ORDER
A.B. Naik, J.
1. This Letters Patent Appeal is filed under Clause 15 of the Letters Patent, challenging the judgment and order dt. 23-7-2004 passed by the learned Single Judge in Writ Petition No. 4616 of 2004.
2. This Appeal was lodged in this Court on 16-8-2004, and it was listed for motion hearing on 3-8-2004. On that day, the learned counsel appearing for the parties sought an adjournment and by consent, this Court adjourned the appeal for two weeks. Again the appeal was placed for motion hearing on 9-12-2004 and by consent of the parties, it was adjourned beyond Christmas vacation. On reopening the matter was listed before us for motion hearing on 25-1-2005. On that day, the Appeal was heard and remained part heard. Further hearing was commenced on 31-1-2005.
3. We heard this Appeal on the point of maintainability as according to us, the appeal is not maintainable as the learned Single Judge has expressly exercised power conferred on this Court vide Article 227 of the Constitution of India. The learned Single Judge by giving reasons dismissed the petition summarily and in concluding part of the order, observed :
“Keeping in mind this well established position in law it is clear that the instant petition has to be treated to be a petition under Article 227 of the Constitution of India and it is only for examining the legality of the order passed by the Election Tribunal. It does not involve considerations of any fundamental rights of the petitioner. The powers of this Court are limited when it considers the challenge to the view taken by the election Tribunal in supervisory jurisdiction and, therefore, having considered the rival contentions there is no doubt that the view taken by the election Tribunal in the instant case does not suffer on any count. It is neither perverse nor does it suffer from material irregularities.”
16. The petition, thus, fails and the same is hereby rejected summarily.
As from the above quoted portion of the order, it is clear that the learned Single Judge has exercised the jurisdiction conferred on this Court by Article 227 of the Constitution of India.
4. With this backdrop, we called upon the learned advocate Shri R.B. Raghuwanshi, instructed by Shri P. B. Bachate, advocate for the petitioner to satisfy us on the maintainability of this appeal as it is by now well settled by catena of the judicial pronouncements of this Court and the Apex Court to the effect that in case the High Court (learned Single Judge) disposed of the petition by exercising power under Article 227 of the Constitution of India, the Letters Patent Appeal under Clause 15 is not maintainable. (See i) Umaji Keshao Meshram and Ors. v. Radhikabai Widow of Anandrao Banapurkar and Anr. reported in 1986 (Supp.) SCC 401; ii) State of Maharashtra v. Kusum wd/o Charudutta and Ors. reported in 1981 Mh.L.J. (FB) 93; iii) Jagannath Ganbaji Chikhale v. Gulabrao Raghobaji Bobde ; iv) Jagdish Balwantrao Abhyankar and Ors. v. State of Maharashtra and Ors. ; v) Madhukar Chandrabhan Mohite v. Balkrishna Govind Sulakhe vi) Kondiba Dhondiba Dalvi since deceased by his L.Rs. Smt. Chandrabhagabai Kondiba Dalvi and Ors. v. Narayan Namdeo Nanware vii) Lokmat Newspapers Pvt. Ltd. v. Shankarprasad ; viii) Hiralal Bhagirath Marwadi and Anr. v. Vishwanath Parashram Katekar and Ors. reported in 1990 Mh.L.J. 259; ix) Division Bench judgment of this Court in Mansaram Sampat Patil since deceased through his LRs. Smt. Banubai Mansaram Patil and Ors. v. Sambhu Harchand Chaudhary since deceased through his L.Rs. Smt Sumanbai w/o Harchand Choudhary and Ors. .
5. In response to the preliminary point raised by us Shri Raghuwanshi, learned counsel appearing for the petitioner submitted before us that though, the petition is filed labelling it to be under Article 226 and 227 of the Constitution of India, in essence the petition is under Article 226 of the Constitution of India praying for issuance of writ of certiorari. Hence, the learned Single Judge should not have treated the petition one as filed under Article 227 of the Constitution of India. Shri Raghuwanshi, submitted before us that while observing in concluding part of the order, the learned Single Judge has virtually shut down the doors of the petitioner to invoke the remedy of appeal provided by Clause 15 of the Letters Patent. He submitted but for this observation, there is nothing to indicate in the order that the petition is under Article 227 of Constitution of India. The learned advocate submitted that it is not for the learned Judge who decided the petition to treat a particular petition under a particular Article, he submitted that such jurisdiction is not with the Single Judge but it lies with the Letters Patent Bench hearing the appeal to find out the nature of the petition. He submitted that the petition is filed only to invoke a writ of certiorari, hence the learned Single Judge should have exercised the jurisdiction under Article 226 of the Constitution of India. He therefore, submitted that the Letters Patent Appeal is maintainable as the petition is one filed under Article 226 of the Constitution of India.
