JUDGMENT
R.C. Chavan, J.
1. Fifty years ago while disposing of Special Civil Application No.330 of 1957 raising similar questions between the predecessors of the present parties, concerning the same property, a Division Bench of this Court observed in para 2 of the judgment in Lala Jugalkishore (Landholder) v. Bombay Revenue Tribunal, Nagpur and Ors. reported at 1958 Nagpur Law Journal 355 that This case has a very chequered history. History repeats and so we repeat those words.
2. The appellant was a tenant in respect of certain agricultural lands belonging to the respondent-landlord in the Agricultural Year 1951-52. The extent of those lands was said to be about 84 acres. The appellant was entitled to be a protected lessee in respect of 50 acres of those lands in terms of the provisions of Sections 3 and 4 of the Berar Regulation of Agricultural Leases Act, 1951. For the sake of ready reference, those Sections may be usefully reproduced as under:
3.(1) Every lease of land by a landholder entitling the lessee to hold land in the agricultural year 1951-52 shall, subject to the provisions of Section 4, be deemed to be for a period of seven years from the commencement of that year unless such lease is for a period in excess of seven years from such commencement.
(2) Every lease by a landholder entitling the lessee to hold land at any time after the agricultural year 1951-52 shall, subject to the provisions of Section 4, be deemed to be for a period of seven years unless such lease is for a period in excess of seven years.
(3) Every person who holds land from a landholder on a lease for a term of seven years or more, or whose term of lease is deemed to be seven years under the provisions of Sub-section (1) or Sub-section (2) shall be deemed to be a protected lessee.
(4) The provisions of Sub-sections (1) and (2) shall not apply in respect of-
(a) any lease of land held from a landholder, who was or is, and where several landholders hold the land jointly all such landholders who were or are, persons under disability at the time of granting the lease;
(b) any lease of land granted in compliance with the provisions of Section 5A of the Central Provinces and Berar Cultivation of Fallow Land Act, 1948.
(5) Notwithstanding the fact that a landholder was, by reason of being a woman other than a widow or a minor or a person detained or imprisoned under any process of law, a person under disability at the time of granting a lease as defined in the Act before the Berar Regulation of Agricultural Leases (Amendment) Act, 1953, the provisions of Sub-sections (1) and (2) shall apply to every person who was a lessee of such land-holder in respect of any land at any time prior to the 1st day of August 1953 and has continued in possession of that land till that date and he shall be deemed to be a protected lessee of such land with effect from the date on which but for the landholder being a person under disability, he would have acquired the rights of a protected lessee.
4.(1) No person shall, at any time, be deemed to be a protected lessee in respect of any area in excess of fifty acres.
(2) If the area in which a lessee is entitled under Section 3 to be deemed to be a protected lessee at any time together with any other area, if any, held by him as protected lessee, exceeds fifty acres, he shall select so much only of the first mentioned area as would make the total area to be held by him as protected lessee equal to fifty acres, and he shall give an intimation in writing to the landholder or landholders, as the case may be, and to the Revenue Officer and thereupon he shall be deemed to be a protected lessee of the area so selected.
(3) Such intimation shall contain a full description of the land selected by the lessee and shall be given not less than two months before the commencement of the agricultural year next following.
(4) If any question arises between a lessee and his landholder requiring the determination of the area or the selection of the land in respect of which the lessee should be deemed to be a protected lessee, such question shall be decided by the Revenue Officer in accordance with the rules made in this behalf.
3. The implication of these provisions was that if a tenant was held to be a protected lessee in respect of the land exceeding fifty acres, he was required to give intimation in respect of his selection of 50 acres which he wanted to retain two months before the commencement of the next Agricultural Year, since the law contemplated situations where the tenant may acquire more land in any subsequent Agricultural Year. By an amendment, Section 4-A was added to the Act, whereby the time to select fifty acres of land was extended till 1-2-1954.
