miyasaheb. In the interregnum, the file was moved from the Assistant Town Planner to Planning Assistant for scrutinizing certain aspects and the Planning Assistant after scrutinizing the certain aspects, re-submitted the file to Assistant Town Planner as regards aforesaid objections by the private parties. The Assistant Town Planner, after scrutinizing the objections, submitted the file for decision before the Senior Town Planner on 7.3.2002. The Senior Town Planner, while accepting the proposal of the Assistant Town Planner, submitted the file before the Chief Executive Authority for necessary order. The Chief Executive Authority, raised certain objections and directed the Senior Town Planner to verify the revenue record and resubmit the file. The file was once again resubmitted before the authority and ultimately on 22.3.2002, the decision was taken to sanction the plan and accordingly as stated hereinbelow, the development permission was granted on 16.4.2002, vide Order No. PRM/58/12/01. I crave leave to refer to and rely upon the relevant file notings recorded in the file while sanctioning the development permission at the time of the hearing of the captioned writ petition.

10. I respectfully say that the respondent No. 6 granted the development permission vide Order No. PRM/58/12/01 dated 16.4.2002 with respect to Survey No. 314/1 + 2 (Original Plot No. 54, Final Plot No. 52 of Draft Town Plan Scheme No. 28). Annexed hereto and marked as Annexure-R-7 is a copy of the said development permission without the sanctioned plans. I crave leave to refer to and rely upon the sanctioned plan at the time of hearing of the captioned writ petitioner Re: Development Permission with respect to land bearing Survey Nos. 314/1 and 314/2 in favour of respondent no. 4 i.e. Siddhi Infrabuild Pvt. Ltd.

11. Adverting to the development permission granted in the case of Siddhi Infrabuild Pvt. Ltd., i.e. respondent no. 4 (Modinagar Cooperative Housing Society), I respectfully say that during the preparation of the Draft Town Planning Scheme, the respondent no. 4 was allotted following Final Plot Nos. 8, 10 & 70 in lieu of its various parcels of lands:

Sr. No. Survey No. OP No. OP Area (Sq.Meter) P.O. FP Area (Sq. Meter) 1. Sola : 282/3 + 277/1+2, 278/1 + 279 + 200 + 280 + 281 + 282/1+2 +203+ 277/3 + 278/2 + 304/1 + 303 + 302 + 299/1 + 2 + 3 + 298 + 294/2 + 313/3/P + 313/2 Ghatlodiua: 138 + 141/P + 137/2 + 136/1 76 + 77 + 78 + 55 + 59/P + 52 + 28/P + 29/P + 30/P 1,50,910 70 75,455 2. Ghatlodiua : 122/2 + 123 8 7,992 8 3,946 3. Ghatlodiiia : 122/2 + 123 10 12,950 10 6,475

12. I respectfully say that the land belonging to Siddhi Infrabuild Pvt. Ltd., i.e. the respondent no. 4 (Modinagar Cooperative Housing Society Ltd.), admeasuring 1,50,910 sq. mtrs. alongwith certain parcels of land of the ownership of the State Government i.e. land bearing survey No. 204 paiki (6530 sq. mtrs.), survey No. 205 (1147 sq. mtrs.), survey No. 206 paiki (3944 sq. mtrs.), 276 (14063 sq. mtrs.) and survey No. 199 (10208 sq. mtrs.), were allotted Final Plot No. 70. I further respectfully say that after deduction of 50% of lands, 75,455 sq. mtrs. of land came to be allotted to Siddhi Infrabuild Pvt. Ltd., i.e. the respondent No. 4 (Modinagar Cooperative Housing Society Ltd.) (1,50,910/2 = 75,455 sqmtrs.).

13. I respectfully say that thereafter, owing to certain disputes raised by the State Government resisting the inclusion of portion of land bearing Survey No. 204 paiki (6530 sq. mtrs.), survey No. 205 (1147 sq. mtrs.), survey No. 206 paiki (3944 sq. mtrs.), 276 (14063 sq. mtrs.) and survey No. 199 (10208 sq. mtrs.) and designating it as Final Plot No. 70 with a demand to release the aforesaid government lands. Apropos the aforesaid development, M/s. Siddhi Infrabuild Pvt. Ltd. i.e. respondent No. 4 also represented vide letter dated 15.3.2007 before respondent No. 6 AUDA pursuant to which, AUDA reconstituted Final Plot No. 70 by dividing the same into three parts, designating the same as Final Plot Nos. 70/1, 70/2 and 70/3 and as aforesaid., released the Government Land of various survey nos. including survey No. 204 paiki (6530 sq. mtrs.), survey No. 205 (1147 sq. mtrs.), survey No. 206 paiki (3944 sq. mtrs.), survey No. 276 (14063 sq. mtrs.) and survey No. 199 (10208 sq. mtrs.) and allotted Final Plot No. 70/3 of land admeasuring 9404 sq. mtrs. which includes certain portion of land of survey No. 314/2.

Similarly, similarly, lands at Sr. No. 2 in the aforesaid table were allotted Final Plot Nos. 8/1 and 8/2. I respectfully say that during the modification, the location of the Final Plots was changed as indicated in the map of Plan No. 3. Annexed hereto and marked as Annexure-R-8 is a copy of map of Plan No. 3 Draft Town Planning Scheme No. 28.

14. I respectfully say that the respondent No. 4 submitted an application for development permission on 3.11.2006 and the same came to be rejected for the discrepancies vide letter dated 16.11.2006. Thereafter, Siddhi Infrabuild Pvt. Ltd., i.e. the respondent No. 4 (Modinagar Cooperative Housing Society Ltd.) submitted consolidated application alongwith the proof for developing the final plot Nos. 8/1, 10 and 70/3. In the said application, Siddhi Infrabuild Pvt. Ltd., i.e. the respondent No. 4 (Modinagar Cooperative Housing Society Ltd.) had also prayed for development of the Final Plot No. 8/2. I respectfully say that except certain portion of land bearing Survey No. 314/2, remaining lands were of the ownership of the State Government. Annexed hereto and marked as Annexure-R-9 is a copy of the application under the provisions of sections 29, 34 and 49 of the Town Planning Act, 1976.

15. I respectfully say that it appears that Siddhi Infrabuild Pvt. Ltd., i.e. the respondent No. 4 (Modinagar Cooperative Housing Society Ltd.) had prayed for Non Agriculture permission pursuant to which, the office of the Mamlatdar, vide letter dated 5.6.2007, requested respondent No. 6 AUDA to provide certain information with respect to Final Plot No. 70/3 (comprising land bearing survey No. 314/2). The respondent No. 6 AUDA, vide its letter dated 18.6.2007, furnished the requisite information along with part plan of Draft Town Planning Scheme No. 28 bearing Final Plot No. 70/3. Pertinently, the Final Plot No. 70/3 which was comprising land bearing survey No. 314/2, was given Non Agriculture permission by the office of the Collector vide order dated 12.11.2007. Annexed hereto and collectively marked Annexure-R-10 (Colly.) are the copies of the letters dated 5.6.2007 and 18.6.2007 along with the Non Agriculture permission dated 12.11.2007.

16. I respectfully say that since Siddhi Infrabuild Pvt. Ltd., i.e. the respondent No. 4 (Modinagar Cooperative Housing Society Ltd.) was having the non agriculture permission, respondent No. 6 solely on the basis of the said non agricultural permission, granted the development permission with respect to Final Plot No. 70/3 (comprising land bearing survey No. 314/2). Annexed hereto and marked as Annexure-R-11 is a copy of the development permission granted by respondent No. 6 AUDA.