6. Shri Raghuwanshi, submitted that it is for the Letters Patent Bench, to look into the pleadings of the parties and to find out whether the petition though, filed labelling it as under Article 226 and 227 of the Constitution of India, and whether the facts stated in the petition justified the petitioner to file petition under Article 226 of the Constitution of India. Shri Raghuwanshi, submitted that it is not for the learned Single Judge to ponder on the issue whether the petition is filed under Article 226 or 227 of the Constitution of India, when the petitioner has chosen to file petition under both Articles as the substantive relief which the petitioner was seeking from this Court, that can be granted only under Article 226 of the Constitution of India. Shri Raghuwanshi, also tried to raise the contentions and challenges, the merit of the order passed by this Court and by the Commissioner who decided the election petition. Shri Raghuwanshi, secondly, raised a contention that the Commissioner who has decided the Election petition is not a Tribunal as contemplated by Article 227 of the Constitution of India, but he was exercising the jurisdiction as quasi judicial authority and not as Tribunal and therefore, the challenges to the said order should have been considered only under Article 226 of the Constitution of India. In support of his contention, Shri Raghuwanshi, placed reliance on the judgment of the Apex Court in the case of Hari Vishnu Kamath v. Ahmad Ishaque and Ors. , to which we will refer to at appropriate stage.
7. Per contra, Shri V.D. Salunke, learned advocate appearing for the contesting respondent contended that the Letters Patent is not maintainable as the learned Single Judge in express terms observed that the petition is a petition filed and considered one under Article 227 of the Constitution. Shri Salunke, learned advocate also raised contention to support the judgment and order passed by the learned Single Judge and the Commissioner. We make it clear that we have not addressed ourselves on the merit of the controversy raised in the appeal i.e. challenge to the judgment rendered by the learned Single Judge as we are considering the preliminary point about the maintainability of the appeal, therefore, we confined ourselves to consider whether the appeal is maintainable.
8. Before proceeding to consider the contentions, we may refer to the recent judgment of the Apex Court in Surya Dev Rai v. Ram Chander Rai and Ors. . We are referring this judgment as the Apex Court has shown the distinction between the two Articles i.e. Article 226 and 227 of the Constitution of India. Therefore, we have to find out by applying the test in Surya Dev Rai’s case (supra) as to whether the petition so filed was under Article 226 and 227 or under Article 227 of the Constitution of India. The relevant observations read thus :–
“22. Article 227 of the Constitution confers on every High Court the power of superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction excepting any Court or tribunal constituted by or under any law relating to the armed forces. Without prejudice to the generality of such power the High Court has been conferred with her certain specific powers by Clauses (2) and (3) of Article 227 with which we are not concerned hereat. It is well settled that the power of superintendence so conferred on the High Court is administrative as well as judicial, and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. The paramount consideration behind vesting such wide power of superintendence in the High Court is paving the path of justice and removing any obstacles therein. The power under Article 227 is wider than the one conferred on the High Court by Article 226 in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction. Else the parameters invoking the exercise of power are almost similar.
23. The history of supervisory jurisdiction exercised by the High Court, and how the jurisdiction has culminated into its present shape under Article 227 of the Constitution, was traced in Waryam Singh v. Amarnath. The jurisdiction can be traced back to Section 15 of the High Courts Act, 1861 which gave a power of judicial superintendence to the High Court apart from and independently of the provisions of other laws conferring revisional jurisdiction on the High Court. Section 107 of the Government of India Act, 1915 and then Section 224 of the Government of India Act, 1935, were similarly worded and reproduced the predecessor provision. However, Sub-section (2) was added in Section 224 which confined the jurisdiction of the High Court to such judgments of the inferior Courts which were not otherwise subject to appeal or revision. That restriction has not been carried forward in Article 227 of the Constitution. In that sense Article 227 of the Constitution has width and vigour unprecedented.
Difference between a writ of certiorari under Article 226 and supervisory jurisdiction under Article 227.
24. The difference between Articles 226 and 227 of the Constitution was well brought out in Umaji Keshao Meshram v. Radhikabai. Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this Article to Tribunals as well. Though the power is akin to that of an ordinary Court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate Courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the Court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.
25. Upon a review of decided cases and a survey of the occasions, wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement. Without entering into niceties the technicality of the subject, we venture to state that broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate, revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior Court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do 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, may be, 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.”