4. Though the chequered history has already been recounted in the judgment in Lala Jugalkishore (Landholder) v. Bombay Revenue Tribunal, Nagpur and Ors. reported at 1958 Nagpur Law Journal 355, it may be useful to briefly recount the labyrinth of courts thorough which the parties have moved in the last 56 years. On 31-3-1952, the tenant applied for declaration as a protected lessee and determination of lease-money. On 16-5-1952, the landlord applied for termination of tenancy. On 10-7-1952, both the applications were rejected by the Sub-Divisional Officer. On 13-7-1952, the landlord was placed in possession of the entire lands selected by the tenant in pursuance of a parwana (authority) issued by the Tahsildar. Both the landlord and the tenant appealed against the Sub-Divisional Officer’s order dated 10-7-1952. The tenant’s appeal was allowed on 9-8-1952 and the proceedings were remanded back for determining 50 acres of land in respect of which the tenant was to be protected lessee. The landlord’s appeal was dismissed on 11-3-1954. When the parties moved the Board of Revenue, the Board of Revenue disagreed with the view of the Deputy Commissioner that it was for the revenue authorities to make the selection, and held that the tenant had a right to select 50 acres of land. The tenant applied on 26-6-1953 indicating his selection. On 31-3-1954, the Sub-Divisional Officer rejected the application. The tenant’s appeal to the Deputy Commissioner was allowed on 3-7-1954 and the matter was remanded by the Deputy Commissioner, who also directed the tenant to be placed in possession holding that the parwana was wrongly issued on 4-8-1954. The Board of Revenue maintained the order of the Deputy Commissioner. Since the Berar Regulation of Agricultural Leases Act, 1951 had been amended inserting Section 4-A therein, when the parties approached the High Court, the matter was remanded by the High Court on 26-7-1955. By order dated 5-1-1957, the Deputy Commissioner held that 49 acres and 29 gunthas of land was duly and legally selected by Ratanlal under Section 4(2) of the Act and an intimation thereof was duly given to the landlord on 7-1-1954. The landlord took an appeal against the said order before the Revenue Tribunal, which, by its order dated 8-8-1957, allowed the appeal and remanded the matter back to the Sub-Divisional officer for decision on the three questions, namely (1) selection of land, (2) fixation of lease money, and (3) grounds of termination of lease. The Tribunal observed that it had already decided that the tenant had made applications within time and had given necessary intimation in accordance with Section 4-A of the Act and that he must be deemed to be in possession of the land on 1st day of August, 1953. This order of the Tribunal dated 8-8-1957 was subject-matter of Special Civil Application (Writ Petition) No.330 of 1957 by the landlord before this Court. The petition was dismissed by judgment dated 10-4-1958 reported at 1958 Nagpur Law Journal 355 (Lala Jugalkishore (Landholder) v. Bombay Revenue Tribunal, Nagpur and Ors.). By this judgment, this Court held that the tenant must be deemed to be in possession on the relevant date, i.e. 1st August, 1953, and also that the tenant had made the necessary selection and served intimation thereof on the landlord.
5. Till this time, there is no reference to the tenant being in possession of 2 acres and 5 gunthas of land of one Godawaribai. Copy of a written statement filed by the landlord on 9-3-1954 before the Sub-Divisional Officer was made available for our perusal by the learned Advocate for the appellant-tenant and it does not make any reference to the land owned by Godawaribai in possession of the tenant. The learned Advocate for the respondent-landlord contended that the tenant must be held to be in possession of 2 acres and 5 gunthas of Godawaribai’s land as well and the adjudication has to proceed on that basis. As pointed out by the learned Advocate for the appellant-tenant, the question as to whether the appellant was or is in possession of 2 acres and 5 gunthas of Godawaribai’s land is still open, since the appellant has made no such admission and there is no conclusive finding by any authority that the appellant is in possession of such land as protected lessee.
6. Since the matter had been remanded to the Sub-Divisional Officer by the Revenue Tribunal by its order dated 8-8-1957 (which order was maintained by this Court in Lala Jugalkishore (Landholder) v. Bombay Revenue Tribunal, Nagpur and Ors. reported at 1958 Nagpur Law Journal 355), on 16-7-1977, the Sub-Divisional Officer accepted the selection of 49 acres and 29 gunthas of land made by the appellant and excluded the remaining 33 acres and 14 gunthas of land. He fixed the lease money at Rs. 1,116.20. This order was challenged before the Resident Deputy Collector, who by his order dated 30-6-1979 held that the tenant was entitled to only 29 acres and 11 gunthas of land, which propelled the tenant to the Revenue Tribunal. By its judgment dated 18-2-1980, the Tribunal remanded the matter back to the Resident Deputy Collector to examine the question whether tenant was in possession of Godavaribai’s land too. On 27-3-1981, the Resident Deputy Collector directed the parties to appear before the Sub-Divisional Officer on 6-4-1981. By order dated 31-12-1984, the Sub-Divisional Officer held that the tenant was not entitled to the status of protected lessee and rejected the tenant’s application for fixation of fair and reasonable lease-money. No further proceedings seem to have been taken up against this order.