17. Before concluding, I respectfully say that the State Government in its Revenue Department, vide its Government Resolution dated 16.2.2004 has made it mandatory that all the development permissions should be given only after the production of Non Agriculture permission by the applicant seeking permission. In other words, prior to 16.2.2004, unfortunately, the Development Permissions were given without insisting the production of non agriculture permission by the concerned applicants. I respectfully say that after the resolution dated 16.2.2004, providing for production of the non agricultural permission, sufficient safeguards have been provided i.e. scrutinizing of the documents at the level of the revenue offices. I respectfully say that so far as respondent No. 6 AUDA is concerned, while granting development permission, had no occasion to verify the revenue records in depth. Pertinently, the office of the Collectors and other revenue authorities possesses all the documents reflecting the ownership of the lands, which reflect the accurate details as regards status of the ownership as well as the tenure of the lands. At this stage, it may not be out of place to mention that the respondent No. 6 AUDA while granting development permission, is obliged to observe the parameters provided in Chapter 5 entitled the ‘Decision of the Authority’. Regulation No. 5.3.1 relevant for the present purpose is set out hereunder for ready reference.

“5.3.1 Grant of Development Permission shall mean acceptance by the Authority of the following requirements.

(i) Permissible built up area

(ii) Permissible floor space index

(iii) Height of a building and its stories

(iv) Permissible open spaces enforced under regulations, CP, Marginal spaces, other open spaces, set backs, etc.

(v) Permissible use of land and built spaces

(vi) Arrangement of stairs, lifts, corridors and parking

(vii) Minimum requirements of high rise buildings including NOC from fire officer/fire safety consultant as appointed by the appropriate authority

(viii) Minimum requirement of sanitary facility and other common facility

(ix) Requirement light and ventilation Provided that it shall not mean acceptance of correctness, confirmation, approval or endorsement of and shall not bind or rendered the authority liable in any way in regard to

(i) title of the land or building

(ii) easement rights

(iii) variation in area from recorded areas of a plot or a building

(iv) structural reports and structural drawings

(v) workmanship and soundness of material used in construction of the building

(vi) location of the boundary of the plot,”

161. From the aforesaid reply, the following is discernible:

(1) The Deep Cooperative Housing Society Limited preferred an application dated 24 December 2001 seeking the development permission under the provisions of Sections 27, 34 and 49 respectively of the Gujarat Town Planning and Urban Development Act, 1976.

(2) Along with the said application, the Society submitted copies of the revenue record including the Village Form No. 7/12 dated 11 October 2001.

(3) The name of the Society along with the other private individuals were reflected as the owners of the land bearing Survey No. 314/1 (3336 sq. meters), while the Society was shown as the sole owner of the land bearing Survey No. 314/2 admeasuring 9105 sq. meters.

(4) The Ahmedabad Urban Development Authority called for certain information from the Society for the purpose of processing the application seeking the development permission.

(5) The AUDA ultimately granted the development permission vide order No. PRM/58/12/01 dated 16 April 2002 with respect to the Survey No. 314/1&2 (Original Plot No. 54, Final Plot No. 52 of the Draft Town Planning Scheme No. 28).

(6) The only mistake which appears to have been committed by the AUDA is that the’ development permission came to be granted without seeking non-agriculture permission. This, according to the AUDA, is as per the Government Resolution dated 16 February 2004.

(7) Otherwise all the relevant aspects were kept in mind by the AUDA at the time of granting the development permission.

162. Having heard Mr. Ravani, the learned counsel appearing for the writ-applicant and having gone through the averments made in the petition, we have reached to the conclusion that the petition in public interest does not inspire any confidence.

163. With the adjudication of the Letters Patent Appeal as above, this petition in public interest now pales into insignificance. In such circumstances, this petition in public interest stands rejected.

164. We take notice of the fact that there are two Civil Applications. The Civil Application No. 2050/2014 is with regard to seeking impleadment as the party respondent nos. 5 to 10 in the Letters Patent Appeal No. 34 of 2008 and the Civil Application No. 1088 of 2016 is with regard to seeking impleadment as the party respondent nos. 5 and 6 in the Letters Patent Appeal No. 492 of 2014. The applicants of the two Civil Applications are putting forward some claim so far as the subject land is concerned. It appears that some litigations are going on between the parties as regards the subject land. We are not concerned with the individual rights of the parties so far as the subject land is concerned. We have only decided the question with regard to the maintainability of the Letters Patent Appeal, the issue with regard to the possession under Section 10(5) and Section 10(6) of the ULC Act, 1976, and whether the subject land, at the relevant point of time, was agricultural or not?

165. If there is any litigation pending between any of the parties in any civil court with regard to their individual rights or claim, then such litigation shall be decided by the competent civil court on its own merits. We express no opinion in this regard. We leave all question open for the concerned party to adjudicate before the competent civil court in any litigation, if pending as on date.

166. We once again clarify that if there is any issue with regard to permission for development of the land (construction of the building, etc), the same can always be looked into by the competent authority in accordance with law. There is no reason for us to look into such issues in a writ application filed in public interest, more particularly, when the bona fide of the so-called public spirited writ applicant is in doubt. We could have observed many things in this regard, but we restrain ourselves from doing so.

167. With the above, the two Civil Applications also stand disposed of. If any other Civil Applications are pending as on date with regard to this litigation, they also stand disposed of.

A.C. Rao, J.:— I have had the benefit of going through the judgment prepared by my learned esteem brother J.B. Pardiwala J. I, however, express my inability to agree with the judgment on following points:

Appellant has no locus standi to agitate the matter

168. The appellant has no locus standi to agitate these appeals on two counts. Firstly, there is nothing on record to show that the land in question is owned by society. It is the case of the appellant that on 11.12.1975, a registered sale deed was executed by the original owners in favour of Mr. Harshvadan Hathising Shah and Mr. Mohanlal Umiyashanker Tripathi as promoters of Dip Co-operative Housing Society Limited for the sale of the land in question. It is the case of the appellant that on 15.2.1980, Dip Co-operative Housing Society Limited was registered under Section 9(1) of the Gujarat Co-operative Societies Act, 1961 and it was given Registration No. GH/8068.

169. It is contended by the appellant that the learned single Judge has erred in holding that several lands along with the land in question was purchased by Mr. Harshvadan Hathising Shah and Mr. Mohanlal Umiyashanker Tripathi in their individual capacity and not as promoters of Dip Co-operative Housing Society Limited. The learned single Judge has not properly considered the sale deed dated 11.12.1975, wherein it is clearly stated that both of them had purchased the land as promoters of Dip Co-operative Housing Society Limited and they have acquired right to assign property to the said proposed society. Relying on the sale deed, learned senior counsel for the appellant has vehemently contended that this very aspect is not considered by the learned single Judge. It is contended that they have filled up the form under Section 6(1) of the URBAN LAND (CEILING AND REGULATION) ACT, 1976 (‘the Act’ for short), wherein they have also stated that the land is held on behalf of the proposed society. This fact is not considered by the learned single Judge and therefore, the order of the learned single Judge is bad in law.

170. While opposing the said contention, learned Additional Advocate General has relied on the judgment of this Court, wherein it is held that unregistered co-operative society cannot enter into the contract and it cannot be said that the land in question was purchased by the registered society. This Court has relied on the judgment of the Apex Court in the case of Manekla Mansukhbhai Co-operative Housing Society Limited v. Rajendra Maneklal Shah, reported in (2002) 1 GLH 290. This Court has held that the registered sale deed entered into between the heirs of Ambalal and unregistered co-operative Society itself was a nullity as the contract was between heirs of Ambalal and non-existent entity as proposed society. It is held that the proposed society which is not registered, is not a legal entity and not in existence unless it is registered. Further, in the case of Ishwru Yatayat Coop. Society v. State Transport Appellate Authority reported in (1975) 2 SCC 685, the company was not registered under the Companies Act and it was registered subsequently. While considering the question with regard to subsequent registration of company under the Companies Act, the Apex Court has held that subsequent registration cannot cure the defect which was already there on the date of the registration.

171. The contention of the appellant cannot sustain in eyes of law as the land was never purchase in the name of the society. The proposed society cannot purchase any property. Law on this count is very clear. The Supreme court has decided this very issue in case of Hindustan Coop. Housing Building Society Limited v. Registrar, Co-operative Societies [(2009) 14 SCC 302], wherein it is held that:

“10 “The word ‘deemed’ is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible.” (Per Lord Radcliffe in St. Aubyn (L.M.) v. Attorney-General (No. 2), 1951 2 All ER 473, All ER p. 498 F-G.)

