REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICITON

CIVIL APPEAL NO.5801 OF  2008 (Arising out of SLP (C) No.16811 of 2006)

Shahu Shikshan Prasarak Mandal  and Anr. …Appellants

Versus

Lata P. Kore & Ors. …Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge  in  this  appeal  is  to  the  order  of  a  Division

Bench  of  the  Bombay  High  Court  dismissing  the  Letters

Patent Appeal filed by the appellant.  Writ Petition filed by the

appellant was dismissed on the ground that the same was not

maintainable.

3. Learned  counsel  for  the  appellant  submitted  that  the

impugned  order  of  the  Division  Bench  is  clearly

unsustainable.   Reference  is  made  to  Rules  3  & 18  of  the

Bombay High Court Appellate Side Rules, 1960 (in short the

‘Rules’) with the amended Letters Patent of the High Court of

Bombay, 1865 (in short the ‘Letters Patent’).  It is submitted

that the Division Bench did not take note of what has been

stated by several judgments of this Court.

4. Learned counsel  for the respondent on the other hand

supported the impugned judgment of the High Court.

5. Rules 3, 18(41) and the proviso 18(44) read as follows:

“3.  Appeal  to  be  placed  before  Division Bench for admission – Appeals under Clause

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15  of  the  Letters  Patent  shall  be  placed  for admission before a Division Bench.

18.  Single Judge’s powers to finally dispose of applications  under  Article  226  or  227  – Notwithstanding  anything  contained  in  Rule 1,4 and 17 of this Chapter applications under Article  226  or  under  Article  227  of  the Constitution  for   applications  styled  as applications  under  Article  227  of  the Constitution  read  with  Article  226  of  the Constitution arising out of :

xxx (41)  The  order  passed  under  the

Maharashtra  Employees  of  Private Schools  (Conditions  of  Service) Regulation Act, 1977.

(44)    Orders  passed  by  the  different Committees constituted by the State Government  for  verification  of  the claims  of  Scheduled  Cast  and Scheduled Tribe candidates, may be heard and finally  disposed or by a single judge to be appointed in this behalf by the Chief Justice.

Provided when the matter in dispute is or relates to the challenge to the validity of any statute or any rules or  regulations  made  thereunder, such  applications  shall  be  heard and  disposed  off  by  a  Division Bench to be appointed by the Chief Justice.”

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6. In  Umaji  Keshao  Meshram v.  Radhikabai [1986  Supp.

SCC  401],  Sushilabai  Laxminarayan  Mudliyar  &  Ors.  v.

Nihalchand Waghajibhai Shaha & Ors. [1993 Supp. (1) SCC

11]  and  Mavji  C.  Lakum v.  Central  Bank of  India [2008(7)

SCALE 32] similar questions were considered.

7. In Sushilabai’s case (supra) it was noted at paragraph 4

as follows:

“The Full Bench of the Bombay High Court wrongly  understood  the  above  Umaji  Kesho Meshram case (supra). In  Umaji case (supra) it was clearly held that where the facts justify a party  in  filing  an  application  either  under Article 226 or 227 of the Constitution 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

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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.”

8. In Umaji’s case (supra) at paragraph107 it was noted as

follows:

“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

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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  ’   Cooperative   Transport  Society  Ltd  .,   New Delhi   [AIR  1961 Punj 24] and we are in agreement with it.”

9. In  Mavji’s case  (supra)  this  Court  inter  alia  noted  as

follows:

“12.  At  the  outset  we  shall  consider  the contention  as  to  whether  the  Letters  Patent Appeal was maintainable against the order of the learned Single Judge. It was contended by the counsel for the respondent-bank that the appeal was not maintainable since the learned Single  Judge  had  exercised  his  jurisdiction under Article 227 of the Constitution of India and,  therefore,  there  was  no  question  of Letters  Patent  Appeal  being  maintainable against the same. We, therefore, went through the Special Civil Application, a copy of which is the  part  of  the  paperbook.  The  said  writ petition clearly mentions on the very first page that  the  writ  petition  was  being  filed  under

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Article 226 of the Constitution of India. Again para 10 of the writ petition mentions as under:

“Being aggrieved by the order passed by the Industrial  Tribunal,  the  petitioner  begs  to approach  this  Hon’ble  court  under  Article 226 of the Constitution of India challenging the  award on the  following amongst  other grounds….”

Ground (iv) on the same page says:

“That  the  order  passed  by  the  Tribunal  is arbitrary, unreasonable, unjust and perverse.”

Even prayer clause in para 15 is as under:

“That by appropriate writ, direction and order, the  impugned  order  of  Industrial  Tribunal (Central)  Rajkot  at  Annexure  B  be  quashed and/or set aside.”

10. All this suggests that the writ petition was not only under

Article 227 of the Constitution of India but there is a specific

mention of Article 226. In a reported decision of this Court in

Sushilabai  Laxminarayan  Mudliyar  &  Ors. V.  Nihalchand

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Waghajibhai  Shaha  and  others [(1993)  Supp.  1  SCC  11] a

similar question fell  for consideration. In para 4 of the said

judgment this Court observed:

“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

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Judge  would  not  be  heard  and  decided  on merits….”

These observations were made by this Court after taking into

consideration  the  observations  made  in  Umaji  Keshao

Meshram  &  Ors. V.  Radhikabai,  Widow  of  Anandrao

Banapurkar & Anr. [1986 (Supp) SCC 401].  

12. In the present matter apart from the fact that the petition

is labeled under Article 226 of the Constitution of India, it is

clear that the grounds raised in the petition suggest that the

petition is not only under Article 227 but also under Article

226 of the Constitution. It is to be seen that in the grounds

raised  against  the  order  of  the  Tribunal,  it  is  specifically

suggested that the order passed by the Tribunal was arbitrary,

unreasonable,  unjust  and  perverse.  The  further  complaint

made  against  the  Tribunal’s  order  pertain  to  failure  on the

part  of  the  Tribunal  to  appreciate  certain  facts  and

eventualities thereby complaining non application of mind on

the  part  of  the  Tribunal.  Complaint  has  also  been  made

against the approach of the Tribunal and it is suggested that

the said approach was perverse. After reading the writ petition

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we are  convinced  that  the  contentions  raised  and the facts

stated in the petition justify the respondent herein to file an

application  both  under  Articles  226  and  227  of  the

Constitution of India.”

13. The effect of the provisions and the decisions referred to

above does not appear to have been considered by the High

Court  while  holding that the Letters Patent Appeal  was not

maintainable.   

14. We,  therefore,  remit  the  matter  to  the  High  Court  to

consider  the  issues,  the  applicable  provisions  and  the

decisions afresh.   

15. We make it clear that we have not expressed any opinion

on merits as regard the maintainability.  Since the matter is

pending since long, we request the High Court to dispose of

the  matter  as  early  as  practicable  preferably  by the  end of

2008.

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16. Appeal  is allowed to the aforesaid extent.   Costs made

easy.

…………….…… ………………J.

(Dr. ARIJIT PASAYAT)

………………………………….J. (Dr. MUKUNDAKAM SHARMA)

New Delhi: September 23, 2008

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