7. Relying on the aforementioned order, the landlord applied to the Sub-Divisional Officer under Section 120(c) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 for being placed in possession of the land. By his order dated 22-6-1987, the Sub-Divisional Officer rejected the landlord’s application. On 6-1-1989, the Revenue Tribunal set aside the order passed by the Sub-Divisional Officer and held the tenant to be liable to be summarily evicted. This order was challenged by the tenant, by filing Writ Petition No.143 of 1989 before this Court, which was dismissed by a learned Single Judge by his impugned judgment dated 3-10-1996. The tenant appealed under Clause 15 of the Letters Patent and the appeal was admitted on 7-1-1997. Initially, the parties were directed to maintain status quo. By further order dated 20-2-1997, the appellant-tenant stated that he was ready to deposit Rs.20,000/-for possession of the land for the year 1996-97 and thereafter Rs.20,000/ per year on the first day of Agricultural Year during the pendency of the appeal. The appellant presumably has been depositing such amounts, which the respondent has been withdrawing.
8. We have heard Shri Z.A. Haq, learned Counsel for the appellant-tenant, and Shri P.Y. Deshpande, learned Counsel for the respondent-landlord.
9. The learned Counsel for the respondent-landlord submitted that this appeal under the Letters Patent itself is untenable, since the learned Single Judge has rendered his judgment in exercise of appellate jurisdiction of the High Court in a matter arising from a Tribunal subordinate to the High Court. The learned Counsel for the appellant-tenant, on the other hand, submitted that the appeal is tenable, since the jurisdiction invoked by the appellant before the learned Single Judge was not only under Article 227, but also under Article 226 of the Constitution, and that the proceedings before the learned Single Judge were original proceedings. In support of their respective submissions, both the learned Counsel took us through a number of decisions on the question of tenability of the Letters Patent Appeal.
10. The question has been comprehensively dealt with by the Apex Court in Umaji Keshao Meshram and Ors. v. Smt. Radhikabai and Anr. reported at , on which the learned Counsel for the respondent-landlord placed reliance. The judgment is a classic treatise on history of judicature in India. In para 91 of the judgment, the Apex Court held that there was no qualification or limitation as to the nature of the jurisdiction exercised by the single Judge while passing his judgment (for tenability of an appeal before a Division Bench), provided an appeal was not barred by any statute and provided the conditions laid down by Clause 15 of the Letters Patent were fulfilled. The Court then enumerated those conditions as under:
91. …(1) that it must be a judgment pursuant to Section 108 of the Government of India Act of 1915, and (2) it must not be a judgment falling within one of the excluded categories set out in Clause 15. Section 108 of the Government of India Act, 1915 empowers High Courts to make rules for exercise of its jurisdiction by Single Judges and Division Courts. In para 99 of the aforesaid judgment, the Court compared the powers of the High Court under Articles 226 and 227 of the Constitution and observed that though, at the first blush, it may seem that a writ of certiorari or a writ of prohibition partakes of the nature of superintendence, inasmuch as at times the end result is the same, the nature of the power to issue these writs is different from the supervisory or superintending power under Article 227. The Court added that the fact that the same result can at times be achieved by two different processes does not mean that the processes are the same. It went on to observe in course of further discussion that the proceedings under Article 226 of the Constitution were original in nature, whereas those under Article 227 were not. The Court observed that when a party filed application either under Article 226 or 227 or both, the Court ought to treat the application being under Article 226 in order not to deprive the party of the valuable right of appeal. The Court added that if in deciding the matter, in the final order the Court gives ancillary directions which may pertain to Article 227, this should not deprive a party of the right of appeal under Clause 15 of the Letters Patent where the substantial part of the order appealed against is under Article 226. The learned Counsel for the respondent-landlord submitted that this key question is whether the directions given by the Court are merely ancillary or whether the substantial part of the order under challenge is one under Article 226, and added that in the present case it is not.