11 “Deemed”, as used in statutory definitions is meant “to extend the denotation of the defined term to things it would not in ordinary parlance denote, is often a convenient devise for reducing the verbiage of an enactment, but that does not mean that wherever it is used it has that effect; to deem means simply to judge or reach a conclusion about something, and the words ‘deem’ and ‘deemed’ when used in a statute thus simply state the effect or meaning which some matter or thing has - the way in which it is to be adjudged; this need not import artificiality or fiction; it may simply be the statement of an undisputable conclusion.” (Per Windener, J. in Hunter Douglas Australia Pty. v. Perma Blinds, 1970 44 Aust LJ 257.)

12 When a thing is to be “deemed” something else, it is to be treated as that something else with the attendant consequences, but it is not that something else (per Cave, J., R. v. Norfolk County Court, 1891 60 LJ QB 379).

“When a statute gives a definition and then adds that certain things shall be ‘deemed’ to be covered by the definition, it matters not whether without that addition the definition would have covered them or not.” (Per Lord President Cooper in Ferguson v. McMillan, 1954 0 SLT 109)

13 Whether the word “deemed” when used in a statute established a conclusive or a rebuttable presumption depended upon the context (see St. Leon Village Consolidated School Distt. v. Ronceray, 1960 23 DLR (2d) 32).

“I… regard its primary function as to bring in something which would otherwise be excluded.” (Per Viscount Simonds in Barclays Bank v. IRC, 1961 0 AC (HL) 509).

14 “Deems” means “is of opinion” or “considers” or “decides” and there is no implication of steps to be taken before the opinion is formed or the decision is taken. (See R. v. Brixton Prison (Governor), ex p Soblen, 1962 3 All ER 641, All ER p. 669C)”

172. It is also decided that subsequent registration of the society does not make any difference because the land was purchased by two individuals. This view is also supported by the judgment in case of State of Uttar Pradesh v. Adarsh Seva Sahkari Samiti Limited [(2016) 12 SCC 493], wherein it is held that:

“5. It is also brought to our notice by the learned senior counsel Mr. Misra that after the proceedings Under Sections 10(3) and 10(5), notice and the alleged taking over possession of the land in question, the subsequent event has taken place, namely, the said property has been transferred to the Lucknow Development Authority by the State Government and the development authority has laid a park for public use. On this, learned senior counsel for the respondent submits that the said event has taken place during the pendency of the proceedings before the High Court. Though it may be the fact, subsequently, after the transfer of the property in favour of the development authority, the authority has developed a park is an undisputed fact. This is also a very relevant aspect of the matter for this Court to annul the impugned judgment/order passed by the High Court.

6. In our opinion, the respondent herein has no locus standi to challenge the inaction on the part of the appellants viz. not taking possession legally strictly complying with the statutory provisions under Section 10(5) of the Act and taking over possession as provided under Section 10(6) of the Act. At this juncture, this aspect need not be examined by this Court at the instance of the respondent.”

173. The appellant has come with a case that the two purchasers or so called promoters have a right to assign the property in favour of the appellant society, there is no registered document whereby the property in question was assigned in favour of the society. In this regard, a reference can be made of the case of Maneklal Mansukhbhai Co. Op. Housing Society Ltd. v. Rajendrakumar Maneklal Shah [2001 (6) Scale 226], wherein after discussing the various provisions of the Gujarat Cooprative Societies Act and Rules framed under the Act, the Supreme Court has held that “the Society becomes competent to acquire, hold and dispose of the property only when it is registered and not otherwise. We have noticed earlier that there was no assignment of the rights of Nanubhai Jogibhai Desai flowing from the agreement in favour of the Society. In absence of such assignment, the Society was not competent to file a suit for specific performance of agreement to sell under the Act.”

174. It is needless to say that the document assigning any right in favour of any person or a legal entity requires registration under Section 17 of the Registration Act. This principle is well settled for long. The Apex Court in case of Lachhman Dass v. Ram Lal [AIR 1989 SC 1923] held that:

“14. The real purpose of registration is to secure that every person dealing with the property, where such document requires registration, may rely with confidence upon statements contained in the register as a full land complete account of all transactions by which title maybe affected. Section 17 of the said Act being a disabling section, must be construed strictly. Therefore, unless a document is clearly brought within the provisions of the section, its non-registration would be no bar to its being admitted in evidence.

15. On a proper construction of the award, it does appear to us that the award did create, declare or assign a right, title and interest in the immovable property. The award declares that 1/2 share of the ownership of Shri Lachhman Dass shall “be now owned by Shri Ram Lal, the respondent in addition to his 1/12 share owned in these lands”. Therefore, the said award declares the right of Ram Lal to the said share of the said property mentioned in that clause. It is not in dispute that the said property is immovable property and it is not merely a declaration of the pre-existing right but creation of new right of the parties. It is significant to bear in mind that the section enjoins registration wherever the award “purports or operates to create, declare, assign, limit or extinguish” whether in present or in future any right, title or interest of the value of Rs. 100.00 or upwards in immovable property.”

(emphasis supplied)

175. The appellant has not produced any document, registered or unregistered, showing that the so called promoters have transferred their rights of the land in question, in favour of the appellant society.

176. Secondly that the appellant society cannot file appeal without filling a declaration under Section 6(1) of the Act. The appellant society ought to have filed a declaration under Section 6(1) of the Act. The purchaser had filled the declaration under Section 6(1) of the Act stating that the property is owned by the society but the appellant society had not filed any declaration under Section 6(1) of the Act. Therefore, the appellant society cannot challenge the order of the Competent Authority. This view is fortified by the Supreme Court in case of State of Gujarat v. Maliben Nathubhai reported in AIR 2017 SC (Supp) 864 wherein it is held:

“18 Finally, in our view if the plaintiffs did in fact claim to have a right in the property of Bhulabhai Bhikhabhai, they ought to have filed a declaration under Section 6(1) of the Act. That they did not do so when they attained the age of majority is a clear indication that they were fully aware that they had no right in the property of Bhulabhai Bhikhabhai who died intestate sometime in 1947. By filing an appeal before the Tribunal in 1991, the plaintiffs sought to make a claim, by a side-wind, on the suit property without even by filing a declaration under Section 6(1) of the Act. Surely, they cannot be permitted to indirectly make a claim which they failed to make directly.

177. In the case on hand, the appellant society has not filed any declaration under Section 6(1) of the Act. And it does not hold the property in question so on these counts, the appellant society has no locus standi to challenge the order of the competent authority under the Act.

Agricultural Land

178. Before considering whether the land in question is Agricultural land or not? it is necessary to refer to the provisions contained in the Act, for an effective consideration and to reach a just conclusion. Under the Act, by virtue of Section 1(2) of the Act, the Act was applied to the whole of the State of Gujarat. Under Section 2(a), the appointed day was defined to mean in relation to any State to which the Act applied in the first instance the date of introduction of the Act, 1976 in the Parliament which was admittedly 17.02.1976. Under Section 2(n) what is an ‘urban agglomeration’ has been defined and it is not in dispute that district Ahmedabad, where the lands in question is situated, falls within the definition of ‘urban agglomeration’ mentioned in Schedule 1 of the Act. Under Section 2(o) ‘Urban Land’ has been defined to mean any land situated within the limits of an urban agglomeration referred to as such in the Master Plan. However, it does not include any such ‘land’ which is mainly used for the purpose of ‘agriculture’. Under Section 2 (q) ‘vacant land’ has been defined to mean land not being mainly used for the purpose of agriculture in an urban agglomeration subject to other exclusions contained in the said sub-clause (q). The expression ‘agriculture’ has been specifically defined under the Explanation (A), to Section 2(o) by which it is stated that agriculture would include ‘Horticulture’ but would not include ‘raising of grass’, ‘dairy farming’, ‘poultry farming’, ‘breeding of livestock’ and such cultivation or growing of such plant as may be prescribed. Under Explanation (B), it is mentioned that land not being used mainly for the purpose of ‘agriculture’, if such land has not entered in the revenue or land records before the appointed day as for the purpose of ‘agriculture’. Under Explanation (C), it is further stipulated that notwithstanding anything contained in Explanation (B) ‘land’ shall not be deemed mainly used for the purpose of agriculture, if the land has been specified in the Master Plan for the purpose other than agriculture. Section 6 of the Act, 1976 prescribes the ceiling limit of vacant land which a person can hold in an urban agglomeration of the Act, 1976. If a person holds vacant land in excess of the ceiling limit at the commencement of the Act, he should file the statement before the competent authority of all vacant land to enable the State Government to acquire such vacant land in excess of ceiling limit under the Act. It is undisputed fact that land in question is included in Master plan and again revised master plan notified on 02.11.1987 by the State Government showing the subject land falling under the reservation of GSFC for the purpose other than agriculture, this fact is reflected in the appeal by the appellant. Therefore, it does not make any difference whether it is agriculture land or not, so far as the land in question and application of the provisions of ULC act, are concerned. In this regard, it would be useful to refer the judgement of the Apex Court in case of State of Uttar Pradesh v. Nand Kumar Aggarwal [AIR 1998 SC 473], wherein it is held:

“6. In the master plan the area in question is no doubt shown as agriculture. If we refer to the Schedule mentioned in the definition of urban agglomeration it could be seen that area in question falls within urban agglomeration as it is situated within the peripheral area of the Municipal Corporation of Lucknow (Lucknow Nagar Mahapalika). The land in question will not be urban land if though situated within the limits of an urban agglomeration, it is mainly used for the purpose of agriculture. Operating of a Bhatta cannot certainly be an agriculture purpose. Mr. Rohtagi, learned counsel for the 1st respondent submitted that Explanation to clause (o) shows as what is not included in agriculture and since Bhatta is not one of the entries therein it would mean that operating Bhatta would be an agriculture purpose. We do not find any substance in the submission. It is correct that the land in question is entered in the revenue record but at the same time the record shows that the land is being used for Bhatta. The foremost question is : if the land in question though agricultural was being mainly used for the purpose of agriculture on the appointed day? Seeing the definitions as set out above and the affidavit of the 1st respondent dated 13.08.1976 the answer is obvious that the land in question is not being mainly used for the purpose of agriculture. Agriculture under the Explanation to clause (o) has limited meaning. It includes horticulture but does not include cultivation of every type of vegetation or rearing of animals or birds. That apart to hold that land is mainly used for the purpose of agriculture it is not enough even if the land is entered in the revenue records before the appointed day used for the purpose of agriculture or even if so entered the master plan gives purpose of the land other than agriculture. In the present case though (B) and (C) to the Explanation are satisfied but (A) is not as the purpose to which the land, though agriculture and so entered in the revenue records, was being used for running of brick-kiln. High Court was not, therefore, correct in holding that the land was being mainly used for the purpose of agriculture merely on the strength of the purpose in master plan which is specified as agriculture (Krishi Bhumi) and that the land is entered in the revenue records. High Court has wrongly applied Explanation B to clause (o) of sec. 2 of the Act. Simply because land is entered in the revenue record would not mean that it is being used mainly for the purpose of agriculture. Here the land is mainly used for the purpose of brick kiln business of the 1st respondent. It is not material if a small portion of the land was being used for the purpose of agriculture as well.”

179. The Apex Court has also taken the same view in case of Government of Andhra Pradesh v. J. Sridevi [AIR 2002 SC 1801], wherein it is held:

“6. According to the appellants, in the master plan, the land involved herein is brought under the Urban Agglomeration.

Therefore, the question arises whether the property included in the Urban Agglomeration could be treated as urban land or continues to be an agricultural land. On the date of commencement of the Act, i.e. on 17.2.1976, the land was agricultural land. It is possible to contend that at that time the ULC Act had no application to these lands. The question that came up for decision before the learned Single Judge was whether by the inclusion of this land in the Urban Agglomeration under the master plan, the property would still continue to be excluded from the purview of the ULC, Act 1976. The learned Single Judge relied on the decision of this Court in Atia Mohammadi Begum (Smt.) v. State of Uttar Pradesh (1993) 2 SCC 546 wherein this Court had held that the area of vacant land in excess of the ceiling limit under the Act is to be determined with reference to the date of commencement of the Act and the right and liability of the holder of the land for this purpose under the Act crystallizes on the date of commencement of the Act unaffected by any subsequent events. The scheme of the Act supports the construction that the aforesaid Explanation (C) means that if the land has been specified in the master plan existing at the time of commencement of the Act for a purpose other than agriculture, then the land shall not be deemed to be mainly used for the purpose of agriculture by virtue of the Explanation and not if the land is specified in a master plan prepared after the commencement of the Act.”

(emphasis supplied)

7. Based on the above decision, the learned Single Judge held that the respondents purchased lands which are situated outside the master plan in force on the appointed day, and as such, the provisions of the ULC Act will not be attracted on such lands. This view was upheld by the Division Bench. It may be noted that the view held in Atia Mohammadi Begum (Smt.) case (supra) was partly overruled by this Court in State of Andhra Pradesh v. N. Audikesava Reddy (2002) 1 SCC 227 to which one of us (SabharwalJ.) is a party. It was held that the master plan prepared as per law in force even subsequent to enforcement of the Act is to be taken into consideration to determine whether a particular piece of land is vacant land or not and, to this extent, the decision in Atia Begum case (supra) was partly overruled. The explanation appended to Section 6(1) of the Act regarding “commencement of the Act” was taken note of by this Court and it was held in Para 13 at page 233-234 as follows:“… Further, the Explanation to Section 6(1), as noticed above, very significantly provides that every person holding vacant land in excess of the ceiling limit at the commencement of the Act shall file a statement before the competent authority and “the commencement of the Act” under clause (ii) would be when the land becomes vacant for any reason whatsoever. Therefore, the date of commencement of the Act in a case where the land, which was not vacant earlier, would be the date on which such land becomes vacant land. It, thus, contemplates a situation of land, not being vacant, becoming vacant due to preparation of a master plan subsequent to 17-2-1976. Further, the provisions of the Act require filing of a statement under Sections 6, 7, 15 and 16 from time to time as and when land acquires the character of a vacant land. Obligation to file statement under the Act arises when a person comes to hold any vacant land in excess of the ceiling limit, which date necessarily may not be 17-2-1976. It would all depend on the facts and circumstances of each case.”

(emphasis supplied)

8. In that view of the matter, we feel that the Division Bench was not justified in declaring that the lands owned by these respondents were outside the purview of the provisions of the ULC Act and also further directing HUDA to sanction forthwith the lay-out and the group housing scheme submitted by the respondents.

9. It may be noted that these respondents submitted application before the Special Officer-cum-Competent Authority alleging that they were holding land to the extent of 1000 square meters and it is outside the purview of the ULC Act and that they may be given a certificate to that effect. These applications were not finally considered and disposed of by the Special Officer-cum-Competent Authority. Though the respondents contended that the Special Officer-cum-Competent Authority had made an endorsement in the official paper to the effect that the land involved was outside the purview of the Act, but no such order was communicated to the respondents. In the counter-affidavit filed by the State, it is specifically stated that no decision was taken on the application submitted by the respondents and before the decision was taken, the respondents approached the Court by filing the Writ Petition. When the applications were pending before the Special Officer-cum-Competent Authority, the High Court should have directed the authority to take an appropriate decision. When a statutory authority is vested with power to determine the question as to the applicability of the provisions of the Act, it is ordinarily desirable to leave the question to be decided by such authority. The aggrieved party can file appeal against the decision within the framework provided under the Statute and the ultimate decision also could be challenged under judicial review, if permitted in law. Instead of undergoing the normal procedure, the respondents herein directly approached the High Court for the reliefs sought for by them.”

180. The said view is again reiterated by the Apex Court in case of State of Andhra Pradesh v. N. Audikesava Reddy [AIR 2002 SC 5], wherein it is held:

“12. Accordingly, we hold that the master plan prepared as per law in force even subsequent to enforcement of the Act is to be taken into consideration to determine whether a particular piece of land is vacant land or not and, to this extent, Atia Begum is not correctly decided.”