9. Having carefully gone through the judgment of the Apex Court in Surya Dev Rai (supra), we draw the following proposition which emerged from the judgment of the Apex Court :
a) Power under Article 227 of the Constitution is wider than the one conferred on the High Court by Article 226 of the Constitution.
b) Power of superintendence is not subject to technicalities of the procedure or traditional fetters which are to be found in certiorari jurisdiction i.e. Article 226 of the Constitution of India;
c) Article 227 of the Constitution of India has wider and vigour unprecedented;
d) Proceeding under Article 227 of the Constitution of India are not original but only supervisory;
e) Power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate Courts and Tribunal within the bounds of their authority and not for correcting mere errors.
10. Now we will find out the nature of the petition to ascertain whether all or any relief claimed by the petitioner can be granted under Article 226 of the Constitution of India, for this purpose we have to refer to the petition itself i.e. the title, averments (pleadings) and the prayers sought.
“In the matter of Articles 14, 226 and 227 of the Constitution of India.
AND X X X X X AND In the matter of order dated 8th July, 2004, passed by the learned Additional Commissioner, Aurangabad Division, Aurangabad in Election Petition No. 8/2002." The prayers made in the petition read thus : "A) X X X X X B) Record and Proceedings be called for : C) By appropriate writ, order or direction the impugned order dated 10th August, 2002 passed by the learned Additional Commissioner, Aurangabad Division, Aurangabad in Election Petition No. 8/2002 under Section 144-(T) of the Maharashtra Co-operative Societies Act, may please be quashed and set aside. D) By appropriate writ, order or direction in the like nature, the respondents authorities may please be direct to permit the petitioner to take part in day to day functioning of the respondent No. 7 Parbhani District Central Co-operative Bank, Parbhani. E) Pending hearing and final disposal of this writ petition, the impugned order dated 10th August, 2002 passed by the learned Additional Commissioner, Aurangabad Division, Aurangabad in Election Petition No. 8/2002 under Section 144-(T) of the Maharashtra Co-operative Societies Act, may please be quashed and set aside. F) Pending hearing and final disposal of this writ petition, the respondents authorities may please be direct to permit the petitioner to take part in day to day functioning of the respondent No. 7 Parbhani District Central Co-operative Bank, Parbhani. G) Ad-interim relief in terms of prayer Clauses (E) and (F) may kindly be granted." After noticing the title clause and the prayers made in the petition, we will now briefly state the contents of the petition.
11. In para 7 of the petition, the petitioner has stated that “being aggrieved and dissatisfied by the Election result dated 10-8-2002 the present respondent No. 3 had filed Election petition bearing No. 8/2002 before respondent No. 2 Additional Commissioner, Aurangabad Division, Aurangabad.” In subsequent paragraphs the petitioner has raised the contentions regarding challenges to the merits of the order passed by the Commissioner. The petitioner in the petition has raised the contention that the petition was not filed as required by law as it was not verified in the manner prescribed. Further contention was that the petition of the petitioner was that the Commissioner should have rejected the Election petition for non-compliance of rule. He also contended that the Commissioner has power to dismiss the Election petition under the Rules and in spite of showing such defects, the election petition was not dismissed. The petitioner has raised the grounds in support of the challenge, wherein the petitioner has taken the grounds how the election petition should not have been entertained. It is not necessary for us to give in detail the contentions that are advanced or taken in the writ petition. In substance i) challenges were that the Commissioner has assumed jurisdiction which he does not have; ii) has failed to exercise the jurisdiction which is available to him and he has exercised that jurisdiction in a manner not permitted by law. In our judgment, looking to the contents of the petition, we are of the view that the petition in effect is filed under Article 227 of the Constitution of India.
12. It will be appropriate now to consider the contentions of Shri Raghuwanshi, when the learned counsel says that learned Single Judge should not bound himself by referring in the order that the jurisdiction which is being exercised is under Article 227 of the Constitution of India. It is true that learned Single Judge while dismissing the petition has made such a reference in the order (which we have quoted above.) It is not possible for us to endorse the contentions of Shri Raghuwanshi. It is to be noted that the learned Judge was hearing the writ petition which is filed challenging the order passed by the Commissioner under Section 144-(T) of the Maharashtra Co-operative Societies Act (hereinafter referred to as the Act) and was filed styling it to be under Articles 14, 226 and 227 of the Constitution of India, the learned Single Judge on the facts and contentions those are advanced considered it and treated the petition one under Article 227 of the Constitution of India, as the main contentions which were advanced as gathered from the contentions, grounds and the submissions recorded in the judgment and the authorities cited before learned Single Judge were only in respect of merit to the challenge to the order passed by the Commissioner. What we noticed from the order of the learned Single Judge that the main contentions which were advanced were regarding the defects of presentation of the petition filed under Section 144-(T) of the Act. Hence, in essence it was a petition filed under Article 227 of the Constitution of India. In prayer Clause (D) the petitioner has prayed that “he be allowed to function as the board of director of the Bank”. This type of relief in fact cannot be granted in a petition filed under Article 226 of the Constitution of India, apart from the prayer for setting aside the order the petitioner also sought a direction from this Court to allow him to act as the Member of the Board of Director of the Bank, which according to Surya Dev Rai’s case, can be granted only under Article 227 of the Constitution of India (as indicated by bold letters in para 8 of this order.)