11. It may be useful to mention here that the proceedings which occasioned the determination of legal issues by the Supreme Court in Umaji’s case arose out of a tenancy dispute. The order of the Revenue Tribunal had been challenged by a petition filed under Article 227 (alone), which was heard by a Single Judge of this Court. The Division Bench refused to entertain a Letters Patent Appeal relying on a Full Bench judgment in Shankar Naroba Salunke v. Gyanchand Lobhachand Kothari. While the Apex Court overruled the Full Bench judgment in the case of Shankar Naroba Salunke, it held that the Letters Patent Appeal was not tenable in Umaji’s case, since the petition decided by the learned Single Judge was admittedly filed under Article 227 of the Constitution.
12. The learned Counsel for the respondent-landlord next place for our perusal a judgment of the Division Bench of this Court in Kondiba v. Narayan Namdeo reported at . It was a case under the Bombay Rent Act. While dismissing the said Letters Patent Appeal, the Division Bench followed the judgment of Full Bench in Jagdish Balwantrao Abhyankar v. State of Maharashtra and Ors. reported at 1993 Mh.L.J. 958, where after considering the ratio of Umaji’s case, the Full Bench had concluded as under:
26. In our view, the following tests can be applied to come to the conclusion whether the facts justify the filing of a petition either under Article 226 or Article 227 of the Constitution.
(i) The first and foremost test that must be applied is the pleadings in the writ petition. This is clear from the observations of the Apex Court in Mangalbhai’s case where in paragraph 6 of the Judgment, the Apex Court has observed that where in the totality of facts and circumstances of the case, the pleadings of the parties in the writ petition and the Judgment of the Single Judge leaves no manner of doubt that it was an order passed under Article 226, a L.P.A. would be maintainable. Similar observations are to be found in Sushilabai’s case where a reference is made in para 3 of the Judgment to the grounds taken in Writ Petition, if unmistakably go to show that it was a petition under Article 226, the L.P.A. would be maintainable.
(ii) The second test would be the approach and the observations of the Single Judge as to whether he was exercising the powers under Article 226 or Article 227. The Apex Court held this in para 6 of its Judgment in Mangalbhai’s case and similar observations are to be found in Sushilabai’s case in paras 3 and 4 of the Judgment.
(iii) The third factor which is relevant is whether the person, authority or State against whom a writ is sought, was made a party which is the requirement of a petition under Article 226, unlike a petition under Article 227 where the Court or Tribunal is not required to be made a party. This test emerges from the observations of the Apex Court in Umaji’s case. We must hasten to add that, recently, in the case of Savitridevi v. The District Judge Gorakhpur, the Apex Court has disapproved the practice of the Judicial officers being shown as respondents in the petitions filed in the High Court and Special Leave Petitions filed in the Apex Court. The observations pertain to the judicial officers being made parties in proceedings as against a person, authority or a State being required to be made a party in a petition under Article 226 and a Court or a Tribunal not being so required in a petition under Article 227.
(iv) The fourth factor would be the relief prayed for in the petition. Where the relief prayed for is for issuance of a writ in the nature of habeas corpus or mandamus or quo warranto or prohibition or certiorari, such writs would normally be issued in exercise of powers under Article 226 where such writs are directed against the person, authority and State. Where, however, the reliefs prayed for are in exercise of powers of superintendence conferred upon every High Court by Article 227 which is a supervisory jurisdiction intended to ensure that subordinate Courts and Tribunals act within the limits of their authority and according to law, the exercise of jurisdiction would be under Article 227 this test merges from the observations made in para 99 of the judgment in Umaji’s case.
(v) The fifth factor is whether the jurisdiction invoked in the petition irrespective of the label mentioned in the title of the petition, was primarily of original nature in which case it would be a petition under Article 226 or whether it was invoked in the nature of supervisory jurisdiction, in which case it would be under Article 227. The observations to this effect are found in para 100 of the judgment in Umaji’s case reproduced above, where there is a reference to some Privy Council decisions.
(vi) The sixth test to be applied would be the real nature of the order passed by the Single Judge. Where substantial part of the order is under Article 226, the mere fact that, in the final order, the Court gives ancillary directions which may pertain to Article 227, ought not to deprive the party of a right of an appeal under Clause 15 of the Letters Patent. This test emerges from para 106 of the judgment in Umaji’s case. It is reiterated by the Apex Court in the case of Ratnagiri District Central Co-operative Bank (supra).
Applying those tests to the case before it, the Division Bench concluded that the Single Judge was exercising supervisory jurisdiction under Article 227 of the Constitution and, therefore, proceeded to dismiss the Letters Patent Appeal.
