TMI Blog1999 (7) TMI 698X X X X Extracts X X X X X X X X Extracts X X X X ..... sed out as per lease deed, Annexure-P/8, be quashed and the present appellants as well as the respondent No. 3 be further directed to allow the petitioner to carry out the construction and take steps for running the small scale industry as permitted by the present respondent No. 2/the District Industries Centre, Morena through General Manager. In this writ petition, the State of M.P. through the Collector, Morena the District Industries Centre, Morena and the M.P. Housing Board had been impleaded as respondents No. 1 to 3, respectively. Vide the order dated 27-8-1991 (Annexure-P/13), at the instance of the General Manager, District Industries Centre, Morena the Collector, district Morena had restrained the present petitioner-respondent from raising any construction over the land in dispute and had directed for maintaining the status-quo as the Housing Board had raised an objection in regard to the transferring of the land in favour of the Industries Department. During the pendency of the aforesaid writ petition, the respondent No. 1 had filed another writ petition being W.P. No. 1289/1994 on 20-10-1994 challenging the order passed by the Board of Revenue granting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Governor of the State of Madhya Pradesh acting through the General Manager, District Industries Centre, Morena executed a lease in respect of the aforesaid plot of land in favour of Shri Shiv Shankar Mandil, the respondent No. 1. This lease, which was registered on 3-8-1991, had been granted subject to several conditions for a term of 99 years commencing from 30-7-1991, for the purpose of construction and establishing thereon a factory for the manufacture of Steel Furniture and Purposes Ancillary thereto. The clause 37 of the aforesaid lease stipulated that nothing contained therein shall be constructed as giving the lessee any right or interest in the land and if put in possession of the premises before the execution of the lease deed, he shall be deemed to be a licensee only. It was further provided under Clause 38 of the lease that in the event of any dispute arising between the parties in respect of the deed or on any matter whatsoever connected therewith, except in respect of the matters on which decision of the Industries Commissioner is declared thereunder as final and binding on the lessee, the same shall be referred to the arbitration of local Court concerned wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile granting the permission under section 51 of the Code for reviewing the order noticed that so far as the order dated 27-7-1991 was concerned, it consisted of two parts, one relating to transfer of the land in dispute in favour of the Industries Department and the other in regard to the alteration of the entries in the revenue records relating to the land in dispute. So far as that part of the order which related to the transfer and allotting of the land in dispute was concerned, the Board of Revenue had come to the conclusion that such an order did not fall within the purview of section 51 of the M.P. Land Revenue Code. However, so far as that part of the order directing for the correction of the entries in the revenue records relating to the land in dispute was concerned, the Board of Revenue was of the view that it fell within the purview of section 51 of the Code and granted the permission with the directions, to which a reference has already been made above. The learned Single Judge came to the conclusion that in case the land in dispute was Nazul, the allotment of the same was to be governed by the executive instructions contained in Revenue Book Circular. However ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g scheme of the Housing Board, it would be open to the Housing Board to acquire the land in accordance with the provisions of the Madhya Pradesh Grih Nirman Mandal Adhiniyam and the provisions of the Land Acquisition Act, provided there existed a public purpose and the provisions of law permit such a course. The learned Single Judge had allowed both the writ petitions quashing the communication Annexure-P/13 dated 27-8-1991, referred to hereinabove, as well as the order passed by the Board of Revenue dated 11-5-1994, a true copy of which has been filed as Annexure P/1 in Writ Petition No. 1289/94. The quashing of the aforesaid order obviously was subject to the observations made in para 14 of the judgment, leaving it open to the Housing Board to acquire the land in dispute in accordance with the law. The learned Counsel for the present respondent No. 1 /petitioner has raised a preliminary objection strenuously urging that these appeals are not maintainable as they are directed against the order passed by a learned Single Judge of this Court in the exercise of the jurisdiction envisaged under Article 227 of the Constitution of India. The learned Counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the grave and palpable errors depending upon the facts and circumstances of each case, unless there is a special procedure prescribed, prohibiting