13. Though, the petition is titled as filed under both Articles i.e. 226 and 227 of the Constitution of India, it is necessary to have the relevant consideration to trace out which fact justified the petitioner to claim relief under Article 226 or 227 or only under Article 226 or 227 of the Constitution of India. As we have noticed from the judgment of the Apex Court in Surya Dev Rai (supra) and applying the test as laid down in that judgment, and considering the title, contentions and the prayers made in the petition, in our considered view that the petition though styled and filed under both Articles i.e. 226 and 227 of Constitution, we hold the petition is in issue under Article 227 of the Constitution of India. It is in fact, a petition filed under Article 227 of the Constitution of India. It is to be noted that the facts borne by the record did not justify filing of writ petition under both Articles i.e. 226 and 227 of the Constitution of India. By considering the reasons assigned by the learned Single Judge, we are of the view that the learned Judge has rightly exercised the power and jurisdiction conferred on this Court by Article 227 of the Constitution of India, as the order passed by the Commissioner was challenged wherein the petitioner has prayed for calling of the record and for calling of the record to annul or to set aside the judgment rendered by the Commissioner in the Election petition filed under Section 144-(T) of the Act. Looking into this aspect of the matter, we are of the view that the petition was rightly entertained by learned Judge and disposed of by exercising the jurisdiction conferred by Article 227 of the Constitution of India. From the averments in the petition and the observation made by the learned Judge in the impugned order, we are of the view that the fact does not justify filing of the petition under Article 226 of the Constitution of India. Though, it is true that while disposing of the petition, the learned Judge has observed that he is exercising the jurisdiction under Article 227 of the Constitution of India. The observation so made by the learned Single Judge lend support to our conclusion that the petition though, filed under Articles 226 and 227 of the Constitution of India, the averments and relief prayed in the petition squarely falls within the ambit of Article 227 of the Constitution of India as described by the Apex Court in Surya Dev Rai (supra). Having come to this conclusion and applying the ratio of those judgments referred earlier, we are of the view that the appeal is not maintainable. Though, we have noted the authorities cited before us by the learned advocates, it is not necessary for us to refer to each and every authority because that will be unnecessarily burdening our judgment. Suffice to make a reference to the latest judgment of the Division Bench of this Court Mansaram (supra) (Coram : Mhase and Deshpande, JJ.), where the Division Bench of this Court has disposed of group of Letters Patent Appeal. While deciding the group of Letters Patent Appeal, the learned Judges of the Division Bench have taken resume of all the judgments of the Apex Court and this Court upto date. We may reproduce para 15 to 18 of the said judgment as we respectfully agree with the observations made by the Division Bench.
“15. The position of law that emerges from the above referred judgments is that only when a writ petition is filed under both Articles i.e. Articles 226 and 227 of the Constitution of India, the Court will examine whether in substance the writ petition is under Article 226 or 227 of the Constitution and while doing so if the Court finds that the writ petition is in substance was one under Article 226 then alone appeal would lie and not otherwise. While examining as to whether the petition is in substance under Article 226 of the Constitution, the Court will have to address itself firstly to the question as to whether was it permissible for the party to file petition under both Articles and if it was permissible, the Courts would lean in favour of the petitioner and consequently in favour of the maintainability of the appeal. In case the writ petition is filed under Article 227 simpliciter, no appeal would lie as it is expressly excluded by Clause 15 of the Letters Patent. In a petition which is filed under Article 227 simpliciter there is no occasion for the Court to examine as to whether the said writ petition is in substance one under Article 226 of the Constitution for the obvious reason that it is for the party to choose a remedy and once a party chooses the remedy, the availability of appellate remedy would depend upon such a choice. Even assuming that such enquiry is permissible, in none of the appeals it has been contended and/or demonstrated that the petition though filed under Article 227 of the Constitution of India is in fact or in substance a petition invoking jurisdiction under Article 226 of the Constitution of India. In none of the writ petitions filed before learned Single Judge, from which these appeals arise, any grievance about violation of fundamental right has been made nor a writ is sought and as such we are of the clear view that the writ petitions filed before the learned Single Judge in the instant appeals were in fact and in substance the writ petitions filed under Article 227 of the Constitution only.
