K.K. Denesan, J.
1. The Principal of a Government Higher Secondary School and the Government ofKerala are the appellants in this Writ Appeal. Appellants were respondents 1 and 2respectively in W.P.(C) No. 20544 of 2003 which was filed by the 1st respondent herein as the petitioner under Article 227 of the Constitution. In the Writ Petition thepetitioner prayed for the following reliefs:
'A) Set aside Ext. P4 judgment dated 31.5.2003 in C.M.A. No. 22 of 2003 on the file of the Court of the District Judge of Manjeri and Ext. P2 order dated 9.4.2003 in I.A. No. 1576 of 2002 in O.S.No. 224 of 2002 Munsiff's Court, Manjeri;
B) Issue an order restraining the respondents 1 and 2 from making any construction in Plaint 'A' Schedule Property in O.S.No. 224 of 2002, Munsiffs Court Manjeri pending the disposal of the suit; and
C) Issue any other appropriate writ, direction or order as may be deemed fit and proper in the facts and circumstances of the case'.
By the judgment under appeal, the learned Single Judge disposed of the Writ Petition directing that the above suit shall be disposed of as early as possible and that till the disposal of the suit no structures will be put up by the appellants in that portions of the property which is shown in the plan appended to Ext. P1- Commissioner's Report as a road. The above judgment is sought to be set aside as illegal, improper and opposed to the facts and circumstances of the case.
2. The writ petition was filed invoking Article 227 of the Constitution. Hence the question arises: Is this Writ Appeal filed under Section 5 of the Kerala High Court Act maintainable?
3. In Ramachandran Nair v. Krishna Pillai, 1991 (2) KLT 182 and Union of India v. Vijaya Mohini Mills, 1992 (1) KLT 404, this Court took the view that no appeal under Section 5 of the Kerala High Court Act will lie against the judgment of the learned Single Judge passed in exercise of the supervisory jurisdiction under Article 227 of the Constitution. In Umaji Keshao Meshram v. Radhikabai, AIR 1986 SC 1272) Supreme Court held that a proceeding under Article 226 is an original proceeding and when it concerns civil rights, it is an original civil proceeding and an appeal would lie provided the concerned statute or charter provides for such an appeal. A proceeding under Article 227, on the other hand, is not an original proceeding. Section 5(i) of the Kerala High Court Act provides that an appeal shall lie to a Bench of two Judges from a judgment or order of a Single Judge in the exercise of original jurisdiction. According to the Division Bench which decided Ramachandran Nair v. Krishna Pillai, 1991 (2) KLT 162, and Union of India v. Vijaya Mohini Mills, 1992 (1) KLT 404, no Writ Appeal will lie from the judgment of a learned Single Judge passed in exercise of the supervisory jurisdiction under Art.227 of the Constitution. Similar view was taken by this Court in Arunmugham Chettiar v. Joseph, 1961 KLT 823, also.
4. In his endeavour to overcome the above rulings of this Court, Shri. Rajan Joseph, learned Additional Advocate General who appeared for the appellants contended that the Writ Petition filed by the 1st respondent though labelled as one under Article 227 of the Constitution, was in fact a petition under Art.226 and therefore appeal from the impugned judgment would be maintainable. He cited before us the judgments of the Supreme Court in Shiv Shakti Co-op. Housing Society, Nagpur v. Swaraj Developers and Ors., 2003 (2) KLT 503 (SC) = (2003) 6 SCC 659, and Surya Dev Rai v. Ram Chander Rai, 2003 (3) KLT 490 (SC) = (2003) 6 SCC 675) rendered in the context of the newly amended provisions in Section 115 of the Code of Civil Procedure. He laid emphasis on the following observation made in para 25 of the judgment in Surya Dev Rai's case (supra):
'Upon a review of decided cases and survey of the occasions, wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate, revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction, the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, may be, by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made. Lastly the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well'.
5. Shri. K.T. Sankaran, learned counsel for the respondent-writ petitioner submitted that the petitioner invoked the power of superintendence of this Court under Article 227 of the Constitution and it was evident from the pleadings in the Writ Petition as also the reliefs prayed for therein. According to him, the learned Single Judge also understood the Writ Petition as one filed under Article 227 and passed the judgment within the parameters of the said Article.
6. In Surya Dev Rai, the Apex Court has laid down broad principles and working rules which would guide the exercise of jurisdiction under Article 226 or 227 of the Constitution. In the light of the parameters thus broadly stated, we may examine whether the case on hand comes under Article 226 or 227 of the Constitution.