13. The learned Counsel for the respondent-landlord submitted that in the present case too, what was sought before the learned Single Judge was exercise of supervisory jurisdiction, though the title of the writ petition merely made a mention of Article 226 of the Constitution. He further pointed out that no State or authority was made a party-respondent in the petition. He pointed out that the prayer clause does not show that the petitioner had prayed for calling for the records of the proceedings before the Tribunal, but had merely sought setting aside of the order passed by the Tribunal on 6-1-1989. Therefore, according to the learned Counsel, applying the tests laid down by the Full Bench in Jagdish’s case, which had been followed by several Division Benches, including Kondiba’s case, the appeal ought to be dismissed.
14. His learned adversary submitted that not making a Tribunal a party or not specifically praying for calling for the record, would not result in the petition in losing its character as one under Article 226 of the Constitution. He submitted that the totality of the contents of the petition would show that what was sought was a writ of certiorari and not only exercise of jurisdiction of superintendence. We would come to these contentions later.
15. The Apex Court considered the question of difference between the writ of certiorari under Article 226 of the Constitution and supervisory jurisdiction under Article 227 in Surya Dev Rai v. Ramchander Rai and Ors. reported at 2004(1) Mh.L.J. 633, on which the learned Counsel for the respondent-landlord placed reliance. He submitted that the distinction brought out in the aforesaid judgment would leave no manner of doubt that the jurisdiction exercised by the learned Single Judge was one under Article 227 of the Constitution and not under Article 226. It may be useful to reproduce paras 25 and 38 of the judgment as under:
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 and technicality of the subject, we venture to state the 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.
38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:
(1) …
(2) …
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate Court is found to have acted (i) without jurisdiction by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) …
(6) …
(7) …
(8) …
(9) In practice, the parameters of exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorary, the High Court may annul or set aside the act, order or proceedings of the subordinate Courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the high Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate Court as the Court should have made in the facts and circumstances of the case.
16. Relying on the distinction brought out, the learned Counsel for the respondent-landlord submitted that there is nothing in the petition or the order passed by the learned Single Judge to indicate that jurisdiction under Article 226 of the Constitution was invoked or exercised. Countering this argument, the learned Counsel for the appellant-tenant submitted that a look at the grounds raised in the petition would show that the petitioner had specifically complained of exercise by the revenue authorities of jurisdiction which they did not have.
17. In National Textile Corporation (SM) Ltd. v. Devraj Chandraban Pai , on which the learned Counsel for the respondent-landlord placed reliance, a Division Bench of this Court held that mere mention of Article 226 of the Constitution in the title of the petition will not make an appeal under Clause 15 of the Letters Patent tenable, if in pith and substance what was to be exercised of jurisdiction of this Court was supervisory jurisdiction. The Court also observed that when orders, awards, judgments of Tribunals subject to superintendence of the High Court can be corrected under Article 227 of the Constitution, there would be no occasion to resort to a writ of certiorari under Article 226 of the Constitution. The case arose out of the proceedings from the Industrial Court.
18. A similar view was taken by a Division Bench of this Court in Kanhaiyyalal v. Mahavir Tea Co. reported at , arising out of proceedings under the Rent Control Order.
19. The learned Counsel for the appellant-tenant, on the other hand, relied on three judgments of the Supreme Court in (i) Ratnagiri District Central Co-operative Bank Ltd. v. Dinkar Kashinath Watve reported at 1993 Supp (1) SCC 9; (ii) Sushilabai Laxminarayan Mudliyar v. Nihalchand Waghajibhai Shaha reported at 1993 Supp (1) SCC 11; and (iii) Lokmat Newspapers Pvt. Ltd. v. Shankarprasad reported at . It was held in Ratnagiri District Central Co-operative Bank’s case that when the relief granted by the learned Single Judge clearly indicates that he was exercising jurisdiction under Article 226 and not under Article 227 of the Constitution, an appeal under Clause 15 of the Letters Patent would be maintainable. In Sushilabai’s case, the Apex Court reiterated the observations in Umaji’s case and observed that the Full Bench of Bombay High Court deciding Sushilabai’s case (reported at 1989 Mah LJ 695) had wrongly understood the ratio in Umaji’s case. It quoted from an earlier unreported judgment in Ratnagiri District Central Co-operative Bank Ltd. v. Dinkar Kashinath Watve, decided on 27-1-1989, where the Court had observed that the determining factor is the real nature of the 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 the learned Single Judge would be relevant.
