TMI Blog2012 (10) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... private individual is acting in collusion with statutory authority. It nowhere lays down that in no case writ of certiorari can be issued by High Court to Court or Tribunal subordinate to it. It also does not declare that in a dispute between landlord and tenant, article 226 can never be invoked or writ can not be issued. The writ of certiorari can be issued under Article 226 of the Constitution where the subordinate Court or Tribunal commits an error of jurisdiction. Where the subordinate Court or Tribunal acts without jurisdiction or in excess of it or fails to exercise jurisdiction, that error of jurisdiction can be corrected. Where the facts justify the invocation of either Article 226 or Article 227 of the Constitution to correct a jurisdictional error or an error resulting in a miscarriage of justice committed by authorities subordinate to this Court, there is no reason or justification to deprive a party of the right to invoke the constitutional remedy under Article 226 of the Constitution. It is open to the Court while dealing with a petition filed under Articles 226 and/or 227 of the Constitution or a Letters Patent Appeal (LPA) under Clause 15 of the Letters Pat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e writ of certiorari in a writ petition under Article 226 and 227 of the Constitution of India and to interfere with the order passed by the Additional Collector in proceedings under the C.P. Berar Letting of Houses and Rent Control Order, 1949. The tenability of said LPA was questioned relying upon the judgment of the Division Bench of this Court in L.P.A. No. 150/2010 where the earlier Division Bench held that dispute between landlord and tenant can be entertained only under Article 227 of the Constitution of India. Contention was as Article 226 could not have been invoked, the L.P.A. was barred. The decision of Hon'ble Supreme Court in Shalini Shyam Shetty and another .vs. Rajendra Shankar Patil 2010 (7) SCALE 428( 2010) 8 SCC 329 2010 AIR SCW 6387 was also pressed into service by respondent landlord. Appellants tenants urged that that Division Bench erred in considering itself bound by the decision in Shalini Shyam Shetty (supra), which is rendered by a bench of two Judges, without considering that a larger Bench of the Hon'ble Supreme Court comprising of three Judges in M.M.T.C.Limited .vs. Commissioner of Commercial Tax and ors.( 2009) 1 S.C.C. 8 has held that a writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in M.M.T.C. Limited are also pointed out. It appeared to later Division Bench that decisions of inferior Tribunal or subordinates courts in purely private parties have long been considered as amenable to writ jurisdiction of this Court under Article 226 read with Article 227 of the Constitution of India and that the judgment in Shalini Shyam Shetty s case took a different view. Since both conflicting views of Hon ble Apex Court were submitted to the earlier Division Bench, later Division Bench then considered the the law laid down by the Supreme Court in State of U.P.vs. Ram Chandra Trivedi AIR 1976 S.C. 2547, and thought it appropriate to make a reference to the larger Bench which has come before us. Reference to earlier Division Bench judgment in LPA 150/2010 dated 1.10.2010 is also necessary but then it is being made at appropriate length little later while appreciating it in the background of findings being reached below. 3. Arguments. We now briefly proceed to note the contentions advanced by respective learned Counsel and by other learned Advocates in response to general notice circulated by the High Court Bar Association. 3.1. In this background, Adv. Gilda for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Oerlikon Ltd. Vs. Machindra Govind Makasare Ors.(supra). Various Larger Bench and Division bench judgments of Hon'ble Apex Court looked into by Full Bench of this Court are also pressed into service to show how the judgment in Surya Dev Rai vs. Ram Chandar Rai (supra) has been consistently followed. He also states that against earlier Division bench view in LPA 150/2010, leave is already granted by the Hon'ble Apex Court but then question of law is left open for consideration of this Court. Learned Counsel in this background, takes us through various paragraphs in Shalini Shyam Shetty vs. Rajendra Shankar Patil (supra), to show that position as assessed therein is not correct. According to him, in said matter, writ of certiorari was properly invoked and hence, LPA ought to have been entertained. He further points out that before earlier Division Bench in LPA 150/2010, there was no prayer for any writ at all. He also points out that in W.P. 1851 of 1995 (LPA 268/2007), petition is both under Art. 226 227 of the Constitution, Additional Collector whose order was assailed therein, is party respondent 2 and prayer is to issue writ of certiorari to quash that order. 