Notice under section 10(5)

181. It is contended that the learned single Judge has failed to appreciate the fact that the notice under Section 10(5) of the Act had been issued to the dead person. The learned single Judge has failed to consider that the respondents were well aware that Mrs. Anjanaben harshdev Shah was Chairman of the appellant society as and when she had filed Appeal No. 294 of 1979 before the Tribunal and even Special Civil Application No. 4430 of 1992 was filed by her, so the notice was required to be issued under Section 10(5) of the Act to her. The learned single Judge has failed to appreciate the fact that the possession of the subject land was not taken by the State Government as alleged on 23.06.1992. It is contended that as the notice was bad in law, it cannot be said that there was a compliance of the procedure laid down under Section 10 of the act for taking possession of the land in question. Therefore, all subsequent actions taken by the State Government after issuance of the notice, were required to be declared as non est and void ab initio. The learned single Judge has wrongly held that the appellant was in illegal possession of the land in question after 23.06.1992 and they are trespassers. to the land in question. The learned single Judge has not considered the revenue records of the subject land. In the revenue records, the name of the appellant is reflected and it is sufficient proof to show that the State Government had never taken the possession of the land in dispute. The learned single Judge has failed to appreciate that the interim order was passed in Special Civil Application No. 4430 of 1992 on 02.07.1992, wherein it was directed to maintain status quo by the parties and even thereafter, the appellant was shown as an occupant in the revenue records. It is vehemently submitted that all the circumstances clearly show that the appellant was in possession of the land in dispute and therefore, when the Urban Land (Ceiling and Regulation) Repeal Act, 1999 ((‘the Repeal Act’ for short)) came into force, all the proceedings against the appellant are required be held as abated. This shows total non-application of mind on the part of the learned single Judge. In support of his submissions, the learned senior counsel has relied on the various judgments of the various courts. While learned Additional Advocate General has opposed this contention and contended and drawn our attention to the fact that the notice was issued through registered post and supporting documents to this very fact are on record. It is submitted that the heirs were well aware of this fact and they have taken part in the proceedings and therefore, they can’t take objection about non service of notice. He has also relied on the various judgements of the various courts including the Apex Court.

182. This question of notice under section 10(5) does not require any discussion in view of the judgement of the Apex court in case of State of Assam v. Bhaskar Jyoti Sarma (supra), wherein, in para (11) it is held that “Could such use of force vitiate the dispossession itself or would it only amount to an irregularity that would give rise to a cause of action for the aggrieved owner or the person in possession to seek restoration only to be dispossessed again after issuing a notice to him. It is this aspect that has to an extent bothered us. The High Court has held that the alleged dispossession was not preceded by any notice under Section 10(5) of the Act. Assuming that to be the case all that it would mean is that on 7th December, 1991 when the erstwhile owner was dispossessed from the land in question, he could have made a grievance based on Section 10(5) and even sought restoration of possession to him no matter he would upon such restoration once again be liable to be evicted under Sections 10(5) and 10(6) of the Act upon his failure to deliver or surrender such possession. In reality therefore unless there was something that was inherently wrong so as to affect the very process of taking over such as the identity of the land or the boundaries thereof or any other circumstance of a similar nature going to the root of the matter hence requiring an adjudication, a person who had lost his land by reason of the same being declared surplus under Section 10(3) would not consider it worthwhile to agitate the violation of Section 10(5) for he can well understand that even when the Court may uphold his contention that the procedure ought to be followed as prescribed, it may still be not enough for him to retain the land for the authorities could the very next day dispossess him from the same by simply serving a notice under Section 10(5). It would, in that view, be an academic exercise for any owner or person in possession to find fault with his dispossession on the ground that no notice under Section 10(5) had been served upon him.”

(emphasis supplied)

Possession

183. It is vehemently contended that only de facto possession is taken by the respondent. In order to substantiate his submission, the learned senior counsel has relied on various documents. While in Special Civil Application No. 4430 of 1992, the Deputy Collector and the Competent Authority under the Act had filed its affidavit-in-reply, inter alia, contending that the promoter of Dip Co-operative Housing Society Limited filed Form No. 1 under Section 6(1) of the Act declaring Survey No. 314/1 and 314/2 admeasuring 13657 sqmtrs. of land. After verification of the said form on 30.3.1986, the competent authority had issued a draft statement under Section 8(3) of the Act to declare the holding of the land admeasuring 12657 sqmtrs. of Survey No. 314/1 and 314/2 except vacant land. The said draft statement was also received by the aforesaid declarant. Despite the same, no representation was received by the competent authority. The competent authority therefore, proceeded further and issued order under Section 8(4) of the Act on 31.5.1989 declaring the land admeasuring about 10141 sqmtrs. as excess vacant land out of Survey No. 314/1 and 314/2 of village Sola. The order is also produced along with the affidavit. In the said order, it was stated that the appellant should produce the demarcation plan of the land which they intend to surrender to the State Government as excess and vacant land. However, no demarcated plan was produced by the society or its promoters before the competent authority. The competent authority issued a final statement under Section 9 of the Act on 23.6.1989. Copy of the final statement is also produced on record. Thereafter on 19.8.1989 the competent authority had issued a notification under Section 10(1) of the Act which was subsequently published in the official gazette. Copy of the notification under Section 10(1) of the Act is also produced on record. The competent authority issued notice under Section 10(5) of the Act in May 1992 to the declarant to hand over the possession of the land within 30 days from the receipt of the notice. Copy of the said notice is also produced on record. The notice was served by the registered post A/D. The competent authority had issued notice under Section 10(6) of the Act intending that the land in question shall be forcefully taken over on 26.6.1992. The said notice was also served and pursuant to the said notice, the possession of the land in question was taken over by the State Government on 23.6.1992 and necessary panchnama regarding the same was also drawn. The panchnama is also produced on record along with a map and thereby, the actual possession of the land in question was taken.

184. It is contended that whether the possession was taken after following the due process or not. This inquiry can be made by the competent appellant authority provided under the Act, so this question cannot be raised for the first time before this Court. The competent authority under the Act has all powers of Civil Court while trying the suit under Civil Procedure Code and therefore, the question whether the competent authority has followed the due procedure of law or not can’t be raised in the appeal unless the same has been raised before Appellant authority under the Act and before the learned single judge. In the present case, the same has not been done by the appellant and therefore, there is no merit in the contention raised by the appellant.

185. The competent authority has taken possession after completing procedure under section 10 of the Act. If procedure is completed than the appellant has to challenge it before competent appellant authority, otherwise it should be presumed that the Appellant has waived its right. A similar question came for consideration before the Supreme Court in the case of State Of Uttar Pradesh v. Hari Ram ., (2013) 4 SCC 280. In the reported case, a question arose as to whether the deemed vesting of surplus land under Section 10(3) of the Act would amount to taking de facto possession depriving the landholders of the benefit of the saving clause under Section 4 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999. After examining in detail the provisions of the Ceiling Act and the Repeal Act, the Court observed that

“41. Let us now examine the effect of Section 3 of Repeal Act 15 of 1999 on sub-section (3) of Section 10 of the Act. The Repeal Act, 1999 has expressly repealed Act 33 of 1976. The objects and reasons of the Repeal Act have already been referred to in the earlier part of this judgment. The Repeal Act has, however, retained a saving clause. The question whether a right has been acquired or liability incurred under a statute before it is repealed will in each case depend on the construction of the statute and the facts of the particular case.

42. The mere vesting of the land under sub-section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18-3-1999. The State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section (5) of Section 10 or forceful dispossession under sub-section (6) of Section 10. On failure to establish any of those situations, the landowner or holder can claim the benefit of Section 4 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 4 of the Repeal Act.”

