Ramchandra Maroti Patil vs State of Maharashtra

B.N. Deshmukh, J.—This is an application for leave by the petitioner whose Special Civil Application No, 1072 of 1966 has been dismissed by a Division Beach of this Court. The original writ petition was heard along with several other petitions involving a common question relating to the vires of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961- The main judgment of this Court was delivered in Special Civil Application No. 879 of 1966 by which all the writ petitions were dismissed. Being aggrieved, the petitioner has filed the present petition for leave to appeal to the Supreme Court. He claims leave under all the three clauses (a), (b) and (c) of Article 133 (1) of the Constitution.

This petition would have to be rejected so far as the prayer to grant leave under Article 133 (1) (c) is concerned, as the point involved relating to the constitutionality of the Ceiling Act has boon concluded by two judgments of the Supreme Court in. State of Maharashtra etc. Vs. Madhavrao Damodar Patilchand and Others etc., and Narayanibai v. State of Maharashtra 1970 Mh. L J 89. However, the petitioner claims leave as of right under Article 133 (1) (a) and (b), and for that purpose the matter will have to be considered.

The petitioner alleges that 45 acres and 10 gunthas of land which is declared surplus as a result of the implementation of the Ceiling Act is easily worth about Rs. 25,000. That assertion was made in the original petition before this Court and is repeated in this petition. There was a formal denial on behalf of the State in the original petition; but so far as the present leave petition is concerned, the valuation is not denied. Mr. Udhoji, learned counsel appearing for the petitioner, points out that the land falls in the Vidarbha area, and from the affidavit of the petitioner, it is safe to assume that it would be easily worth at least Rs. 500 per acre. As there is no particular opposition on behalf of the State to the affidavit of the petitioner, we hold that the land which is going to be affected by the operation of the Ceiling Act is worth more than Rs. 20,000.

The question, however, is whether the land itself is directly a subject-matter of the dispute before this Court. Mr. Dharmadhikari for the State says that the subject-matter of the dispute was the vires of the provisions of the Ceiling Act and not the land itself. After the proceedings were terminated before the Revenue Tribunal, the petitioner has approached this Court under Articles 226 and 227 in which he has made two distinct prayers. He wants a declaration that the provisions of the Oiling Act are void and unconstitutional and should be struck down. He has also made a distinct prayer that 45 acres and 10 gunthas of land should not be declared as surplus and the order passed in that behalf by the Revenue Courts should also be quashed. So far as this Court is concerned, is does appear to us that the land is itself the subject-matter of dispute and, in that sense, the subject-matter of dispute before this Court was valued more than Rs. 20,000 and the subject-matter of the proposed appeal before the Supreme Court would also be the same. In any case, the judgment of this Court dismissing the writ petition involves either directly or indirectly some claim or question respecting property of Rs, 20,000 and more. One of the ingredients or the requirements of clauses (a) and (b) or (a) or (b) of Article 133 (i) is being satisfied by the petitioner. Mr. Dharmadhikari for the State, however, states that it is not enough for the granting of leave that the subject-matter of dispute is worth Rs. 20,000 and more. Under Article 133 (1), so far as the judgments and orders relating to clauses (a) and (b) are concerned, if the judgment, decree or final order as the case may be, appealed from affirms the decision of the Court immediately below, then a certificate by this Court is necessary that the appeal involves some substantial question of law. We have already pointed out that the points of law involved in this litigation having been concluded by the Supreme Court, it is difficult for us to certify that this litigation now involves any substantial question of Jaw. Mr. Dharmadhikari, therefore, says that, in the circumstances, the judgment of this Court dismissing the writ petition is a judgment of affirmance of the order of the Revenue Tribunal which is a Court immediately below this Court and, therefore, the certificate ought to be rejected.

For the purpose of substantiating his approach, Mr. Dharmadhikari says that the writ petition is undoubtedly a civil proceeding against the order of the Revenue Tribunal which is a Court. According to him, not only the Revenue Tribunal is a Court but it is a Court which is immediately below this Court, Since the writ petition is dismissed, this Court has affirmed the order of the Revenue Tribunal which is a Court immediately below this Court. Even though, therefore, the subject-matter of dispute may be worth Rs. 20,000 and more, a certificate of this Court that the appeal involves some substantial question of law is necessary. If such a certificate could not be given by this Court in view of the clear pronouncement of law by the Supreme Court in the judgments already referred to above, then this leave petition ought to be rejected.

