TMI Blog2008 (12) TMI 834X X X X Extracts X X X X X X X X Extracts X X X X ..... ble as the order was in terms of Article 227 of the Constitution of India, 1950 (in short the `Constitution'). According to the appellant, the nomenclature is of no consequence. It is the nature of the relief sought for and the controversy involved which determines the Article which is applicable. 3. In addition, the High Court seems to have gone by the nomenclature description of the writ petition to be one under Article 227 of the Constitution. The High Court did not consider the nature of the controversy and the prayer involved in the Writ petition. As noted above, the prayer was to quash the order of the Labour Court. 4. Section 2 of the Act reads as follows: 2(1) An appeal shall lie from a judgment or order passed by the one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India, to a Division bench comprising of two judges of the same High Court. Provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. 5. This Court in Hari Vishnu Kamath v. Ahmad Ishaque and Ors. [1955]1SCR1104 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ijay Anand Maharaj [1962]45ITR414(SC) , CIT v. Ishwarlal Bhagwandas [1965]57ITR149(SC) , Ramesh v. Seth Gendalal Motilal Patni [1966]3SCR198 , Arbind Kumar Singh v. Nand Kishore Prasad [1968]3SCR322 and Ahmedabad Mfg. Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand (1972)IILLJ165SC ). 7. In para 106, it was noted as follows: 106. The non obstante clause in Rule 18, namely, Notwithstanding anything contained in Rules 1, 4 and 17 of this chapter , makes it abundantly clear why that rule uses the words finally disposed of . As seen above, under Rules 1 and 17, applications under Articles 226 and 227 are required to be heard and disposed of by a Division Bench. Rule 4, however, gives power to a Single Judge to issue rule nisi on an application under Article 226 but precludes him from passing any final order on such application. It is because a Single Judge has no power under Rules 1, 4 and 17 to hear and dispose of a petition under Article 226 or 227 that the non obstante clause has been introduced in Rule 18. The use of the words be heard and finally disposed of by a Single Judge in Rule 18 merely clarifies the position that in such cases the power of the Single Judge is not con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ked only his supervisory powers under Article 227, the appeal under clause 15 would not lie. The clause 15 of the Letters Patent expressly bars appeals against orders of Single Judges passed under revisional or supervisory powers. Even when the learned Single Judge's order has been passed under both the articles, for deciding the maintainability against such an order what would be relevant is the principal or main relief granted by the judgment passed by learned Single Judge and not the ancillary directions given by him. The expression `ancillary' means, in the context, incidental or consequential to the main part of the order. Thus, the determining factor is the real nature of principal order passed by the Single Judge which is appealed against and neither the mentioning in the cause title of the application of both the articles nor the granting of ancillary orders thereupon made by learned Single Judge would be relevant. Thus, in each case, the Division Bench may consider the substance of the judgment under appeal to ascertain whether the Single Judge has mainly or principally exercised in the matter his jurisdiction under Article 226 or under Article 227. In the event in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned that he was exercising the powers under Article 227 of the Constitution. The learned Single Judge examined the matter on merit and set aside the orders of the Rent Controller as well as the Resident Deputy Collector on the ground that the aforesaid judgments were perverse. The findings of the Rent Controller and Resident Deputy Collector were set aside on the question of habitual defaulter as well as on the ground of bona fide need. Thus in the totality of the facts and circumstances of the case, the pleadings of the parties in the writ petition and the judgment of the learned Single Judge leaves no manner of doubt that it was an order passed under Article 226 of the Constitution and in that view of the matter the Letters Patent Appeal was maintainable before the High Court. After taking the aforesaid view one course open was to set aside the order of the Division Bench and to remand the matter for being disposed of on merits by the Division Bench of the High Court. However, taking in view the fact that this litigation is going on for nearly a decade and also the fact that even the learned Single Judge in his impugned order dated December 11, 1987 had remanded the case to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 226 and 227 of the Constitution. The case of Hari Vishnu Kamath v. Syed Ahmad Ishaque [1955]1SCR1104 before this Court was of such a type. Rule 18 provides that where such petitions are filed against orders of the tribunals or authorities specified in Rule 18 of Chapter XVII of the Appellate Side Rules or against decrees or orders of courts specified in that rule, they shall be heard and finally disposed of by a Single Judge. The question is whether an appeal would lie from the decision of the Single Judge in such a case. In our opinion, where the facts justify a party in filing an application either under Article 226 or 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 226, and if in deciding the matter, in the final order the court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under clause 15 of the Letters Patent where the substantial part of the order sought to be appealed again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... context are to be perceived. It cannot be said in a hypertechnical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Court has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. Phraseology used in exercise of original jurisdiction under Article 226 of the Constitution in Section 2 of the Act cannot be given a restricted and constricted meaning because an order passed in a writ petition can tantamount to an order under Article 226 or 227 of the Constitution of India and it would depend upon the real nature of the order passed by the learned Single Judge. To elaborate; whether the learned Single Judge has exercised his jurisdiction under Article 226 or under Article 227 or both would depend upon various aspects and many a facet as has been emphasized in the afore quoted decisions of the apex Court. The pleadings, as has been indicated hereinabove, also assume immense significance. As has been held in the case of Surya Devi Rai (supra) a writ of certiorari can be issued under Article 226 of the Constitution against an order of a Tribunal or an order passed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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, maybe, 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. 13. The above position was highlighted in MMTC Ltd. v. Commissioner of Commercial Tax and Ors. 2008 (13) SCALE 682. 14. In view of what has been stated above, the High Court was not justified in holding that the Letters Patent Appeal was not maintainable. In addition, a bare reading of this Court's earlier order shows that the impugned order is clear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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