(Emphasis added)

186. Thus fine demarcation line is drawn by the Apex Court, if procedure under sub-section (5) and (6) of Section 10 is followed than it cannot be said that the only de facto possession is with the respondent. In the case on hand, the state has successfully established by placing necessary documents on the record of the case that there is compliance of sub-section (5) and (6) of section 10 of the Act and possession was taken de jure and therefore, the appellant cannot claim the benefit of Section 4 of the Repeal Act. Further the possession was taken in the year 1992 but till date, the appellant has not challenged this very action of the state government. If the appellant has not challenged the action of taking possession within reasonable time, it could be said that the appellant has waived its right and it will amount to deemed acceptance on the part of the appellants.

187. In this regard, it would be fruitful to refer the case of State of Assam v. Bhaskar Jyoti Sarma reported in AIR 2015 SC (Supp) 264 where in it is held in para (12) that:

“any grievance based on Section 10(5) ought to have been made within a reasonable time of such dispossession. If the owner did not do so, forcible taking over of possession would acquire legitimacy by sheer lapse of time. In any such situation the owner or the person in possession must be deemed to have waived his right under Section 10(5) of the Act. Any other view would, in our opinion, give a licence to a litigant to make a grievance not because he has suffered any real prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted him to raise the issue regarding his dispossession being in violation of the prescribed procedure.”

(Emphasis added)

188. Undoubtedly, the 1976 Act, stood repealed by the 1999 Act. However, it has no bearing on this case for the reason that pending proceedings in any Court relating to the 1976 Act, stood abated, provided the possession of the land had not been taken from the appellant. Therefore, in a case, where the possession has been taken, the repeal of the Act would not confer any benefit on the appellant. [Vide Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P., (2000) 6 SCC 325 : AIR 2000 SC 3415 : 2000 AIR SCW 1882; Ghasitey Lal Sahu v. Competent Authority, (2004) 13 SCC 452; and Mukarram Ali Khan v. State of Uttar Pradesh, (2007) 11 SCC 90 : AIR 2007 SC (Supp) 985 : 2007 AIR SCW 6286].”

189. In view of the above, Section 3(2)(b) of the Repeal Act would not be applied in isolation as the prerequisite of its application to the fact that possession of the land in question, has not been taken over by the State Government. In the facts and circumstances of the present case, arising out of this appeal, the appellant cannot get any benefit of the Repeal Act as tried to be canvassed by the appellant in this appeal, as the possession is already taken in the instant case.

Section 19 (1) (v) of the Act and Applicability of the Circular

190. Learned senior counsel for the appellant has vehemently contended that the learned single Judge has erred in holding that the appellant is not entitled to the benefit of the government circular dated 1.10.1977 issued by the Revenue Department as the present appellant had never applied for the exemption under the said circular. The circular dated 1.10.1977 is produced on record and as per the said circular, the government had decided to grant exemption under Section 20(1)(a) and (b) of the Act to the following categories with certain terms and conditions:

“(1) Co-operative Society holding and under registered sale deed executed before 28.1.1976 but the society could not be registered due to administrative or other reasons.

(2) Where society is registered prior to 28.1.1976 but sale document could not be registered before the Act came into force for the reasons beyond the control of the society.

(3) Registered Co-operative Housing Society which enters into an unregistered banakhat with the holder of vacant land before 28.1.1976, if it produces adeuate proof of payment of earnest money as per banakhat.

(5) Registered Co-operative Housing Society having registered banakhat (registered before 28.1.1976) shall be considered eligible for exemption as a matter of course.

2. For cases mentioned in categories (2) to (5) above, exempt the will have to be granted in favour of the holder of the land and expermission for copleting the sale document in favour of the society will have to be granted. Unregistered (proposed) Co-operative Housing Societies which willl be granted exemption under this order willl have to be considered by the District Registrar/Assistant Registrar concerned, for registration under the Gujarat Co-operative Societies Act, 1961, if other requirements under that Act are fulfilled.

3. The exemption shall be subject to the following normal conditions:—

(i) The land or part thereof shall not be transferred in any manner otherwise than by than by way of mortgage to Government Financial Institutions/Nationalised Bank for the purpose of loans without prior permission of the Government.

(ii) The land shall not be used for the purpose other than residential by the Society.

(iii) The exemption is liable to be withdrawn in the event of breach of any of the above condition as provided in sub section (2) of section 20 of the Act, after following the prescribed procedure, without paying any compensation for the structures constructed on the land.

By order and in the name of the Governor of Gujarat,”

191. It is pertinent to note that the said circular was subsequently cancelled by the State Government by notification.

192. Learned senior counsel for the appellant has vehemently contended that the learned single Judge has failed to appreciate that the appellant was entitled for exemption from the provisions of the Act under clause 1 of the government circular as referred above. It is contended that the appellant was entitled to exemption under Section 19(1)(v) of the Act. Even on the day when the revised development plan was notified by the State Government on 2.11.1987. As on 2.11.1987, the appellant was a registered co-operative housing society and hence, entitled under Section 19(1)(v) of the Act. It is contended that the learned single Judge has failed to appreciate revised master plan notified by the State Government on 2.11.1987, showing the subject land falling under the reservation of GSFC has no consequence. The present appellant was a registered co-operative housing society before 2.11.1987. It is contended that the learned single Judge has failed to consider the fact that the appellant was granted agricultural exemption vide orders dated 25.5.1979 and 5.3.1988. The learned single Judge has not referred the said orders in his judgment. The learned single Judge has failed to appreciate that the society was registered before 2.11.1987 and therefore, the benefit under Section 19(1)(v) of the Act was required to be extended to the appellant. It is contended that the learned single Judge has failed to consider the fact that the land admeasuring 4553 sqmtrs. was granted agricultural exemption by the competent authority and the Deputy Collector by order dated 5.3.1988. The learned single judge has not considered the additional affidavit and the affidavit-in-rejoinder filed by the appellant and erroneously concluded that only 15 guntha of land in question had been exempted by order dated 13.11.1979.

193. While opposing the submissions, the learned Additional Advocate General has contended that the appellant had not applied to the concern authority to obtain benefit of the circular and therefore, they cannot claim benefit under the circular. While according to the appellant, the appellant society was registered before 2.11.1987 and therefore, it is not required to apply to the respondent authority for any exemption.

194. Condition No. 1 of the circular stipulates that the society must hold the land. In case on hand, there is nothing on record to show that the society was holding the land in question. The word ‘holding’ is explained in case of Maneklal Mansukhbhai Co. Op. Housing Society Ltd. (supra). There is nothing to show that land in question was ever transferred to the appellant society and therefore, the very prerequisite condition stipulated in the circular is not fulfilled and therefore, the benefit of the said circular cannot be extended to the appellants.

195. In reply to this aforesaid contention, it has been argued that the appellant has carried out construction over the land admeasuring about 2000 sqmtrs. which were exempted to Mr. Harshvadan Hathising Shah and Mr. Mohanlal Umiyashanker Tripathi (1000 sqmtrs. of land to each of them by the competent authority). And therefore, there is no breach of the order of status quo.

196. On perusal of record it appears that the appellant has not produce any evidence that the land in question was granted an exemption by the respondent state and this very fact has also been accepted by the appellants. However, in affidavit in reply filed before the learned Single Judge, it is admitted that only 15 guntha of the land in question had been granted exemption vide order dated 13.11.1979. Further it is contended by the respondent that the appellant has constructed a commercial building over the land in question despite the fact that the same is claimed to have been purchased for the purpose of constructing residential units. Under the circumstances, it is not open for the appellant to claim the benefit of exemption under the Act. It is contended that though the appellant was directed to maintain status quo by this Court during the proceeding, the appellant had proceeded with construction of commercial building over the land in question.

Learned Single has not dealt with submission of the Appellant

197. I do not find any substance in the submission of the learned senior counsel for the appellant that the learned single judge has not dealt with all the submissions canvassed by him. It is very easy to find fault with others than to find with oneself. On one hand, it is contended that though the ground of possession was not taken by the appellant in the writ petition but learned single Judge has decided the question of possession, therefore appeal is maintainable, but on the other hand, it is contended that the learned single Judge has not considered the submissions raised in the writ petition. There must be submission about possession and therefore that question is decided. While other grounds in writ may not be argued. Such vague submissions are not permissible. To this aspect, reference cant be made to the judgement of the Supreme Court in case of State of Maharashtra v. Ramdas Shrinivas Nayak, (1982) 2 SCC 463 where, in para 4, a question arose qua a concession made in the High Court, while contending the matter before the Supreme Court. It is in that context it was observed that the Supreme Court would not launch into an inquiry as to what transpired in the High Court:

“4 It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. “Judgments cannot be treated as mere counters in the game of litigation” (Per Lord Atkinson in Somasundaram Chetty v. Subramanian Chetty, AIR 1926 PC 136). We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhu Sudan Chowdhri v. Chandrabati Chowdhrain, AIR 1917 PC 30). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.”