16. No judgment barring one, has been brought to our notice wherein any Court has ever entertained a Letters Patent Appeal against a judgment rendered by the learned Single Judge of the High Court while exercising jurisdiction under Article 227 of the Constitution. The reason is obvious that an appeal against a judgment delivered by learned Single Judge in exercise of jurisdiction under Article 227 of the Constitution is expressly barred by Clause 15 of the Letters Patent of the Bombay High Court.
17. The only judgment which takes a contrary view is a Division Bench judgment reported in 2002 (4) All MR 512 (Coram : B.H. Marlapalle and N.H. Patil, JJ.) in the case of Mohammad Hasan Khan v. Mohammad Majidulla. The said Letters Patent Appeal, the maintainability of which was in question, was directed against a judgment of the learned Single Judge in petition filed under Article 227 of the Constitution of India. While dealing with the preliminary issue of maintainability of Letters Patent Appeal, Division Bench did notice that the writ petition had invoked jurisdiction under Article 227 and not under Article 226 of the Constitution of India. Referring to the judgment of the Apex Court in Lokmat Newspaper’s case the Division Bench made following cryptic observations :
“The said decision, prima facie, appear to support the arguments advanced regarding the maintainability of this appeal.” There are no further observations made in the judgment about the ratio laid down by the Apex Court in Lokmat Newspaper’s case.”
18. We have already distinguished the said judgment in the preceding paragraphs by demonstrating the fact that the said judgment does not take a contrary view than what was taken in Umaji’s case for the reason that Umaji’s case is followed with approval in the said judgment. The judgment in Lokmat Newspaper’s case was rendered in peculiar facts of the said case when the writ petition was filed invoking the jurisdiction under both Articles i.e. Article 226 and Article 227 of the Constitution of India. The grievance was made about violation of fundamental rights before the learned Single Judge. Hence, reference to Lokmat Newspaper’s case need not detain us any further. Main reliance is placed by the Division Bench on the observations made in case a Vanita M. Khanolkar v. Pragna M. Pai and Ors. reported in AIR 1998 SC 424 and to be precise to the following observation :–
“Now it is well settled that any statutory provision barring an appeal or revision cannot cut across the constitutional power of the High Court. Even the power flowing from the paramount charter under which the High Court functions would not get excluded unless statutory enactment concerned expressly excludes the appeal under Letters Patent.”
Here again we clarify that we have extensively dealt with the said judgment in the earlier part of our judgment while dealing with the submissions made on behalf of the appellants and distinguished the said judgment. Suffice it to state that Sub-section (3) of Section 6 of the Specific Relief Act bars an appeal or revision and the Supreme Court was considering the maintainability of the Letters Patent Appeal directed against judgment/order under Section 6 of the Specific Relief Act passed by the learned Single Judge. In that context, the Apex Court made the observations relied upon by the Division Bench to the effect that the Letters Patent jurisdiction of the chartered High Courts being akin to its constitutional powers, the same cannot be abridged unless and until a statute expressly bars the remedy of appeal provided by Clause 15 of the Letters Patent. The said case pertain to exclusion of Letters Patent jurisdiction by a vague provision (to the extent of exclusion of LPAs) contained in Specific Relief Act which does not expressly bar Letters Patent Appeal. As the Apex Court found that Sub-section (3) of Section 6 of the Specific Relief Act cannot cut down the width of Clause 15 of the Letters Patent, it made the said observations. The reliance placed by the Division Bench on the judgment in Vanita Khanolkar’s case is wholly misplaced for the obvious reason that the exclusion of appellate remedy in the present appeals is not by any other Statute but by the express language used in Clause 15 of the Letters Patent itself. Besides the above reasons we have noticed that at least three binding decisions were not brought to the notice of the learned Judges of the Division Bench and the said decisions are (1) Supreme Court judgment in Umaji Keshao Meshram and Ors. v. Smt. Radhikabai and Anr. : (2) Special Bench decision rendered by five judges of this Court in the case of State of Maharashtra v. Kusum wd/o Charudatta and Ors. reported in 1981 Mh.L.J. 93 and (3) Full Bench decision in case of Jagdish Balwantrao Abhyankar v. State of Maharashtra . Hence, we hold that the Division Bench judgment reported in 2002 (4) All MR 512 is not a good law to the extent it declares that an appeal directed against the judgment of the learned Single Judge in exercise of jurisdiction under Article 227 of the Constitution of India, is maintainable under Clause 15 of the Letters Patent of the Bombay High Court.”