20. In M/s. Lokmat Newspapers’ case, the Apex Court was considering tenability of the Letters Patent Appeal in proceedings which originated before the Industrial Court. A writ petition had been filed under Articles 226 and 227 of the Constitution, which had been rejected by a Single Judge. The Division Bench had entertained the Letters Patent Appeal and had allowed the same. In the context, the Apex Court was examining the question of tenability of the Letters Patent Appeal. The Court concluded as to this question in para 16 of its judgment on page 2423, which is as under:
16. …The aforesaid decision squarely gets attracted on the facts of the present case. It was open to the respondent to invoke jurisdiction of the High Court both under Articles 226 and 227 of the Constitution of India. Once such jurisdiction was invoked and when his Writ Petition was dismissed on merits, it cannot be said that the learned single Judge had exercised his jurisdiction only under Article 226 (sic)* of the Constitution of India. This conclusion directly flows from the relevant averments made in the Writ Petition and the nature of jurisdiction invoked by the respondent as noted by the learned single Judge in His Judgment, as seen earlier. Consequently, it could not be said that Clause 15 of the Letters Patent was not attracted for preferring appeal against the judgment of learned single Judge. It is also necessary to note that the appellant being respondent in Letters Patent Appeal joined issues on merits and did not take up the contention that Letters Patent Appeal was not maintainable. For all these reasons, therefore, the primary objection to the maintainability of the Letters Patent Appeal as canvassed by learned Counsel for the appellant, has to be repelled. Point No.1 is, therefore, answered in affirmative against the appellant and in favour of the respondent. It takes us to the consideration of points arising for our decision on merits.
(* Article 227 ?)
21. We have carefully considered the arguments advanced by both the learned Counsel in light of the judicial pronouncements referred to above. Apart from Umaji’s case, in Ratnagiri District Central Co-operative Bank and Sushilabai’s cases, the Apex Court has held that what is determinative is the nature of order passed by the learned Single Judge and not the title of petition. In Surya Dev Rai’s case, the Apex Court examined the distinction between jurisdiction to issue a writ of certiorari and that of superintendence. If Clauses 3 and 4 in para 38 of this judgment are seen, it would be clear that writ of certiorari, as well as supervisory jurisdiction can be exercised when the lower Tribunal has assumed jurisdiction, it does not have. While certiorari is available if overstepping jurisdiction is noticed, if jurisdiction available is exercised in a manner not permitted by law, supervisory jurisdiction ought to be invoked. However, in both situations the jurisdictions are not exercisable at a mere drop of hat but only when the error results in gross injustice. It may be useful to recall that the whole tenor of judgments in Umaji’s case is that when it is possible to hold that jurisdiction under Article 226 was exercised, Court need not infer that it was under Article 227 of the Constitution and shut out the remedy of intra-court appeal.
22. In the backdrop of these principles emerging from judgments of the Apex Court, the observation of a Division Bench of this Court in National Textile Corporation [2006(1) BCR 765] that when orders can be corrected under Article 227 of the Constitution, there would be no occasion to resort to a writ of certiorari, may be taken to have been made in the context of facts of that case, particularly since inference in favour of exercise of jurisdiction under Article 227 alone has been disapproved in Umaji’s and other cases. It may be seen that as in the case of National Textile Corporation, in Lokmat Newspapers’ case, the Apex Court was considering the question in the context of proceedings coming from Industrial Court. It could have been said that errors of Industrial Court could have been corrected by exercising jurisdiction under Article 227 and, therefore, there was no occasion to resort to power to issue writs under Article 226. Yet the Apex Court in Lokmat Newspapers’ case reiterated that it was open to the litigant to invoke jurisdiction under Article 226 as well, and once such jurisdiction was exercised, it could not be said that the learned Single Judge had exercised jurisdiction under Article 227 only.
23. Applying these principles to the proceedings at hand, it may be seen that:
(i) The petition was not under Article 227 alone.
(ii) There is no indication in the judgment of the learned Single Judge that he was exercising jurisdiction under Article 227 alone.
(iii) Though the Maharashtra Revenue Tribunal was not made a party to the petition, since the Revenue Tribunal was not expected to contest the petition to justify its order, in view of the observations in Clause (iii) of para 26 in Full Bench judgment in Jagdish Balwantrao, it was not necessary to make it a party.