(emphasis supplied)

198. The aforesaid paragraph was, once again, extracted with approval in Y. Sleebachen v. State of Tamil Nadu through Superintending Engineer Water Resources Organisation/Public Works Department, (2015) 5 SCC 747.

Suppression of material facts

199. It is contended that the petitioners of Writ Petition (PIL) No. 243 of 2012, have produced sufficient materials on record after the death of the purchaser of the land in dispute and their heirs had proceeded with the litigation and therefore, the contention of the appellant that the notice issued against dead would vitiate the proceeding under the Act. This very substantial fact with regard to participation by the heirs of the concerned land owners, in the revenue proceedings is suppressed by the appellants and therefore, they are not entitled to discretionary relief from this Court.

200. It is also noteworthy to mention the cardinal principle of Democracy and Co-Operation. The basic object of the Act was to provide housing accommodation to the maximum numbers of people of lower economic class. So the residential housing society were exempted from the Act. In the present case, the co-operative society has registration no. GH/8068 (whereby ‘GH’ stands for the Residential Housing Society). It is not in dispute that the commercial building is existed over the land in question, though this Court has directed to maintain the status-quo and therefore, the very basic purpose and object of the society is being frustrated. The Apex Court and this Court, on ample occasions, has deprecated the aspect of construction of commercial units and running of commercial activities over the lands reserved for people to reside.

201. At the time of arguments, learned senior counsel for the appellant has tried to mislead this Court and contended that they have constructed over 2000 sqmtrs. The total land purchased by the promoter of the society was 12141 sqmtrs. and out of which 10141 sqmtrs. of land, was declared vacant land. It is contended that the promoter of the society is entitled to make any construction in this remaining 2000 sqmtrs. of land. While making this submission, learned senior counsel for the appellant has suppressed the fact that the land admeasuring 1267 sqmtrs. has been acquired for Sarkhej-Gandhinagar Highway. They have claimed compensation for the said land. Thus the appellants, have approbate and reprobate. In such situation, the following passage from Halsbury's Law of England, 4th Edn., Vol.16 (Reissue), para 957 at p.844 would be relevant to quote:

“On the principle that a person may not approbate and reprobate a special species of estoppel has arisen. The principle that a person may not approbate and reprobate expresses two propositions:

(1) That the person in question, having a choice between two courses of conduct is to be treated as having made an election from which he cannot resile.

(2) That he will be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct, which he has first pursued and with which his subsequent conduct is inconsistent.”

202. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent stands. The untenability of an inconsistent stand in the same case was considered in Amar Singh v. Union of India, (2011) 7 SCC 69, by the Supreme Court observing as follows:

“50. This Court wants to make it clear that an action at law is not a game of chess. A litigant who comes to Court and invokes its writ jurisdiction must come with clean hands. He cannot prevaricate and take inconsistent positions.”

203. A similar view was taken in Joint Action Committee of Air Line Pilots Assn. of India v. DG of Civil Aviation, (2011) 5 SCC 435, observing:

“12. The doctrine of election is based on the rule of estoppelthe principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily.”

204. In Gillett v. Holt, the Court of Appeal, (2000 2 All ER 289) upon referring to a large number of decisions, developed the doctrine of proprietary estoppel opining:

“The overwhelming weight of authority shows that detriment is required. But the authorities also show that it is not a narrow or technical concept. The detriment need not consist of the expenditure of money or other quantifiable financial detriment, so long as it is something substantial. The requirement must be approached as part of a broad inquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances.”

205. In Indu Shekhar Singh v. State of U.P., reported in AIR 2006 SC 2432 Supreme Court stated:

“They, therefore, exercised their right of option. Once they obtained entry on the basis of election, they cannot be allowed to turn round and contend that the conditions are illegal.”

206. The appellants, on one hand, have claimed benefit under circular on the ground that the appellant is housing co-operative society and on the other hand, they have constructed commercial complex. Also on one hand, the appellants have stated that they are utilising remaining 2000 sqmtrs. of land which is not declared as vacant land and on the other hand, it is contended that the possession is not taken over and the land cannot be termed as a vacant land. The appellant society has not produce any material document to show that it is owner of the land in question. It appears that in Revision Application No. LB/RA No. 148/2001 under Section 108(6) of the Land Revenue Code was preferred before the District Collector, Ahmedabad-Gandhinagar and the said Competent Authority has passed order on 10.10.2003, wherein it was held that the land in question was purchased by Harshvadan Shah and Mohanlal Tripathi in their personal capacity and they have not produced any registered document so as to show that they have transferred the land in question in favour of the appellant co-operative society. The entry was ordered to be cancelled in the revenue records. Thus, the appellant is making willful mis-statements and is attempting to mislead this Court and has suppressed material regarding compensation claimed for the land which is acquired for Sarkhej-Gandhinagar Highway. A writ remedy is an equitable one. A person approaching a superior court must come with a pair of clean hands. The appellant has also obtained status quo by suppression of material facts and thereby, committed a fraud on the Court of law, therefore, they are not entitled for discretionary relief from this Court on this sole ground, even.

207. A person invoking, the Writ Jurisdiction of the High Court under Article 226 of the Constitution of India, is duty bound to place all relevant and material facts before the Court of law without any reservation and preservation. If there is suppression of material facts or twisted facts, dilutedly or otherwise, being placed before the High Court, then the Court would be fully justified in refusing to entertain a petition filed under Article 226 of the Constitution of India. In (2010) 10 SCC 677 Ritesh Tewari v. State of Uttar Pradesh, the Supreme Court has held:

“26. The power under Article 226 of the Constitution is discretionary and supervisory in nature. It is not issued merely because it is lawful to do so. The extraordinary power in the writ jurisdiction does not exist to set right mere errors of law which do not occasion any substantial injustice. A writ can be issued only in case of a grave miscarriage of justice or where there has been a flagrant violation of law. The writ court has not only to protect a person from being subjected to a violation of law but also to advance justice and not to thwart it. The Constitution does not place any fetter on the power of the extraordinary jurisdiction but leaves, it to the discretion of the court. However, being that the power is discretionary, the court has to balance competing interests, keeping in mind that the interests of justice and public interest are coalesce generally. A court of equity, when exercising its equitable jurisdiction must act so as to prevent perpetration of a legal fraud and promote good faith and equity. An order in equity is one which is equitable to all the parties concerned. Petition can be entertained only after being fully satisfied about the factual statements and not in a casual and cavalier manner. (Vide Champalal Binani v. Commissioner of Income Tax, West Bengal, AIR 1970 SC 645; Chimajirao Kanhojimo Shrike v. Oriental Fire and General Insurance Co. Ltd., AIR 2000 SC 2532; LIC of India v. Smt. Asha Goel, AIR 2001 SC 549; State Financial Corporation v. Jagdamba Oil Mills, AIR 2002 SC 834; Chandra Singh v. State of Rajasthan, AIR 2003 SC 2889; and Punjab Roadways, Moga through its General Manager v. Punja Sahib Bus and Transport Co., (2010) 5 SCC 235).

27. Where a party's claim is not founded on valid grounds, the party cannot claim equity. A party that claims equity must come before the court with clean hands as equities have to be properly worked out between parties to ensure that no one is allowed to have their pound of flesh vis-a-vis the others unjustly. (vide: Sikkim Subba Associates v. State Of Sikkim . (2001) 5 SCC 629).”