14. Though, the petitioner has quoted Article 14 in the title clause of the petition but there are no averments or facts disclosing in what manner the order passed by the Commissioner violates the guarantee given to a citizen under Article 14 of the Constitution of India. The learned Judge while disposing of the writ petition was aware of the fact that the petitioner is claiming his stake to the elected post and the is no fundamental rights whatsoever involved in the case, neither the petitioner has a fundamental right to be a member of a society. It is well established that for a democratic body which consist of elected representatives, there is no fundamental right nor common law right in favour of the candidates. His rights and liabilities are circumvented and governed by the law i.e. the Act. Hence, there is no question of violation of any fundamental right of the petitioner. In view of this aspect also, we are of the view that the petition read as a whole is filed under Article 227 of the Constitution of India.
15. Having analysed the facts and the law on the point, we are of the view that the learned Single Judge justified in exercising the jurisdiction and power conferred on this Court vide Article 227 of the Constitution of India, though the petitioner has styled the petition one under Articles 226 and 227 of the Constitution of India. It is not disputed that the election of the petitioner was challenged by filing Election Petition under Section 144-(T) of the Act and the Commissioner has set aside the election of the petitioner and after the judgment of the Commissioner, the petitioner approached to this Court by filing instant petition. Therefore, at any rate, the proceeding which reached to this Court are not the original proceedings, it is not necessary for us to ponder further more on this subject as the question of maintainability of appeal against the judgment of the learned Single Judge deciding writ petition under Article 227 of the Constitution of India is finally and authoritatively concluded by number of judgments to which we have quoted above. Accordingly, we reject the contention of Shri Raghuwanshi, that the petition was in fact, the petition under Article 226 and not under Article 227 of the Constitution of India.
16. The second contention of Shri Raghuwanshi, regarding whether the Commissioner while deciding the election petition acted as a Tribunal or quasi judicial authority. Shri Raghuwanshi, learned advocate contended that the Commissioner is not a Tribunal and thus not subjected to the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. He submitted that the Commissioner being a quasi-judicial authority thus, falls outside the scope of jurisdiction and power of superintendence of this Court conferred on it by Article 227 of the Constitution of India. We test this contention in support of this contention. Shri Raghuwanshi, learned advocate heavily relied on the judgment of Apex Court in Hari Vishnu Kamath’s case (supra). The learned counsel has mainly relied on head note A of the said report. We reproduce para 6 in order to find out whether it supports the contention of Shri Raghuwanshi.
“(6) The first question that arises for decision in this appeal is whether High Courts have jurisdiction under Article 226 to issue writs against decisions of Election Tribunals. That Article confers on High Courts power to issue appropriate writs to any person or authority within their territorial jurisdiction, in terms absolute and unqualified, and Election Tribunals functioning within the territorial jurisdiction of the High Courts would fall within the sweep of that power. If we are to recognise or admit any limitation on this power, that must be founded on some provision in the Constitution itself. The contention of Mr. Pathak for the first respondent is that such a limitation has been imposed on that power by Article 239(b), which is as follows :
“Notwithstanding anything in this Constitution —
no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature”.
Now the question is whether a writ is a proceeding in which an election can properly be said to be called in question within the meaning of Article 239(b). On a plain reading of the Article, what is prohibited therein is the initiation of proceedings for setting aside an election otherwise than by an election petition presented to such authority and in such manner as provided therein. A suit for setting aside an election would be barred under this provision.
In N.P. Ponnusawami v. Returning Officer, Namakkal Constituency , it was held by this Court that the word “election” in Article 239(b) was used in a comprehensive sense as including the entire process of election commencing with the issue of a notification and terminating with the declaration of election of a candidate and that an application under Article 226 challenging the validity of any of the acts forming part of that process would be barred. These are instance of original proceedings calling in question an election, and would be within the prohibition enacted in Article 329(b).
But when once proceedings have been instituted in accordance with Article 329(b) by presentation of an election petition, the requirements of that Article are fully satisfied. Thereafter when the election petition is in due course heard by a Tribunal and decided, whether its decision is open to attack, and if so, where and to what extent, must be determined by the general law applicable to decisions of Tribunals. There being no dispute that they are subject to the supervisory jurisdiction of the High Courts under Article 226, a writ of certiorari under that Article will be competent against decisions of the Election Tribunals also.”