3.3. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by urging that State of Maharashtra vs. Kusum Charudutta (supra) is still a good law and there the challenge was to order of Labour Court. Said judgment and Full Bench view clearly show that in private dispute also writ can be issued. Hence, view in Surya Dev Rai is correct and needs to be followed. 3.5. On the law of precedents, learned Counsel states that this Court has to find out the Larger bench view and apply it. State of U.P. vs. Ram Chandra Trivedi AIR 1976 S.C. 2547 is pressed into service for that purpose. If the divergent views are reached by coordinate benches, this Court has to find out which one takes the correct view on law applicable before it. (2002) 1 SCC 1 Pradip Chandra Parija v. Pramod Chandra Patnaik, (2001) 4 SCC 448 Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha, where the respective Constitution Benches state that a decision of a Constitution Bench of Apex Court binds a Bench of its two learned Judges and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness. At the most, they could have ordered that the matter be heard by a Bench of three learned Judges. (1996) 4 SCC 119 State Bank of India Sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial Tax and ors (supra) was cited, according to him reference in present facts was not necessary. 3.7. Shri Atul Chandurkar, the learned amicus curiae read out paragraphs from Shalini Shyam Shetty vs. Rajendra Shankar Patil to urge that it did not pose or contain any challenge to any jurisdictional error or to any error in decision making process. (1996) 6 SCC 44 Union of India vs. Dhanwanti Devi, is relied upon to urge how ratio decidendi needs to be isolated. Enunciation or principles on which case is decided are alone urged to be binding. He states that thus viewed, Hon'ble Apex Court in Shalini Shyam Shetty vs. Rajendra Shankar Patil nowhere states that in disputes between landlord and tenant, in no case LPA is tenable. The earlier Division Bench deciding LPA 150/2010 proceeded under wrong impression and he argues that in a given case, there can be infractions of statute like Maharashtra Rent Act or other pari materia provisions. He further points out that LPA 150/2010 was filed by landlord and learned Single Judge of this Court had allowed petition filed by tenant after reversing the finding on comparative hardship. Our attention is invited to points referred to Full Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings need to be perused or authority/tribunal must be impleaded as party to properly invoke and justify entitlement to relief under Art. 226. According to him, judgment by Hon'ble 3 Judges of Hon'ble Apex Court in M.M.T.C. Limited .vs. Commissioner of Commercial Tax and ors (supra) needed to be followed here. 3.11. Shri Ghare had on very first day of hearing, in absence of Adv. Gilda had stated that he would like to assist the Court. He relied upon discussion in Surya Dev Rai vs. Ram Chandar Rai (2003) 6 SCC 675 (Para 7).AIR 2003 S.C. 3044, to urge that technicalities till then felt necessary for issuance of writ of certiorari under Art. 226 to Trial Courts/Tribunals are relaxed and hence, in appropriate matters, whenever this Court through its Single Judge finds a case for intervention made out, that jurisdiction can be exercised. He relies upon AIR 1993 SC 1225 Mohan Pandey vs. Smt. Usha Rani to show dispute between two private persons relating to immovable property has been recognized as private dispute. (1973) 1 SCC 273M/s Hindustan Steel Ltd. vs. Smt. Kalyan Banerjee is cited to contend that even in civil dispute, mandamus can be issued when facts are not in dispute and titl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not in any way dilute the propositions accepted in Surya Dev Rai vs. Ram Chandar Rai (supra). He points out that in last judgment, Hon'ble Apex Court notes its Constitution Bench judgment in Union of India v. Raghubir Singh. and points out the design behind the doctrine of binding precedent which has the merit of promoting a certainty and consistency in judicial decisions in para 9. On the question of understanding the ratio, he draws attention to (2007) 7 SCC 378 Rajendra Singh v. State of U.P., paragraph 19. 