(emphasis supplied)

208. In (1984) 4 SCC 371 M.P. Mittal v. State of Haryana, the Supreme Court has held:—

“5. Now there is no dispute that the appellant knowingly and deliberately entered into the Guarantee agreement, and is liable as Guarantor to make payment of the dividend due from Messrs. Depro Foods Limited. Nor is it disputed that the amount due, with interest, stands at Rs. 2,02,166/- in respect of the period ending with the year 1977. It was not contended that the appellant in fact does not possess sufficient funds or cannot avail of sufficient personal property for the purpose of discharging the liability. The record also shows that before instituting coercive proceedings, the Assistant Collector provided the appellant an opportunity to pay up the amount due from him, and that the appellant made no attempt to discharge the liability. When that is so, we are of opinion that he is not entitled to relief in these proceedings. The appeal arises out of a writ petition, and it is well settled that when a petitioner invokes the jurisdiction of the High Court under Article 226 of the Constitution, it is open to the High Court to consider whether, in the exercise of its undoubted discretionary jurisdiction, it should decline relief to such petitioner if the grant of relief would defeat the interests of justice. The Court always has power to refuse relief where the petitioner seeks to invoke its writ jurisdiction in order to secure a dishonest advantage or perpetuate an unjust gain. This is a case where the High Court was fully justified in refusing relief. On that around alone, theappeal must fail.”

(emphasis supplied)

209. In (2011) 7 SCC 639 State of Madhya Pradesh v. Narmada Bachavo Andolan, the Supreme Court had held:—

161. A person seeking relief in public interest should approach the Court of Equity, not only with clean hands but also with a clean mind, clean heart and clean objective. Thus, he who seeks equity must do equity. The legal maxim “Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem”, means that it is a law of nature that one should not be enriched by the loss or injury to another. The judicial process should never become an instrument of oppression or abuse or means to subvert justice.

162. “The interest of justice and public interest coalesce. They are very often one and the same”. Therefore, the Courts have to weigh the public interest vis-a-vis the private interest. A petition containing misleading and inaccurate statement(s), if filed, to achieve an ulterior purpose, amounts to an abuse of the process of the Court and such a litigant is not required to be dealt with lightly. Thus, a litigant is bound to make “full and true disclosure of facts”. The Court is not a forum to achieve an oblique purpose.”

210. It is thus clear that a person, who seeks equity must come with clean hands. The appellant is guilty of suppression of material facts and willful mis-statements and therefore, the learned single judge has rightly dismissed writ petition of the appellant.

211. On forgoing discussion, the present appeals fail and hence dismissed with the Cost of Rs. 50,000/- in each of the appeals.

212. In Writ Petition (PIL) No. 243 of 2012, the writ applicant had made following prayers:

“12(a) Your Lordships may be pleased to issue a writ of mandamus and/or any other appropriate writ order or direction in the nature of mandamus directing the respondents Nos. 1 & 2 herein to immediately verify the status of all the lands or urban area, which were declared as excess under the ULC Act, 1976 and be further pleased to direct to remove the encroachments thereon.

b) Pending admission, hearing and/or final disposal of this petition, Your Lordships may be pleased to direct remaining respondents from developing and/or carrying on construction on Survey No. 314/1 and 314/2 of village Sola, Taluka Dascroi, District Ahmedabad situated on Sarkhej-Gandhinagar Highway, which has been declared as excess land by the Competent Authority under the ULC Act and which came to be confirmed by this Hon'ble High Court.”

213. It appears that MCA No. 22 of 2013 in SCA No. 15496 of 2010, this Court has passed following order on 23.3.2016:

“9.00 The concerned authorities of the State Government and the State Government are directed to act accordingly and and see to it that the encroachment on the land (acquired under the provisions of the Urban Land Ceiling Act) and at the first instance to remove the commercial and industrial encroachment made on the said land declared surplus under the Urban Land Ceiling Act as expeditiously as possible so that the said parcels of land can be used for the purpose for which the same have been acquired under the provisions of the Urban Land Ceiling Act and more particularly for public housing facilities for Economically Weaker Sections and other sections of the society.”

214. Further, the Apex Court in case of Ashok Kumar Srivastav v. National Insurance Company Ltd. [(1998) 4 SCC 361], has held that:

“11. It is well neigh settled that a decision on an issue raised in writ petition under Article 226 or Article 32 of the Constitution would also operate as res judicata between the same parties in subsequent judicial proceedings. The only exception is that the rule of res judicata would not operate to the detriment or impairment of a fundamental right. A Constitution Bench of this Court has considered the applicability of rule of res judicata in writ proceedings under Article 32 of the Constitution in Daryao v. State of U.P. [(1962) 1 SCR 574] and it was held that the basis on which the rule rests is founded on consideration of public policy and it is in the interest of public at large that a finality should attach to the binding decision pronounced by a court of competent jurisdiction and it is also in the public interest that individuals should not be vexed twice over in the same kind of litigation.

12. This was reiterated by another Constitution Bench of this Court in Amalgamated Colfields Ltd. v. Janapada Sabha, Chhindwara [1963 Supp (1) SCR 172]. The following is the ratio:

“Therefore, there can be no doubt that the general principle of res judicata applies to writ petitions filed under Art. 32 or Art. 226. It is necessary to emphasise that the application of the doctrine of res judicata to the petitions filed under Art. 32 does not in any way impair or affect the content of the fundamental rights guaranteed to the citizens of India.

13. Though the above has now become an a accepted legal position [vide G.K. Sharam v. S.D. Sharma (1986 Supp SCC 239), the contention raised here is that since the writ petition was in challenge of an order passed in execution of a decree, the decisions rendered in such writ petition would only remain in the reaim of execution and they would not preclude the parties to the suit from raising such issues over again when the very decree itself is challenged in appeal. The Explanation VII, added to Section 11 of the Code of Civil Procedure as per CPC Amendment Act 104 of 1976 read thus:

“The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue of former suit shall b e construed as references respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.”

14. Though the said explanation may not stricto sensu apply to the trial stage, the principle couched in it must gain application thereto. It is immaterial that the writ petition was filed only subsequently because the findings made therein became final as no appeal was filed against the judgement. The basic idea in the rule of res judicata has sprouted from the maxim “nemo debet bis vexari pro una at eadem causa” (no man should be vexed twice over for the same cause). In Y.B. Patil v. Y.L. Patil [(1976) 4 SCC 66] a three-Judge Bench of this Court considered the effect of a decision rendered in a writ petition at subsequent stages of the same its. It held:

“The principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding.”

15. Thus, the legal position is clear and the respondent cannot now re-agitate the question regarding maintainability of the suit under Section 34 of the Act. However, learned counsel adopted an alternative contention before us that the suit is in effect one for specific enforcement of a contract and such a suit is not conceived under Section 14 of the Act and hence it is not maintainable. According to the learned counsel, the reliefs claimed in the suit, if granted, would result in specific enforcement of a contract of employment. Section 14(1)(a) of the Act makes it clear that a contract of employment is not specifically enforceable since non performance of can be compensated by money, contended the counsel.

16. The said contention is based on a fallacious premise that the suit was for enforcement of a contract of employment. Respondent was appointed on certain terms and pursuant to such appointment he worked within the scope of such employment. Termination of his employment purportedly in terms of the same contract is challenged by him by praying for a declaration that such termination is invalid and therefore, he continues in the same employment. Maintainability of a suit cannot be adjudged from the effect which the decree may cause. It can be determined on the basis of the ostensible pleadings made and the stated reliefs claimed in the plaint.”

215. Under the circumstances, it is not necessary to pass any separate order. It is hoped that the State Government will follow the order passed by this Court. The Writ Petition (PIL) No. 243 of 2012 dispose of accordingly.

216. In view of two conflicting judgements, the matter will have to be now referred to a third Judge in accordance with the Gujarat High Court Appellate Side Rules. The Registry shall act accordingly in accordance with the Rules.

Dip Co. Op. Hsg. Society Ltd. Through Purshottam S. Patel v. State Of Gujarat And Others

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

State's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Dip Co. Op. Hsg. Society Ltd. Through Purshottam S. Patel v. State Of Gujarat And Others

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