7. A few facts may be noticed. O.S.No. 224 of 2002 was filed by the respondents/ plaintiffs before the Court of the Munsiff, Manjeri against the appellants/defendants, praying for a decree of permanent prohibitory injunction restraining them from interfering and causing obstruction in the plaint 'A' schedule property, in using the same by the plaintiffs and the public as a road. The cause of action for the suit arose when the defendants attempted to construct a compound wall allegedly reducing the width of 'A' schedule road and annexing 'A' schedule to the school compound of the defendants. Along with the suit, I.A. No. 1576 of 2002 was filed for temporary injunction. A Commissioner was appointed to inspect the property. He submitted the report and a plan after inspection. Defendants filed written statement denying the existence of the road and taking up other contentions to establish their right over 'A' schedule property. Trial Court dismissed I.A.No. 1576/02 as per order dated 9.4.2003. Plaintiffs filed C.M.A. No. 22/03 before the District Court, Manjeri. A Commissioner was appointed by the District Court also to report the then existing condition of 'A' schedule property. Commissioner filed his report. Lower appellate Court dismissed the C.M.A. on the ground that the construction of the compound wall was already completed. Aggrieved, the 1st plaintiff filed the Writ Petition praying for the reliefs, which we have already extracted in paragraph one above.
8. Learned Single Judge on a consideration of the contentions raised by the parties held:
'In the plan appended to Ext. P1 Commissioner's report the road is shown and respondents 1 and 2 should not be allowed to put structures in that portion of the property till the disposal of the suit'.
The Writ Petition was disposed of directing that 'the suit has to be disposed of as early as possible and till the disposal of the suit no structures will be put up by respondents 1 and 2 in that portion of the property which is shown in the plan appended to Ext. P1 report as a road'.
9. Dictum laid down by the Apex Court in Lokmat Newspapers Pvt. Ltd. v. Shankarprasad, (1999) 6 SCC 275, and cited by the learned Addl. Advocate General will not apply to the facts of this Writ Appeal, for obvious reasons. In that case, a Writ Petition was filed by the employees of a newspaper establishment against the orders passed by the Labour Court and the Industrial Court. The challenge before the Labour Court was against the orders of transfer issued by the management. The case of the employees was that the transfers amounted to unfair labour practice coming within the purview of the Maharashtra (Recognition of Trade Unions and Prevention of Unfair Labour Practices) Act, 1971. The Labour Court found that the transfers were illegal for want of notice under Section 9-A of I.D. Act. Thereupon the management issued notice to the employees under Section 9-A of the Industrial Disputes Act. The employees opposed the said notice and consequently the Conciliation Officer held proceedings under Section 12 of the I.D. Act. Conciliation proceedings, however, failed and the proceedings were closed. The management, thereupon, issued discharge orders terminating the service of the employees following the provisions of Section 25F of the I.D. Act on the ground that there was no sufficient work to retain the employees in service. The employees approached the Labour Court under Section 28 of the Maharashtra Act. During the pendency of the above proceedings, the State Government, acting on the failure report of the Conciliation Officer, made a reference of the dispute under Section 10 of the I.D. Act. The employer contended that proceedings under Section 10 of the I.D. Act were incompetent and barred by Section 59 of the Maharashtra Act. The objection was upheld by the Industrial Court and the reference was accordingly disposed of. The case pending before the Labour Court also ended in dismissal. A revision petition filed against the order of dismissal passed by the Labour Court before the Industrial Court was also dismissed. It was against the above findings of the Labour Court and the Industrial Court, the Writ Petition was filed under Article 226 and 227 of the Constitution before the High Court of Bombay. The Writ Petition contained averments to the effect that the Courts below, while interpreting the provisions contained in Sections 9-A, 20 and 33 and other provisions of the I.D. Act, 1947 as also the rules framed thereunder, had totally lost sight of the object and purpose of those provisions and had put an interpretation alien to industrial jurisprudence and had thus committed serious error of law apparent on the face of the record which resulted in serious miscarriage of justice and also a failure to exercise the jurisdiction vested in the Courts below under the provisions of the Maharashtra Act. In the Writ Petition, it was also averred that the impugned orders of the Courts below had further resulted in infraction of the petitioner's fundamental rights guaranteed to him under Articles 14, 21 and other Articles of the Constitution of India. The learned Single Judge making it clear in his order that he was considering Writ Petition filed by invoking Articles 226 and 227, dismissed the Writ Petition by observing that the Courts below had appreciated the contentions and rejected the complaint. The question was whether the Single Judge while dismissing the Writ Petition had refused to interfere only under Article 227 and consequently no appeal was tenable against it under Clause 15 of Letters Patent. Supreme Court expressed the view that the judgment disposing the Writ Petition as above did not give clear indication as to whether the issues were answered within the ambit of Article 226 or 227. Under such circumstances the Supreme Court held as follows:
'It is, therefore, obvious that the Writ Petition invoking jurisdiction of the High Court both under Articles 226 and 227 of the Constitution had tried to make out a case for the High Court's interference seeking issuance of an appropriate writ of certiorari under Article 226 of the Constitution of India. Basic averments for invoking such a jurisdiction were already pleaded in the Writ Petition for the High Court's consideration. It is true, as submitted by learned counsel for the appellant, that the order of the learned Single Judge nowhere stated that the Court was considering the Writ Petition under Article 226 of the Constitution of India. It is equally true that the learned Single Judge dismissed the Writ Petition by observing that the Courts below had appreciated the contentions and rejected the complaint. But the said observation of the learned Single Judge did not necessarily mean that the learned Judge was not inclined to interfere under Article 227 of the Constitution of India only. The said observation equally supports the conclusion that the learned Judge was not inclined to interfere under Articles 226 and 227. As seen earlier, he was considering the aforesaid Writ Petition moved under Article 226 as well as Article 227 of the Constitution of India. Under these circumstances, it is not possible to agree with the contention of learned counsel for the appellant that the learned Single Judge had refused to interfere only under Article 227 of the Constitution of India when he dismissed the Writ Petition of the respondent'.
Hence the law laid down in Lokmat Newspaper Pvt. Ltd. is that where facts justify filing of petition both under Article 226 and Article 227 and a petition so filed was dismissed or allowed by the Single Judge on merits, petition should be treated to have been filed under Article 226 so as to deprive the aggrieved person of his right to prefer appeal before Division Bench.
10. We have carefully gone through the impugned judgment. In our view, the judgment does not show that the learned Judge considered the Writ Petition as one requiring the exercise of jurisdiction under Article 226 of the Constitution. The nature of the reliefs granted also does not justify the appellant's case that the learned Judge exercised the powers under Article 226 of the Constitution. On the other hand, from the approach made by the learned Judge, while appreciating the facts of the case as also the nature of reliefs granted issuing certain directions to the courts below, we find that the jurisdiction exercised was akin to revisional or corrective jurisdiction. In other words, the learned Judge has passed the impugned judgment in exercise of the supervisory jurisdiction. In this context we may extract the following passage from para 38(9) of the judgment of the Supreme Court in Surya Dev Rai (supra):
'While exercising jurisdiction to issue a writ of Certiorari, the High Court may annul to set aside the act, order or proceedings of the Subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case'.
The above quoted portion read along with the principles of law stated in para 25 of the above judgment of the Supreme Court leaves no room for doubt that the Writ Petition was considered and disposed of by the learned Single Judge in exercise of the supervisory jurisdiction under Article 227 of the Constitution and not under Article 226.
11. As observed by the Supreme Court in Surya Dev Rai, the distinction between the exercise of power under Articles 226 and 227 are getting obliterated. Often the exercise of power under the aforesaid Articles may overlap each other. However, we cannot accept the contention advanced on behalf of the appellant that the Supreme Court is of the view that the two jurisdictions are almost synonymous and in all cases where this Court's power under Article 227 is involved, it is possible to find out elements and ingredients which would attract the provisions of Article 226 of the Constitution and vice versa. There cannot be any doubt about the fact that, despite the overlapping of the powers under the aforesaid provisions in the Constitution, in given situations, there could be clear differences, demonstrable or subtle, which distinguish and separate the exercise of the power under Articles 226 and 227 of the Constitution. This is so, having regard to the language of the two articles and the purpose to be served by the exercise of powers thereunder.
12. There is no finding in the impugned judgment under appeal that the orders sought to be set aside suffer from any error apparent on the face of the record. Those orders have been neither quashed nor set aside by the impugned judgment. The learned Single Judge, having regard to the entire facts and circumstances of the case felt it necessary to grant an interim order in the place of the one refused by the courts below. A direction to dispose of the suit as expeditiously as possible was also issued. These are undoubtedly in the realm of the supervisory jurisdiction. There is no scope for any confusion as to the nature of power exercised by the learned Single Judge. We hold that the Writ Appeal is not maintainable. In the result, the Writ Appeal is dismissed.