4. Though it was urged that this Court is constitutionally obliged to reach injustice whenever and whereever possible and that in Surya Dev Rai (supra), the Hon'ble Apex Court has widened the law on the scope of interference, since the law as explained in Advani Oerlikon (supra) on the point is not in dispute, We are not considering all these facets but then We must record our gratitudes to all these advocates for valuable assistance rendered by them. 4.1. Law in Surya Dev Rai vs. Ram Chandar Rai (2003) 6 SCC 675AIR 2003 S.C. 3044, is already referred to Larger bench by Hon'ble Apex Court itself in Radhey Shyam vs. Chabbi Nath. In Surya Dev Rai, Hon'ble Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thy or complicated argument or a longdrawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge. In view of appreciation of this judgment by Hon'ble Apex Court itself in "Radhey Shyam v. Chhabi Nath", We find it not necessary to consider it here. It may be mentioned here that in Shankara Coop. Housing Society Ltd. v. M. Prabhakar,(2011) 5 SCC 607 decided on May 5, 2011, Surya Dev Rai is again relied upon to note the parameters. Moreover, it is also relied upon in Advani Orelikon Ltd. by Full Bench of this Court. 4.2. In 2009 AIR SCW 4006 "Radhey Shyam v. Chhabi Nath", above view in Surya Dev Rai vs. Ram Chandar Rai is considered by Hon'ble Apex Court through its Two Hon'ble Judges as under : 10. As early as in 1957, a Constitution Bench of this Court in the case of Shri Sohan Lal vs. Union of India and Another, AIR 1957 SC 529 held that a writ of mandamus or an order in the nature of mandamus is not to be made against a private individual. A writ of and/or in the nature of Mandamus normally is issued asking a person to do a particular thing which is in the nature of his public duty. In Sohan Lal (supra) rival claims of property were in issue and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are still holding the field. 20. . Before coming to the aforesaid conclusion, the learned Judges in Surya Dev Rai (supra) noticed the contrary view expressed in a Nine Judge Constitution Bench judgment of this Court in the case of Naresh Shridhar Mirajkar and others vs. State of Maharashtra, AIR 1967 SC 1 (V 54 C 1). In Mirajkar (supra) a nine Judge Constitution Bench considered the history of writ of Certiorari and after considering various English and Indian decisions came to the conclusion "Certiorari does not lie to quash the judgments of inferior Courts of civil jurisdiction." (See paragraph 63 page 18 of the Report). The learned Judges in saying so followed the law relating to Certiorari as prevalent in England and held that in England the judicial orders passed by civil Courts of plenary jurisdiction in relation to matters brought before them are not amenable to the jurisdiction of Certiorari. 21. The learned Judges in Surya Dev Rai (supra), however, opined that the Judges never held in Mirajkar (supra) that the law relating to Certiorari in England was accepted by Supreme Court. But this observation in Surya Dev Rai (supra) appears to have been made without properly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e time when Mirajkar (supra) was decided are still good. Those principles nowhere indicate that judgments of an inferior civil Court of plenary jurisdiction are amenable to correction by a writ of certiorari. In any event, change of law in England cannot dilute the binding nature of the ratio in Mirjakar (supra) and which has not been overruled and is holding the field for decades. It is clear from the law laid down in Mirajkar (supra) in paragraph 63 that a distinction has been made between judicial orders of inferior Courts of civil jurisdiction and orders of inferior tribunals or Court which are not civil Courts and which cannot pass judicial orders. Therefore, judicial orders passed by civil Courts of plenary jurisdiction stand on a different footing in view of the law pronounced in para 63 in Mirajkar (supra). The passage in the subsequent edition of Halsbury (4th Edition) which has been quoted in Surya Dev Rai (supra) does not at all show that there has been any change in law on the points in issue pointed out above. 