SUSHILABAI LAXMINARAYAN MUDLIYAR Vs. NIHALCHAND WAGHJIBHAI SHAHA

JUDGEMENT

(1.) MOHTA and Ghodeswar, JJ. have made this reference to the Full Bench for the correct interpretation of the law laid down by the Supreme Court in the case of Umaji Keshao Meshram and others v. Smt. Radhikabai and another, AIR 1986 SC 1272 : (1986) 1 SCC 731. The Supreme Court in the said reported decision had elaborately dealt with the point whether Letters Patent Appeals would be maintainable against judgments of learned Single Judges in Petitions under Article 227 read with Article 226 of the Constitution. According to the learned referring Judges, upon question of true interpretation of the decision in umaji's case (supra), there was apparent conflict between the opinion expressed by a Division Benches of this Court in the case of Surekhabai amrut Asare v. Motilal Prabhudayal Sharma, 1987 Mh LJ 610 : 1987 mah LR 1062 and the opinion expressed by other Division Benchs in the cases of (1) Pushpabai Anandji Gala v. Sukumar Jinnappa Bhore, 1988 Mh LJ 765 : 1988 Mah LR 1702 and (2) Jaitunbi v. Smt. Malimabi L. P. As. Nos. 14 of 1988 and 111 of 1988 decided on 21st December 1988.

(2.) IN view of the Special Bench decision of this Court in the case of state of Maharashtra v. Kusum wd/o Charudutta and ors. 1981 Mh LJ 93 and the Supreme Court decision in the case of Umaji Keshao Meshram and ors. v. Radhikabai Anandrao Banapurkar and anr. , (supra), it is now settled law that while an appeal under Clause 15 of Letters Patent would be maintainable against judgment of a Single Judge passed on an application under Article 226 of the Constitution, no such intra Court appeal lies against a judgment of a Single Judge made in exercise of powers of superintendence under Article 227 of the Constitution. The jurisdiction under Article 227 of the Constitution has been described as revisional or supervisory.

(3.) THE Rule 18, Chapter XVII of the Appellate Side Rules of this court provides inter alia that applications under Article 226 or under Article 227 of the Constitution (or applications styled as application under article 227 of the Constitution read with Article 226 of the Constitution)arising out of orders or decreees mentioned in Clauses (1) to (14) of the rule 18 shall be heard and finally disposed of by a Single Judge appointed by the Chief Justice, Madon, J. (as he then was) had delivered the judgment of the Special Bench in the case of State of Maharashtra v. Kusum, wd/o Charudutta and ors. (supra ). The same learned Judge who in the mean time had been elevated to the Supreme Court had pronounced judgment of the Supreme Court in the case of Umaij Keshao Meshram and ors. v. Radhikabai Anandrao Banapurkar and anr. (supra ). In spite of elaborate judgments delivered in these two reported cases, with respect, in applying the ratio to facts of particular cases, scope for difference in judicial views has presisted. In a certain measure, this is due to the fact that the Rule 18 of Chapter XVII recognises right to filea combined application under two articles of the Constitution and while an order passed by a learned single Judge under Article 226 is appealable under Clause 15, appeal under clause 15 against order passed under Article 227 by a learned Single judge does not lie. In each individual appeal against the judgment passed upon a writ application by a learned Single Judge in the light of the law laid down in these two reported cases, the Division Bench is required to determine with reference to the facts of each case under which particular jurisdiction the learned Single Judge had entertained and disposed of the application. On pages 188 and 189 of his judgment in Special Bench case of State of Maharashtra v. Kusum wd/o Charudutta (supra), Madon, J. had set out his conclusions on this point. In Umaji's case (supra) the same learned Judge at pages 837-38 of Supreme Court Reports had summed up the legal position as follows :