Bane Singh S/O Mangusingh (Deceased) Through L.Rs. Smt. Kalabai Wd/O Banesingh and ors. Vs. Basantibai W/O Dungaji (Deceased) Through L.Rs. Devilal S/O Kesharsingh and ors. - Court Judgment

Excerpt:
- constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. - it was their case that since the sale deed stood in their name and they were not noticed of the proceedings, the order passed by sdo declaring the sale in question is bad in law and is not thus, binding on them. it is not in dispute being a matter of judicial record that these very appellants had challenged the order of sdo alongwith their own father in appeal before the collector and having failed in appeal, filed the writ in this court unsuccessfully.a.m. sapre, j.1. this is a second appeal filed by the plaintiff under section 100 of cpc against the judgment/decree, dated 22-10-2001, passed by the learned ixth additional district judge, indore in c.a. no. 1-a of 2000, which in turn arises out of civil suit no. 294-a of 1986, decided by ivth civil judge, class i, indore, on 7-3-1992. it was admitted for final hearing on following substantial question of law:--'despite having held that the orders of the sdo under the m.p. samaj ke kamjor vargon ke krishi bhumi dharakon ka udhar dene valon ke bhumi hadapane ke kuchakron se paritran tatha mukti adhiniyam, 1976 (hereinafter called 'the kuchak-ra adhiniyam') was illegal on account of no notice of the proceedings under the said adhiniyam was given to the appellants, the courts below erred in not granting decree for declaration that the said order was not binding on the appellants ?'2. heard shri g.m. chafekar, learned senior counsel with shri p.v. bhagwat, learned counsel for the appellants and shri s.r. bohra, learned counsel for respondent no. 1 (a).3. one basantibai - a harijan widow was the owner of the land in suit. she claimed to have sold the land in suit to one mangu singh. both, basantibai and mangu singh are dead.4. basantibai then filed an application under section 7 of the m.p. samaj ke kamjor vargon ke krishi bhumi dharakon ka udhar dene walon ke bhumi hadapane sambandhi kuchakron se paritran tatha mukti adhiniyam, 1976 (for short 'adhiniyam') before the competent authority (sdo) against mangusingh challenging the alleged transaction of sale of land made by her in favour of mangusingh. in substance, her case was that the alleged transaction of sale was not in fact a sale transaction out and out, but it was actually in the nature of a loan without there being any element of sale. this application was allowed by the competent authority by his order, dated 6-5-1985 bi-parte on contest by mangusingh. it was held that sale in question was a void sale and that it was not intended to be acted upon. it was, therefore, directed that possession of land be restored to basantibai. mangu singh as also his three sons ('appellants' herein) filed an appeal to collector against the said order. the collector by order, dated 30-12-1985 dismissed the appeal and upheld the order of sdo. mangusingh and his sons then filed writ being w.p. no. 991 of 1986. this writ was dismissed on 23-3-1995 by this court. as a result of this dismissal, all the orders passed by the authorities under the adhiniyam became final.5. it is after this dismissal, three sons of mangusingh filed a suit out of which this appeal arises against basantibai for a declaration that the order passed by sdo, dated 6-5-1985 is not binding on them because they were not parties to the original application filed by basantibai before sdo. it was their case that since the sale deed stood in their name and they were not noticed of the proceedings, the order passed by sdo declaring the sale in question is bad in law and is not thus, binding on them. this was denied by defendant. the trial court dismissed the suit and first appellate court upheld the dismissal giving rise to filing of this second appeal by the plaintiffs.6. having heard learned counsel for the parties and having perused record of the case, i find no substance in the appeal and hence, it merits dismissal.7. in my considered opinion, the appellants (plaintiffs) has no case much less even triable to file a suit out of which this appeal arises. indeed, filing of the suit was yet another attempt on the part of appellants to avoid execution of the orders affirmed by the high court in writ petition under the adhiniyam. it is not in dispute being a matter of judicial record that these very appellants had challenged the order of sdo alongwith their own father in appeal before the collector and having failed in appeal, filed the writ in this court unsuccessfully. the remedy of appellants was then in filing slp to supreme court against the order of this court in writ rather than to file civil suit. indeed, filing of the suit was barred under the adhiniyam whose provisions gives overriding powers on the orders of civil court. in other words, no suit can be filed to challenge the orders of competent authority passed under the adhiniyam. but that apart, the grounds on which the suit was founded were raised by the appellants in appeal filed before the collector and perused further in writ but those grounds were repelled. no suit then could be filed on the same grounds to challenge the sale deed in civil court.8. in my opinion, therefore, neither the suit could be filed by the appellants to challenge the sale in question, not they had a right to challenge the orders passed by the authorities under the adhiniyam which were upheld by the high court in writ and nor could such a suit be decreed. it was, thus, rightly dismissed by the two courts. the question of law thus framed, really do not arise out of this case and if really arises, has no merit, because it was rightly answered against the appellants.9. in view of aforesaid discussion, the appeal fails and is dismissed with cost rs. 1,500/- payable by appellants to respondents.