Rajasthan High Court
Ratna @ Ratan Lal Son Of Late Shri Nathu … vs Board Of Revenue on 25 October, 2024
Bench: Manindra Mohan Shrivastava, Shubha Mehta
[2024:RJ-JP:42065-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
(1) D. B. Civil Special Appeal (Writ) No. 756/2022
In
S. B. Civil Writ Petition No. 9521/2013
Ratna @ Ratan Lal Son Of Late Shri Nathu Mina, Aged About 68
Years, Resident Of Farasiya, Tehsil Kishangarh, District Ajmer.
----Appellant
Versus
1. Board of Revenue for Rajasthan At Ajmer Through Its
Registrar.
2. Smt. Asha Devi Agarwal Wife Of Om Prakash Agarwal,
Aged About 63 Years, Resident Of Near Bus Stand,
Madanganj-Kishangarh Tehsil Kishangarh, District Ajmer
(Rajasthan)
3. Ramgopal Son Of Bhagirath, Resident Of Sabzi Mandi,
Opposite Maszid, Madanganj-Kishangarh Tehsil
Kishangarh, District Ajmer
4. Ganpat (Since Deceased), Through Legal Representative-
4/1. Indra Mohan Son Of Shri Ganpat, Aged About 52 Years,
Resident Of Infront Of Maszid, Madanganj Kishangarh,
Tehsil Kishangarh, District Ajmer.
4/2. Murli Manohar Son Of Shri Ganpat, Resident Of Infront Of
Maszid, Madanganj Kishangarh, Tehsil Kishangarh, District
Ajmer.
5. Satyanarain (Since Deceased), Through Legal
Representatives.
5/1. Hari Om S/o Satya Narayan, Aged About 55 Years,
Resident of Near Ravindra Theatre Oswal Mohhala,
Madanganj, Kishangarh, District Ajmer.
5/2. Radha Kishan Son Of Satya Narayan, Aged About 52
Years, Resident Of Near Ganesh Mandir, Krishanpuri,
Madanganj, Kishangarh, District Ajmer.
5/3. Vishnu Son Of Satya Narayan, Aged About 42 Years,
Resident Of Infront Of Maszid, Madanganj Kishangarh,
Tehsil Kishangarh, District Ajmer.
6. Hanuman Son Of Bhagirath, Residents Of Sabzi Mandi,
Opposite Maszid, Madanganj Kishangarh, Tehsil
Kishangarh, District Ajmer.
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7. Jagdish (Since Deceased), Through Legal
Representatives-
7/1. Nand Kishore Son Of Jagdish, Aged About 52 Years,
Resident of Near Ravindra Theatre Oswal Mohhala,
Madanganj, Kishangarh, District Ajmer.
7/2. Girraj Son Of Jagdish, Aged About 41 Years, Resident Of
Near Ganesh Mandir, Krishanpuri, Madanganj,
Kishangarh, District Ajmer.
8. Shyam Sunder Sharma
9. Suresh Sharma
Both Sons Of Nityanand Sharma, Residents Of Madanganj
Kishangarh, District Ajmer.
10. State Of Rajasthan, Through Tehsildar, Kishangarh.
11. Kisturi Devi Widow Of Dhanna Lal,
12. Sunil Kumar Son Of Dhanna Lal,
13. Vinod Son Of Dhanna Lal,
All Residents Of Village Farasia, Tehsil Kishangarh, District
Ajmer.
14. Additional Divisional Commissioner, Ajmer.
15. District Collector, Ajmer.
----Respondents
Connected With
(2) D. B. Civil Special Appeal (Writ) No. 781/2022
In
S.B. Civil Writ Petition No. 11851/2013
Ratna @ Ratan Lal Son of Late Shri Nathu Mina, aged about 68
years, Resident of Farasiya, Tehsil Kishangarh, District Ajmer.
—-Appellant
Versus
1. Board of Revenue for Rajasthan, at Ajmer Through Its
Registrar.
2. Smt. Asha Devi Agarwal Wife Of Om Prakash Agarwal,
Aged About 63 Years, Resident Of Near Bus Stand,
Madanganj-Kishangarh Tehsil Kishangarh, District Ajmer
(Rajasthan).
3. Ramgopal Son Of Bhagirath, Residents Of Sabzi Mandi,
Opposite Maszid, Madanganj Kishangarh, Tehsil
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Kishangarh, District Ajmer.
4. Ganpat (Since Deceased), Through Legal Representative-
4/1. Indra Mohan Son Of Shri Ganpat, Aged about 52 years,
Resident Of Infront Of Maszid, Madanganj Kishangarh,
Tehsil Kishangarh, District Ajmer.
4/2. Murli Manohar Son Of Shri Ganpat, Resident Of Infront Of
Maszid, Madanganj Kishangarh, Tehsil Kishangarh, District
Ajmer.
5. Satyanarain (Since Deceased), Through Legal
Representatives:-
5/1. Hari Om S/o Satya Narayan, Aged About 55 Years,
Resident Of Near Ravindra Theatre Oswal Mohhala,
Madanganj, Kishangarh, District Ajmer.
5/2. Radha Kishan Son Of Satya Narayan, Aged About 52
Years, Resident Of Near Ganesh Mandir Krishanpuri,
Madanganj, Kishangarh, District Ajmer.
5/3. Vishnu Son Of Satya Narayan, Aged About 42 Years,
Resident Of Infront Of Maszid, Madanganj Kishangarh,
Tehsil Kishangarh, District Ajmer.
6. Hanuman Son Of Bhagirath, Residents Of Sabzi Mandi,
Opposite Maszid, Madanganj Kishangarh, Tehsil
Kishangarh, District Ajmer.
7. Jagdish (Since Deceased), Through Legal Representative.
7/1. Nand Kishore Son Of Jagdish, Aged About 52 Years,
Resident Of Near Ravindra Theater, Oswal Mohhala,
Madanganj, Kishangarh, District Ajmer.
7/2. Girraj Son Of Jagdish, Aged About 41 Years, Resident Of
Near Ganesh Mandir, Krisanpuri, Madanganj, Kishangarh,
District Ajmer.
8. Shyam Sundar Sharma
9. Suresh Sharma
Both sons Of Nityanand Sharma, Residents Of Madanganj,
Kishangarh, District Ajmer.
10. State of Rajasthan, Through Tehsildar, Kishangarh.
11. Kisturi Devi Widow Of Dhanna Lal,
12. Sunil Kumar Son Of Dhanna Lal,
13. Vinod Son Of Dhanna Lal,
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All Resident Of Village Farasia, Tehsil Kishangarh, District
Ajmer.
14. Additional Divisional Commissioner, Ajmer.
15. District Collector, Ajmer.
—-Respondents
(3) D. B. Civil Special Appeal (Writ) No. 785/2022
In
S.B. Civil Writ Petition No. 11852/2013
Ratna @ Ratan Lal Son Of Late Shri Nathu Mina, Aged About 68
Years, Resident Of Farasiya, Tehsil Kishangarh, District Ajmer.
—-Appellant
Versus
1. Board of Revenue, for Rajasthan at Ajmer Through Its
Registrar.
2. Smt. Asha Devi Agarwal Wife Of Om Prakash Agarwal,
Aged About 63 Years, Resident Of Near Bus Stand,
Madanganj- Kishangarh Tehsil Kishangarh, District Ajmer
(Rajasthan)
3. Ramgopal Son Of Bhagirath, Residents Of Sabzi Mandi,
Opposite Maszid, Madanganj Kishangarh, Tehsil
Kishangarh, District Ajmer.
4. Ganpat (Since Deceased), Through Legal Representative-
4/1. Indra Mohan Son Of Shri Ganpat, Aged About 52 Years,
Resident Of Infront Of Maszid, Madanganj Kishangarh,
Tehsil Kishangarh, District Ajmer.
4/2. Murli Manohar Son Of Shri Ganpat, Resident Of Infront Of
Maszid, Madanganj Kishangarh, Tehsil Kishangarh, District
Ajmer.
5. Satyanarain (Since Deceased), Through Legal
Representatives:-
5/1. Hari Om S/o Satya Narayan, Aged About 55 Years,
Resident Of Near Ravindra Theatre Oswal Mohhala,
Madanganj, Kishangarh, District Ajmer.
5/2. Radha Kishan Son Of Satya Narayan, Aged About 52
Years, Resident Of Near Ganesh Mandir, Krishanpuri,
Madanganj, Kishangarh, District Ajmer.
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5/3. Vishnu Son Of Satya Narayan, Aged About 42 Years,
Resident Of Infornt Of Maszid, Madanganj Kishangarh,
Tehsil Kishangarh, District Ajmer.
6. Hanuman Son Of Bhagirath, Residents Of Sabzi Mandi,
Opposite Maszid, Madanganj Kishangarh, Tehsil
Kishangarh, District Ajmer.
7. Jagdish (Since Deceased), Through Legal Representative-
7/1. Nand Kishore Son Of Jagdish, Aged About 52 Years,
Resident Of Near Ravindra Theatre, Oswal Mohhala,
Madanganj, Kishangarh, District Ajmer.
7/2. Girraj Son Of Jagdish, Aged About 41 Years, Resident Of
Near Ganesh Mandir, Krisanpuri, Madanganj, Kishangarh,
District Ajmer.
8. Shyam Sunder Sharma
9. Suresh Sharma
Both sons of Nityanand Sharma, Resident Of Madanganj,
Kishangarh, District Ajmer.
10. State Of Rajasthan, Through Tehsildar, Kishangarh.
11. Kisturi Devi Widow of Dhanna Lal,
12. Sunil Kumar Son Of Dhanna Lal,
13. Vinod Son Of Dhanna Lal,
All Residents Of Village Farasia, Tehsil Kishangarh, District
Ajmer.
14. Additional Divisional Commissioner, Ajmer.
15. District Collector, Ajmer.
—-Respondents
(4) D. B. Civil Special Appeal (Writ) No. 977/2022
In
S.B. Civil Writ Petition No. 11851/2013
1. Smt. Kisturi Devi Widow Of Dhanna Lal,
2. Sunil Kumar Son Of Dhanna Lal,
3. Vinod Son Of Dhanna Lal,
All Residents Of Village Farasia, Tehsil Kishangarh, District
Ajmer.
—-Appellants
Versus
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1. Board of Revenue for Rajasthan at Ajmer, Through Its
Registrar.
2. Smt. Asha Devi Agarwal Wife Of Om Prakash Agarwal,
Aged About 63 Years, Resident Of Near Bus Stand,
Madanganj-Kishangarh Tehsil Kishangarh, District Ajmer
(Rajasthan).
3. Ramgopal Son Of Bhagirath, Resident Of Sabzi Mandi,
Opposite Maszid, Madanganj Kishangarh, Tehsil
Kishangarh, District Ajmer.
4. Ganpat (Since Deceased), Through Legal Representative-
4/1. Indra Mohan Son Of Shri Ganpat, Aged About 52 Years,
Resident Of Infront Of Maszid, Madanganj Kishangarh,
Tehsil Kishangarh, District Ajmer.
4/2. Murli Manohar Son Of Shri Ganpat, Resident Of Infront Of
Maszid, Madanganj Kishangarh, Tehsil Kishangarh, District
Ajmer.
5. Satyanarain (Since Deceased), Through Legal
Representatives-
5/1. Hari Om S/o Satya Narayan, Aged About 55 Years,
Resident Of Near Ravindra Theatre Oswal Mohhala,
Madanganj, Kishangarh, District Ajmer.
5/2. Radha Kishan Son Of Satya Narayan, Aged About 52
Years, Resident Of Near Ganesh Mandir, Krishanpuri,
Madanganj, Kishangarh, District Ajmer.
5/3. Vishnu Son Of Satya Narayan, Aged About 42 Years,
Resident Of Infornt Of Maszid, Madanganj Kishangarh,
Tehsil Kishangarh, District Ajmer.
6. Hanuman Son Of Bhagirath, Resident Of Sabzi Mandi,
Opposite Maszid, Madanganj Kishangarh, Tehsil
Kishangarh, District Ajmer.
7. Jagdish (Since Deceased), Through Legal Representative-
7/1. Nand Kishore Son Of Jagdish, Aged about 52 years,
Resident Of Near Ravindra Theatre, Oswal Mohhala,
Madanganj, Kishangarh, District Ajmer.
7/2. Girraj Son Of Jagdish, Aged about 41 years, Resident Of
Near Ganesh Mandir, Krisanpuri, Madanganj, Kishangarh,
District Ajmer.
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8. Shyam Sunder Sharma
9. Suresh Sharma
Both sons of Nityanand Sharma, Resident Of Madanganj,
Kishangarh, District Ajmer.
10. State Of Rajasthan, Through Tehsildar, Kishangarh.
11. Ratna @ Ratan Lal Son Of Late Shri Nathu Mina, Aged
About 68 Years, Resident Of Farasiya, Tehsil Kishangarh,
District Ajmer.
12. Additional Divisional Commissioner, Ajmer.
13. District Collector, Ajmer.
—-Respondents
(5) D. B. Civil Special Appeal (Writ) No. 996/2022
In
S.B. Civil Writ Petition No. 9521/2013
1. Smt. Kisturi Widow Of Dhanna Lal,
2. Sunil Kumar Son Of Dhanna Lal,
3. Vinod Son Of Dhanna Lal,
All Residents Of Village Farasia, Tehsil Kishangarh, District
Ajmer.
—-Appellants
Versus
1. Board of Revenue, for Rajasthan at Ajmer Through Its
Registrar.
2. Smt. Asha Devi Agarwal Wife Of Om Prakash Agarwal,
Aged About 63 Years, Resident Of Near Bus Stand,
Madanganj- Kishangarh Tehsil Kishangarh, District Ajmer
(Rajasthan)
3. Ramgopal Son Of Bhagirath, Resident Of Sabzi Mandi,
Opposite Maszid, Madanganj Kishangarh, Tehsil
Kishangarh, District Ajmer.
4. Ganpat (Since Deceased), Through Legal Representative –
4/1. Indra Mohan Son Of Shri Ganpat, Aged About 52 Years,
Resident Of Infront Of Maszid, Madanganj Kishangarh,
Tehsil Kishangarh, District Ajmer.
4/2. Murli Manohar Son Of Shri Ganpat, Resident Of Infront Of
Maszid, Madanganj Kishangarh, Tehsil Kishangarh, District
Ajmer.
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5. Satyanarain (Since Deceased), Through Legal
Representative –
5/1. Hari Om S/o Satya Narayan, Aged About 55 Years,
Resident Of Near Ravindra Theatre Oswal Mohhala,
Madanganj, Kishangarh, District Ajmer.
5/2. Radha Kishan Son Of Satya Narayan, Aged About 52
Years, Resident Of Near Ganesh Mandir, Krishanpuri,
Madanganj, Kishangarh, District Ajmer.
5/3. Vishnu Son Of Satya Narayan, Aged About 42 Years,
Resident Of Infront Of Maszid, Madanganj Kishangarh,
Tehsil Kishangarh, District Ajmer.
6. Hanuman Son Of Bhagirath, Resident Of Sabzi Mandi,
Opposite Maszid, Madanganj Kishangarh, Tehsil
Kishangarh, District Ajmer.
7. Jagdish (Since Deceased), Through Legal Representative-
7/1. Nand Kishore Son Of Jagdish, Aged About 52 Years,
Resident Of Near Ravindra Theatre, Oswal Mohhala,
Madanganj, Kishangarh, District Ajmer.
7/2. Girraj Son Of Jagdish, Aged About 41 Years, Resident Of
Near Ganesh Mandir, Krisanpuri, Madanganj, Kishangarh
District Ajmer.
8. Shyam Sunder Sharma
9. Suresh Sharma
Both sons of Nityanand Sharma, Resident Of Madanganj,
Kishangarh, District Ajmer.
10. State Of Rajasthan, Through Tehsildar, Kishangarh.
11. Ratna @ Ratan Lal Son Of Late Shri Nathu Mina, Aged
about 66 years, Resident Of Farasiya, Tehsil Kishangarh,
District Ajmer.
12. Additional Divisional Commissioner, Ajmer.
13. District Collector, Ajmer.
—-Respondents
(6) D. B. Civil Special Appeal (Writ) No. 999/2022
In
S.B. Civil Writ Petition No. 11852/2013
1. Smt. Kisturi Devi Widow Of Dhanna Lal,
2. Sunil Kumar Son Of Dhanna Lal,
3. Vinod Son Of Dhanna Lal,
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All Residents Of Village Farasia, Tehsil Kishangarh, District
Ajmer.
—-Appellants
Versus
1. Board Of Revenue, For Rajasthan At Ajmer Through Its
Registrar.