25.. Learned Judges in Surya Dev Rai (supra) stated in paragraph 18, page 687 of the report that decision rendered in Mirajkar (supra) was considered by the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been overruled in Rupa Ashok Hurra (supra). 32. In view of our difference of opinion with the views expressed in Surya Dev Rai (supra), matter may be placed before his Lordship the Hon'ble the Chief Justice of India for constituting a Larger Bench, to consider the correctness or otherwise of the law laid down in Surya Dev Rai (supra) on the question discussed above. We have attempted to mark the relevant portion which to us appears to be the reason of disagreement but then. We are not in position to consider this issue and judgment in more details because Hon'ble Apex Court itself has found it appropriate to place it before its Larger Bench. Moreover, it is really not necessary here, looking to the questions referred to us and also because of undisputed law on maintainability of LPA settled by the other Full Bench of this Court in Advani Oerlikons (supra) very recently on 17.03.2011. 5. This brings us to consideration of the judgment of Hon'ble 2 Judges of the Apex Court viz. Shalini Shyam Shetty v. Rajendra Shankar Patil, which prompted earlier Division Bench of this Court to take a particular view in LPA 150/2010. 5.1. 2010 AIR SCW 6387" Shalini Shyam Shetty v. Rajendra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not consider some arguments advanced in that respect. Thereafter in paragraph 54 decision of the Supreme Court in case of Surya Dev Rai v. Ram Chander Rai and others has been noted mentioning that the correctness of that ratio has been doubted by another Division Bench of Apex Court in Radhey Shyam and another v. Chhabi Nath and others and a request to the Hon'ble Chief Justice for a reference to a larger Bench is stated to be pending. At the end in said paragraph it is observed that But insofar as the formulation of the principles on the scope of interference by the High Court under Article 227 is concerned, there is no divergence of views. Then in paragraph 55 principles laid down in Surya Dev Rai (supra) are reproduced. Then in paragraph 62 after an analysis of its earlier decisions, 15 principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution formulated as (a) to (o) are narrated. Then in paragraphs 63 64 it is observed: 63. In the facts of the present case we find that the petition has been entertained as a writ petition in a dispute between landlord and tenant amongst private parties. 64. It is well settled that a writ petition is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers [1993 Supp (1) SCC 306] : (AIR 1992 SC 1018 : 1992 AIR SCW 930) this Court held that a writ petition is not the appropriate forum to declare a person's title to property, [see para 7, page 309 of the Report]. Subsequently, again in the case of Mohan Pandey and another v. Usha Rani Rajgaria and others, reported in (1992) 4 SCC 61 : (AIR 1993 SC 1225 : 1992 AIR SCW 3226), this Court held that a regular suit is the appropriate remedy for deciding property disputes between private persons and remedy under Article 226 is not available to decide such disputes unless there is violation of some statutory duty on the part of a statutory authority. Perspective in which this matter is looked into by Hon'ble Apex Court also becomes apparent where it is observed that a writ court can not evict tenant and also from following paragraphs: 78. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in variou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperly invoked in vogue are not in any way altered by this pronouncement. Full Bench of this Court has again authoritatively affirmed these principles in Advani Oerlikon Ltd. Vs. Machindra Govind Makasare Ors. (supra). 