There is no doubt that the proceedings before this Court by way of a writ petition are civil proceedings. It has been so held by the Supreme Court in S.A.L. Narayan Row and Another Vs. Ishwarlal Bhagwandas and Another, and Ramesh and Another Vs. Seth Gendalal Motilal Patni and Others, . Mr. Dharmadhikari seems to be right when he says that dealing with the property of the petitioner the Revenue Tribunal must be deemed to be a Court. It is dealing with the property of the petitioner and the procedural rules show that it has all the powers of a civil Court. A Tribunal of this type would be a Court within the meaning of that expression used in Article 227. There would not be much difficulty in accepting his submission that the Revenue Tribunal would be a Court which is immediately below this Court. However, we find it very difficult to accept his argument that the judgment or order of this Court dismissing the writ petition could be styled as a judgment or order of affirmance of the order of the Revenue Tribunal. For that purpose, the nature of proceeding in a writ petition before this Court must be taken into account. The approach to this Court for the purpose of issuing any of the writs contemplated by Article 226, as also for the purpose of exercising the powers of superintendence under Article 227 is an extra-ordinary remedy and not provided as normal reme (sic) under the various statutes under which the litigation relating to rights is fought. When this Court exercises the powers under these Articles and more particularly deals with the orders of the various Tribunals and Courts, it primarily considers whether there is any error of jurisdiction, or whether there is an error of law apparent on the face of the record. If any such errors are found, the orders are quashed and appropriate writs are issued. The law is laid down for the guidance of the Tribunal which has committed the error of law of which has assumed jurisdiction which it did not possess, or in an appropriate case, it has refused to exercise jurisdiction it possessed. In that sense, a petition under these Articles could not be considered to be a continuation of the proceedings which were started and concluded in any of the Courts or Tribunals provided by the laws of this land. The concept of affirmance of an order of the Court immediately below seems to apply to those cases where a litigant is able to approach this Court by way of a normal remedy provided under the CPC or any other law for the time being in force and this Court deals with the matter either in revision or appeal which are properly the continuation of the earlier proceedings. When a remedy of this type is availed of by the parties and this Court pronounced its judgment or order, it either affirms, modifies or sets aside the order or judgment of the Court below.

The Supreme Court had to consider the real nature of the remedy available by way of a writ petition under Articles 226 and 227 in the case of Ramesh v. Gendalal. After the M. P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act became operative, the appellants before the Supreme Court had applied for determination of their debts. The respondent Gendalal Patni was a creditor whose mortgage debt had merged in a decree for Rs. 2,16,309, Patni objected that the debt was no more a secured debt for consideration u/s 17 (a) of the said Act. This objection was taken u/s 21. The Claims Officer overruled the objection. He held that in spite of the decree the debt was still a secured debt and directed Gendalal Patni to file a statement relating to his debts. Instead of filing such a statement, Patni appealed to the Board of Revenue. The Board of Revenue held that the Claims Officer had no jurisdiction to determine the character of the debt. Patni then moved the civil Court but the civil Court also decided that the debt in question was a secured debt for the application of the Abolition Act. Patni appealed to the High Court, but by way of caution filed a statement of claim before the Claims Officer OR January 23,1958. The ex-proprietors, the appellants before the Supreme Court, objected to the statement on the ground that it was out of time and prayed that the claim be held discharged. This objection was accepted by the Claims Officer and he discharged the claim by an order, dated December 24, 1962. Patni appealed to the Commissioner, Nagpur Division, Nagpur and the Commissioner set aside the order of the Claims Officer by relying upon a later judgment of the Nagpur High Court The result was that the conclusion ultimately reached was that the Claims Officer had jurisdiction to pronounce on the character of the debt. His earlier order, dated November 19, 1951, was thus held to have revived but the claim could not be discharged as action u/s 22 (1) had not been taken. The case was remanded to the Claims Officer for disposal according to law.

The appellants-ex-proprietors then filed a petition under Articles 226 and 227 of the Constitution in the High Court of Bombay, Nagpur Bench, on the ground that the Commissioner had no jurisdiction to entertain and decide the appeal and that the Claims Officer had ordered the continuation of the proceedings and so the order of the Commissioner was wrong. The High Court summarily dismissed the petition by its first order dated September 21, 1964, against which the appellants-ex-proprietors filed a SLP (Civil) No. 395 of 1965 before the Supreme Court. The appellants then applied for a certificate which was refused by the High Court by its order dated February 1, 1965, That order was challenged before the Supreme Court and the question involved was whether the appellants were entitled to a certificate as of right under Article 133 (1) (a) or (b)?