2. Smt. Asha Devi Agarwal Wife Of Om Prakash Agarwal,
Aged About 63 Years, Resident Of Near Bus Stand,
Madanganj- Kishangarh Tehsil Kishangarh, District Ajmer
(Rajasthan)
3. Ramgopal Son Of Bhagirath, Resident Of Sabzi Mandi,
Opposite Maszid, Madanganj Kishangarh, Tehsil
Kishangarh, District Ajmer.
4. Ganpat (Since Deceased), Through Legal Representative –
4/1. Indra Mohan Son Of Shri Ganpat, Aged About 52 Years,
Resident Of Infront Of Maszid, Madanganj Kishangarh,
Tehsil Kishangarh, District Ajmer.
4/2. Murli Manohar Son Of Shri Ganpat, Resident Of Infront Of
Maszid, Madanganj Kishangarh, Tehsil Kishangarh, District
Ajmer.
5. Satyanarain (Since Deceased), Through Legal
Representative –
5/1. Hari Om S/o Satya Narayan, aged about 55 years,
Resident Of Near Ravindra Theatre Oswal Mohhala,
Madanganj, Kishangarh, District Ajmer.
5/2. Radha Kishan Son Of Satya Narayan, Aged About 52
Years, Resident Of Near Ganesh Mandir, Krishanpuri,
Madanganj, Kishangarh, District Ajmer.
5/3. Vishnu Son Of Satya Narayan, Aged About 42 Years,
Resident Of Infront Of Maszid, Madanganj Kishangarh,
Tehsil Kishangarh, District Ajmer.
6. Hanuman Son Of Bhagirath, Resident Of Sabzi Mandi,
Opposite Maszid, Madanganj Kishangarh, Tehsil
Kishangarh, District Ajmer.
7. Jagdish (Since Deceased), Through Legal Representative.
7/1. Nand Kishore Son Of Jagdish, Aged About 52 Years,
Resident Of Near Ravindra Theatre, Oswal Mohhala,
Madanganj, Kishangarh, District Ajmer.
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7/2. Girraj Son Of Jagdish, Aged About 41 Years, Resident Of
Near Ganesh Mandir, Krisanpuri, Madanganj, Kishangarh
District Ajmer.
8. Shyam Sunder Sharma
9. Suresh Sharma
Both sons of Nityanand Sharma, Resident Of Madanganj,
Kishangarh, District Ajmer.
10. State Of Rajasthan, Through Tehsildar, Kishangarh.
11. Ratna @ Ratan Lal Son Of Late Shri Nathu Mina, Aged
About 68 Years, Resident Of Farasiya, Tehsil Kishangarh,
District Ajmer.
12. Additional Divisional Commissioner, Ajmer.
13. District Collector, Ajmer.
—-Respondents
(7) D. B. Special Appeal (Writ) No. 222/2023
In
S.B. Civil Writ Petition No. 19076/2022
Heeralal S/o Late Chandraram, R/o Dhani Dulapura, Tan Kankra,
Tehsil Dantaramgarh, District Sikar Rajasthan.
—-Defendant-Petitioner-Appellant
Versus
1. Chitra Singh W/o Shri Vikramaditya Shekhawat, R/o
Danta House, Outside Chandpole, Jaipur, Rajasthan.
Plaintiff-Respondent
2. Hanuman S/o Late Dularam S/o Late Chandraram,
3. Chokharam S/o Late Dularam S/o Late Chandraram,
4. Gopal S/o Late Dularam S/o Late Chandraram,
5. Kumari Patasi D/o Late Dularam S/o Late Chandraram,
6. Smt. Sundari Devi W/o Late Dularam,
7. Krishnaram S/o Late Chandraram,
8. Jodharam S/o Late Chandraram,
9. Rakhi D/o Late Chandraram,
10. Manna Devi D/o Late Chandraram,
11. Devli W/o Baluram,
12. Ramdevaram S/o Late Baluram,
13. Jogaram S/o Late Baluram,
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14. Kesar Devi D/o Late Baluram,
15. Birdi Devi D/o Late Baluram,
16. Raju Devi D/o Late Baluram,
All Residents of Dhani Dulapura, Tan Kankra, Tehsil
Dantaramgarh, District Sikar, Rajasthan.
17. State of Rajasthan, Through Tehsildar Dantaramgarh,
District Sikar.
—-Defendants-Respondents
(8) D. B. Special Appeal (Writ) No. 410/2023
In
S. B. Civil Writ Petition No. 10140/2018
1. Sitaram S/o Shri Gopal, Aged About 50 Years, R/o Gram
Bilwa, Tehsil Sanganer, Distt. Jaipur.
2. Ramratan S/o Shri Gopal, Aged About 55 Years, R/o Gram
Bilwa, Tehsil Sanganer, Distt. Jaipur.
3. Babulal Gopal, S/o Shri Gopal, Aged About 60 Years, R/o
Gram Bilwa, Tehsil Sanganer, Distt. Jaipur.
—-Appellants/Petitioners/Defendants
Versus
1. Bhonrilal S/o Kajod Adopted S/o Late Shri Gashi, R/o
Gram Narsinghpura @ Dadiya, Tehsil Sanganer, Distt.
Jaipur.
2. Gyarsha S/o Laxminarayan, R/o Gram Narsinghpura @
Dadiya, Tehsil Sanganer, Distt. Jaipur.
3. Rameshwar S/o Laxminarayan, R/o Gram Narsinghpura @
Dadiya, Tehsil Sanganer, Distt. Jaipur.
4. Tehsildar, Sanganer, Distt. Jaipur.
5. Naryan S/o Bhura, R/o Gram Narsinghpura @ Dadiya,
Tehsil Sanganer, Distt. Jaipur.
6. Smt. Kamla D/o Gopal, W/o Ram Sahai, R/o Gram
Narsinghpura @ Dadiya, Tehsil Sanganer, Distt. Jaipur.
7. Smt. Gulli, D/o Gopal, W/o Babulal, R/o Gram
Narsinghpura @ Dadiya, Tehsil Sanganer, Distt. Jaipur.
8. Smt. Bhuri D/o Gopal W/o Birdichand, R/o Gram Mahal,
Tehsil, Sanganer, Distt. Jaipur.
9. Gopal S/o Laduram, R/o Gram Bilwa, Tehsil Sanganer,
Distt. Jaipur.
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10. Smt. Soni, Widow Of Sonji @ Sohanlal, R/o Gram
Narsinghpura @ Dadiya, Tehsil Sanganer, Distt. Jaipur.
11. Ramsahai, S/o Shri Sonji @ Sohanlal, R/o Gram
Narsinghpura @ Dadiya, Tehsil Sanganer, Distt. Jaipur.
12. Ramkishor S/o Shri Sonji @ Sohanlal, R/o Gram
Narsinghpura @ Dadiya, Tehsil Sanganer, Distt. Jaipur.
13. Suraj S/o Bhura, R/o Gram Narsinghpura @ Dadiya, Tehsil
Sanganer, Distt. Jaipur.
14. Ramsahai, S/o Bhura, R/o Gram Narsinghpura @ Dadiya,
Tehsil Sanganer, Distt. Jaipur.
15. Shankar Lal S/o Bhura, R/o Gram Narsinghpura @
Dadiya, Tehsil Sanganer, Distt. Jaipur.
16. Smt. Kailashi D/o Shri Gopal, W/o Ramji Lal, R/o Gram
Dudali, Tehsil Bassi, Dist. Jaipur.
17. Smt. Sara Devi, Wife Of Shri Kanhiya Lal, Resident Of
Gram Mehal Tilawala, Tehsil Sanganer, Distt. Jaipur.
18. Sub Registrar, Tehsil Sanganer, District Jaipur.
—-Respondents/Plaintiffs
(9) D. B. Special Appeal (Writ) No. 411/2023
In
S.B. Civil Writ Petition No. 15556/2016
Rameshwar Son Of Shri Laxmi Narayan, Aged About 65 Years,
R/o Nrisinghpura @ Dadiya, Tehsil- Sanganer, District- Jaipur
(Raj.)
—-Appellant/Petitioner
Versus
1. Bhonri Lal Son Of Shri Kajod, (Adopted Son) Ghasi, R/o
Nrisinghpura @ Dadiya, Tehsil- Sanganer, District- Jaipur
(Raj.)
2. Sitaram, Son Of Shri Gopal
3. Ramratan, Son Of Shri Gopal
4. Babu Lal Son Of Shri Gopal,
All Residents Of Nrisinghpura @ Dadiya, Tehsil- Sanganer,
District- Jaipur (Raj.) (Legal Heirs Of Late Smt. Mangi)
5. Kalu Son Of Shri Laxminarayan, R/o Nrisinghpura @
Dadiya, Tehsil- Sanganer, District- Jaipur (Raj.)
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6. Gyarasa Son Of Shri Laxminarayan, R/o Nrisinghpura @
Dadiya, Tehsil- Sanganer, District- Jaipur (Raj.)
7. Sub Registrar, Tehsil Sanganer, District- Jaipur(Raj.)
8. Tehsildar, Sanganer, District Jaipur (Raj.)
9. Narayan Son Of Shri Bhura, R/o Nrisinghpura @ Dadiya,
Tehsil- Sanganer, District- Jaipur (Raj.)
10. Smt. Kamla, Daughter Of Shri Gopal Wife Of Shri Ram
Sahay
11. Smt. Gulli Daughter Of Shri Gopal Wife Of Shri Babu Lal,
All Resident Of Nrisinghpura @ Dadiya, Tehsil- Sanganer,
District- Jaipur (Raj.)
12. Smt. Bhuri Daughter Of Shri Gopal Wife Of Birdi Chand,
R/o Gaon Mahal, Tehsil- Sanganer, District- Jaipur.
13. Gopal Son Of Shri Laduram, Gaon Beelwa, Tehsil
Sanganer, District- Jaipur.
14. Smt. Soni, Widow Sonji @ Sohan Lal
15. Ram Rai, Son Of Late Shri Sonji @ Sohan Lal
16. Ramkishore, Son Of Late Shri Sonji @ Sohan Lal
17. Suraj, Son Of Shri Bhura
18. Ram Sahay, Son Of Shri Bhura
19. Shankar Lal Son Of Shri Bhura,
All Residents Of Nrisinghpura @ Dadiya, Tehsil Sanganer,
District- Jaipur (Raj.)
20. Smt. Kailashi Devi Daughter Of Shri Gopal, Wife Of Shri
Ramji Lal, R/o Dudhla, Tehsil- Bassi, District- Jaipur (Raj.)
—-Respondents
For Appellants : Mr. Rajendra Prasad Senior Advocate
assisted by Ms. Harshita Thakral
Advocate,
Ms. Dhriti Laddha Advocate and
Mr. Abhishek Pareek Advocate;
Mr. N.K. Maloo Senior Advocate &
Amicus Curiae assisted by Mr.
Pratyush Sharma Advocate.
Mr. Saket Pareek Advocate
Mr. Aditya Pareek Advocate
Mr. Mahesh Gupta Advocate
Mr. Manoj Kumar Bhardwaj Advocate.
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For Respondents : Mr. R.K. Agarwal Senior Advocate
assisted by Mr. Adhiraj Modi Advocate
Mr. Anand Sharma Amicus Curiae
Mr. Ashish Sharma Advocate.
HON’BLE THE CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA
HON’BLE MRS. JUSTICE SHUBHA MEHTA
Order
REPORTABLE
25/10/2024
(Per Hon’ble the Chief Justice):
1. In these nine appeals, which have been listed for analogous
hearing, objection to maintainability of these intra-court appeals,
has been raised on common grounds.
2. All these appeals arise out of orders passed in writ petitions
by the learned Single Judges. Insofar as D. B. Civil Special Appeal
(Writ) Nos. 756/2022, 781/2021, 785/2022, 977/2022, 996/2022,
999/2022 and 222/2023 are concerned, they arise out of orders
passed in Writ Petition Nos. 9521/2013, 11851/2013, 11852/2013
and 19076/2022 filed before the learned Single Judge assailing
orders passed by the Board of Revenue, Ajmer (hereinafter
referred to as ‘the Board of Revenue’) in exercise of its power of
revision provided under Section 84 of the Rajasthan Land Revenue
Act, 1956 (hereinafter referred to as ‘the Act of 1956’).
Insofar as D. B. Civil Special Appeal (Writ) Nos. 410/2023
and 411/2023 are concerned, they have been filed assailing
common order dated 17.04.2023 passed by learned Single Judge
in Writ Petition Nos. 15556/2016 and 10140/2018 wherein order
of dismissal of appeal by the Board of Revenue as well as order of
dismissal of review petition were challenged.
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Submissions on behalf of respondents:
3. Mr. R.K. Agarwal, learned Senior Counsel appearing on behalf
of the respondents raised an objection with regard to
maintainability of these intra-court appeals on the submission that
various revenue proceedings were brought before the Board of
Revenue in suits seeking declaration of various rights and the
revenue courts while deciding the suits exercised judicial function,
which is akin to judicial function of the civil courts, in respect of
those matters where the jurisdiction of civil courts is expressly
barred under the provisions of the Act of 1956 and the Rajasthan
Tenancy Act, 1955 (hereinafter referred to as ‘the Act of 1955’).
The decrees and orders passed by the revenue courts at the first
instance, in exercise of original jurisdiction were taken in appeal
before the revenue appellate authorities and finally to highest
court of appeal and/or revision being the Board of Revenue in the
hierarchy of revenue courts. Therefore, it is contended, the Board
of Revenue exercised jurisdiction as appellate and/or revisional
authority to examine the matters arising out of revenue suits and
thereby exercised judicial function as ‘Court’ for all legal and
practical purposes. Hence, the orders passed by the Board of
Revenue exercising such powers and functions as highest revenue
court are not amenable to writ jurisdiction, but are subject only to
supervisory jurisdiction under Article 227 of the Constitution of
India. The Board of Revenue, being a revenue court, as defined
under Section 5(35) of the Act of 1955 and even though, strictly
speaking, it is not the civil court but definitely has trappings of
Court exercising special jurisdiction in respect of the matters
provided under the Act of 1955 and the Act of 1956 as the
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jurisdiction of the civil court is expressly barred. Learned Senior
Counsel also referred to the provisions contained in Section 5 sub-
section 34-A, Section 5 sub-section (35); Section 53; Sections 88
to 92 and Section 208 of the Act of 1955 to submit that the
revenue courts, while exercising jurisdiction in the matter of
revenue suits, function as judicial court and, therefore, decrees as
also orders which are ultimately passed by the revenue courts are
not amenable to writ jurisdiction under Article 226 of the
Constitution of India in view of the judgment of the Hon’ble
Supreme Court in the case of Radhey Shyam & Another Vs.
Chhabi Nath & Others1. In support of his submissions, learned
Senior Counsel placed reliance upon the decisions of the Hon’ble
Supreme Court in the cases of Ethiopian Airlines Vs. Ganesh
Narain Saboo2; Trans Mediterranean Airways Vs. Universal
Exports & Another3; and Pyarelal Vs. Shubhendra Pilania
(Minor) through Natural Guardian (Father) Shri Pradeep
Kumar Pilania & Others4.
Submissions on behalf of appellants:
4. Per contra, Mr. Rajendra Prasad, learned Senior Counsel
appearing on behalf of the appellants would argue that though in
respect of matters provided under the Act of 1955 and the Act of
1956, jurisdiction of the civil court is expressly barred and those
matters can be decided only by revenue authorities either as
statutory functionaries or as revenue courts and even though
while deciding revenue suits, the revenue courts are not part of
hierarchy of civil courts. Referring to the provisions contained in
1 (2015) 5 SCC 423
2 (2011) 8 SCC 539
3 (2011) 10 SCC 316
4(2019) 3 SCC 692(Downloaded on 28/10/2024 at 09:55:33 PM)
[2024:RJ-JP:42065-DB] (17 of 79) [SAW-756/2022]Section 5 and Section 8 of the Code of Civil Procedure, 1908
(hereinafter referred to as ‘CPC’) and Article 233 of the
Constitution of India, learned Senior Counsel would submit that a
distinction has always been maintained between the Board of
Revenue and Civil Court and they are not one and the same.
Referring to definition of “District Judge” and “Chief Controlling
Revenue Authority” as provided in the General Clauses Act, 1897,
it is submitted that the said Presiding Officers are also separately
defined as they represent two different and distinct hierarchy of
courts and cannot be held to be covered under the broad
classification of “Civil Court”. Learned Senior Counsel would also
refer to legislative entries under List I, II and III of Schedule VII
appended to the Constitution of India to submit that the revenue
courts and civil courts fall under altogether different legislative
entries for the purposes of legislation.