5.2. Question of tenability of LPA against the judgment of Single Judge of this Court is settled recently by Full Bench of this Court in Advani Oerlikon Ltd. Vs. Machindra Govind Makasare Ors. (supra) decided on 17.03.2011. As almost all binding precedents are looked into in it and conclusions reached there are not in dispute before us, We are not required to refer and appreciate all those precedents over again. It is sufficient to mention the answers given by said Full Bench here: 20. Upon this discussion, we now proceed to answer the questions formulated in the order of reference: Re: 1 : It is not a correct proposition in law that this Court cannot correct jurisdictional errors or errors resulting in miscarriage of justice committed by authorities which are subordinate to it by invoking powers under Article 226 of the Constitution. Re: 2 : It is not a correct proposition in law that jurisdictional errors or errors resulting in miscarriage of justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Single Judge. The true nature of the order passed by the Single Judge has to be determined on the basis of the principal character of the relief granted. The fact that an ancillary direction has been issued under Article 227 of the Constitution would not dilute the character of an order as one with reference to Article 226. What has to be ascertained is the true nature of the order passed by the Single Judge and not what provision is mentioned while exercising this power. Re: 7 : Where a petition is filed under Articles 226 and 227 of the Constitution and the facts justify the filing of such a petition, it is not lawful for the Court to hold that jurisdictional errors or errors resulting in a miscarriage of justice committed by the subordinate Courts or Tribunals can be corrected only by exercising powers under Article 227 (and that the mentioning of Article 226 is redundant), thus depriving the party of a right of appeal under Clause 15 of the Letters Patent. Re: 8 : When a petition is filed under Articles 226 and 227 of the Constitution and the facts justify the filing of such a petition, it is not open to the Court to hold that Article 226 need not have been invoked, on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am Shetty vs. Rajendra Shankar Patil (2010) 8 SCC 329, 2.M.M.T.C. vs. Commissioner of Commercial Tax (2009) 1 SCC 8 (Para 17).AIR 2009 S.C. 1349. 3.Ashok K.Jha vs. Garden Silk Mills Limited. (2009) 10 SCC 584 (Para 16). 4.Radhey Shyam vs. Chhabi Nath (2009) 5 SCC 616 (Para 7). 5.Shahu Shikshan Prasarak Mandal vs. Lata P. Kore.(2008) 13 SCC 525 (Para 17) 6.Mavji C. Lakum vs. Central Bank of India (2008) 12 SCC 726 (Para 17). 7.Ramesh Chandra Sankla (2008) 14 SCC 58 (Para 16). 8.State of Madhya Pradesh vs. Visan Kumar Shiv Charanlal (2008) 15 SCC 233 (Para 16). 9.National Textile Corporation (SM) Ltd. vs. Devraj Chandrabali Pai 2006 (3) LJSOFT 146 (Para 2). 10.Surya Dev Rai vs. Ram Chandar Rai (2003) 6 SCC 675 (Para 7).AIR 2003 S.C. 3044. 11. Lokmat Newspapers Pvt. Ltd. vs. Shankarprasad AIR 1999 SC 2423 (Para 15). 12.L.Chandra Kumar v. Union of India (1997) 3 SCC 261 (Para 10). 13.Jagdish Balwantrao Abhyankar vs. State of Maharashtra. AIR 1994 Bombay 141 (Para 2). 14.Sushilabai Laxminarayan Mudliyar vs. Nihalchand Waghajibhai Shaha AIR 1992 SC 185 (Para 13). 15.Mohan Pandey vs. Ushal Rani Rajgaria (1992) 4 SCC 61 (Para 6). 16.Sushilabai Laxminarayan Mud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J., opined that "the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State" State of Mysore v. Worker of Gold Mines, AIR 1958 SC 923. 6. Next aspect to be examined is whether consideration by the Hon'ble Apex Court through its 3 Hon'ble Judges in M.M.T.C. vs. Commissioner of Commercial Tax (2009) 1 SCC 8 AIR 2009 S.C. 1349 in any way affects these judicially recognized principles viz. whether facts justify recourse to Art. 226 or where Art.226 is properly invoked ? 6.1. M.M.T.C. vs. Commissioner of Commercial Tax (supra) which forms basis for present reference is considered by Full Bench in Advani Orelinks Ltd. (supra) paragraph 17. We reproduce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings of a judicial court subordinate to the High Court are amenable to writ jurisdiction of the High Court under Article 226 of the Constitution . 6.2. It is seen that M.M.T.C. vs. Commissioner of Commercial Tax (supra) is not looked into in Shalini Shetty (supra). M.M.T.C. vs. Commissioner of Commercial Tax (supra) shows that there facts justified invocation of Art. 226 of the Constitution of India. Learned counsel for the appellant M.M.T.C. submitted before Hon'ble Apex Court that the order of Apex Court sending matter back was very clear and the conclusions of the High Court that merely limitation stood waived was contrary to the clear terms of said earlier order. Additionally it was submitted that the prayer in the Writ Petition was to quash the order passed by the Assistant Commissioner, Commercial Tax. That being so, the mere fact that the writ petition was styled under Article 227 of the Constitution was of no consequence. Hon'ble Apex Court accepted this argument and held that it is the nature of the relief sought for and the controversy involved which determines the Article which is applicable. The authority ie Commissioner of Commercial Tax was already a pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to consider the law on binding precedents before proceeding further. 