In respect of such facts, the Supreme Court points out that the application was one under Article 133. The claim, namely, the debt involved was very much more than Rs, 20,000 not only before the High Court but also before the Supreme Court. It was undoubtedly a civil proceeding. The argument raised before the Supreme Court on behalf of the appellants was that an appeal under Article 133 lay to the Supreme Court only in respect of a judgment, decree or final order passed by the High Court in the exercise of either the appellate jurisdiction or ordinary original civil jurisdiction but not of extraordinary original civil jurisdiction. While negativing this argument of the appellants, the Supreme Court first held that the proceedings before the High Court by way of a writ petition are civil proceedings. While pointing out the exact nature of the jurisdiction and proceedings, this is what the Supreme Court observes on page 1449:

"We are concerned here with the exercise of extraordinary original civil jurisdiction under Article 226. Under that jurisdiction, the High Court does not hear an appeal or revision. The High Court is moved to intervene and to bring before itself, the record of a case decided by or pending before a Court or Tribunal or any authority within the High Court''s jurisdiction. A petition to the High Court invoking this jurisdiction is a proceeding quite independent of the original controversy. The controversy in the High Court, in proceedings arising under Article 226 ordinarily is whether a decision of or a proceeding before, a Court or Tribunal or authority, should be allowed to stand or should be quashed, for want of jurisdiction or on account of errors of law apparent on the face of the retard, A decision in the exercise of this jurisdiction, whether interfering with the proceeding impugned or declaiming to do so, is a final decision in so far as the High Court is concerned because it terminates finally the special proceeding before it."

While elucidating the point in another place their Lordships pointed out that the only question raised in that litigation was whether the Commissioner had jurisdiction to set aside the discharge of the debt ordered by the Claims Officer. This jurisdiction was challenged by the proceedings under Article 226. The High Court summarily dismissed the petition. In other words, it upheld the jurisdiction and in the circumstances it makes no difference whether the High Court pronounced a speaking order or not. By its decision the High Court has finally decided the question of jurisdiction. It is obvious that if the High Court had decided to hold that there was no jurisdiction, the debt would have stood discharged, The order once again revived the debt. In either case, the order passed by the High Court must be regarded as final for the purpose of appeal to the Supreme Court. Under the circumstances, the Supreme Court held that the subject-matter involved in that litigation being of the value of Rs. 20,000 and more the petitioner was entitled to a certificate under Article 133 (1) (a) as a matter of right and the High Court was in error is refusing the same,

We think that the approach indicated by the Supreme Court clearly decides the point that is being raised before us. It is true that a specific argument does not seem to have been raised before the Supreme Court that the order of the High Court dismissing the writ petition amounts to an order of affirmance or a judgment of affirmance of the order passed by the Commissioner. Before us, Mr. Dharmadhikari argues that where the order of the High Court upholds the decision or order of the Court below, whether by a speaking order or by summary dismissal, that amounts to an order of affirmance and, as such, even if the subject-matter may be worth more than Rs, 20,000, a certificate in necessary that the litigation involves some substantial question of law, We are unable to accept this approach. What is being pointed out by the Supreme Court in that a writ petition before the High Court is not a continuation of the proceedings before the lower Courts. The High Court does not hear either an appeal or a revision when a writ petition is entertained under Article 226 or 227, It is an independent proceeding altogether, and in that sense it is an original civil proceeding before the High Court. If this be the true nature of the petition that is filed, then the High Court either interferes or refuses to interfere, It comes to the conclusion that the lower Court or the Tribunal or authority has jurisdiction or has no jurisdiction. Even if there is jurisdiction, the High Court may hold that there is an error of law apparent on the face of the record which needs to be rectified and, therefore, the High Court decides to interfere. In either case, there is no question of affirming the judgment or order of the Court below. When the litigant is permitted to approach the High Court by way of a normal remedy under a particular statute like the remedy of an appeal or a revision application, there is a continuity of the proceeding. It is only in those circumstances where the remedy before the High Court is a continuation of the original proceeding that the High Court either affirms the judgment or order of the Court below or modifies or sets it aside. The continuity of the proceeding, therefore, seems to be a necessary qualification when the order of the High Court or the judgment of the High Court could be said to affirm the judgment or order of the Court below. Since the writ petition is an independent proceeding where the High Court used its extraordinary jurisdiction for correcting an obvious wrong by way of using the powers of superintendence, the order could not be conceived of as an order of affirmance. It is an independent order passed by the High Court in its original civil jurisdiction. That being the true nature of the judgment or order made in writ petitions, when leave is claimed under Article 133 (1) (a), what this Court must find out is whether the subject-matter of dispute before this Court in the writ petition was worth Rs. 20,000 and more and whether the subject-matter in the appeal proposed to be filed in the Supreme Court has similar valuation. If that is so, the litigant seems to be entitled to a leave from this Court. We have already pointed out that the subject-matter before us is worth more than Rs. 20,000 and the subject-matter in the proposed appeal before the Supreme Court is the same. In the circumstances, the present petitioner is entitled to a leave as of right under Article 133 (1) (a) or in the alternative under Article 133 (1) (b). Certificate to issue accordingly. The petitioner to get Costs of this petition from the respondent.