5. Learned Senior Counsel also traced historical origin of
various courts including the revenue courts and civil courts in the
State of Rajasthan prior to coming into force the Constitution of
India and the States Reorganisation Act, 1956, by referring to
three Ordinances namely; The Rajasthan High Court Ordinance,
1949; the Rajasthan Board of Revenue Ordinance, 1949, The
Rajasthan Civil Courts Ordinance, 1950 and the Rajasthan
Revenue Courts (Designation) Ordinance, 1949. Reference has
also been made to the provisions contained in the Rajasthan
Revenue Courts (Procedure and Jurisdiction) Act, 1951 as also the
provisions contained in the Act of 1955 and the Act of 1956.
Learned Senior Counsel also referred to the provisions with regard
to judicial matters as enumerated in the First Schedule appended
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to the Act of 1956 to submit that the revenue courts including the
Board of Revenue exercise limited jurisdiction in respect of the
revenue matters alone and, therefore, they are the courts of
limited jurisdiction and does not have plenary jurisdiction which
the civil courts exercise under Section 9 of CPC. According to
learned Senior Counsel, as the revenue courts are not civil courts,
the decrees and orders passed by the revenue courts are
amenable to writ jurisdiction under Article 226 of the Constitution
of India and in cases where writ petitions are filed under Articles
226 and 227 of the Constitution of India before the High Court or
where the certiorari jurisdiction of the High Court is invoked or
where a prayer is made invoking certiorari jurisdiction of the High
Court and where the facts of the case justify filing of writ petition
under Articles 226 and 227 of the constitution of India, intra-court
appeal as provided under Rule 134 of the Rules of the High Court
of Rajasthan, 1952 (hereinafter referred to as ‘the Rajasthan High
Court Rules’) would be maintainable and not barred. In such
cases, decision of the Hon’ble Supreme Court in the case of
Radhey Shyam & Another Vs. Chhabi Nath & Others (supra)
would not be not attracted. Contention of learned Senior Counsel
is that the Larger Bench of the Hon’ble Supreme Court in the case
of Radhey Shyam & Another Vs. Chhabi Nath & Others
(supra) declared law that orders passed by the civil courts are
not amenable to writ jurisdiction. As the revenue courts are not
civil courts, though they may have trappings of civil court, the
decision rendered in the case of Radhey Shyam & Another Vs.
Chhabi Nath & Others (supra) does not apply and the decrees
and orders passed by the Board of Revenue are amenable to
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certiorari jurisdiction under Article 226 of the Constitution of India.
Learned Senior Counsel also placed reliance upon the decisions of
the Hon’ble Supreme Court in the cases of Jogendrasinhji
Vijaysinghji Vs. State of Gujarat & Others 5; Umaji Keshao
Meshram & Others Vs. Radhikabai, Widow of Anandrao
Banapurkar & Another6; Ramesh Chandra Sankla Etc. Vs.
Vikram Cement Etc.7; Syed Yakoob Vs. K.S. Radhakrishnan
& Others8; and decisions of this Court in the cases of Mahendra
Kumar Jain Vs. Appellate Rent Tribunal, Ajmer 9; Keshav
Dev vs. Radhey Shyam-(1)10; Babita Vs. Nihaldei11; Panna
Ram Vs. Ramu Ram12; Ramesh Chand Tiwari & Others Vs.
Board of Revenue & Others13; Punjab National Bank Vs.
Purewell & Associates Ltd.14; and Kartar Singh Vs. Board of
Revenue & Others15.
6. Since the issue with regard to maintainability of these intra-
court appeals against the order passed by the Board of Revenue in
exercise of its revisional or appellate jurisdiction was raised, on
the request made by the Court, Mr. N.K. Maloo, learned Senior
Counsel and Mr. Anand Sharma, learned Counsel also assisted the
Court as Amicus Curiae.
5 (2015) 9 SCC 1
6 1986 (Supp) SCC 401
7 AIR 2009 SC 713
8 AIR 1964 SC 477
9 AIR 2022 Rajasthan 7
10 1964 RLW 1
11 2017 (2) WLC (Raj.) 275
12 AIRONLINE 2019 RAJ 403
13 2005 (2) WLC (Raj.) 305
14 2002 (1) WLC (Raj.) 67
15 2010 (3) WLC (Raj.) 368
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Submissions by Amicus Curiae:
7. Mr. N.K. Maloo, learned Senior Counsel and Amicus Curiae
extensively submits that the settled legal position, as has been
adumbrated in plethora of decisions is that where the orders of
courts and tribunals are challenged by filing petitions under
Articles 226 and 227 of the Constitution of India and where the
facts of the case justify seeking invocation of writ of certiorari, writ
appeal would be maintainable under Rule 134 of the Rajasthan
High Court Rules. His further submission is that on plain reading
of Rule 134 of the Rajasthan High Court Rules, there is not even
any bar against an order passed by a Single Bench even in
exercise of supervisory jurisdiction under Article 227 of the
Constitution of India. He would also submit that unless there is a
bar under the provisions relating to appeal, an appeal would be
maintainable even against the orders which are passed in exercise
of supervisory jurisdiction under Article 227 of the Constitution of
India. His further submission is that special courts constituted
under special enactments, including the revenue courts, exercise
powers and jurisdiction in relation to matters provided under the
revenue laws in the State of Rajasthan namely the Act of 1955
and the Act of 1956, though they may have trappings of civil
courts, they are not civil courts. The decision rendered by the
Hon’ble Supreme Court in the case of Radhey Shyam & Another
Vs. Chhabi Nath & Others (supra) carves out an exception
insofar as civil courts are concerned by providing that orders
passed by the civil courts are not amenable to writ jurisdiction
under Article 226 of the Constitution of India. Subject to aforesaid
exception, in respect of other orders passed by the courts and
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[2024:RJ-JP:42065-DB] (21 of 79) [SAW-756/2022]tribunals constituted under various enactments, the courts which
are not civil courts and tribunals constituted under special
enactments against whose orders certiorari jurisdiction under
Article 226 of the Constitution of India is invoked, writ appeal
would be maintainable under the applicable rules. The Board of
Revenue, it is contended, is not a court, but tribunal and,
therefore, amenable to writ jurisdiction and whenever writ petition
is filed seeking to invoke certiorari jurisdiction, then irrespective of
whether the court has granted relief or not, intra-court appeal as
provided under Rule 134 of the Rajasthan High Court Rules would
be maintainable. During the course of arguments, learned Senior
Counsel referred to decision rendered by this Court in the case of
Kartar Singh Vs. Board of Revenue & Others (supra),
wherein a Division Bench of this Court held that intra-court appeal
under Rule 134 of the Rajasthan High Court Rules would lie from
an order passed by Single Judge even while exercising the powers
under Article 227 of the Constitution of India. Learned Amicus
Curiae also relied upon the decisions of the Hon’ble Supreme
Court in the cases of Shalini Shyam Shetty & Another Vs.
Rajendra Shankar Patil16; Harinagar Sugar Mills Ltd. Vs.
Shyam Sunder Jhunjhunwala & Others17; Life Insurance
Corporation of India Vs. Nandini J. Shah & Others 18 and
Jogendrasinhji Vijaysinghji Vs. State of Gujarat & Others
(supra).
8. Mr. Anand Sharma, learned Amicus Curiae also assisted the
Court and submitted that the decision rendered by the Hon’ble
16 (2010) 8 SCC 329
17 AIR 1961 SC 1669
18 (2018) 15 SCC 356
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Supreme Court in the case of Radhey Shyam & Another Vs.
Chhabi Nath & Others (supra) is limited on the issue as to
whether an order passed by a civil court is amenable to writ
jurisdiction. Referring to various provisions contained in the Act of
1955 and the Act of 1956, learned Amicus Curiae would submit
that the order passed by the Board of Revenue can be challenged
under Article 227 of the Constitution of India when it exercises
judicial function but when it passes an order as Chief Revenue
Controlling Authority, then, such order is amenable to writ
jurisdiction under Article 226 of the Constitution of India. He
would further submit that though the Board of Revenue and other
revenue courts may have trappings of civil court, they cannot be
equated with civil court. The law enunciated in the case of
Radhey Shyam & Another Vs. Chhabi Nath & Others (supra)
is not applicable in those cases where the orders passed by the
Board of Revenue are challenged by filing writ petition before the
High Court. Learned Amicus Curiae has placed reliance upon the
decisions rendered by the Hon’ble Supreme Court in the cases of
Mahendra Kumar Jain Vs. Appellate Rent Tribunal, Ajmer
(supra); Radhey Shyam & Another Vs. Chhabi Nath &
Others (supra); Jogendrasinhji Vijaysinghji Vs. State of
Gujarat & Others (supra); Shalini Shyam Shetty & Another
Vs. Rajendra Shankar Patil (supra); Surya Dev Rai Vs. Ram
Chander Rai & Others19; Ashok K. Jha & Others Vs. Garden
Silk Mills Limited & Another20; and decisions rendered by this
Court in the cases of Kartar Singh Vs. Board of Revenue &
19 (2003) 6 SCC 675
20 (2009) 10 SCC 584
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[2024:RJ-JP:42065-DB] (23 of 79) [SAW-756/2022]
Others (supra); Ramesh Chand Tiwari & Others Vs. Board of
Revenue & Others (supra); and Sukh Dev Vs. Prakash
Chandra21.
Relevant factual matrix of the cases:
9. Before we proceed to deal with various legal submissions on
the aspect of maintainability of these intra-court appeals, we
consider it apposite to mention that in all the cases, orders passed
by the Board of Revenue in exercise of its revisional/appellate
jurisdiction were challenged by filing writ petitions under Articles
226 and 227 of the Constitution of India. Furthermore, D. B. Civil
Special Appeal (Writ) Nos. 756/2022, 781/2021, 785/2022,
977/2022, 996/2022 and 999/2022 arise out of common order
dated 11.04.2022 passed by the learned Single Judge in three writ
petitions. All three writ petitions were filed by petitioner-Smt.
Asha Devi Agarwal aggrieved by orders passed by the Board of
Revenue. Common order passed by the learned Single Judge has
been challenged by the respondents in the writ petitions, namely,
Ratna @ Ratan Lal, Kisturi Devi, Sunil Kumar and Vinod. In
respect of the orders of mutation of the subject land, one of the
appellants in above appeal, Ratna @ Ratan Lal filed an application
under Section 82 of the Act of 1956 before Tehsildar for making
reference with regard to three mutation orders on the ground that
those mutation orders were illegal. After issuing notice, the
Tehsildar dropped the proceedings and refused to make reference.
Later on, Ratna @ Ratan Lal filed three appeals along with
applications for condonation of delay before the District Collector,
Ajmer questioning mutation orders passed in the years 1967,
21 2010 (2) WLC (Raj.) 500
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1968 and 1984. Applications for condonation of delay as also the
appeals were dismissed. Thereafter, Ratna @ Ratan Lal filed
appeals before the Additional Divisional Commissioner, Ajmer who
allowed the appeals vide judgment dated 16.06.2005 remanding
the matters back to the District Collector, Ajmer. Aggrieved by
order dated 16.06.2005 passed by Additional Divisional
Commissioner, Ajmer, Smt. Asha Devi Agarwal filed three revisions
petitions under Section 84 of the Act of 1956 before the Board of
Revenue. The Board of Revenue quashed and set aside the orders
passed by the Additional Divisional Commissioner, Ajmer as well
as District Collector, Ajmer and also proceeded to set aside
mutation orders and directed the disputed land to be restored in
the name of the persons whose names existed before the first
sale. Aggrieved by three orders passed by the Board of Revenue
in exercise of its revisional jurisdiction, Smt. Asha Devi Agarwal
preferred three writ petitions which came to be decided by the
learned Single Judge vide common order dated 11.04.2022, which
has been assailed in the aforesaid six appeals by Ratna @ Ratan
Lal, Kisturi Devi, Sunil Kumar and Vinod.
10. D.B. Civil Special Appeal (Writ) Nos. 410/2023 and 411/2023
arise out of common order dated 17.04.2023 passed in two writ
petitions filed by Rameshwar and Sitaram & Others. Bhonri Lal
(Respondent No. 1 in two writ petitions) filed revenue suit before
the Court of ACM-II, Jaipur for declaration and permanent
injunction which came to be decreed in his favour vide judgment
dated 23.04.2012. First appeal preferred against the said
judgment was dismissed by the Revenue Appellate Authority.
Second appeal was also dismissed by the Board of Revenue.
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Review petition seeking review of order of the Board of Revenue
was also filed which was also dismissed. Against dismissal of
second appeal vide judgment dated 22.07.2015 and dismissal of
review petition vide order dated 08.06.2016, two writ petitions
came to be filed before the learned Single Judge which were
dismissed vide order dated 17.04.2023, which has been assailed
in the aforesaid two appeals.
11. D.B. Civil Special Appeal (Writ) No. 222/2023 arise out of
order dated 18.01.2023 passed by learned Single Judge in a writ
petition filed by defendant-Heeralal aggrieved by order dated
23.02.2021 passed by the Sub Divisional Officer, Dantaramgarh,
District Sikar rejecting an application under Order 7 Rule 11 read
with Order 9 Rule 9 CPC as also order of the Board of Revenue,
dismissing revision petition filed against above order. In that
case, Respondent-Chitra Singh filed suit for eviction, declaration
and possession against the appellant-defendant Heeralal and other
defendants. Writ petition filed under Articles 226 and 227 of the
Constitution of India against order passed by the Board of
Revenue was dismissed, giving rise to aforesaid intra-court
appeal.
Analysis & Conclusion:
12. The Scheme of intra-court appeal in Rajasthan High Court is
traceable to The Rajasthan High Court Ordinance, 1949
(hereinafter referred to as ‘the Ordinance of 1949’) promulgated
by His Highness, the Rajpramukh on the 21 st day of June, 1949
(Ordinance No. XV of 1949) to provide for the establishment of a
High Court of Judicature for Rajasthan. The Ordinance of 1949
was promulgated in exercise of powers conferred by Paragraph (3)
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[2024:RJ-JP:42065-DB] (26 of 79) [SAW-756/2022]of Article X of the Covenant and all other powers enabling
Rajpramukh in this behalf. Section 18 under the Chapter, “Civil
jurisdiction of the High Court” provided for appeal to the High
Court from judgment of Judges of the Court as below:
“18. Appeal to the High Court from judgment of
Judges of the Court.-(1) An appeal shall lie to the
High Court from the judgment (not being a judgment
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 and not being an
order made in the exercise of revisional jurisdiction
and not being a sentence or order passed or made in
the exercise of the power of superintendence under
section 43 or in the exercise of criminal jurisdiction) of
one Judge of the High Court.
(2) Notwithstanding anything hereinbefore provided,
an appeal shall lie to the High Court from a judgment
of one Judge of the High Court made 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
where the Judge who passed the judgment declares
that the case is a fit one for appeal.”
Appeal was provided from the judgment of one Judge of the
High Court, subject to certain exceptions. Though, amongst
others, one of the exceptions was that appeal was not available
against an order made in exercise of power of superintendence
under Section 43, a perusal of Section 43 would reveal that such
power of superintendence was conferred over all courts, civil or
criminal, in the State of Rajasthan for the time being subject to
appellate jurisdiction of the High Court. Therefore, to the extent of
orders passed in exercise of power of superintendence over civil or
criminal courts, intra-court appeal was not available.
13. In exercise of powers conferred by Section 46 of the
Ordinance of 1949 read with Article 225 of the Constitution of
India and all other powers enabling it in that behalf, the rules of
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High Court of Judicature for Rajasthan were promulgated, known
as “Rules of the High Court of Judicature for Rajasthan, 1952”.
Rule 134 thereof provided as below:
“[134. Special Appeal.-A person desiring to prefer a
Special Appeal from the judgment of a Single Judge
shall present a duly stamped memorandum of appeal
within thirty days from the date of such judgment.
Where such appeal is presented after the period
mentioned above, it shall be accompanied by an
application supported by an affidavit explaining the
cause of delay and it shall be rejected unless the
appellant satisfies the Court that he had sufficient
cause for not preferring the appeal within the aforesaid
time.
The memorandum of appeal shall be drawn up in
accordance with Rules 125, 130 and 131 of this
Chapter and shall be accompanied by a certified copy
of the judgment or order appealed from alongwith two
extra typed copies of the judgment or order].”
A conjoint reading of Section 18 of the Ordinance of 1949
and Rule 134 of the Rajasthan High Court Rules would reveal that
substantive provision for intra-court appeal was provided under
Section 18 of the Ordinance of 1949 and substantive as well as
procedural aspect was dealt with under Rule 134 of the Rajasthan
High Court Rules and Rule 134 did not incorporate any different
provision with regard to intra-court appeal.