(iv) The relief sought was more in the nature of certiorari as may be seen from the grounds raised in the petition, since the grievances was assuming non-existent jurisdiction and overstepping jurisdiction, and not that exercising jurisdiction in manner not permitted by law (Clauses (iii) and (iv) in para 38 in Surya Deo Rai’s case). Had the main grievance been of exercising jurisdiction in a manner not permitted by law, it could have been said that powers under Article 227 were invoked.
(v) Having allowed the appellant to invoke jurisdiction both under Articles 226 and 227, and having exercised the same without indicating that jurisdiction under Article 226 was not being exercised, it would be impermissible to say that jurisdiction under Article 227 alone was exercised.
We, therefore, hold that this appeal is tenable.
24. This takes us to the merits of the matter. It may be recalled that : (a) the tenant did hold land as protected lessee in excess of 50 acres (about 84 acres); (b) question of holding 2 acres and 5 gunthas of Godavaribai’s land as protected lessee was not raised in earlier round of litigation and was raised only in proceedings which led the Maharashtra Revenue Tribunal to pass the order dated 18-2-1980; (c) remand to Sub-Divisional Officer by order dated 8-8-1957 by the Revenue Tribunal was for limited purpose; (d) landlord’s petition to this Court was dismissed by this Court by judgment reported in Lala Jugalkishore (Landholder) v. Bombay Revenue Tribunal, Nagpur, and Ors. reported at 1958 Nagpur Law Journal 355, holding inter alia that tenant had made necessary selections and had also served intimation on the landlord.
25. In the light of these facts, the learned Counsel for the appellant-tenant submitted that the order dated 31-12-1984 by the Sub-Divisional Officer, about which much ado was made by the landlord, should have been ignored as non-est. He submitted that in the face of findings of all higher fora, including this Court, that the appellant had made necessary selection and had also served intimation, it was not open to the Sub-Divisional Officer, to come to contrary conclusions. His learned adversary submitted that whatever objections the appellant had to the order dated 31-12-1984, they should have been raised by appropriate proceeding before proper forum. Having left the order unchallenged, it is not open to the appellant to assail this order now. In fact it is this contention which has found favour with the Revenue Tribunal as well as the learned Single Judge.
26. In our view, it is not necessary to go into the question whether the appellant-tenant was in possession of Godavaribai’s 2 acres and 5 gunthas of land as protected lessee. What was required of the tenant under Section 4 or 4-A of the Berar Regulation of Agricultural Leases Act, 1951 was to select land to the extent of 50 acres out of entire lands held by him as protected lessee, and not enumerate all lands so held by him. This selection was already done and intimation thereof had also been given as held in 1955 Nagpur Law Journal 355. If the tenant did hold Godavaribai’s land, since it was not included in the selection made by him, that land should not have bothered the authorities. It was land not selected. It is not clear how it would have affected remaining land of the tenant selected by him for retention.
27. Confusing the requirement to select land to the extent of 50 acres, with the (non-existent) requirement of enumerating all lands has led to this unwarranted round of litigation. In Mangilal v. Suryabhan reported at 1957 Nagpur Law Journal 561, and in Shiosing v. Bombay Revenue Tribunal reported at 1959 Nagpur Law Journal 555, on which the learned Counsel for the respondent-landlord relied, this Court did hold that a protected lessee who does not make such a selection loses lands held by him as such. This Court could not have held otherwise. If the law required the lessee to select, and he does not, the implication is that he has not selected any land, and if he has not selected, he is not entitled to hold such land. In fact these two judgments too would show that what lessee was required to do is to ‘select’ and not indicate what he has not selected. In both the cases, it was held on facts that the lessee had not conveyed his selection within the prescribed time. Such is not the present case. Here, not only had the appellant-tenant selected lands which he wanted to retain, but had also been held by this Court to have so selected. Therefore, it was incumbent on the authorities to proceed further from that point of adjudication.
28. It is unfortunate that it was not noticed that the questions of selection would arise only if a person is in possession or comes in possession of land in excess of 50 acres as protected lessee. Therefore, merely because the appellant was allegedly in possession of 2 acres and 5 gunthas of land of some Godavaribai (in addition to 34 acres of land which he had not included in his selection), it would not vitiate his selection of 49 acres and 29 gunthas of respondent’s land which he held as protected lessee. It should have been seen that whatever land was not included in selection could not have been retained. It seems that Godavaribai’s 2 acres and 5 gunthas of land was a stratagem to oust the appellant from his entire holding.