such an action, which procedure is mandatory. Relying upon the decision of the Apex Court in the case of Waryam Singh and another vs. Amarnath and another, reported in: AIR 1994 SC 215, as well as in the case of Babhutmal Raichand vs. Laxmi Bai, reported in AIR 1975 SC 1297 this Court had clarified that the High Court has not only administrative superintendence over the subordinate Courts and Tribunals, but it has also the power of judicial superintendence to be exercised to keep the subordinate Court and Tribunals within the bounds of their authority and not for correcting their mere errors. Obviously, therefore, judicial superintendence envisaged under Article 227of the Constitution, has a limited scope of interference confined to those cases where the tribunal's orders sought to be impugned has been passed in excess of the jurisdiction vested in it or stands vitiated on account of any such procedural irregularity which goes to the root of the matter. This Court in its aforesaid decision had observed that there may be a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal functioning under the superintendence of the High Court is not by itself a decisive factor conclusively indicating that the writ petition was a petition under Article 227 of the Constitution, and the jurisdiction envisaged therein alone was invoked. It all depends upon the facts and circumstances of the case which may be of varied nature where the interference by this Court exercising its extraordinary jurisdiction contemplated under Article 226 of the Constitution may or may not be warranted. If a case is made out warranting an interference, while exercising the jurisdiction envisaged under Article 226 of the Constitution expressly providing for the issuance of writs etc., the High Court cannot shirk its responsibility on the ground that the petition is one which has been filed invoking the jurisdiction contemplated under Article 227 of the Constitution. The source of authority to pass the appropriate orders does not depend upon the provision which has been disclosed by the petitioner in the writ petition but has to be traced to the relevant statutory provision which stands attracted to the facts and circumstances proved and established on record. It was further in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to hold that an appeal should lie in cases where the judgment of a Single Judge relates to the judgment of a Court or Tribunal than to take a contrary view, and further that in cases where the relief can be given under both, the Court should exercise its power under Article 226 on the principle that where a specific remedy is provided, the general provisions of law should not be resorted to. In any case, if a party is otherwise entitled to a right of appeal against an order under Article 226, the fact that the same relief could be granted under Article 227 is no reason for depriving it of the said right where the party has given the application itself under Article 226, and has claimed its right to relief under the said Article, and the case itself has been entertained and disposed of by the Court under the same Article. In its decision in the case of Raj Kishan (supra), which has been affirmed by the Apex Court, it had been observed that when same facts allowed an aggrieved person to move the High Court under Articles 226 and 227 of the Constitution then in view of the wider scope of Article 226 it must be assumed that the petitioner intended to move the High Court prim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atent Appeal against the order passed by the learned Single Judge in a writ petition challenging the decision of the Industrial Tribunal holding that the order had to be taken to be passed in the exercise of jurisdiction envisaged under Article 226of the Constitution. In its another decision in the case of Hindustan Steel Works Construction Ltd., Bhilai and others vs. State Industrial Court, M.P. and another, reported in 1996 MPU 835 : 1996 MPLSR 118, a Division Bench of this Court had held that where the facts justify a party in filing an application either under Article226or 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 and if in deciding the matter in the final order, the Court gives a final direction which may pertain to Article 227 of the Constitution, this may not deprive the parties of the right of Letters Patent Appeal. In our considered opinion, in a case where such a benefit stands extended to the petitioner, there cannot be any justif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition against any final or inter locutory order, this Court converts itself into a Court of appeal for the hearing of the dispute involved and as such when the appeal is dismissed the decree passed by the High Court merges into the decree of this Court.... It was further observed that: .......This Court while exercising its discretionary power under Article 136 of the Constitution even while dismissing the appeal shall not be deemed to have passed any decree.... . Obviously therefore, the fact that a Special Leave Petition is dismissed does not mean that the reasonings