14. After coming into force the Constitution of India with effect
from 26.01.1950, the provisions of the Ordinance of 1949
continued to remain in force and operation subject to the
provisions contained in Article 372 of the Constitution of India
until it was repealed vide the Judicial Administration Laws (Repeal)
Act, 2001 (No. 22 of 2001) [hereinafter referred to as ‘the Repeal
Act of 2001’] enacted by the Parliament. By the aforesaid Act,
number of Acts including the Ordinance of 1949 were repealed.
The effect of repeal was that substantive provisions under Section
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18 of the Repealed Rajasthan High Court Ordinance, 1949,
providing for intra-court appeal also stood repealed. The legal
position became uncertain with regard to maintainability of an
intra-court appeal and eventually, a reference was made to the
Full Bench of the this Court in the case of State of Rajasthan Vs.
V.R.C. Misra & 6 Ors.22 for adjudication of following question:
“Whether the right to file intra Court appeals stands
abrogated with the repealing Act coming into force on
August 29, 2001 by which the Rajasthan High Court
Ordinance 1949 was repealed notwithstanding the
several other existing provisions preserving the powers
of the High Court in the matter of administration of
justice as contained in Article 225 of the Constitution
read with Sections 52, 54 and 57 of the State Re-
organisation Act, 1956?”
15. While answering the reference, the Full Bench of this Court in
the aforesaid case observed thus:
“260. The right of intra-court appeal does not stand
abrogated with the Repealing Act of 2001 coming into
force on 29.8.2001 by which the Rajasthan High Court
Ordinance, 1949 was repealed. The right to the intra-
court appeal in the High Court of Judicature for
Rajasthan, and the jurisdiction of the Division Bench to
hear the appeal against the judgment of the learned
single judge of this Court as was vested under Article
225 of the Constitution and later on conferred under
s.52 of the State Reorganisation Act, 1956 and the
Rajasthan High Court Rules therefore, was not affected
or abrogated by the repeal of the Rajasthan High Court
Ordinance, 1949 which had long ceased to be
governing statute in respect of subjects dealt with
under Art. 225 of Chapter V of Part VI of the
Constitution and on the subject matters dealt with in
Part V of the State Reorganisation Act, 1956.”
16. As per the dictum of the Full Bench in the aforesaid
reference, the right to intra-court appeal did not stand abrogated
with the Repealing Act of 2001 on the day, the Ordinance of 1949
was repealed. The Full Bench in the aforesaid reference
22 2003 (2) WLC (Raj.) 235
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authoritatively opined that jurisdiction of the Division Bench to
hear the appeal against the judgment of the learned Single Judge
of the Court as was vested under Article 225 of the Constitution of
India and later on, conferred under Section 52 of the States
Reorganisation Act, 1956 (hereinafter referred to as ‘the Act of
1956’) and the Rajasthan High Court Rules was not affected or
abrogated by repeal of the Ordinance of 1949.
17. However, another uncertainty prevailing in law with regard to
maintainability of intra-court appeal against order/judgment
rendered by the learned Single Judge in exercise of supervisory
jurisdiction under Article 227 of the Constitution of India again led
to reference to another Full Bench of this Court in the case of
Ramesh Chand Tiwari & Others Vs. Board of Revenue &
Others (supra) for adjudication of following question:
“Whether intra court appeal to the Division Bench is
maintainable against the order judgment rendered by
the learned Single Judge in exercise of supervisory
jurisdiction under Article 227 of the Constitution of
India?”
18. After having surveyed several decisions of the Hon’ble
Supreme Court explaining supervisory jurisdiction of the High
Court under Article 227 of the Constitution of India, the issue with
regard to maintainability of intra-court appeal was examined. An
important development of repeal of the Ordinance of 1949 by the
Repeal Act of 2001 was noted and determination of issue with
regard to maintainability of intra-court appeal as answered in
reference by the Full Bench of this Court in the case of State of
Rajasthan Vs. V.R.C. Misra & 6 Ors.(supra) was also taken
into consideration. The then existing Rule 134 of the Rajasthan
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High Court Rules was also taken into consideration. The full
Bench, taking into consideration Section 18 of the Ordinance of
1949 and Rule 134 of the Rajasthan High Court Rules arrived at
the conclusion as below:
“29. We sum up our conclusion, thus:-
(i) The power of superintendence conferred on the High
Court under Article 227 of the Constitution is always in
addition to the revisional jurisdiction. It is wider than
one conferred by Article 226 in the sense that it is not
subject to those technicalities of procedure or
traditional fetters which are to be found in certiorari
jurisdiction. Jurisdiction under Article 227 is not an
original jurisdiction but it is akin to appellate, revisional
or corrective jurisdiction.
(ii) Any person desiring to prefer intra-court appeal
from the judgment/order of the Single Judge, may
present the same before the Division Bench but if the
Division Bench finds that the judgment/order of the
Single Judge was rendered purely in exercise of
revisional jurisdiction, the intra-court appeal shall
stand dismissed as not maintainable.
Judgments/orders passed by the Single Judge in
exercise of wider supervisory jurisdiction under Article
227 are amenable to intra-court appeals.”
19. The basis for forming the opinion that judgments/orders
passed by the learned Single Judge in exercise of wider
supervisory jurisdiction under Article 227 of the Constitution of
India are amenable to intra-court appeals was based on conjoint
reading of Section 18 of the Ordinance of 1949 and Rule 134 of
the Rajasthan High Court Rules.
20. However, as an important development, Rule 134 of the
Rajasthan High Court Rules was substituted vide notification dated
21.07.2005 which now provided as below:
“134. Appeal to the High Court from Judgment of
Judges of the Court.-(i) An appeal shall lie to the
High Court from the Judgemt or a final order (not being
a Judgment passed in the exercise of appellate
Jurisdiction in respect of a decree or order made in the(Downloaded on 28/10/2024 at 09:55:33 PM)
[2024:RJ-JP:42065-DB] (31 of 79) [SAW-756/2022]exercise of appellate Jurisdiction by a Court subject to
the superintendence of the 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
the exercise of the power of superintendence or in the
exercise of criminal Jurisdiction) of one Judge of the
High Court.
(ii) Special appeal.- A person desiring to prefer a
special appeal from the judgment of the Single Judge
shall present a duly stamped memorandum of appeal
within sixty days from the date of such judgment.
Where such appeal is presented after the period
mentioned above, it shall be accompanied by an
application supported by an affidavit explaining the
cause of delay and it shall be rejected unless the
appellant satisfied the court that he had sufficient
cause for non preferring the appeal within the aforesaid
time.
The memorandum of appeal shall be drawn-up in
accordance with Rules 125, 130 and 131 of this
Chapter and shall be accompanied by a certified copy
of the judgment or order appealed from alongwith two
extra typed copies of the judgment or order.”
21. If pre-substituted Rule 134 and new substituted Rule 134 of
the Rajasthan High Court Rules are juxtaposed, it would be clear
that new substituted Rule 134 contained specific provision with
regard to intra-court appeal. At that time and until the Ordinance
of 1949 was repealed, substantive provision for intra-court appeal
was provided in Section 18 of the Ordinance of 1949 and after its
repeal and before substitution of Rule 134 of the Rajasthan High
Court Rules in 2005, the legal position as adumbrated by the Full
Bench in the case of State of Rajasthan Vs. V.R.C. Misra & 6
Ors.(supra) clearly provided that the right to intra-court appeal
in the High Court of Judicature for Rajasthan and jurisdiction of
the Division Bench to hear the appeal against the order/judgment
of the learned Single Judge of the High Court as are vested under
Article 225 of the Constitution of India and later on, conferred
under Section 52 of the Act of 1956 and the Rajasthan High Court
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Rules, shall not be affected and abrogated by the repeal of the
Ordinance of 1949.
22. The significant change in the legal position, after coming into
force of newly substituted provision contained in Rule 134 of the
Rajasthan High Court Rules was that an order made in exercise of
power of superintendence was excluded from the purview of intra-
court appeal, as would be clear from the provisions contained in
sub-rule (i) of new Rule 134 of the Rajasthan High Court Rules.
23. A Division Bench of this Court in the case of Sukh Dev Vs.
Prakash Chandra (supra) held that no intra-court appeal shall
lie from an order passed by the learned Single Judge while
exercising power under Article 227 of the Constitution of India,
resulting in dismissal of appeal as not maintainable. However, later
on, another Division Bench of this Court in the case of Kartar
Singh Vs. Board of Revenue & Others (supra) relying upon
the decision of the Full Bench in the case of State of Rajasthan
Vs. V.R.C. Misra & 6 Ors.(supra) and Ramesh Chand Tiwari
& Others Vs. Board of Revenue & Others (supra) held that
intra-court appeal against an order passed by a Single Judge in
exercise of supervisory jurisdiction under Article 227 of the
Constitution of India would be maintainable. This decision was
rendered on the basis of two Full Bench decisions which rendered
opinion and answered reference applying the then existing law,
i.e., Section 18 of the Act of 1949 (when it was in force) and Rule
134 of the Rajasthan High Court Rules (as it stood before
substitution) providing for intra-court appeal without there being
any exception to an order passed by a learned Single Judge in
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exercise of supervisory jurisdiction under Article 227 of the
Constitution of India.
24. Significant change in the legal position after repeal of the
Ordinance of 1949 completely altered the regime of law. Right to
intra-court appeal in the High Court of Judicature for Rajasthan
and the jurisdiction of the Division Bench to hear the appeal
against the judgment/order of the learned Single Judge as vested
in Article 225 of the Constitution of India and later on conferred
under Section 52 of the Act of 1956 and the Rajasthan High Court
Rules were not affected or abrogated as held in the case of State
of Rajasthan Vs. V.R.C. Misra & 6 Ors.(supra) but restricted
in the manner as provided by substituted Rule 134 of the
Rajasthan High Court Rules with effect from 21.07.2005.
25. In view of above consideration, submission of one of the
learned Amicus Curiae that Rule 134 of the Rajasthan High Court
Rules does not create a bar and appeal against an order passed by
learned Single Judge in exercise of power of superintendence
under Article 227 of the Constitution of India would also be
maintainable, cannot be countenanced and liable to be rejected.
26. Maintainability of an intra-court appeal under the scheme of
various letter patent rules and other act/rules regulating intra-
court appeal in various High Courts particularly when petitions are
filed both under Article 226 and 227 of the Constitution of India
has been subject matter of consideration by the Hon’ble Apex
Court in plethora of decisions. We shall now navigate through legal
landscape and jurisprudential evolution as to when and under
what circumstances, an intra-court appeal would be maintainable
against an order/judgment of learned Single Judge where petition
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has been filed both under Articles 226 and 227 of the Constitution
of India assailing an order passed by a court or tribunal.
27. Scope of jurisdiction under Article 226 of the Constitution of
India while dealing with a writ of certiorari came up for
consideration before the Hon’ble Supreme Court in the case of
T.C. Basappa Vs. T. Nagappa & Another 23. The question as to
the scope of jurisdiction under Article 226 of the Constitution of
India was considered in the background of principles followed by
the superior courts in England which generally formed the basis of
decision by Indian courts. The Hon’ble Apex Court held that while
broad and fundamental norms regulating exercise of writ
jurisdiction had to be kept in mind, it was not necessary for Indian
courts to look back to the early history or procedural technicalities
of the writ jurisdiction in England in view of the express
constitutional provisions. It was further held that writ of certiorari
was meant to supervise “judicial acts” which included quasi-
judicial functions by administrative bodies. It was also explained
that the court issuing such writ quashes patently erroneous and
without jurisdiction order, but the court does not review the
evidence as an appellate court, nor substitute its own findings for
that of the inferior tribunal. Following pertinent observations
made by the Hon’ble Supreme Court are extracted as below:
“(6) The language used in Articles 32 and 226 of our
Constitution is very wide and the powers of the
Supreme Court as well as of all the High Courts in India
extend to issuing of orders, writs or directions including
writs in the nature of ‘habeas corpus, mandamus, quo
warranto, prohibition and certiorari’ as may be
considered necessary for enforcement of the23 AIR 1954 SC 440
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[2024:RJ-JP:42065-DB] (35 of 79) [SAW-756/2022]fundamental rights and in the case of the High Courts,
for other purposes as well. In view of the express
provisions in our Constitution we need not now look
back to the early history or the procedural
technicalities of these writs in English law, nor feel
oppressed by any difference or change of opinion
expressed in particular cases by English Judges. We
can make an order or issue a writ in the nature of
‘certiorari’ in all appropriate cases and in appropriate
manner, so long as we keep to the broad and
fundamental principles that regulate the exercise of
jurisdiction in the matter of granting such writs in
English law.
(7) One of the fundamental principles in regard to the
issuing of a writ of ‘certiorari’, is, that the writ can be
availed of only to remove or adjudicate on the validity
of judicial acts. The expression “judicial acts” includes
the exercise of quasi-judicial functions by
administrative bodies or other authorities or persons
obliged to exercise such functions and is used in
contrast with what are purely ministerial acts. Atkin L.
J. thus summed up the law on this point in- ‘Rex v.
Electricity Commissioners’, 1924-1 KB 171 at p. 205
(C):
“Whenever any body or 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.”
The second essential feature of a writ of ‘certiorari’ is
that the control which is exercised through it over
judicial or quasi-judicial tribunals or bodies is not in an
appellate but supervisory capacity. 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 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, vide per Lord Cairns in-‘Walsall’s Overseers v.
L. & N. W. Rly. Co.’, (1879) 4 AC 30 at p. 39 (D).
(8) The supervision of the superior court exercised
through writs of ‘certiorari’ goes on two points, as has
been expressed by Lord Sumner in-‘King v. Nat Bell
Liquors Ltd.’, (1922) 2 AC 128 at p. 156 (E). One is the
area of inferior jurisdiction and the qualifications and
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conditions of its exercise; the other is the observance
of law in the course of its exercise. These two heads
normally cover all the grounds on which a writ of
‘certiorari’ could be demanded. In fact there is little
difficulty in the enunciation of the principles; the
difficulty really arises in applying the principles to the
facts of a particular case.
(9) ‘Certiorari’ may and is generally granted when a
court has acted without or in excess of its jurisdiction.
The want of jurisdiction may arise from the nature of
the subject matter of the proceeding or from the
absence of some preliminary proceeding or the court
itself may not be legally constituted or suffer from
certain disability by reason of extraneous
circumstances, vide ‘Halsbury, 2nd edition, Vol. IX,
page 880. When the jurisdiction of the court depends
upon the existence of some collateral fact, it is well
settled that the court cannot by a wrong decision of the
fact give it jurisdiction which it would not otherwise
possess, vide- ‘Bunbury v. Fuller’, (1854) 9 Ex 111 (F);
-R. v. Income Tax Special Purposes Commissioners’,
(1889) 21 QBD 313 (G).
(10) A tribunal may be competent to enter upon an
enquiry but in making the enquiry it may act in flagrant
disregard of the rules of procedure or where no
particular procedure is prescribed, it may violate the
principles of natural justice. A writ of ‘certiorari’ may be
available in such cases. An error in the decision or
determination itself may also be amenable to a writ of
‘certiorari’ but it must be a manifest error apparent on
the face of the proceedings, e.g. when it is based on
clear ignorance or disregard of the provisions of law. In
other words, it is a patent error which can be corrected
by ‘certiorari’ but not a mere wrong decision.
The essential features of the remedy by way of
‘certiorari’ have been stated with remarkable brevity
and clearness by Morris L. J. in the recent case of-‘Rex
v. Northumberland Compensation Appellate Tribunal’,
1952-1 KB 338 at p. 357 (H). The Lord Justice says :
“It is plain that ‘certiorari’ will not issue as the cloak of
an appeal in disguise. It does not lie in order to bring
up an order or decision for re-hearing of the issue
raised in the proceedings. It exists to correct error of
law when revealed on the face of an order or decision
or irregularity or absence of or excess of jurisdiction
when shown.”
28. Several judgments rendered by the Hon’ble Supreme Court
on the scope of writ jurisdiction under Article 226 of the
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Constitution of India as also the distinction and difference between
Articles 226 and 227 of the Constitution of India were explained in
the aforesaid case, which we need not consider necessary to refer
to at this stage.
29. In the case of Shalini Shyam Shetty & Another Vs.
Rajendra Shankar Patil (supra), the scope of jurisdiction of the
High Court under Articles 226 and 227 of the Constitution of India
was explained and differentiated by the Hon’ble Supreme Court as
below:
“49. On an analysis of the aforesaid decisions of this
Court, the following principles on the exercise of High
Court’s jurisdiction under Article 227 of the Constitution
may be formulated:
(a) A petition under Article 226 of the Constitution
is different from a petition under Article 227. The mode
of exercise of power by the 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, at 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
the 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 their 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
v. Amarnath, AIR 1954 SC 215 and the principles in
Waryam Singh have been repeatedly followed by
subsequent Constitution Benches and various other
decisions of this Court.