Having gone through para 6 of the said judgment relied on by Shri Raghuwanshi, in our opinion that the said observations are not at all helpful to the contention of the learned counsel, who contended that the Commissioner who has decided Election petition was not a Tribunal within the meaning of Article 227 of the Constitution of India. In the same judgment the Apex Court has considered the question whether the Election Tribunals are subject to the superintendence of the High Court under Article 227 of the Constitution of India. The Apex Court held thus :–
“(20) We are also of opinion that the Election Tribunals are subject to the superintendence of the High Courts under Article 227 of the Constitution, and that that superintendence is both judicial and administrative. That was held by this Court in Waryam Singh v. Amarnath , where it was observed that in this respect Article 227 went further than Section 224 of the Government of India Act, 1935, under which the superintendence was purely administrative, and that it restored the position under Section 107 of the Government of India Act, 1915. It may also be noted that while in a certiorari under Article 226 the High Court can only annul the decision of the Tribunal, it can, under Article 227, do that, and also issue further directions in the matter. We must accordingly hold that the application of the appellant for a writ of certiorari and for other reliefs was maintainable under Articles 226 and 227 of the Constitution of India.”
17. In this context, we may also refer to the another judgment of the Apex Court in case of Maqbool Hussain v. State of Bombay . The judgment rendered by the Constitution Bench of the Apex Court was considering a question whether the authority who passed an order under challenge was a Tribunal. The Apex Court laid down the test to find out whether an authority deciding a case is a Tribunal. For our purpose, it will be suffice to refer to para 13 of the judgment which reads thus :
“(13) The tests of a judicial tribunal were laid down by this Court in Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi , in the following passage quoted with approval by Mahajan and Mukherjee, JJ. from Cooper v. Wilson, (1937) 2 K.B. 309 at p.340 (C) :
“A true judicial decision presupposes an existing dispute between two or more parties and then involves four questions :– (1) The presentation (not necessarily orally of their case by the parties to the dispute) : (2) If the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence : (3) If the dispute between them is a question of law, the submission of legal argument by the parties and (4) A decision which disposes of the whole matter by a finding upon the facts in dispute and application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law.”
In this line, we may also refer to another Constitution Bench judgment of the Apex Court in case of Associated Cement Companies Ltd., v. P. N. Sharma and Anr. . The question arose before the Apex Court in P. N. Sharma’s case (supra) as to whether the State of Punjab exercising its appellate jurisdiction under Rule 6(6) of the Punjab Welfare Officers Recruitment and Conditions of Service Rules, 1952 is a Tribunal within the meaning of Article 136(1) of the Constitution of India. In order to find out whether the State who decided the appeal was a Tribunal, the Apex Court stated the test to find out whether it is a Tribunal. The opinion expressed by majority determined the test of Tribunal are referred in para 33 of the order which reads thus :
“(33) The question which we have to decide in the present appeal is whether the State Government is a tribunal when it exercise its authority under Rule 6(5) or Rule 6(6). No rules have been made prescribing the procedure which the State Government should follow in dealing with appeals under these two sub-rules, and there is no statutory provision conferring on the State Government any specific powers which are usually associated with the trial in Courts and which are intended to help the Court in reaching its decisions. The requirements of procedure which are followed in Courts and the possession of subsidiary powers which are given to Courts to try the cases before them, are described as trappings of the Courts, and so, it may be conceded that these trappings are not shown to exist in the case of the State Government which hears appeals under Rule 6(5) and Rule 6(6). But as we have already stated, the consideration about the presence of all or some of the trappings of a Court is really not decisive. The presence of some of the trappings may assist the determination of the question as to whether the power exercised by the authority which possesses the said trappings, is the judicial power of the State or not. The main and the basic test, however, is whether the adjudicating power which a particular authority is empowered to exercise, has been conferred on it by a statute and can be described as a part of the State’s inherent power exercised in discharging its judicial function. Applying this test, there can be no doubt that the power which the State Government exercises under Rule 6(5) and Rule 6(6) is a part of the State a judicial power. It has been conferred on the State Government by a statutory Rule and it can be exercised in respect of disputes between the management and its Welfare Officers. There is, in that sense, a lis; there is affirmation by one party and denial by another, and the dispute necessarily involves the rights and obligations of the parties to it. The order which the State Government ultimately passes is described as its decision and it is made final and binding. Besides, it is an order passed on appeal. Having regard to these distinctive features of the power conferred on the State Government by Rule 6(5) and Rule 6(6), we feel no hesitation in holding that it is a Tribunal within the meaning of Article 136(1).”
One of the learned Judge Bachawat, J. (as then his Lordship was) who rendered separate concurring opinion has agreed with the conclusion of the majority and observed :–
“(45) The word “tribunal” finds place in Article 227 of the Constitution also, and I think that there also the word has the same meaning as in Article 136.”