contained in the order impugned are affirmed or the said decision is to be taken as a decision of the Apex Court having binding effect as contemplated under Article 141 of the Constitution. There may be several factors for declining to interfere while dismissing a special leave petition, but this dismissal makes the order impugned final and binding between the parties to that case, so much so that even an application seeking review of the said order against which the special leave petition is filed moved by any party thereto is not entertainable. The learned Counsel for the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , wherein it has been indicated as under: Incuria literally means carelessness. In practice per incurium appears to mean per ignoratium. English Courts have developed the principle in relaxation of the rule of stare decisis. The quotable in law is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. (1944 IKB 718, Young vs. Bistol Aeroplane Ltd.). Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu vs. Rajdewan Dubey, 1962 (2) SCR 558, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury Laws of England incorporating one of the exceptions when the decision of an Appellate Court is not binding. It was further clarified by the Apex Court that: A decision passed sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. (Salmond 12th Edition) In L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Abdul Rahim Khan (supra) that the earlier decisions of a Bench of co-ordinate jurisdiction had gone unnoticed. While earlier decision of a Bench of coordinate jurisdiction constituted a binding precedent, the decisions of the Apex Court, to which a reference has been made hereinabove, had the binding effect as envisaged under Article 141 of the Constitution. In such a circumstance, the observations made in Abdul Rahim Khan's case (supra) sought to be relied upon in support of the submission in regard to the non maintainability of the present appeals, cannot come to the rescue of the respondent as the aforesaid observations in the facts and circumstances as noticed hereinabove could not be taken to have the force of a binding precedent. This Court is bound to follow the ratio of the decision of the Apex Court which clearly stand attracted in the facts and circumstances of this case. Further, taking into consideration the facts and circumstances as brought on record, including the pleadings of the parties as well as the nature of the reliefs claimed by the petitioner/respondent, we have no doubt in our mind that the petitioner had also invoked the jurisdiction of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Revenue Code, 1959, stipulate preparation of Nistar Patrik embodying scheme of management of all unoccupied land in the village and all matters incidental thereto and more particularly the matters specified in section 235. The State Government has published a Rajasya Pustak Paripatra (Revenue Book Circular) issuing directions on various matters in regard to the management of the land vesting in it. In Rajaysva Pustak Paripatra Khand 4, Kramank 1, it has been clarified that 'Nazul' and 'Milkiyat Sarkar' refer to that land which does not fall within the categories indicated therein. It has been specifically provided that all lands in possession of either the State Government or the Central Government were to be classified in two categories i.e. 'Nazul' or 'Milkiyat Sarkar' and were to be recorded as such. In the present case, not only the appellants but even the respondent No. 2, the M.P. Housing Board, clearly had categorically admitted that the land in dispute was Government land which at the relevant time was not being used for agricultural purposes and was surrounded by buildings. Obviously, it had become a part of the urban land. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the initial order had been passed, had made investment etc., they were likely to suffer irreparable injury in case the order was set at naught in exercise of such a discretionary jurisdiction. The order dated 29-4-1977 passed in exercise of such a jurisdiction in the aforesaid proceedings was held not to have been passed within a reasonable time. The Apex Court reiterated its earlier view in its decision in the case of State of Gujrat vs. Patil Raghav Natha, 1969 (2) SCC 187 and in the case of Ramchand vs. Union of India,: 1994 (1) SCC 44, observing that where no time limit is prescribed for exercise of a power under a statute, it does not mean that it can be exercised at any time, and further that such power has to be exercised within a reasonable time. It may be noticed that from the observations made by the Apex Court in its decision in the case of State of Gujrat vs. Patil Raghav Natha (supra), it is apparent that even if there is no period of limitation prescribed for the exercise of jurisdiction which may be exercised even suo motu, yet this power must be exercised within a reasonable time and the length of the reasonable time must be determined by the facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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