(e) According to the ratio in Waryam Singh,
followed in subsequent cases, the High Court in exercise
of its jurisdiction of superintendence can interfere in
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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 the 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) The 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
L. Chandra Kumar v. Union of India (1997) 3 SCC 261
and therefore abridgment 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 the High Court.
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(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.”
30. The difference and distinction between Articles 226 and 227
of the Constitution of India was considered and explained by Their
Lordships in the Hon’ble Supreme Court in one of its earlier
decision in the case of Umaji Keshao Meshram & Others Vs.
Radhikabai, Widow of Anandrao Banapurkar &
Another(supra). It was held that the proceedings under Article
226 of the Constitution of India are in exercise of the original
jurisdiction of the High Court while proceedings under Article 227
of the Constitution of India are not original, but only supervisory.
It was also held that Article 227 of the Constitution of India
substantially reproduces the provisions of Section 107 of the
Government of India Act, 1915 except that the power of
superintendence has been extended by Article 227 of the
Constitution of India to Tribunals as well. The distinction was
explained in the manner that though the power is akin to that of
an ordinary court of appeal yet the power under Article 227 of the
Constitution of India 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. It was further propounded that the
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power may be exercised in cases occasioning grave injustice or
failure of justice.
31. The question which fell for consideration of the Hon’ble
Supreme Court in the case of Umaji Keshao Meshram & Others
Vs. Radhikabai, Widow of Anandrao Banapurkar &
Another(supra) was whether an appeal lies under Clause 15 of
the Letters Patent of the Bombay High Court to a Division Bench of
two Judges of that High Court from the judgment of a Single
Judge of that High Court in a petition filed under Article 226 or
Article 227 of the Constitution of India. Clause 15 of the Letters
Patent inter alia provided that an appeal shall lie to the High Court
of Judicature at Bombay from a judgment of one Judge of the High
Court, containing a similar provision as in Rule 134 of the
Rajasthan High Court Rules in the present case, excluding from
the purview of letters patent appeal and order made in exercise of
powers of superintendence under the provisions of Section 107 of
the Government of India Act, 1915. Upon survey of various
judicial pronouncements, provisions contained in the Letters
Patent and the provisions contained in Articles 226 and 227 of the
Constitution of India, following pertinent observations were made:
“104. Under Clause 15 of the Letters Patent of the
Bombay High Court no intra-court appeal lay against an
“order passed or made in the exercise of the power of
superintendence under the provisions of Section 107 of
the Government of India Act”. By the same process of
interpretation by reason of which the phrase “pursuant
to Section 108 of the Government of India Act” in
Clause 15 is to be read as “pursuant to Article 225 of
the Constitution of India”, the phrase “order passed or
made in the exercise of the power of superintendence
under the provisions of Section 107 of the Government
of India Act” is to be read as “order passed or made in
the exercise of the power of superintendence under the
provisions of Article 227 of the Constitution”. The result
is that an intra-court appeal does not lie against the(Downloaded on 28/10/2024 at 09:55:33 PM)
[2024:RJ-JP:42065-DB] (41 of 79) [SAW-756/2022]judgment of a Single Judge of the Bombay High Court
given in a petition under Article 227 by reason of such
appeal being expressly barred by Clause 15 of the
Letters Patent of that High Court. ……….
105. ……..
106. …….. 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 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. …….”
32. The aforesaid principles propounded in the case of Umaji
Keshao Meshram & Others Vs. Radhikabai, Widow of
Anandrao Banapurkar & Another(supra) have been relied
upon and restated by the Hon’ble Supreme Court in its various
judgments.
33. In the case of Sushilabai Laxminarayan Mudliyar &
Others Vs. Nihalchand Waghajibhai Shaha & Others 24, an
24 1993 Supp (1) SCC 11
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issue with regard to maintainability of intra court appeal under the
Letters Patent of Bombay High Court again arose for consideration
where the grounds taken in the writ petition indicated that it was a
petition under Article 226 of the Constitution of India and the
order passed by the learned Single Judge was also under Article
226 of the Constitution of India. It was held thus:
“4. The Full Bench of the Bombay High Court wrongly
understood the above Umaji Kesho Meshram case. In
Umaji case it was clearly held that where the facts
justify a party in filing an application either under Article
226 or 227 of the Constitution of India and the party
chooses to file his application under both these articles
in fairness of justice to party and in order not to deprive
him of valuable right of appeal the Court ought to treat
the application as being made under Article 226 and if
in deciding the matter, in the final order the Court gives
ancillary directions which may pertain to Article 227,
this ought not to be held to deprive a party of the right
of appeal under clause 15 of the Letters Patent where
the substantial part of the order sought to be appealed
against is under Article 226. Rule 18 of the Bombay
High Court Appellate Side Rules read with clause 15 of
the Letters Patent provides for appeal to the Division
Bench of the High Court from a judgment of the learned
Single Judge passed on a writ petition under Article 226
of the Constitution. In the present case the Division
Bench was clearly wrong in holding that the appeal was
not maintainable against the order of the learned Single
Judge. In these circumstances we set aside the
impugned order of the Division Bench and direct that
the Letters Patent Appeal filed against the judgment of
the learned Single Judge would now be heard and
decided on merits. In view of the fact that it is an old
matter we request the High Court to decide the Letters
Patent Appeal within six months. It is further directed
that till the final disposal of the Letters Patent Appeal
the operation of the order of the Single Judge shall
remain stayed. The appeals are allowed in part with no
order as to costs.”
34. However, after a decade, in the case of Surya Dev Rai Vs.
Ram Chander Rai & Others (supra), it was held that an order
of civil court was amenable to writ jurisdiction under Article 226 of
the Constitution of India. It was further held that the distinction
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between two jurisdictions, one under Article 226 of the
Constitution of India and other under Article 227 of the
Constitution of India stands almost obliterated in practice and that
is the reason why it has become customary that the lawyers are
labelling their petitions as one under Articles 226 and 227 of the
Constitution of India though such practice has been deprecated in
some judicial pronouncements. It was held that even the orders
passed by the civil courts are amenable to writ jurisdiction under
Article 226 of the Constitution of India.
35. In the case of Kishorilal Vs. Sales Officer, District Land
Development Bank & Others25, an issue with regard to
maintainability of intra court appeal arose for consideration in the
factual backdrop that recovery proceedings were initiated on
alleged failure to repay the amount of loan advanced by the co-
operative bank. The land mortgaged with the bank was sold. Sale
proceedings were assailed in appeal filed before the Joint
Registrar, Cooperative Societies, Bhopal which was also dismissed.
Against that order, second appeal provided under the cooperative
laws was preferred before the Board of Revenue which was
allowed. Against the order passed by the Board of Revenue, Sales
Officer of the Bank filed a writ petition before the High Court which
was allowed. A letters patent appeal filed by the borrower before
the Division Bench of the High Court was dismissed holding that
the same was not maintainable on the premise that the learned
Single Judge had exercised jurisdiction under Article 227 of the
Constitution of India. Taking note of the fact that writ petition was
filed both under Articles 226 and 227 of the Constitution of India
25 (2006) 7 SCC 496
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and relying upon its earlier decision in the case of Sushilabai
Laxminarayan Mudliyar & Others Vs. Nihalchand
Waghajibhai Shaha & Others, it was held by the Hon’ble
Supreme Court as below:
“13. 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.”
36. In the case of Ashok K. Jha & Others Vs. Garden Silk
Mills Limited & Another (supra), one of the questions which
arose for consideration was whether Letters Patent Appeal under
Clause 15 of the Letters Patent of the Bombay High Court was
maintainable from the judgment and order passed by the learned
Single Judge.
In the matter of dispute between the employer and the
employees, the Labour Court passed an order under the Bombay
Industrial Relations Act, 1946. The challenge to the transfer order
was repelled. The employee and the Union then preferred a joint
appeal before the Industrial Court, Surat. The Industrial Court set
aside the order of the Labour Court and directed the employer to
withdraw the transfer order. This order was challenged by filing a
petition under Articles 226 and 227 of the Constitution of India
before the High Court of Gujarat. The petition having been
dismissed, the employer preferred Letters Patent Appeal under
Clause 15 of the Letters Patent before the Division Bench.
Apropos the question which arose for consideration, the Hon’ble
Apex Court referred to and relied upon its earlier decision in the
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case of Umaji Keshao Meshram & Others Vs. Radhikabai,
Widow of Anandrao Banapurkar & Another(supra), [relevant
observations of that decision have already been referred to
hereinabove].
37. The Hon’ble Apex Court in the aforesaid case of Ashok K.
Jha & Others Vs. Garden Silk Mills Limited & Another
(supra) considered its earlier decisions dealing with identical
issue regarding maintainability of appeal where writ petition was
filed under Articles 226 and 227 of the Constitution of India and
jurisprudential developments as below:
“29. In Ratnagiri Distt. Central Coop. Bank Ltd. v.
Dinkar Kashinath Watve 1993 Supp (1) SCC 9 this Court
held that for determining the question of maintainability
of an appeal against the judgment of the Single Judge
in a writ petition where both Articles 226 and 227 of the
Constitution have been mentioned, the Division Bench
has to find out whether in substance the judgment has
been passed by the learned Single Judge in exercise of
the jurisdiction under Article 226 of the Constitution.
30. The Court held thus: (Ratnagiri Distt. Coop. Bank
Ltd. case, SCC pp. 9-10, para 2-3)
“2. The only question involved in this matter is as
to whether the High Court was right in holding that
a Letters Patent Appeal will not lie against the
judgment delivered by a learned Single Judge in a
petition which was filed under both Articles 226
and 227 of the Constitution. Having gone through
the judgment of the learned Single Judge and the
Division Bench and having heard learned counsel
for the parties, in our opinion, the question about
the scope of Letters Patent Appeal under Clause 15
has been clearly laid down by this Court in a
judgment reported in Umaji Keshao Meshram v.
Radhikabai wherein it was observed as follows:
(SCC p. 473, para 107)
‘107. Petitions are at times filed both under
Articles 226 and 227 of the Constitution. The
case of Hari Vishnu Kamath v. Ahmad Ishaque
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(Downloaded on 28/10/2024 at 09:55:33 PM)
[2024:RJ-JP:42065-DB] (46 of 79) [SAW-756/2022]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 and by the Punjab High Court in Raj
Kishan Jain v. Tulsi Dass AIR 1959 Punj 291
and Barham Dutt v. Peoples’ Coop. Transport
Society Ltd. AIR 1961 Punj 24 and we are in
agreement with it.’
3. It is clear that so far as the present case was
concerned the relief granted by the learned Single
Judge clearly indicate that he was exercising
jurisdiction under Article 226 and not under Article
227 of the Constitution and in this view of the
matter and in the light of what has been laid down
by this Hon’ble Court in the judgment referred to
above a Letters Patent Appeal under Clause 15
would be maintainable before the Division Bench of
the High Court. The appeal is, therefore, allowed
and the judgment passed by the learned Division
Bench is set aside. The matter is sent back to the
High Court and it is expected that the Division
Bench will hear the appeal on merits and dispose it
of in accordance with law expeditiously preferably
within four months from today.”
31. In Sushilabai Laxminarayan Mudliyar v. Nihalchand
Waghajibhai Shaha the Court held: (SCC p. 14, para 4)
“4. The Full Bench of the Bombay High Court
wrongly understood the above Umaji Keshao
Meshram case. In Umaji case it was clearly held
that where the facts justify a party in filing an
application either under Article 226 or 227 of the
Constitution of India and the party chooses to file
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his application under both these articles in fairness
of justice to party and in order not to deprive him
of valuable right of appeal the Court ought to treat
the application as being made under Article 226,
and if in deciding the matter, in the final order the
Court gives ancillary directions which may pertain
to Article 227, this ought not to be held to deprive
a party of the right of appeal under Clause 15 of
the Letters Patent where the substantial part of the
order sought to be appealed against is under
Article 226. Rule 18 of the Bombay High Court
Appellate Side Rules read with Clause 15 of the
Letters Patent provides for appeal to the Division
Bench of the High Court from a judgment of the
learned Single Judge passed on a writ petition
under Article 226 of the Constitution. In the
present case the Division Bench was clearly wrong
in holding that the appeal was not maintainable
against the order of the learned Single Judge. In
these circumstances we set aside the impugned
order of the Division Bench and direct that the
Letters Patent Appeal filed against the judgment of
the learned Single Judge would now be heard and
decided on merits.”
32. The issue concerning maintainability of a letters
patent appeal from an order of the Single Judge in the
writ petition filed under Articles 226 and 227 of the
Constitution of India again came up for consideration
before this Court in Kishorilal v. District Land
Development Bank. This Court held: (SCC p. 500, рага
13)
“13. 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.”
33. The discussion on the subject would be incomplete
without reference to two recent decisions of this Court
viz. (i) State of M.P. v. Visan Kumar Shiv Charan Lal
(2008) 15 SCC 233, and (ii) Ramesh Chandra Sankla v.
Vikram Cement (2008) 14 SCC 58.
34. In Visan Kumar Shiv Charan Lal this Court referred
to earlier decisions in Umaji, Sushilabai Laxminarayan
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[2024:RJ-JP:42065-DB] (48 of 79) [SAW-756/2022]
and Ratnagiri Distt. Coop. Bank Ltd., and held: (Visan
Kumar Shiv Charan Lal case, SCC pp. 237-38, para 4)
“4. … ‘1. … Even when in the cause-title of an
application both Article 226 and Article 227 of the
Constitution have been mentioned, the learned
Single Judge is at liberty to decide, according to
facts of each particular case, whether the said
application ought to be dealt with only under Article
226 of the Constitution. For determining the
question of maintainability of an appeal against
such a judgment of the Single Judge the Division
Bench has to find out whether in substance the
judgment has been passed by the learned Single
Judge in exercise of the jurisdiction under Article
226 of the Constitution. In the event in passing his
judgment on an application which had mentioned in
its cause-title both Articles 226 and 227, the Single
Judge has in fact invoked only his supervisory
powers under Article 227, the appeal under Clause
15 would not lie. Clause 15 of the Letters Patent
expressly bars appeals against orders of Single
Judges passed under revisional or supervisory
powers. Even when the learned Single Judge’s
order has been passed under both the articles, for
deciding the maintainability against such an order
what would be relevant is the principal or main
relief granted by the judgment passed by learned
Single Judge and not the ancillary directions given
by him. The expression ‘ancillary’ means, in the
context, incidental or consequential to the main
part of the order. …”
35. In Visan Kumar Shiv Charan Lal this Court further
held that the determining factor is the real nature of
principal order passed by the Single Judge which is
appealed against and neither mentioning in the cause-
title of the application of both the articles nor granting
of ancillary order thereupon by the Single Judge would
be relevant and in each case the Division Bench must
consider the substance of the judgment under appeal to
ascertain whether the Single Judge has mainly or
principally exercised his jurisdiction under Article 226 or
Article 227 of the Constitution. In Ramesh Chandra
Sankla this Court held: (SCC p. 75, para 47)
“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
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[2024:RJ-JP:42065-DB] (49 of 79) [SAW-756/2022]
strictly falling under Article 226 simpliciter can be
disposed of by a Single 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….”
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 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.
38. Insofar as the present case is concerned, in the
cause-title of the writ petition (special civil application),
Articles 226 and 227 of the Constitution have been
mentioned. A careful reading of the writ petition shows
that the writ petition is not confined to supervisory
jurisdiction of the High Court. The employer has invoked
jurisdiction of the High Court by praying for a writ of
certiorari. The prayer clause in the writ petition reads,
“In view of the aforesaid premises Your Lordships may
be pleased to issue a writ of certiorari or any other
appropriate order….” The judgment of the Single Judge
is, thus, traceable to Article 226. The statement made
by the Single Judge in his order that no case for
interference is made out under Article 227 of the
Constitution is not decisive.
39. Moreover, the Division Bench in its order observed,
“though long-drawn arguments were advanced on the
question of maintainability of this appeal, there really
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was not a serious contest on the question of
maintainability of the appeal”.
40. For all these reasons, we hold that the letters
patent appeal was maintainable from the order dated 1-
10-2007 passed by the learned Single Judge. We
answer Question (2) in affirmative.”