29. This conclusion is fortified by a reference to Sub-section (4) of Section 4 of the Berar Regulation of Agricultural Leases Act and Rule 3 of the Rules made thereunder. A landlord, seemingly, may object to selection by the landholder in respect of area and the selection. Area had already been objected to and determined since the lessee was in possession of 84 acres of which he had unselected over 34 acres. The question that remained was of selection which particular pieces the tenant wanted. Rule 3 of the Rules would show the factors which revenue officer was to take into account while deciding the question of selection. There is nothing to show that the appellant’s selection was objected to on any of the six factors enumerated in Rule 3, which may be reproduced for ready reference as under:
3. Where any question arises under Sub-section (4) of Section 4, the Revenue Officer shall decide the same having regard to the following factors, namely:
(a) contiguity with the land already held by the protected lessee or the landholder, as the case may be;
(b) convenience of cultivation;
(c) improvements made on the land or other existing facilities for cultivation;
(d) avoiding splitting up of compact blocks already under cultivation of the protected lessee or the landholder, as the case may be;
(e) period of possession of the lessee on the area in question;
(f) such other factors as may be deemed relevant and equitable by the Revenue Officer with a view to the efficient use of the land for agriculture.
30. It is thus clear that it was thoroughly impermissible for the Revenue Tribunal or other authorities to reopen the questions already concluded. The error crept in the remand order dated 18-2-1980 of the Revenue Tribunal and was confounded by the order of the Sub-Divisional Officer dated 31-12-1984, which became the foundation of further orders under Section 120(c) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958.
31. The learned Counsel for the respondent-landlord submitted that since these orders were not at all challenged by the appellant before appropriate forum, they have attained finality and consequently the appellant had no locus to retain the fields. As rightly pointed out by the learned Counsel for the appellant-tenant, these orders ignore adjudication which had attained finality in Lala Jugalkishore (Landholder) v. Bombay Revenue Tribunal, Nagpur, and Ors. reported at 1955 Nagpur Law Journal 355. The contention that the order dated 31-12-1984 bound the parties could have been countenanced had the order been passed in a separate proceedings initiated by the landlord and yet ignored by the tenant. The order was passed in proceedings which emanated from remand by the Revenue Tribunal by order dated 8-8-1957, whereby the Tribunal had elaborated the parameters of remand. Authorities dealing with proceedings as a sequel to this order dated 8-8-1957 were, therefore, required to confine themselves to the bounds delimited by the Revenue Tribunal on 8-8-1957, particularly because the order had received a seal of approval from this Court in judgment reported at 1955 Nagpur Law Journal 355. Therefore, contrary conclusions by lower tribunal/fora have no force and are non-est. Therefore, these orders, in our view, cannot provide any legitimacy to appellant’s ouster ordered under Section 120(c) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act. In this view of the matter, we find that the judgment of the learned Single Judge cannot be upheld.
32. The learned Counsel for the appellant-tenant submitted that apart from the impermissibility to treat the appellant as a person in unauthorized possession, the proceedings under Section 120 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act could not at all have been taken in view of the saving Clause contained in Section 132 of the said Act. He submitted that since in this case the right had accrued before the commencement of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, the proceedings in respect of such right had to be instituted, continued or disposed of as if the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act had not been passed. His learned adversary submitted that there is an exception to the saving clause in form of Sub-section (3) of the said Section 132, which provides that proceedings for ejectment of tenant and restoration of possession of land are, however, deemed to be instituted and pending before the corresponding authorities under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act. Therefore, the proceeding under Section 120(c) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act was maintainable. The saving clause would undoubtedly have required a party to file a proceeding in respect of right, title and interest under the repealed enactment, namely, the Berar Regulation of Agricultural Leases Act, 1951. However, as provided in Sub-section (3) of Section 132, the respondent-landlord would have been entitled to apply for ejectment under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act. Therefore, this objection of the learned Counsel for the appellant-tenant to tenability of the proceedings under Section 120(c) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act has to be rejected. However, since the Revenue Tribunal was wrong in holding that the appellant- tenant was in unauthorized possession of the property in the light of the discussion in the preceding paragraphs, that order cannot be sustained.
33. In view of the foregoing discussion, the appeal is allowed. The impugned judgment of the learned Single Judge is quashed and set aside as also that of the Revenue Tribunal.