7.1. Observations of Hon'ble Apex Court in (2007) 7 SCC 378 Rajendra Singh v. State of U.P. in paragraph 19 are helpful here to understand what Hon'ble Apex Court has said in Shalini Shyam Shetty vs. Rajendra Shankar Patil and M.M.T.C. vs. Commissioner of Commercial Tax (both supra). Those observations with relevant background are: 17. The decision in Municipal Corpn. of Delhi v. Ram Kishan Rohtagi which described the power as an extraordinary power to be exercised very sparingly and only if compelling reasons exist proceeded on its own peculiar facts. The broad statement contained in that decision cannot be understood out of context. That was a case where the very same proceeding against certain persons initially arrayed as accused, had been quashed. But, thereafter from the evidence, it appeared to the court that some of them have to be tried as accused in exercise of power under Section 319 of the Code. This Court in that context after referring to Joginder Singh v. State of Punjab held that;- if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority and in that case it is certainly not necessary to supply a copy of the same to the employee concerned. However, if it is relied upon, then a copy of the same must be supplied in advance to the employee concerned, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in S.N. Narula v. Union of India. 9. It may be noted that the decision in S.N. Narula case was prior to the decision in T.V. Patel case. It is well settled that if a subsequent coordinate Bench of equal strength wants to take a different view, it can only refer the matter to a larger Bench, otherwise the prior decision of a coordinate Bench is binding on the subsequent Bench of equal strength. Since, the decision in S.N. Narula case was not noticed in T.V. Patel case , the latter decision is a judgment per incuriam. The decision in S.N. Narula case was binding on the subsequent Bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court. We find following observations of Hon'ble Apex Court on per incuriam doctrine also important in this regard. In State of Orissa v. Mamata Mohanty, (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t should also be ensured that consistency of law is not done away with by such discretion. Reference has been made by Full Bench to the cases of- (i) Mishri Lal (dead) by Lrs. v. Dhirendra Nath (dead) by Lrs. ors., JT 1999 (2) SC 586, (ii) Milkfood Ltd. v. GMC Ice Cream (P) Ltd., 2004 (7) SCC 288, and (iii) S. 72 Brahmanand and others v. K.R. Muthugopal(dead) and others, 2005 (12) SCC 764. Full Bench holds that in order to apply a judgment as a precedent, the relevant laws and earlier judgments should be brought to the notice of the court and they should be correctly applied. Mere observations in a previous judgment may not be binding on a subsequent Bench if they are not truly applicable to the facts and controversies in a subsequent case as per settled principle of "ratio decidendi". The rule of precedent, thus,is held to place an obligation upon the Bench considering such judgments that the Court should discuss the facts and the law of both the cases and then come to a conclusion whether the principle enunciated in the previous judgment is actually applicable on facts and law to the subsequent case. This principle equally applies when the Courts have to consider which of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is only that that writ petition under Art. 226 can not be entertained against a private individual in a private dispute where no government or like authority under Art. 12 is respondent and no relief is claimed against it or unless there is infraction of any statutory provisions or private individual is acting in collusion with statutory authority. It nowhere declares that in no case writ of certiorari can be issued by High Court to Court or Tribunal subordinate to it. It also helps in understanding the law as laid down in MMTC Limited,(supra) but We are making reference to it little later in the body of this judgment. 