38. However, later on, correctness of the view taken in Surya Dev
Rai Vs. Ram Chander Rai & Others (supra) to the extent it
declared that orders of civil courts are amenable to writ
jurisdiction under Article 226 of the Constitution of India, was
doubted being contrary to the ratio of the decisions in the cases of
Naresh Shridhar Mirajkar v. State of Maharashtra &
Another26 and Rupa Ashok Hurra Vs. Ashok Hurra &
Another27, which led to reference to a Larger Bench of the
Hon’ble Supreme Court in the case of Radhey Shyam & Another
Vs. Chhabi Nath & Others (supra). The reference order, inter
alia, reads:
“30. … Therefore, this Court unfortunately is in
disagreement with the view which has been expressed
in Surya Dev Rai insofar as correction of or any
interference with judicial orders of civil court by a writ
of certiorari is concerned.
31. Under Article 227 of the Constitution, the High
Court does not issue a writ of certiorari. Article 227 of
the Constitution vests the High Courts with a power of
superintendence which is to be very sparingly exercised
to keep tribunals and courts within the bounds of their
authority. Under Article 227, orders of both civil and
criminal courts can be examined only in very
exceptional cases when manifest miscarriage of justice
has been occasioned. Such power, however, is not to be
exercised to correct a mistake of fact and law.
32. The essential distinctions in the exercise of power
between Articles 226 and 227 are well known and
pointed out in Surya Dev Rai and with that we have no
disagreement. But we are unable to agree with the legal
proposition laid down in Surya Dev Rai that judicial
orders passed by a civil court can be examined and then26 AIR 1967 SC 1
27 (2002) 4 SCC 388(Downloaded on 28/10/2024 at 09:55:33 PM)
[2024:RJ-JP:42065-DB] (51 of 79) [SAW-756/2022]corrected/reversed by the writ court under Article 226
in exercise of its power under a writ of certiorari. We are
of the view that the aforesaid proposition laid down in
Surya Dev Rai, is contrary to the ratio in Mirajkar and
the ratio in Mirajkar has not been overruled in Rupa
Ashok Hurra.
33. In view of our difference of opinion with the
views expressed in Surya Dev Rai, matter may be
placed before His Lordship the Hon’ble the Chief Justice
of India for constituting a larger Bench, to consider the
correctness or otherwise of the law laid down in Surya
Dev Rai on the question discussed above.”
39. The Larger Bench of the Hon’ble Supreme Court in the
beginning of consideration in the case of Radhey Shyam &
Another Vs. Chhabi Nath & Others (supra) observed thus:
“3. As already mentioned, the Bench of two Hon’ble
Judges who heard the matter was not persuaded to
follow the law laid down in Surya Dev Rai. It was
observed that the judgment in Surya Dev Rai did not
correctly appreciate the ratio laid down in the earlier
nine-Judge Bench judgment of this Court in Naresh
Shridhar Mirajkar v. State of Maharashtra wherein this
Court came to the conclusion that “Certiorari does not
lie to quash the judgments of inferior courts of civil
jurisdiction (para 62).”
40. Placing reliance upon the decision of the Hon’ble Supreme
Court in the case of T.C. Basappa Vs. T. Nagappa & Another
(supra) and having traced the historical origin of writ of certiorari
in England and its application in India before and after coming into
force the Constitution of India, it was pertinently observed by the
Hon’ble Supreme Court in the case of Radhey Shyam & Another
Vs. Chhabi Nath & Others (supra) thus:
“11. It is necessary to clarify that the expression
“judicial acts” is not meant to refer to judicial orders of
civil courts as the matter before this Court arose out of
the order of the Election Tribunal and no direct decision
of this Court, except Surya Dev Rai, has been brought
to our notice where writ of certiorari may have been
issued against an order of a judicial court. In fact, when
the question as to scope of jurisdiction arose in
subsequent decisions, it was clarified that orders of the(Downloaded on 28/10/2024 at 09:55:33 PM)
[2024:RJ-JP:42065-DB] (52 of 79) [SAW-756/2022]judicial courts stood on different footing from the quasi-
judicial orders of authorities or tribunals.”
41. Another decision in the case of Smt. Ujjam Bai Vs. State of
Uttar Pradesh & Another28 was also referred to and relied upon
in the case of Radhey Shyam & Another Vs. Chhabi Nath &
Others (supra) as below:
“12. In Ujjam Bai v. State of U.P., matter was referred
to a Bench of seven Judges on the scope of writ of
certiorari against an order of assessment under the
provisions of sales tax law passed in violation of a
fundamental right. Majority of six Judges took the view
that except an order under a void law or an “ultra vires”
or “without jurisdiction” order, there could be no
violation of fundamental right by a quasi-judicial order
or a statutory authority and such order could not be
challenged under Article 32. A writ of certiorari could
however, lie against a patently erroneous order under
Article 226. It was observed that the judicial orders of
courts stood on different footing. Ayyangar, J. observed:
(AIR pp. 1679-80, para 155)
“155. Before concluding it is necessary to advert to
one matter which was just touched on in the
course of the arguments as one which might be
reserved for consideration when it actually arose,
and this related to the question whether the
decision or order of a regular ordinary court of law
as distinguished from a tribunal or quasi-judicial
authority constituted or created under particular
statutes could be complained of as violating a
fundamental right. It is a salutary principle that
this Court should not pronounce on points which
are not involved in the questions raised before it
and that is the reason why I am not dealing with it
in any fullness and am certainly not expressing any
decided opinion on it. Without doing either
however, I consider it proper to make these
observations. There is not any substantial identity
between a court of law adjudicating on the rights
of parties in the lis before it and designed as the
High Courts and this Court are to investigate inter
alia whether any fundamental rights are infringed
and vested with power to protect them, and quasi-
judicial authorities which are created under
particular statutes and with a view to implement
and administer their provisions. I shall be content
to leave the topic at this.”
28 AIR 1962 SC 1621
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The view taken in Smt. Ujjam Bai Vs. State of Uttar
Pradesh & Another (supra) was noticed that judicial orders of
courts stood on different footing as against a quasi-judicial order
or an order passed by statutory authority.
42. In the case of Radhey Shyam & Another Vs. Chhabi Nath
& Others (supra), heavy reliance was placed on the Constitution
Bench judgment of the Hon’ble Supreme Court in the case of
Naresh Shridhar Mirajkar v. State of Maharashtra & Another
(supra) to arrive at conclusion that orders of courts exercising
civil jurisdiction or to say orders of civil courts are not amenable to
writ jurisdiction under Article 226 of the Constitution of India. It
was observed thus:
“13. In Mirajkar a nine-Judge Bench judgment, a judicial
order of the High Court was challenged as being violative
of fundamental right. This Court by majority held that a
judicial order of a competent court could not violate a
fundamental right. Even if there was incidental violation,
it could not be held to be violative of the fundamental
right. …..”
43. Pertinent observations made in the case of Naresh Shridhar
Mirajkar v. State of Maharashtra & Another (supra), which
dealt with a legal position in England on the question of scope of
writ of certiorari against judicial order, as contained in Para 63
thereof, were also noted by the Hon’ble Supreme Court in the case
of Radhey Shyam & Another Vs. Chhabi Nath & Others
(supra) as below:
“16. This Court then dealt with the legal position in
England on the question of scope of writ of certiorari
against a judicial order. Noting that the writ of certiorari
did not lie against a judicial order, it was observed:
(Mirajkar’s case, AIR pp. 18-19, paras 63-64)
“63. Whilst we are dealing with this aspect of the
matter, we may incidentally refer to the relevant(Downloaded on 28/10/2024 at 09:55:33 PM)
[2024:RJ-JP:42065-DB] (54 of 79) [SAW-756/2022]observations made by Halsbury on this point. ‘In the case
of judgments of inferior courts of civil jurisdiction’, says
Halsbury in the footnote-
‘it has been suggested that certiorari might be
granted to quash them for want of jurisdiction (Kemp
v. Balne (1844) 1 Dow & L 885, Dow & L at p. 887),
inasmuch as an error did not lie upon that ground. But
there appears to be no reported case in which the
judgment of an inferior court of civil jurisdiction has
been quashed on certiorari, either for want of
jurisdiction or on any other ground (Halsbury Laws of
England, 3rd Edn., Vol. 11, p. 129)’. The ultimate
proposition is set out in the terms: ‘Certiorari does not
lie to quash the judgments of inferior courts of civil
jurisdiction’. These observations would indicate that in
England the judicial orders passed by civil courts of
plenary jurisdiction in or in relation to matters brought
before them are not held to be amenable to the
jurisdiction to issue writs of certiorari.”
The proposition pertinently noted was that certiorari does not
lie to quash the judgments of inferior courts of civil jurisdiction,
meaning thereby that the judicial orders passed by civil courts of
plenary jurisdiction in or in relation to matters brought before
them are not held to be amenable to the jurisdiction to issue writs
of certiorari.
44. Another observation made in the case of Naresh Shridhar
Mirajkar v. State of Maharashtra & Another (supra) with
reference to decision in the case of Rex v. Chancellor of St.
Edmundsburry and Ipswich Diocese Ex Parte White 29, was
also referred to in the case of Radhey Shyam & Another Vs.
Chhabi Nath & Others (supra). Observations made in this
regard were as below:
“64. In R. v. Chancellor of St. Edmundsbury and Ipswich
Diocese, ex p White, the question which arose was
whether certiorari would lie from the Court of King’s
Bench to an ecclesiastical court; and the answer rendered29 1945-1 KB 195
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[2024:RJ-JP:42065-DB] (55 of 79) [SAW-756/2022]by the court was that certiorari would not lie against the
decision of an ecclesiastical court. …..”
45. Having considered the Constitution Bench judgment in the
case of Naresh Shridhar Mirajkar v. State of Maharashtra &
Another (supra), Larger Bench of the Hon’ble Supreme Court in
the case of Radhey Shyam & Another Vs. Chhabi Nath &
Others (supra) held as below:
“18. While the above judgments dealt with the question
whether judicial order could violate a fundamental right, it
was clearly laid down that challenge to judicial orders
could lie by way of appeal or revision or under Article 227
and not by way of a writ under Articles 226 and 32.”
46. Reference was also made to earlier decision of the Hon’ble
Supreme Court in the case of Qamruddin Vs. Rasul Baksh30 to
come to a conclusion that an order of civil court could be
challenged under Article 227 and not under Article 226 of the
Constitution of India. Following are the pertinent observations:
“20. This Court in judgment dated 6-2-1989 in Qamruddin
v. Rasul Baksh which has been quoted in the Allahabad
High Court judgment in Ganga Saran v. Civil Judge, Hapur
1991 SCC OnLine All 63 considered the issue of writ of
certiorari and mandamus against interim order of the civil
court and held: (Qamruddin case, AWC p. 309, para 4)“4. … If the order of injunction is passed by a
competent court having jurisdiction in the matter, it is
not permissible for the High Court under Article 226 of
the Constitution to quash the same by issuing a writ of
certiorari. In the instant case the learned Single Judge
of the High Court further failed to realise that a writ of
mandamus could not be issued in this case. A writ of
mandamus cannot be issued to a private individual
unless he is under a statutory duty to perform a public
duty. The dispute involved in the instant case was
entirely between two private parties, which could not
be a subject-matter of writ of mandamus under Article
226 of the Constitution. The learned Single Judge
ignored this basic principle of writ jurisdiction
conferred on the High Court under Article 226 of the
Constitution. There was no occasion or justification for30 (1990) 1 AWC 308 (SC)
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[2024:RJ-JP:42065-DB] (56 of 79) [SAW-756/2022]issue of a writ of certiorari or mandamus. The High
Court committed serious error of jurisdiction in
interfering with the order of the District Judge.”
21. Thus, it has been clearly laid down by this Court that
an order of the civil court could be challenged under
Article 227 and not under Article 226.”
47. Finally, overruling the law laid down in the case of Surya
Dev Rai Vs. Ram Chander Rai & Others (supra) to the extent
it declared that orders of civil court are amenable to writ of
certiorari, it was concluded thus:
“25. It is true that this Court has laid down that
technicalities associated with the prerogative writs in
England have no role to play under our constitutional
scheme. There is no parallel system of King’s Court in
India and of all the other courts having limited jurisdiction
subject to the supervision of the King’s Court. Courts are
set up under the Constitution or the laws. All the courts in
the jurisdiction of a High Court are subordinate to it and
subject to its control and supervision under Article 227.
Writ jurisdiction is constitutionally conferred on all the
High Courts. Broad principles of writ jurisdiction followed
in England are applicable to India and a writ of certiorari
lies against patently erroneous or without jurisdiction
orders of tribunals or authorities or courts other than
judicial courts. There are no precedents in India for the
High Courts to issue writs to the subordinate courts.
Control of working of the subordinate courts in dealing
with their judicial orders is exercised by way of appellate
or revisional powers or power of superintendence under
Article 227. Orders of the civil court stand on different
footing from the orders of authorities or tribunals or
courts other than judicial/civil courts. While appellate or
revisional jurisdiction is regulated by the statutes, power
of superintendence under Article 227 is constitutional. The
expression “inferior court” is not referable to the judicial
courts, as rightly observed in the referring order in paras
26 and 27 quoted above.
26. ……..
27. Thus, we are of the view that judicial orders of civil
courts are not amenable to a writ of certiorari under
Article 226. We are also in agreement with the view of the
referring Bench that a writ of mandamus does not lie
against a private person not discharging any public duty.
Scope of Article 227 is different from Article 226.
28. ………
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29. Accordingly, we answer the question referred as
follows:
29.1. Judicial orders of the civil court are not amenable to
writ jurisdiction under Article 226 of the Constitution.
29.2. Jurisdiction under Article 227 is distinct from
jurisdiction under Article 226.
29.3. Contrary view in Surya Dev Rai is overruled.”
48. Thus, the jurisprudential development of law, surveyed by us
as above, settles the legal position that where the petitions are
filed both under Articles 226 and 227 of the Constitution of India
and facts of the case justify filing petition seeking issuance of writ
of certiorari, order passed by the quasi-judicial authorities and
tribunals are amenable to certiorari jurisdiction of the High Court
under Article 226 of the Constitution of India with the explanation
that judicial orders of civil courts are not amenable to writ
jurisdiction under Article 226 of the Constitution of India.
Therefore, where the orders are passed by the civil courts and
there does not exist any remedy of appeal or revision, supervisory
jurisdiction under Article 227 of the Constitution of India may be
invoked.
49. In the cases in hand, the orders were passed by Revenue
Courts and Revenue Appellate Authority and the Board of Revenue
in exercise of its appellate and revisional jurisdiction. Whether the
orders passed by the Board of Revenue can be said to be an order
passed by a civil court is the last issue requiring our
determination. If the Board of Revenue is not a civil court as
considered in plethora of decisions referred to above, then in that
event where petition is filed under Articles 226 as well as 227 of
the Constitution of India and facts of the case justify filing petition
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under Article 226 of the Constitution of India as well and certiorari
jurisdiction of the Court is also invoked, certainly, intra-court
appeal provided under Rule 134 of the Rajasthan High Court Rules
would be maintainable. On the other hand, if it is held that while
deciding revision or review arising either from orders passed in
various proceedings or orders passed in review arising from
revenue suits in exercise of appellate jurisdiction, the Board of
Revenue acts as civil court, its order would be amenable to
jurisdiction under Article 227 of the Constitution of India and in
that case, the petition essentially would be one under Article 227
of the Constitution of India against which intra-court would not be
maintainable.
50. Civil courts, as a part of ordinary judicial system, are courts
constituted and established to address disputes relating to private
civil rights. Civil courts are entrusted with jurisdiction to decide
private rights and liabilities between the individuals. Civil courts
are courts of plenary jurisdiction, established under laws of the
State and governed by the relevant statutes and the provisions
contained in the CPC. The civil courts in the State of Rajasthan
have been established under the Rajasthan Civil Courts Ordinance,
1950 (hereinafter referred to as ‘the Ordinance of 1950’) which
provides for constitution of civil courts, their jurisdiction and other
supplementary provisions. The hierarchical structure of civil courts
is provided under Section 6 of the Ordinance of 1950 as the Court
of the District, the Special Civil Court and the Court of the Civil
Judge/Additional Civil Judge (Senior Division) and the Court of the
Civil Judge/Additional Civil Judge (Junior Division). The local limits
of the jurisdiction created under the Ordinance of 1950 lie with the
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State Government as provided in Section 7 of the Ordinance of
1950. While appointment of the District Judge is governed by the
provisions of Article 233 of the Constitution of India, the
provisions with regard to appointment of Additional Civil Judges
(Senior Division) and Additional Civil Judges (Junior Division) is
provided under Article 234 of the Constitution of India. The
Jurisdiction of the civil courts is provided in Chapter III, from
Section 18 to Section 24 of the Ordinance of 1950. Appointment of
persons as District Judges in any State and appointment of
persons other than District Judges to the judicial services of the
State are made by the Governor of the State in consultation with
the High Court exercising jurisdiction in relation to the said State.