18. On the basis of law declared by the Apex Court (supra) the following tests are required to be applied in order to arrive at the conclusion whether the Commissioner who decided the election dispute is a Tribunal subject to the superintendence of this Court under Article 227 of Constitution of India. The tests are :
a) Whether the body or authority has been constituted by the statute;
b) Whether it has been clothed with the power to deal with the dispute between the parties;
c) To determine the dispute on merit finally and objectively;
d) Requirement of procedure which is to be followed in the Courts;
e) Possession of subsidiary powers which are given to the Court to try the cases before them;
f) The body/authority has the trappings of the Court;
g) The adjudicating power which a particular authority is empowered to exercise has been conferred on it by a statute, to adjudicate and decide the dispute of the parties;
h) The adjudicating power must be derived from a statute or statutory Rules;
i) In issue there must be a lis :
i) There is affirmation by one party and denial by another;
ii) Dispute necessarily involves the rights and obligations of the parties to it;
j) The order ultimately passed by the body/authority which is described at its decision and is made final and binding on the party;
If the above tests are fulfilled, then the body/authority is called as a Tribunal.
19. Now, we will find out whether the Commissioner has all the necessary trappings of the Tribunal as indicated above. For this purpose we will have to refer to the statutory provisions contained under the Act. The provisions of Chapter XI-A of the Act deals with the Elections of Committees and Officers of Certain Societies etc. We are concerned with in this appeal is whether the Commissioner is a Tribunal. Hence, we will refer to Section 144-(T) which reads thus :
“144-(T). Disputes relating to elections to be submitted to the Commissioner (or other specified officer). — (1) Notwithstanding anything contained in Section 91 or any other provisions of this Act, any dispute relating to an election shall be referred to the Commissioner of the Division in which such election is held for to an officer not below the rank of Additional Commissioner of a Division authorised by the State Government in this behalf (hereinafter in this section either of them as the context may require is referred to as “the specified officer”).
(2) Such reference may be made by petition to (the specified officer), within a period of two months from the date of declaration of the result of the election;
Provided that, (the specified officer) that he had sufficient cause for not preferring the petition within the said period.
(3) In exercising the functions conferred on him by or under this Chapter, (the specified officer) shall have the same powers as were vested in a Court in respect of.
(a) proof of facts by affidavit;
(b) summoning and enforcing the attendance of any person and examining him on oath;
(c) compelling discovery or the production of documents; and
(d) issuing commissions for the examination of witnesses.
In the case of any such affidavit, an officer appointed by (the specified officer) in this behalf may administer the oath to the deponent.
(4) Subject to any rules made by State Government in this behalf, any such petition shall be heard and disposed of by (the specified officer) as expeditiously as possible. An order made by (the specified officer)on such petition shall be final and conclusive and shall not be called in question in any Court.”
Section 144X authorised the State Government to make rules for the purpose of this Chapter to provide and to regulate all other or any other matters relating to various stages of elections. In exercise of its power conferred by Section 144X, the State Government framed the rules called the Maharashtra Specified Co-operative Societies Elections to Committee Rules, 1971. From Rule 73 to Rule 91 of the said Rules deals with deciding the election dispute. Having considered the statutory provision in brief, we draw the following conclusion :
a) To challenge an election of a returned candidate the aggrieved person has to present an election petition in terms of Rule 74. In the said election petition, the Commissioner has to exercise his power conferred on him by Section 144(T)(3). By Sub-section (3) of Section 144-(T) the Commissioner is vested with the powers of those are vested in the Court in respect of proof of fact by affidavit, summoning and enforcing the attendance of any person;
b) Examining him on oath, compelling discovery or producing documents and issuing Commission for examining the witnesses.
20. The Commissioner is authorised to dismiss the election petition which does not comply with the provisions of Rule 74. Sub-section (4) of Section 144-(T) gives finality to the order passed by the Commissioner. The order made by the Commissioner under Rule 79 or 80 will take effect as soon as it is pronounced by the Commissioner. With abovesaid aspect being present and analysing the law declared by the Apex Court (supra) and the statutory provisions, it is clear that i) the Commissioner as a Special Officer, is creature of statute to decide election dispute; ii) had all trappings of a Tribunal i.e. to decide the dispute between the candidate who contested the election of the specified society. Hence, without any hesitation we hold that the Commissioner is a Tribunal subjected to the superintendence of this Court under Article 227 of the Constitution of India.
21. Having considered both points raised by Shri Raghuwanshi, learned advocate, we come to the conclusion that there is no merit in the contentions. Accordingly, we reject both contentions and dismiss the appeal as not maintainable. We have not considered anything on merit of the controversy raised in the writ petition and the order passed by the Commissioner, as we have dismissed the appeal on preliminary point of maintainability. There shall be no order as to costs.