RAMCHANDRA DAGOJI RANGARI Vs. VISHWANATH CHAMPAT NAIK

JUDGEMENT

(1.) Following questions are placed before us as per orders of the Hon'ble the Chief Justice :

(2.) History leading to this Reference. Judgment in L.P.A. No. 150/2010 dated 1.10.2010 at the root of controversy is Kalpesh Hemantbhai Shah vs.Manhar Auto Stores, 2011 2 MhLJ 497 Amraoti. The history leading to these proceedings can be safely stated from the reference order of later Division Bench in Letters Patent appeal 268/2007 arising out of W.P. No. 1851/1995 Ramchandra s/o Dagoji Rangari, (dead) through his legal heirs, . Versus .1. Vishwanath Champat Naik & . Additional Collector, Amravati on 20 th December 2010. Said L.P.A. arose from the judgment refusing to issue the writ of certiorari in a writ petition under Article 226 and 227 of the Constitution of India and to interfere with the order passed by the Additional Collector in proceedings under the C.P. & Berar Letting of Houses and Rent Control Order, 1949. The tenability of said LPA was questioned relying upon the judgment of the Division Bench of this Court in L.P.A. No. 150/2010 where the earlier Division Bench held that dispute between landlord and tenant can be entertained only under Article 227 of the Constitution of India. Contention was as Article 226 could not have been invoked, the L.P.A. was barred. The decision of Hon'ble Supreme Court in Shalini Shyam Shetty and another .vs. Rajendra Shankar Patil, 2010 8 SCC 329 was also pressed into service by respondent landlord. Appellants tenants urged that that Division Bench erred in considering itself bound by the decision in Shalini Shyam Shetty (supra), which is rendered by a bench of two Judges, without considering that a larger Bench of the Hon'ble Supreme Court comprising of three Judges in M.M.T.C.Limited .vs. Commissioner of Commercial Tax and ors., 2009 1 SCC 8 has held that a writ petition under Article 226 of the Constitution is maintainable in similar circumstances and, therefore, the L.P.A. was/is tenable. It was argued that when the High Court comes across any conflict between the views expressed by the larger and smaller Benches of the Supreme Court, it cannot disregard the views expressed by the larger Benches and is bound to follow the view expressed by the larger Bench. Support was taken from State of U.P. .vs. Ram Chandra Trivedi, 1976 AIR(SC) 2547. Later Division Bench of this Court noted that in Shalini Shyam Shetty's case (supra) Hon'ble two Judges Bench of the Supreme Court, after tracing the history of the conferment of the writ jurisdiction on the High Courts and having regard to the parameters of interference laid down in earlier decisions, came to the conclusion that in a pure dispute between a landlord and tenant which is a dispute between private parties, the High Court ought not to have entertained the writ petition under Article 226 of the Constitution of India but ought to have dismissed it. Position of law laid down by the Larger Bench of Hon'ble Supreme Court in M.M.T.C. Limited (supra) where it has been held that the High Court was in error in holding that the L.P.A. was not tenable since a writ petition was under Article 227 of the Constitution, is also noted. Division Bench in order of reference, expresses that while the judgment in M.M.T.C. Limited (supra) arises out of a prayer to quash an order passed by the Assistant Commissioner, Commercial Tax and is not strictly a dispute between the private parties, the Supreme Court never the less affirmed that the nature of relief sought for and the controversy involved determines the Article of the Constitution which is applicable, as distinct from the nature of the parties to the writ petition. It pointed out that in M.M.T.C.Limited, larger bench of Supreme Court affirmed the law laid down in Surya Dev Rai .vs. Ram Chander Rai and others, 2003 6 SCC 675 and that arose out of a private dispute between the parties in a civil suit under Order 39 Rules 1 & 2 CPC , and held that writ of certiorari can be issued under Article 226 of the Constitution against the order of the Tribunal or an order passed by the subordinate Courts. It found that such disputes, are normally in the nature of private disputes between the parties. Decisions of the Supreme Court on the issue noted in M.M.T.C. Limited are also pointed out. It appeared to later Division Bench that decisions of inferior Tribunal or subordinates courts in purely private parties have long been considered as amenable to writ jurisdiction of this Court under Article 226 read with Article 227 of the Constitution of India and that the judgment in Shalini Shyam Shetty's case took a different view. Since both conflicting views of Hon'ble Apex Court were submitted to the earlier Division Bench, later Division Bench then considered the the law laid down by the Supreme Court in State of U.P. .vs. Ram Chandra Trivedi, 1976 AIR(SC) 2547, and thought it appropriate to make a reference to the larger Bench which has come before us.

(3.) Arguments.