The recruitment rules framed by the Governor regulate
recruitment and appointment of a person as District Judge and
Judges other than District Judge. The courts constituted under
the Ordinance of 1950 as District Courts and the courts
subordinate thereto are subject to the control of the High Court,
as provided under Article 235 of the Constitution of India.
The civil courts are manned by judicial officers, who are so
recruited in accordance with the provisions contained in Article
233 and 234 of the Constitution of India read with the relevant
recruitment rules framed by the Governor of the State concerned
in consultation with the High Court.
51. The Court of District Judge and other courts subordinate
thereto constitute civil courts of the State under different
hierarchical nomenclature mentioned in Article 236 of the
Constitution of India. The civil courts are manned by judicial
officers appointed in the manner as prescribed above.
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52. As already stated, it is well settled that the civil courts or the
courts of civil jurisdiction exercise plenary jurisdiction as provided
under Section 9 of the CPC which reads as below:
“9. Courts to try all civil suits unless barred.–The
Courts shall (subject to the provisions herein contained)
have jurisdiction to try all suits of a civil nature excepting
suits of which their cognizance is either expressly or
impliedly barred.
[Explanation I].–A suit in which the right to property or to
an office is contested is a suit of a civil nature,
notwithstanding that such right may depend entirely on
the decision of questions as to religious rites or
ceremonies.
[Explanation II].–For the purposes of this section, it is
immaterial whether or not any fees are attached to the
office referred to in Explanation I or whether or not such
office is attached to a particular place.]”
53. The civil courts, thus, have jurisdiction to try all suits of civil
nature except the suits of which cognizance is either expressly or
impliedly barred. Thus, except where jurisdiction is expressly or
impliedly barred, civil courts exercise plenary jurisdiction to try all
disputes of civil nature.
54. The Board of Revenue in the State of Rajasthan was
established under the Rajasthan Board of Revenue Ordinance,
1949 (hereinafter referred to as ‘the Rajasthan Board of Revenue
Ordinance’). While Section 3 of the Rajasthan Board of Revenue
Ordinance provided for establishment of the Board of Revenue for
Rajasthan, provisions contained in Section 4 provided for
composition of the Board of Revenue. Section 5 of the above
Ordinance provided for bank and precedence. Section 6 talks of
tenures of the members. Section 7 provides for place of sitting.
Section 8 provides for seal of the Board of Revenue. Section 9
deals with sealing of summons etc. Section 11 deals with the
power of the Board of Revenue. It declares that subject to
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provisions of any special law for the time being in force in the
whole or any part of Rajasthan, the Board of Revenue shall be the
highest revenue Court of appeal, revision and reference in
Rajasthan. Power of general superintendence and control over all
other revenue courts and officers has been conferred under
Section 12 of the Rajasthan Board of Revenue Ordinance which
declares that all such courts and officers shall be subordinate to
the Board of Revenue. Section 13 provides for the jurisdiction of
the Board of Revenue. Section 14 confers power to refer to a
Bench and Section 15 deals with power to refer question of law to
the High Court. The Board of Revenue has also been entrusted
with power under Section 18 to make the rules. The Rajasthan
Revenue Courts (Designation) Ordinance, 1949 contain provisions
to effect a change in the designation of certain revenue courts. It
is also relevant to mention that prior to enactment of the Act of
1955, the Rajasthan Revenue Courts (Procedure and Jurisdiction)
Act, 1951 was enacted to provide for and regulate the jurisdiction
and procedure of revenue courts and officers in Rajasthan, which
however, has been repealed by the Act of 1955 being included in
the First Schedule appended to the Act of 1955 under the heading
list of Enactments repealed, referable to Section 3, sub-section (1)
of the Act of 1955.
55. Constitution of revenue courts is provided under the revenue
laws made by respective States, particularly, in the State of
Rajasthan under two principal revenue laws, namely, the
Rajasthan Tenancy Act, 1955 and the Rajasthan Land Revenue
Act, 1956. Sub-section (35) of Section 5 of the Act of 1955
defines revenue court as below:
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“5. Definitions.-In this Act, unless the context otherwise
requires-
“(35) “Revenue Court” shall mean a court or an officer
having jurisdiction to entertain suits or other proceedings
relating to agricultural tenancies, profits and other
matters, connected with land or any right or interest in
land, wherein such court or officer is required to act
judicially; it shall include the Board and every member
thereof, a revenue appellate authority, a Collector, a Sub-
Divisional Officer, an Assistant Collector, a Tehsildar or any
other revenue officer while so acting:”
56. The definition of revenue court includes a court as also an
officer which exercise jurisdiction to entertain suits or other
proceedings relating to certain revenue matters provided therein.
Moreover, the definition clause clearly reflects that such court or
officer is required to act judicially and includes a Board and every
member of the Board, a revenue appellate authority and other
class of revenue officers who act judicially in respect of the
proceedings relating to various subjects enumerated in definition
clause. As establishment of the Board of Revenue is governed by
the Rajasthan Board of Revenue Ordinance, 1949, there is no
specific provision contained in the Act of 1955 which provides for
establishment of the revenue courts. However, the provisions
contained in Chapter XV of the Act of 1955 govern the procedure
and jurisdiction of the revenue courts. While Section 206 of the
Act of 1955 provides for pending cases, Section 207 clearly
provides that all suits and application of the nature which are
specified in Schedule III shall be heard and determined by a
revenue court and also expressly bars jurisdiction of all other
courts including civil courts by providing that no court other than a
revenue court shall take cognizance of any such suit or application
or of any suit or application based on a cause of action in respect
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of which any relief could be obtained by means of any such suit or
application. Section 208 of the Act of 1955 provides for
applicability of the Code of Civil Procedure to the extent the same
is not in consistent with anything contained in the Act of 1955.
Section 208 of the Act of 1955 reads thus:
“208. Application of Civil Procedure Code– The
provisions of the Code of Civil Procedure, 1908 (Central
Act V of 1908), except:
(a) provisions inconsistent with anything in this Act, so far
as the inconsistency extends.
(b) provisions applicable only to special suits or
proceedings outside the scope of this Act, and
(c) provisions contained in List I of the Fourth Schedule,
shall apply to all suit and proceedings under this Act,
subject to the modifications contained in List II of the
Fourth Schedule.”
57. Section 218 of the Act of 1955 provides for inherent powers
of revenue courts. Section 221 of the Act of 1955 provides that
general superintendence and control over all revenue courts shall
be vested in, and all such courts shall be subordinate to the Board
of Revenue and subject to such superintendence, control and
subordination, hierarchy of appellate courts is provided under the
provisions of Section 222 to Section 228 of the Act of 1955. In
addition, powers of review and revision are also provided under
Sections 229 and 230 of the Act of 1955, subject to restriction as
provided under Section 230-A of the Act of 1955. Section 231 of
the Act of 1955 provides for powers to the High Court to call for
cases whereas Section 232 of the Act of 1955 confers power of
making reference by the Collector.
58. Chapter VIII of the Act of 1955 contains provisions with
regard to declaratory suits and the subject matter of declaratory
suit is contained in Section 88 to Section 92A of the Act of 1955.
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59. Under the Scheme of the Act of 1955 as also the Act of
1956, while disputes of certain nature and claim of certain rights
are required to be adjudicated by the revenue courts in revenue
suits, powers in relation to other matters provided in the revenue
laws are exercised by the revenue officers, for example, mutation
proceedings. In those matters also, the scheme of both the Acts
provides for appeal and revision up to the Board of Revenue.
60. The Board of Revenue, being the highest revenue court of
the State, acts as second appellate authority in matters arising out
of orders of the revenue courts passed in revenue suits. It acts as
a court of reference or a court of revision as the case may be in
the matters arising out of the disputes other than those which are
determinable as revenue suits by the revenue courts.
61. Revenue courts do not have any plenary jurisdiction as such
but are constituted as revenue courts to deal with certain matters
relating to land, agricultural property, collection of land revenue,
tenancy rights and kashtkari rights and other disputes arising
therefrom. Thus, the revenue courts deal with the matters
provided under the revenue laws and, therefore, all revenue
courts and revenue authorities are under an obligation to act
judicially in the matter of determining disputes or matters
provided under the revenue laws as special courts performing
judicial functions or tribunals exercising quasi-judicial or judicial
functions. The revenue courts, therefore, are not courts of
plenary jurisdiction but special courts to deal with subject matters.
62. As referred to hereinabove, Section 207 of the Act of 1955
bars jurisdiction of all other courts including civil courts in respect
of those matters in which cognizance can be taken by the revenue
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courts. The provisions contained in Section 239 of the Act of 1955
clearly provides that when a dispute with regard to any
proprietary right arises for consideration in a revenue suit, the
revenue court is obligated to frame and refer the issue relating to
proprietary rights for adjudication of the civil court and the civil
court then has jurisdiction to decide that issue and return the
finding to the revenue court on the basis of which, the revenue
court may proceed to decide the suit. It has also been provided
under Section 242 of the Act of 1955 that where any question of
tenancy right arises while trying of a civil suit, the civil court shall
refer the issue for determination of the revenue court and after
return of findings by the revenue court on that matter, civil court
will proceed to decide the suit.
The aforesaid provision clearly makes distinction and division
of jurisdiction of the civil courts and the revenue courts. However,
the marked distinction made is that while the revenue courts
decide only those matters which are provided under the special
law, i.e., revenue laws, civil courts exercise plenary jurisdiction
unless their jurisdiction in respect of any particular matter or
dispute is barred expressly or by necessary implication of law.
63. Section 5 of the CPC provides for application of the Code of
Civil Procedure, 1908 to the revenue courts which reads as below:
“5. Application of the Code to Revenue Courts.–(1)
Where any Revenue Courts are governed by the
provisions of this Code in those matters of procedure upon
which any special enactment applicable to them is silent,
the State Government [***] may, by notification in the
Official Gazette, declare that any portions of those
provisions which are not expressly made applicable by this
Code shall not apply to those Courts, or shall only apply to
them with such modifications as the State Government
[***] may prescribe.
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(2) “Revenue Court” in sub-section (1) means a Court
having jurisdiction under any local law to entertain suits
or other proceedings relating to the rent, revenue or
profits of land used for agricultural purposes, but does not
include a Civil Court having original jurisdiction under this
Code to try such suits or proceedings as being suits or
proceedings of a civil nature.”
64. From the aforesaid provision, it is clear that applicability of
the provisions of the CPC is governed by the provisions contained
in sub-section (1) above. Further, the revenue court has also
been defined as the court having jurisdiction under any local law
to entertain suit or other proceedings relating to land revenue or
proceeds of land used for agricultural purposes but it does not
include a civil court having original jurisdiction under the CPC to
try such suits or proceedings as being suits or proceedings of civil
nature.
65. Therefore, the judicial system is categorised by distinction
between the civil courts and the revenue courts. Indeed, judicial
system is structured in the manner that provides different courts
with different jurisdiction over different type of matters and apart
from such classification of courts, the civil courts and the revenue
courts constituted under different laws exercise jurisdiction
differently, governing and regulating their own procedures and
provisions relating to appeal, revision and review under their
respective enactments and the CPC.
66. One of the key distinction between the revenue courts and
the civil courts is that while civil courts are part of ordinary justice
delivery system, revenue courts deal with specialised matters
pertaining to revenue laws only. The other important distinctive
feature is that civil courts are judicial courts where judicial powers
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are exercised and which are manned by judicial officers who are
appointed in accordance with the provisions contained in Articles
233 and 234 of the Constitution of India and the rules framed by
the Governor in consultation with the High Court, the revenue
courts are not manned by judicial officers as such appointed under
Articles 233 and 234 of the Constitution of India, but by revenue
officers who belong to the State Executive and Administrative
Services. While all district courts and the courts subordinate
thereto are subject to control of the High Court under Article 235
of the Constitution of India, all revenue courts are subject to
supervisory jurisdiction of the Board of Revenue.
It is a different matter that all the courts or tribunals, which
essentially includes revenue courts and the Board of Revenue, are
subject to supervisory jurisdiction of the High Court as provided
under Article 227 of the Constitution of India.
67. It has been submitted before us that as the revenue courts
and the Board of Revenue being the highest revenue appellate
court, exercise judicial function in revenue suits tired by revenue
courts, they are civil courts. Merely because they perform judicial
functions or are constituted as court and decide revenue suits, the
argument is not acceptable in view of the detailed consideration
which has been made hereinabove. We shall now deal with some
of the decisions which have been cited at the Bar by learned
Senior Counsel appearing for the respondent-objector in this
regard.
68. Learned Senior Counsel for the respondent-objector has
referred to the decision in the case of Ethiopian Airlines Vs.
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Ganesh Narain Saboo (supra). In the matter of appeal against
judgment and order of the National Consumer Disputes Redressal
Commission, New Delhi, reference was made to Larger Bench in
view of conflicting decisions on the question as to whether
proceedings before the Consumer Forum are suits. Having
extensively referred to the provisions contained in the Consumer
Protection Act, 1986 with respect to jurisdiction, powers and
procedures of the Commission as also the provisions contained in
the CPC, the terms, “suit” having not been defined under the
Carriage by Air Act, 1972 and the Consumer Protection Act, 1986,
it was held that the terms, “suit” has to be understood in its
ordinary dictionary meaning and in that sense, is a generic term
taking within its sweep all proceedings initiated by a party for
realisation of a right vested in him under law. Pertinent
observations made by the Hon’ble Supreme Court in this regard
are as under:
“59. The term “suit” has not been defined in the Carriage
by Air Act, 1972 nor is it provided in the said Act that the
term “suit” will have the same meaning as in the Civil
Procedure Code. Therefore, the term “suit” has to be
understood in its ordinary dictionary meaning. In that
sense, the term “suit” is a generic term taking within its
sweep all the proceedings initiated by a party for
realisation of the right vested in him in law. In this view of
the matter, we have to look to the dictionary meaning of
the word “suit”.”
Dictionary meaning of the word, “suit” was also explained as
below:
“60. According to Black’s Law Dictionary, the word “suit”
means “any proceeding by a party or parties against
another in a court of law”. In common parlance, the term
“suit” is taken to include all the proceedings of a judicial
or quasi-judicial nature in which the disputes of the
aggrieved parties are adjudicated before an impartial
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forum. Proceedings before the Consumer Fora fall
squarely within that definition.”
The Hon’ble Apex Court in the aforesaid case also referred to
certain decisions with regard to meaning of the word, “suit” as
below:
“61. It has been held in Patel Roadways Ltd. v. Birla
Yamaha Ltd. (2000) 4 SCC 91 that the proceedings before
the Consumer Forums come within the sweep of the term
“suit”. This judgment has been approved by a Constitution
Bench of this Court in Economic Transport Organization v.
Charan Spg. Mills (P) Ltd. (2010) 4 SCC 114. Therefore,
the controversy involved in this case is finally settled and
we are bound by the decision of the Constitution Bench
and this case has to be ruled in terms of what has been
decided by the Constitution Bench in Economic Transport
Organization.
62. In the same vein, the US Supreme Court has read the
term “suit” broadly, finding that a “suit” is “any
proceeding in a court of justice, by which [a person]
pursues that remedy in a court of justice which the law
affords him,” vide Upshur County v. Rich 34 L Ed 196.
Likewise: (L Ed p. 199)“… ‘… The modes of proceeding may be various, but
if a right is litigated between parties in a court of
justice, the proceeding by which the decision of the
court is sought, is a suit.’*”
63. The Michigan Supreme Court similarly found that “the
word ‘suit’, as applied to legal controversies, both by the
legal profession and others, is now used and recognized
as a generic term of broad significance, often understood
and used, even by legislatures and courts, to designate
almost any proceeding”. (Vide Patterson v. Standard
Accident Insurance Co. 178 Mich. 288)”
69. Holding that the proceedings before the National Consumer
Forum are in the nature of suit, the law declared was that the suit
is generic term taking within its sweep all proceedings initiated by
a party for realisation of the right vested in him in law and further
that in common parlance, the term, “suit” include all proceedings
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parties are adjudicated before impartial forum.
70. Importantly, referring to the provisions contained in Section
2 of the CPC, it was held that terms, “court” in CPC exclusively
refers to civil courts and hence, other quasi-judicial bodies like
Consumer Redressal Bodies fall outside the purview of term,
“court” as provided under Section 2 of the CPC.
Thus, it would be seen that merely because the proceedings
before the National Consumer Disputes Redressal Commission
were held to be in the nature of suit, yet it was not held to be a
court.