8. In this light it is now necessary to consider conclusions reached in LPA 150/2010 since reported at 2011(2) Mah. L.J. 497 Kalpesh Hemantbhai Shah vs.Manhar Auto Stores, Amraoti. There a preliminary objection as to the maintainability of the letters patent appeal in the light of the decision of Supreme Court in the case of Shalini Shyam Shetty Anr. v. Rajendra Shankar Patil(supra) was required to be decided in following background:( i) The subject matter of the writ petition before the learned Single Judge was purely a dispute between the landlord and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question required in the case of Shalini Shetty to be decided was not whether the writ petition was maintainable before the learned Single Judge of the Bombay High Court, that too under Article 227 of the Constitution of India. However, the Hon'ble apex court decided the said issue and it is merely in the nature of obiter dicta and not the ratio decidendi. (f) Relief was claimed by the landlord in terms of statutory provisions of Section 16 of the Rent Act regarding the grounds for eviction and, therefore, the complaint was of infraction of statute as envisaged in paragraphs 79 in the case of Shalini Shetty, supra. 8.1. Findings of the Division Bench can be briefly stated now. In paragraph 6 it is observed the prayer in petition did not seek any writ and only correction in the judgment of the District Judge alleging it to be perverse and not in accordance with law and suffering from error of jurisdiction. In Paragraph 7, it was held by Division Bench that though the Hon'ble Apex Court had seen the prayer vide para 19 of the judgment in Shalini, which was for issuance of writ of certiorari, it still held that the said writ petition was not maintainable under Article 226 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ini Shetty are then quoted and in paragraph 14 the Division Bench reiterates that it is a direct pronouncement on the issue regarding the petitions arising out of disputes between `landlord and tenant' and entertaining the same under Article 227 of the Constitution. Therefore, the preliminary objection of the respondent tenant (petitioner before the Single Judge) was upheld and landlords LPA was held not maintainable. 8.2. We have already noted the relevant observations in Shalini Shyam Shetty vs. Rajendra Shankar Patil (supra) and also of later Full Bench judgment in Advani Oerlikon Ltd. Vs. Machindra Govind Makasare Ors. (supra). We have also noted the law as laid down by Hon'ble Apex Court and We find that law on the scope of interference under Art. 226 of Constitution of India has not undergone any change Shalini Shetty. Hon'ble Apex Court has not laid down any new proposition of law there. The parameters of said interference are already succinctly recorded in Advani Oerlikon Ltd. Vs. Machindra Govind Makasare Ors. (supra). We are in full agreement with the same. We feel that ratio in Shalini Shetty has not been correctly culled out by Division Bench of this Court in it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be quashed by issuing prerogative writs are necessary parties . But if only powers of superintendence under Art. 227 are to be exercised, such tribunal or authority is not a necessary party. The reason for the same as noted by the Hon'ble Apex Court is that if in certiorari proceeding, such tribunal is not party, the adjudication can not bind it and it can avoid contempt of court. 9.1. In M.M.T.C. Ltd. v. Commissioner of Commercial Tax (supra), Hon'ble Apex Court has held that mere nomenclature in petition there that it was under Art. 227 of the Constitution of India was not conclusive and it is nature of controversy involved which is determinative. Pleadings in writ petition, nature of order passed, character and contour of order, directions issued, nomenclature given and the jurisdictional perspective in the Constitution need to be perceived and hyper technical approach is to be avoided. This judgment nowhere states that a writ of certiorari can be issued in absence of or without authority passing the impugned order being joined as party. As such an authority was already party there, it does not either expressly note or then change the legal position settled judicially as ment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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