71. In the case of Trans Mediterranean Airways Vs.
Universal Exports & Another (supra), the question which
arose for consideration of the Hon’ble Supreme Court was that
whether the National Consumer Disputes Redressal Commission is
a Court. Following pertinent observations were made:
“49. In State of T.N. v. G.N. Venkataswamy, this Court
observed that the primary function of a court was to
adjudicate disputes, while holding that a Collector
constitutes a Revenue Court within the meaning of
Schedule VII List III Entry 11-A of the Constitution.”
Relying upon its earlier decision in the case of Canara Bank
Vs. Nuclear Corporation of India Limited 31, it was pertinently
observed by the Hon’ble Supreme Court as below:
“50. In Canara Bank v. Nuclear Power Corpn. of India Ltd.,
this Court observed: (SCC p. 98, para 26)
“26. In our view, the word ‘court’ must be read in the
context in which it is used in a statute. It is permissible,
given the context, to read it as comprehending the courts
of civil judicature and courts or some tribunals exercising
curial, or judicial powers.”
31 1995 Supp (3) SCC 81
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Therefore, the law is that it is permissible given the context,
to read it as comprehending the courts of civil judicature and
courts or some tribunals exercising curial or judicial powers while
explaining the meaning of the word, “court” in the context in
which it is used in a statute. Meaning of the word, “court” was
further explained thus:
“52. The aforesaid observation has been strongly relied
upon by Shri Jaideep Gupta in reply to the contention of
Shri Bhagat that the National Commission was not a court,
and therefore, lacked jurisdiction to decide the complaint
filed by the opposite party.
53. In P. Sarathy v. SBI (2000) 5 SCC 355, this Court took
the view that the term “court” in Section 14 of the
Limitation Act, 1963, meant any authority or tribunal
having the trappings of a court. It may also be relevant to
notice that a Constitution Bench of this Court in Kihoto
Hollohan v. Zachillhu 1992 Supp (2) SCC 651 held that all
tribunals may not be courts, but all courts are tribunals.
54. Now let us look at the definition of the term “court” as
commonly understood. Oxford Advanced Learner’s
Dictionary (8th Edn.) defines it as “the place where legal
trials take place and where crimes, etc. are judged”.
Oxford Thesaurus of English (3rd Edn.) gives the following
synonyms: “court of law, law court, Bench, Bar, court of
justice, judicature, tribunal, forum, chancery, assizes,
courtroom”. The Chamber’s Dictionary (10th Edn.) has
described a court as “a body of persons assembled to
decide causes”. In Stroud’s Judicial Dictionary (5th Edn.),
the word “court” has been described as “a place where
justice is judicially ministered, and is derived”, and is
further observed, “but such a matter involves a judicial act
which may be brought up on certiorari”.
55. The above dictionary meaning and decision of this
Court in Canara Bank and also the observations of the
Constitution Bench decision of this Court in Union of India
v. Madras Bar Assn. (2010) 11 SCC 1 reveal that the word
“court” must be understood in the context of a body that is
constituted in order to settle disputes and decide rights
and liabilities of the parties before it. “Courts” are those
bodies that bring about resolutions to disputes between
persons. As already mentioned, this Court has held that
the tribunal and Commissions do not fall under the
definition of “court”. However, in some situations, the word
“court” may be used in a wide, generic sense and not in a
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narrow and pedantic sense, and must, in those cases, be
interpreted thus.”
Finally, it was concluded as below:
“57. The use of the word “court” in Rule 29 of the Second
Schedule of the CA Act has been borrowed from the
Warsaw Convention. We are of the view that the word
“court” has not been used in the strict sense in the
Convention as has come to be in our procedural law. The
word “court” has been employed to mean a body that
adjudicates a dispute arising under the provisions of the
CP Act. The CP Act gives the District Forums, State Forums
and National Commission the power to decide disputes of
consumers. The jurisdiction, the power and procedure of
these forums are all clearly enumerated by the CP Act.
Though, these forums decide matters after following a
summary procedure, their main function is still to decide
disputes, which is the main function and purpose of a
court. We are of the view that for the purpose of the CA
Act and the Warsaw Convention, the consumer forums can
fall within the meaning of the expression “court”.”
72. In the case of Pyarelal Vs. Shubhendra Pilania (Minor)
through Natural Guardian (Father) Shri Pradeep Kumar
Pilania & Others (supra), while dealing with the provisions
contained in Rajasthan Tenancy Act, 1955, scope and ambit of the
provisions contained in Section 256 which bars jurisdiction of civil
court was considered.
73. All the aforesaid decisions which have been cited by learned
Senior Counsel for the respondent-objector deal with the broad
meaning of the words, “suit” and “court” in generic sense but do
not support the submission of learned Senior Counsel that all the
courts or other tribunals dealing with and deciding the suits are
necessarily civil courts or courts of civil jurisdiction. The aforesaid
decisions, on the contrary, held that even when the proceedings
are held before adjudicatory bodies created under special statutes
dealing with the subject matter of dispute provided under those
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special statutes, the proceedings before that adjudicatory bodies
may be called suit and by legal fiction such adjudicatory bodies
may have the trappings of a court though they may be acting as
tribunals or special courts constituted under special laws.
However, in view of detailed considerations which we have
made hereinabove, a clear distinction, in the eyes of law, exists
between a civil court and revenue court and they are not one and
the same.
74. Having referred to the decisions cited at the Bar by learned
Senior Counsel for the respondent-objector, we now consider it
apposite to refer to few more decisions on the point.
75. In the case of Harinagar Sugar Mills Ltd. Vs. Shyam
Sunder Jhunjhunwala & Others (supra), it was declared that
all tribunals are not courts, though all courts are tribunals.
Distinction between ordinary civil courts and tribunals constituted
under special enactment was explained thus:
“(31) When rights are infringed or invaded, the aggrieved
party can go and commence a querela before the ordinary
Civil Courts. These Courts which are instrumentalities of
Government, are invested with the judicial power of the
State, and their authority is derived from the Constitution
or some Act of legislature constituting them. Their number
is ordinarily fixed and they are ordinarily permanent, and
can try any suit or cause within their jurisdiction. Their
numbers may be increased or decreased, but they are
almost always permanent and go under the compendious
name of “Courts of Civil Judicature”. There can thus be no
doubt that the Central Government does not come within
this class.
(32) With the growth of civilisation and the problems of
modern life, a large number of administrative tribunals
have come into existence. These tribunals have the
authority of law to pronounce upon valuable rights; they
act in a judicial manner and even on evidence on oath, but
they are not part of the ordinary Courts of Civil Judicature.
They share the exercise of the judicial power of the State,
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but they are brought into existence to implement some
administrative policy or to determine controversies arising
out of some administrative law. They are very similar to
Courts, but are not Courts. When the Constitution speaks
of ‘Courts’ in Art. 136, 227 or 228 or in Arts. 233 to 237 or
in the Lists, it contemplates Courts of Civil Judicature but
not tribunals other than such Courts. This is the reason for
using both the expressions in Arts. 136 and 227.
By “Courts” is meant Courts of Civil Judicature and
by “tribunals”, those bodies of men who are appointed to
decide controversies arising under certain special laws.
Among the powers of the State is included the power to
decide such controversies. This is undoubtedly one of the
attributes of the State, and is aptly called the judicial
power of the State. In the exercise of this power, a clear
division is thus noticeable. Broadly speaking, certain
special matters go before tribunals, and the residue goes
before the ordinary Courts of Civil Judicature. Their
procedures may differ, but the functions are not essentially
different. What distinguishes them has never been
successfully established. Lord Stamp said that the real
distinction is that Courts have “an air of detachment”. But
this is more a matter of age and tradition and is not of the
essence. Many tribunals, in recent years, have acquitted
themselves so well and with such detachment as to make
this test insufficient. Lord Sankey, L. C. in Shell Co. of
Australia v. Federal Commissioner of Taxation, (1931) А.
С. 275 (296) observed:
“The authorities are clear to show that there are
tribunals with many of the trappings of a Court, which,
nevertheless, are not Courts in the strict sense of
exercising judicial power… In that connection it may be
useful to enumerate some negative propositions on this
subject: 1. A tribunal is not necessarily a Court in this
strict sense because it gives a final decision. 2. Nor
because it hears witnesses on oath. 3. Nor because two or
more contending parties appear before it between whom it
has to decide. 4. Nor because it gives decisions which
affect the rights of subjects. 5. Nor because there is an
appeal to a Court. 6. Nor because it is a body to which a
matter is referred by another body. See Rex v. Electricity
Commrs., (1924) 1 Κ. Β. 171.
(33) In my opinion, a Court in the strict sense is a tribunal
which is a part of the ordinary hierarchy of Courts of Civil
Judicature maintained by the State under its constitution
to exercise the judicial power of the State. These Courts
perform all the judicial functions of the State except those
that are excluded by law from their jurisdiction. The word
“judicial”, be it noted, is itself capable of two meanings.
They were admirably stated by Lopes L. J. in Royal
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[2024:RJ-JP:42065-DB] (75 of 79) [SAW-756/2022]
Aquarium and Summer and Winter Garden Society v.
Parkinson, (1892) 1 QB 431 (452) in these words:
“The word ‘judicial’ has two meanings. It may refer
to the discharge of duties exercisable by a judge or by
justices in Court, or to administrative duties which need
not be performed in Court, but in respect of which it is
necessary to bring to bear a judicial mind-that is, a mind
to determine what is fair and just in respect of the matters
under consideration.”
That an officer is required to decide matters before him
“judicially” in the second sense does not make him a Court
or even a tribunal, because that only establishes that he is
following a standard of conduct, and is free from bias or
interest.”
76. In the case of Jaswant Sugar Mills Ltd. Meerut Vs.
Lakshmi Chand & Others32 it was highlighted that the power to
act judicially imposed upon an authority by statute does not
necessarily clothe the authority with the judicial power of the
State and even the administrative and executive authorities are
often by virtue of their constitution required to act judicially in
dealign with the question affecting the rights of citizens. It was
observed thus:
“(19) The duty to act judicially imposed upon an authority
by statute does not necessarily clothe the authority with
the judicial power of the State. Even administrative or
executive authorities are often by virtue of their
constitution, required to act judicially in dealing with
question affecting the rights of citizens. Boards of
Revenue, Customs Authorities, Motor Vehicles Authorities,
Income-tax and Sales-tax, Officers are illustrations prima
facie of such administrative authorities, who though under
a duty to act judicially, either by the express provisions of
the statutes constituting them or by the rules framed
thereunder or by the implication either of the statutes or
the powers conferred upon them are still not delegates of
the judicial power of the State. Their primary function is
administrative and not judicial. In deciding whether an
authority rеquired to act judicially when dealing with
matters affecting rights of citizens may be regarded as a
tribunal, though not a court the principal incident is the
investiture of the “trappings of a court”-such as authority
32 AIR 1963 SC 677
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[2024:RJ-JP:42065-DB] (76 of 79) [SAW-756/2022]to determine matters in cases initiated by parties, sitting
in public, power to compel attendance of witnesses and to
examine them on oath, duty to follow fundamental rules of
evidence (though not the strict rules of the Evidence Act),
provision for imposing sanctions by way of imprisonment,
fine, damages or mandatory or prohibitory orders to
enforce obedience to their commands. The list is
illustrative; some though not necessarily all such trappings
will ordinarily, make the authority which is under a duty to
act judicially, a ‘tribunal’.”
77. For the reasons stated hereinabove, we are of the firm view
that revenue courts are not civil courts, nor can be said to be
courts of civil jurisdiction but only special courts or to say a
statutory tribunal empowered to act judicially while dealing with
the matters provided under the Rajasthan Tenancy Act, 1955 and
the Rajasthan Land Revenue Act, 1956.
78. Heavy reliance has been placed on the Full Bench Judgment
of this Court in the case of Mahendra Kumar Jain Vs. Appellate
Rent Tribunal, Ajmer (supra). The question which arose for
consideration in that case was whether judicial order passed by
the Rent Tribunal and Appellate Rent Tribunal could be questioned
by invoking the powers of superintendence under Article 227 of
the Constitution of India alone and not amenable to writ
jurisdiction under Article 226 of the Constitution of India. The
operative reason to hold that it has all the trappings of the Court
and akin to judicial function discharged by the civil court was that
the law mandates such tribunal to be presided over by designated
officer of the rank of Civil Judge (Senior Division) and District
Judge respectively. It was observed thus:
“71. This takes us to consider the contention raised by the
learned counsel that the Rent Tribunal and Appellate Rent
Tribunal constituted under Sections 13 and 19 of the Act of
2001 respectively, are mandated to be presided over by(Downloaded on 28/10/2024 at 09:55:33 PM)
[2024:RJ-JP:42065-DB] (77 of 79) [SAW-756/2022]designated officer of the rank of Civil Judge (Sr. Division)
and District Judge Cadre respectively and thus, they being
persona designata, not conferred with the jurisdiction of
any pre-existing Court, could not be construed to be civil
Courts.”
79. The aforesaid decision is not an authority for the proposition
that even when the tribunals are presided over by administrative
officials and not judicial officers, then also it would be a civil court.
Further, that was not a case dealing with the constitution,
jurisdiction, powers and functions of revenue courts constituted as
special courts under the revenue laws.
80. As a matter of law, the principles laid down by the Hon’ble
Supreme Court in the case of Life Insurance Corporation of
India Vs. Nandini J. Shah & Others (supra) was the basis for
decision in the case of Mahendra Kumar Jain Vs. Appellate
Rent Tribunal, Ajmer (supra). In that case, an issue with
regard to maintainability of letters patent appeal against the
decision of the Single Judge of the High Court, on correctness of
decision of the Appellate Officer constituted under the Public
Premises (Eviction of Unauthorised Occupants) Act, 1971 arose for
consideration. The Scheme of the Act required Appellate Officer to
be judicial officer in the district (being a District Judge or Judicial
Officer designated by the District Judge), possessing essential
qualifications. It was held that said Appellate Officer while
exercising power under the aforesaid Act does not act as a
persona designata but his capacity as a pre-existing judicial
authority in the District and that the order passed by the officer is
an order of the subordinate court and, therefore, the challenge
thereto must ordinarily proceed only under Article 227 of the
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[2024:RJ-JP:42065-DB] (78 of 79) [SAW-756/2022]
Constitution of India and not under Article 226 thereof. On such
consideration, letters patent appeal against the judgment of Single
Judge was held not maintainable.
81. In the final conclusion, we, therefore, conclude that revenue
courts are not civil courts and, therefore, the Board of Revenue
while acting either as an appellate revenue court or as an
revisional or reference authority as tribunal is not civil court or
court of civil jurisdiction. Therefore, the decision in the case of
Radhey Shyam & Another Vs. Chhabi Nath & Others(supra)
is not applicable in the mattes of orders passed by the Board of
Revenue and, therefore, we are unable to hold that orders passed
by the Board of Revenue are challengable before the High Court
only in exercise of power of superintendence under Article 227 of
the Constitution of India and not under Article 226 of the
Constitution of India.
82. In view of above, we respectfully beg to differ from the views
taken by some of the High Courts wherein an order passed by the
Board of Revenue has been held to be amenable only to
supervisory jurisdiction under Article 227 and not under Article
226 of the Constitution of India.
83. It would be a different thing that in a given case, even
against the order passed by the Board of Revenue, only
supervisory jurisdiction has been invoked and the aggrieved party
has chosen not to invoke certiorari jurisdiction under Article 226 of
the Constitution of India. In such a case, on facts, one may
contend that the order was passed by the High Court in exercise
of supervisory jurisdiction under Article 227 of the Constitution of
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India and for that reason, remedy of writ-appeal as provided
under Rule 134 of the Rajasthan High Court Rules would not be
maintainable. However, merely because order has been passed by
the Board of Revenue, where an aggrieved party has approached
the High Court by filing petition under Articles 226 and 227 of the
Constitution of India and where the facts of the case justify filing
of petition under Articles 226 and 227 of the Constitution of India
both, writ appeal would be maintainable.
84. The objection to the maintainability of these intra-court
appeals is, accordingly, repelled as all these appeal arise out of
the orders passed by the learned Single Judge in the petitions filed
under Articles 226 and 227 of the Constitution of India against the
orders passed by the Board of Revenue whether as Appellate
Revenue Court or as Revisional Court. These appeals are held to
be maintainable in law.
85. All these appeals be listed for final hearing on their own
merits.
86. A copy of this order be placed on record of each connected
appeal.
(SHUBHA MEHTA),J (MANINDRA MOHAN SHRIVASTAVA),CJ
MANOJ NARWANI /….
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